Florence Campbell v Mohamed Tunde Macarthy (CIV APP 78 of 2019) [2022] SLCA 1 (12 July 2022)

Civ. App 78/2019 : IN THE COURT OF APPEAL OF SIERRA LEONE Between: FLORENCE CAMPBELL

(Suing by her Attorney BABARA BANGURA) —- Appellant And =: MOHAMED TUNDE MACARTHY - Respondent

Coram

“ION. MR. JUSTICE ALLAN B. HALLOWAY JSC HON. MRS. JUSTICE JAMESINAE.L. KING JA HON. MRS, JUSTICE F. BINTU ALHADI JA COUNSEL R. JOHNSON ESQ. for the Appellant C. HOTTOBAH-DURING ESQ. for the Respondent

Judgement

DELIVERED this 12th day of Jui y 2022 FLORENCE CAMPBELL, the Appellant herein being aggrieved by and dissatisfied with the Decision/Judgement of the High Court delivered by the HON. MRS JUSTICE MUSU D. KAMARA JA, the Learned Trial Judge, dated the 27" May 2019, hereby on the 15® August 2019, appeal the said Decision/Judgement on the following grounds:

1. That the Learned Trial Judge misdirected herself and erred in law when she held that the title of the Administratrix to sell is an administrative Tequirement which, even if absent does not nullify the title to the property, the Learned Trial Judge who failed to properly construe Section 21(1) of the ADMINISTRATION OF ESTATES ACT, CHAPTER 45 OF THE LAWS OF SIERRA LEONE 1960, thereby resutting in the erroneous decision to dismiss the Appellant's case.

2. That the Learned Trial Judge failed to properly determine the issues and evidence in the matter as presented to her, but instead took into consideration irrelevant and inapplicable matters, legal principles and laws which resulted in her erroneous decision to dismiss the Appellant’s case.

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3, That the Learned Trial Judge was wrong when she held that the Respondent was a Bona Fide Purchaser of a Legal Estate for Value without Notice, in respect of the property at 22 Waterloo Street, Freetown.

4. That the Learned Trial Judge was wrong in holding that ANNIE MAVIS CAMPBELL had a valid title to the property at 22 Waterloo Street, Freetown which she passed on to the Respondent.

5. That the Decision/Judgement of the High Court aforesaid, dated 276 May 2019 is against the weight of evidence.

Wherefore FLORENCE CAMPBELL, the Appellant herein pray as follows:

1. That the Decision/Judgement of the High Court delivered by the HON. MRS

JUSTICE MUSU D. KAMARA JA dated 27 May 2019, be set aside and that a

Decision/Judgement be entered in favour of the Appellant,

2. That this Court do make any further or consequential order(s) that it may deem

necessary.

3. That the costs of and occasioned by the appeal herein and in the Court below be borne by the Respondent.

The HON. MRS JUSTICE MUSU D, KAMARA JA, the Learned Trial Judge, on the 27% May

2019, ADJUDGED and ORDERED that MOHAMED TUNDE MACARTHY, the Respondent

herein is entitled to possession of the property at 22 Waterloo Street, Freetown as the Bona

Fide Purchaser of the Legal Estate for Value without Notice, which said order was granted

Pursuant to an application filed for and on behalf of FLORENCE CAMPBELL, the Appellant by

Originating Summons dated 21% May 2012, praying for the determination of the following

questions:

1. Whether the Vesting Deed dated 9 May 2006, made by ANNIE MAVIS CAMPBELL in her capacity as Administratrix of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate and registered at Page 18 in Volume 603 of the Record Books of Conveyances kept in the Office of the Registrar General in Freetown, vesting all that property forming part of the said Estate situate at 22 Waterloo Stre; Lie own, in the said ANNIE MAVIS CAMPBELL is valid. Re EL OS

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2. Whether the said ANNIE MAVIS CAMPBELL in her Capacity as Administratrix of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate, was entitled to vest all that property forming part of the said Estate situated at 22 Waterloo Street, Freetown in herself to the exclusion of the other beneficiaries of the said Estate or a sale of their respective shares in the said property to the Respondent, without their consent.

