Frederick M. Carew v P.K Lavahun (SC CW APP 1 of 1996) [2010] SLSC 11 (21 January 2010)

Z 3ol IN THE SUPREME COURT OF SIERRA LEONE

: Sc. cw app. 1/96 Freperick MAX CAREW - APPELLANT AND Dr. p.x. avanun - RESPONDENT

Coram

HON. MRS. JUSTICE S. BASH-TAQI - JSC HON, MS. JUSTICES. KOROMA pra HON. MRS. JUSTICE V.A. WRIGHT - Jsc HON. MR. JUSTICE M.E. TOLLA THOMPSON: : Jsc HON. MR JUSTICE SEMEGA-JANNEH - Isc N.D. TEJAN COLE ESQ. FOR THE APPELLANT J.B. JENKINS-JOHNSTON ESQ, - FORTHE RESPONDENT JUDGMENT DATED 21°" DAY JANUARY 2010 WRIGHT, JSC~This is an Appeal from the Court of Appeal. In this case the Appellant issued a Writ of Summons on the 26" September 1988 against the Respondent claiming damages for trespass on his land, declaration of title and injunction. On the 22" March 1991 the High Court dismissed the case of the Appellant after which the Appellant filed an appeal against the judgment of the High Court to the Court of Appeal. The Court of Appeal gave judgment in favour of the Respondent confirming the High Court judgment on one of the eight grounds of appeal. The Appellant being dissatisfied has appealed to the Supreme Court.

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4. The grounds of appeal are:-

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(1) The Court of Appeal erred in law in that it proceeded on the hypothesis that the Appellant herein in the Lower Court endeavoured to prove that the Respondent had trespassed upon his land. The Court then wrongly applied elements of or test for Declaration of title instead of trespass to

~ land.

(2) The Court of Appeal was wrong in law in that it did not consider at all the claim for a Declaration of title by the Appellant.

(3) Instead, the Court of Appeal based its judgment solely on the question of trespass to land whereas the High Court:-

(a) Dismissed the claim for Declaration of Title on documentary

Evidence

(b) Gave judgment to the Respondent for possessory title based partly on documentary and party on possessory evidence. Notwithstanding there was no counter-claim.

(0) Did not advert its mind at all or consider any or all the essential elements pertaining to an action for trespass which was also a relief sought by the Appellant.

(4) The Court of Appeal was wrong not to have considered and pronounced whether the learned trial Judge was correct when he declared the Respondent the owner of the disputed land. Its submitted:-

(a) There was no counter-claim by the Respondent to justify such a decision,

" (b) The erroneous decision was partially based on a supplementary Deed of Conveyance which was not pleaded or for which an amendment of the statement of defence was sought for, granted, delivered and filed.

a Bes (5) _ The Court of Appeal also erred in that it ought to have considered and x decided the effect or consequences on:- (a) The admission of, reception and use thereof of the Supplementary Deed (Exhibit P or Q) when it was purported to have been executed on 13” September 1989 but only registered on 25" September 1989, ~ outside the 10 days permitted by Sub-section 2 of Section 4 of the Registration of Instruments. (Amendment) Act 1964-Act No.6 of 1964. (b) The correctness, interpretation and application of the Statutory Mandatory Provision of Section 12 of the Registration of Instruments ‘Acts, Chapter 256 of the Laws of Sierra Leone, to wit, and Instrument under the Act must have,on the margin or back, or annexed thereto a plan with description of the land in the Instrument and so signed by the person who made it. ()_ The evidence weight to, be given in respect of a recital in a Deed of Conveyance.

(6) The Court of Appeal also erred in that it did not consider and ought to have decided whether the learned trial Judge was:- (a) Right when it dismissed the case of the Appellant on documentary and possessory evidence. (b) Right to have based its judgment against the Appellant on the strength of the title of the Respondent and not other way round.

(7) The Court of Appeal ought to have reviewed the evidence and to reach its own conclusion particularly the evidence of the two surveyors. The Lower a Court misunderstood the evidence.

(3) That the Court of Appeal ought to have considered the seven other grounds of Appeal by the Appellant. In not doing so, it denied the Appellant of the benefit of a Judgment. ys 3

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(9) That the decision of the Lower Court is unreasonable and cannot be ¥ supported by the evidence.

(10) That the judgment of the Lower Court is against the weight of the evidence.

| feel it is important to set out in extenso the particulars of the Appellant's

claim as indorsed in the Writ of Summons and the defence filed by

= Respondent in answer to the Respondents claim:-

(a) The Appellant's claim in the High Court was for damages for trespass to the Respondent's land,

(b) An injunction restraining the Defendant, his Servants or Agents from trespassing on the Appellants land.

()_ Fora declaration for the Appellant's title to land in dispute.

(4) For a declaration as void an Indenture of Conveyance dated 26" November 1986 made between Francis Mischeck Minah and Dr. Patrick Kosabi Lavahun (Respondent here) and registered as No. 181 at page 58 In Volume 395 in the Book of Conveyances kept in the office of the Registrar-General, Freetown.

The defence filed on behalf of the Respondent is as followed:-

1. The Defendant cannot admit or deny paragraph 1 of the Particulars of the statement of claim and puts the Plaintiff to strict proof of the facts thereof.

2. The Defendant makes no admission with regard to paragraphs 2,7,3 of the said particulars, save that on his return to Freetown after a visit to Bonthe on or about the 24" March, 1988, he received a letter in his surgery signed by the Plaintiff dated 22 March, 1988.

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3. The Defendant says in further rebuttal of the said paragraph that at no time did he instruct any one to work on the Plaintiff's land and that at all material times, the only land he had instructed someone to work on

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The pages read for this report end here. The judgment continues in the PDF.