Gassama v Sama & Anor (CIV APP 23 of 2008; CIV APP 28 of 2008) [2013] SLCA 5 (5 February 2013)

CIV APPEALS 23 4 28/2008I . • . IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: MOHAMED GA5SAMA - APPELLANT AND . HANNAH 5AMA - RESPONDENTS FOUAD SHERIFF COUNSEL: V V THOMAS ESQ for Appellant ' R J0HN50N ESQ for 1st and 2nd Respondents

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE S A ADEMOSU, JUSTICE OF APPEAL, (now deceased) . JUDGMENT DELIVERED THE ^D A V OF JUNE,2013.

Introduction

1 . These are Appeals brought by the Appellant by way of NoTice of Appeal dated 6 May,2008, and by the 1st and 2nd Respondents by way Notice of Appeal dated 20 but filed on 22 May,2008, and Notice of Intention to contend that the decision of the Court below be varied, dated 3 but filed on 6 June,2008. The Appellant's Appeal is against that part of the Judgment of KAMANDA.JA, dated 10 March,2008, dismissing the Appellant's claim and awarding Costs against him, whilst failing to award Costs against the 1st and 2nd Respondents when dismissing their Counterclaim. At the hearing of the appeal, Mr Johnson, Counsel for the 1st and 2nd Respondents was requested by the Court to elect between arguing the appeal filed on 22 May,2008, or, arguing the Application to vary the Judgment of the Court below. He elected to pursue the Application for a variation of the Judgment of the Court below. The Court was satisfied that he had complied with Sub-Rule 18(1) of the Court of Appeal Rules,1985 and granted him Leave to withdraw the Notice of Appeal filed on 22 May,2008.

Grounds of Appeal

2. The Appellant's Grounds of Appeal are as follows: 1 . The Learned Trprf Judge erred in Law and came to the wrong conclusion when he stated: "Ido not think it relevant in this case to evaluate the strength of the separate titles of the Plaintiff and the Defendants. Suffice it to say that both parties derive title from similar roots, a Statutory Declaration. I cannot therefore cast doubt on one title and accept the other1 ' in that: (a) There was clear evidence before the Court which proved conclusively that there was no connection between the 2nd Defendant's Conveyance (Exhibit Dl) and the 3rd Defendant's Statutory Declaration upon which the said Conveyance was based. The 2nd Defendant failed to establish any documentary title to the property which he claims. (b) It was the Court's duty to determine whether the 2nd Defendant had any lawful right or title to his alleged property which enclosed a portion of the Plaintiff's land. (c) The Plaintiff established a better right to possession.

2. The Learned Trial Judge having correctly identified as one of the main issues calling for adjudication the question, to wit: "Is there an encroachment on Plaintiff’s land by the Defendants?", misdirected himself and came to the wrong conclusion when he held that the Plaintiff has failed to prove his claims sought in the action, in that; a) There was clear evidence before the Court including evidence from the 2nd Defendant's Surveyor to the effect that a portion of at least 10 feet of the Plaintiff's land shown on LS2383/86 attached to exhibit B1 had been enclosed in the 2nd Defendant's alleged plot of land shown on LS1985/90 attached to exhibit Dl and taken over by the 2nd Defendant. b) The 2nd Defendant's claim to the land shown on LS1985/90 attached to exhibit Dl was shown by uncontroverted evidence to be baseless. c) The Learned Tr#H Judge found that the 2nd Defendant failed to establish any possessory title to the land claimed by him and shown on L51985/90 attached to exhibit Dl. t o

d) The Learned Trial Judge totally ignored the significance of the evidence that the Plaintiff had cause to demolish the 2nd Defendant's 1st boundary fence which had been constructed inside the Plaintiff's land.

3. The Learned Trial Judge misdirected himself, by failing to evaluate the evidence led in support of the Plaintiff's case in relation to the evidence in support of the 2nd Defendant's claim to the property which 1st Defendant testified that 2 i Defendant bought from the 3rd Defendant, and came to the wrong conclusion when he stated: “ What I have failed to see is evidence from either of them that there is an encroachment by the Defendants on the plaintiff's land. "Appellant will rely inter alia, on the reports of both surveyors to identify such evidence which the Learned Trial Judge failed to see, including 2nd Defendant’s surveyor's report to the effect of differences in ” the measurements as found and as shown in the respective plans."