3. Whether the sale of the said Property of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate situated at 22 Waterloo Street, Freetown by the said ANNIE MAVIS CAMPBELL to the Respondent is valid without the consent of all the beneficiaries of the said estate or the order of a Court or Judge.

The Appellant, by way of the Originating summons aforesaid sought the following reliefs:

1, That if the Vesting Deed dated gt May 2006 aforesaid, is invalid and that if the said ANNIE MAVIS CAMPBELL was not entitled to vest all that property situated at 22 Waterloo Street in herself to the exclusion of the other beneficiaries of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate or a sale of their respective shares in the said property to the Respondent without their consent, the Appeltant sought an order that the vesting of the said property by the said ANNIE MAVIS CAMPBELL be declared invalid and be set aside and that the sald Vesting Deed be expunged from the Record Books of Conveyances,

2. That if the sale of the property forming part of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate at 22 Waterloo Street Freetown, without the consent of all the beneficiaries of the said Estate or without an order of the Court or a Judge is invalid, the Appellant sought an order that the sale aforesaid be declared invalid and be set aside and an order that the Deed of Conveyance dated 6% July 2010 and made between the said ANNIE MAVIS CAMPBELL and the Respondent and registered at page 42 in Volume 663 of the Record Books of Conveyances kept in the Office of the Registrar General in Freetown in respect of the property of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate situated at 22 Waterloo Street, Freetown be expunged from the said Record Books of Conveyances.

3. The Appellant sought an order that the property aforesaid be immediately recovered from the Respondent by the Estate of CLAUDE VICTOR MELVINS\ \MPBELL (Deceased) intestate, Ks OF APB

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4. The Appellant Sought an order for any further or other telief(s) that the Honourable Judge may deem fit,

5. The Appellant sought an order for Costs The undisputed facts are that on the 29" April 2001, CLAUDE VICTOR MELVINSON CAMPBELL died Intestate in the United Kingdom. That at the time of his death he was survived by his widow ANNIE MAVIS CAMPBELL and his daughters, FLORENCE CAMPBELL, the Appellant herein and CLAUDIA CAMPBELL. On the 31s May 2001, ANNIE MAVIS CAMPBELL the mother of FLORENCE CAMPBELL, the Appellant herein and CLAUDIA CAMPBELL took out and was granted Letters of Administration in respect of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate. On the 34 May 2012, ANNIE MAVIS CAMPBELL took out and was granted Supplemental Letters of Administration in respect of the Estate of the Deceased Intestate aforesaid, the same which is found at Pages 22 to 43 of the Records of Appeal. in the Supplemental Letters of Administration aforesaid, ANNIE MAVIS CAMPBELL declared the properly at 22 Waterloo Street, Freetown the subject matter of the appeal herein, as forming part of the Estate of the said Deceased Intestate. On the 9" May 2006, ANNIE MAVIS. CAMPBELL vested in herself, the entire property at 22 Waterloo Street, Freetown, the Vesting Deed of which is registered at Page 18 in Volume 603 of the Record Books of Conveyances kept in the office of the Registrar General in Freetown and found at pages 43 to 46 of the Records of Appeal herein. On the 6 July 2010, ANNIE MAVIS. CAMPBELL sold the Property at 22 Waterloo Street, Freetown to MOHAMED TUNDE MARCARTHY, the Respondent, the Deed of Conveyance of which is registered at Page 42 in Volume 663 of the Record Books of Conveyances kept in the office of the Registrar General in Freetown and found at pages 48 to 52 of the Records of Appeal. {t cannot be disputed, that prior to the enactment of the DEVOLUTION OF ESTATES ACT 2007, it was only the ADMINISTRATION OF ESTATES ACT CHAPTER 45 OF THE LAWS OF SIERRA LEONE 1960, which was the applicable taw governing the Estate of all Persons dying intestate. In Section 2 of the said ACT, Estate is defined as: ‘meaning all interest in land and chattels real and personal, choses in action and other Property whatsoever’, Being that it is an undisputed fact as stated above, that CLAUDE VICTOR MELVINSON CAMPBELL is a person who died Intestate, the applicable law governing all his interests in tand and chattels real and “personal, choses in action and cA on is the ADMINISTRATION OF ESTATES ACT aforesaid, Section 9(1) g one se Bs: ‘8 Sens | Ne iON {fA Be ny ‘ i Is) \ ee LE ae

‘The Estate of every person dying Intestate after the operation of this ACT shall devolve upon the Administrator and Registrar General, Provided that, upon the grant of Letters of Administration under the Provision of the ACT, the Estate shall be divested from the Administrator and Registrar General and be vested in the person or persons to whom Letters of Administration has been granted as aforesaid’.

Being that it is an undisputed fact as stated above, that ANNIE MAVIS CAMPBELL took out and was granted Letters of Administration by the High Court of Sierra Leone in its Probate Jurisdiction on the 31% May 2001, the Estate of CLAUDE VICTOR MELVINSON CAMPBELL became divested from the Administrator and Registrar General, who was the official Administrator between the 29 April 2001 when CLAUDE VICTOR MELVINSON CAMPBELL died, up to the 30% May 2001 and was vested in ANNIE MAVIS CAMPBELL to whom Letters of Administration was granted on the 31% May 2001 aforesaid. Clearly, the duties of the said ANNIE MAVIS CAMPBELL, the Administratrix of the Estate of CLAUDE VICTOR MELVINSON CAMPBELL (Deceased) Intestate included the distribution of all the said Deceased intestate’s interest in land and chattels real and personal, choses in action and other property whatsoever according to law, the property at 22 Waterloo Street, Freetown, the Subject matter of the appeal herein, being part of the Deceased Intestate Estate and his interests in land, the same being an undisputed fact as stated above. By Virtue of Section 19 of the ADMINISTRATION OF ESTATES ACT CHAPTER 45 OF THE LAWS OF SIERRA LEONE 1960, after ANNIE MAVIS CAMPBELL the Administratrix of the Deceased Intestate aforesaid, may have made certain disbursements and payments outlined in the said Section, she shall dispose of the Estate aforesaid to the persons beneficially entitled on an intestacy as provided for in the Second Schedule of Section 19 hereof as follows:

‘if a man dies intestate leaving a widow and children or issue, the widow shall be entitled to one-third of the Estate and the children or issue the remaining two-thirds between them per Stirpes’.

Being that it is an undisputed fact as stated above, that CLAUDE VICTOR MELVINSON CAMPBELL {Deceased) Intestate was on his death, survived by his widow ANNIE MAVIS CAMPBELL, the Administratrix of the Estate aforesaid and two daughters, FLORENCE CAMPBELL, the Appellant herein and CLAUDIA CAMPBELL, the said ANNIE MAVIS CAMPBELL should have vested in herself only one-third of the property at 22 Waterloo Street, Freetown and the remaining two-third to FLORENCE CAMPBELL, the Appellant herein and CLAUDIA CAMPBELL in equal shares. This means that ANNIE MAVIS CAMPBELL, FLORENCE CAMPBELL, the Appellant and CLAUDIA CAMPBELL should hg ie ed One -Third undivided share of the property at 22 Waterloo Street, Frecly hai XG Section 9 of the DEVOLUTION OF ESTATES ACT 2007 which provides how ssa6e es as Mayers Street,

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Freetown, devolving to a spouse and children should be held, all three persons aforesaid, should hold the said property as tenants in common. Clearly, this Court holds the view that the vesting of the property at Waterloo Street, Freetown by the said ANNIE MAVIS CAMPBELL in herself atone was a flagrant breach of the Second Schedule to Section 19 of the ADMINISTRATION OF ESTATES ACT aforesaid. Certainly, the Vesting Deed dated the 9h May 2006 aforesaid is INVALID, NULL and VOID and of NO EFFECT, by reason of which the property at 22 Waterloo Street, which was purportedly vested by ANNIE MAVIS CAMPBELL in herself is still part of the Estate of the Deceased Intestate herein. In this regard and being that it is an undisputed fact that ANNIE MAVIS CAMPBELL sold the property at 22 Waterloo Street, Freetown to MOHAMED TUNDE MARCARTHY, the said property being part of the Estate of the Deceased Intestate aforesaid, her actions aforesaid, was subject to Section 21(1) of the ADMINISTRATION OF ESTATES ACT aforesaid, the same which provides thus: ‘No land forming part of the Estate of an intestate shall be sold by the official Administrator or any Administrator without the consent of aif persons beneficially interested or the order of the Court or Judge thereof for that purpose first obtained’. The entire Decision/Judgement of the HON. MRS JUSTICE MUSU D. KAMARA JA, the Learned Trial Judge, is based on whether compliance with the provision aforesaid, is mandatory, its beach of which would render any action in that regard a nullity or whether compliance with the same aforesaid, is directory, which gives one an option to comply or not, depending on the Circumstances of the case. The Learned Trial Judge in her Decision/Judgement aforesaid relied on the case between LAHA! TAYLOR and THE SHERIFF & ZIZER 1968/69 ALR SL pages 35-44 Stating that in the said case, the Court of Appeal of Sierra Leone was faced with the decision as to whether the use of the word ‘shall’ in Sections 9 and 10 of the EXECUTION AGAINST REAL PROPERTY ACT, CHAPTER 22 OF THE LAWS OF SIERRA LEONE 1960 was directory or mandatory, the Court ef Appeal holding that it was only directory. The Leamed Trial Judge stated that for the Court of Appeal! to reach a conclusion that the word ‘shall’ in these sections above is directory, they tock into consideration the case between MONTREAL STREET RAILWAY CO. and NORMANDIN (1917) AC page 170 where SIR ARTHUR CAMPBELL said this: ‘the question whether provisions of a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in the 5¢ Edition of MAXWELL ON STATUTES at page 596 and the following pages. When the provisions of a statute relate to the performance: of a-public duty and the case is such that to hold null and void acts done in neglect f ft he du i Would work Serious general inconvenience or injustice to persons who have jax yer jth ntrusted el GPa leta i A Sri g Ve aaa SS

with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to. be directory only, the neglect of them, though punishable, not affecting the validity of the acts done’. The Learned Trial Judge In her Decision/Judgement aforesaid went on to state that on the authority above, TAMBIAH JA in the case between LAHAI TAYLOR and THE SHERIFF & ZIZER cited above, held that there is no reason for him to hold, that if there Is non-observance of a public duty by the Sheriff of Sierra Leone to advertise the property, he has to selll in a particular way, a Bona Fide Purchaser who bought same under such circumstances and who has no control over the actions of the Sheriff of Sierra Leone, should suffer prejudice. It is in this regard, that the Learned Trial Judge in this matter, determined whether compliance with Section 21(1) of the ADMINISTRATION OF ESTATES ACT, CHAPTER 45 OF THE LAWS OF SIERRA LEONE 1960 is Mandatory or Directory and had this to say in that regard: ‘In the same way, there is no reason for one to hold that if there is non-observance of a public duty by an Administrator appointed by the Courts and given power to administer, deal with and to account with respect to the property so vested and they themselves being beneficiaries too, fail to obtain the consent to sell from some interested beneficiaries, a bona fide purchaser who has no control over the actions of the Administrator shall suffer prejudice, | hold, that title of the Administratrix to sell is not based on consent or lack of consent. The consent to self is an administrative requirement which even if absent does not nullify the title to the property, It is whether the Deceased owner CLAUDE VICTOR MELVINSON CAMPBELL had good title that mattered as to whether she obtained an indefeasible title and passed on same. There is no issue of the Deceased owner not being the owner of the property in question or he having a bad title. The Administratrix is a personal representative and next of kin of the Deceased. When she assumed the office at his death she attained what the Deceased had before he died, the Legal Estate which she passed to herself by a Vesting Deed from the Administratrix, as legal owner/personal representative, to the Administratrix as beneficiary. She having obtained the Letters of Administration on the 31st May 2001 and the Vesting Deed on the 7% May 2006, this is equivalent to the legal Estate of the portion of the Estate referred to therein of CLAUDE VICTOR MELVINSON CAMPBELL with a valid title to pass. The Administratrix as vendor did not only obtain a valid indefeasible title but was also able fo pass on same to the Respondent herein. in sum, it is whether the Deceased Intestate had good title, which he did have, that is the basis for the Administratrix having title. The Letters of Administration on the other hand is evidence that title had been so conferred, on her.and.the authority given by the Court for the Administratrix to administer, deal with ani Coil Ree Raproperty that has been so vested into her hands. On the backdrop of Ags re ea ition, with 16! xB | yy valine oy } + ESS