4. That the Learned Trfrt Judge erred in Law and came to the wrong conclusion as to costs in that he failed to exercise his discretion judicially and ensure that the costs of the Counterclaim action follow the event on the dismissal of the Counter cloim, having applied that self-same rule on the dismissal of the Plaintiffs action.

5. The Learned Trial misdirected himself in that he totally ignored the fact that the 3rd Defendant who sold the 2nd Defendant's alleged land to him took no part in the proceedings although he knew of the action and the reliefs sought were also claimed against him.

6. That the Judgment is against the weight of the evidence.

3. The Appellant therefore asks that the Judgment of the lower Court be set aside, and that one be substituted in favour of the Appellant. RESPONDENTS' CROSS-APPEAL

4. The 1st and 2nd Respondents were asking this Court to set aside the decision of KAMANDA.JA dismissing the 2nd Respondent's Counterclaim, and that a Judgment in favour of the 2nd Respondent be substituted in its place. Their complaint in the Notice of Appeal, which as we have stated above was withdrawn, were against those parts of the Judgment in which; a) The Learned Trial Judge held that the Plaintiff was within his rights to institute the action

2 fo b) The Learned Trial Judge found and held that the period spent on the land by the 1st Defendant was not authorized by the 2nd Defendant to qua''fy for adverse possession c) The Learned Trial Judge held that the period of time in which the 2nd Defendant had been in possession of the land was from 4th April 2005 to the present d) The Learned Trial Judge overruled Counsel for the 1st and 2nd Defendants' submissions on the provisions of the Limitation Act 1961 in relation to the evidence. e) The Learned Trial Judge dismissed the Counterclaim of the 1st and 2nd Defendants in the light of the evidence led and submissions made in support of the same. RESPONDENTS' GROUNDS OF APPLICATION FOR VARIATION OF

Judgment

5. Their Grounds of Appeal and Grounds for the Application that the Decision of the Court below be varied, are as set out in both Notices are as follows: 1) That the Learned Trial Judge erred in Law in failing at the very least to pronounce a statutory title in favour of the 2nd Defendant based on the relevant provisions of the Limitation Act,1961 even though there was abundant evidence showing that the 2nd Defendant had been in possession of the land through the 1st Defendant for a period of over 14 years before the action was brought by the Plaintiff 2) That the Learned Trial Judge erred in Law when he held that the Plaintiff was within his rights to institute the action despite the fact that the action was brought by the Plaintiff well over 14 years since he became aware that the land was occupied by the 1st Defendant contrary to the relevant provisions of the Limitation Act,1961. 3) That the Learned Trial Judge erred in Law when he held that the period of occupation of the land by the 1st Defendant was not authorized by the 2nd Defendant even though there was evidence indicating the contrary. 4) That the Judgment of the Learned Trial Judge as regards the 2nd Defendants' Defence and Counterclaim is against the weight of the evidence led in support of the same.

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6. In the premises, they pray that this Court sets aside the Judgment of KAMANDA,JA dismissing their Counterclaim and that Judgment be entered for the 1st and 2nd Defendants. FACTS OF THE CASE - PLAINTIFFS CLAIM

7. By a generally indorsed writ of summons dated 25 Aprfl(2005, issued by Serry-Kamal A Co, the Plaintiff claimed against the Defendant Damages for Trespass, Recovery of Possession of land situate at UN Drive, Off Wilkinson Road, Freetown then and still occupied by the Defendants; An Injunction restraining the Defendants from entering or remaining on the land; Cancellation of Deed of Conveyance dated 12 0ctober,1990 and duly registered as No. 1456/90 at page 53 in volume 443 of the Record Books of Conveyances kept in office of the Registrar-General, Freetown; and Damages for Nuisance

8. The 1st and 2 1 Defendants entered appearance to the writ of summons, through their Solicitors, Renner-Thomas & Co on 12 May,2005 and gave Notice of the same to Plaintiff's Solicitors the same day. 3 rd Defendant did not enter appearance to the writ.

9. On 29 June,2005 the Plaintiff filed his Statement of Claim He averred as follows: He bought the property in 1986, and his title to the same, dated 15 October,1986 was duly registered as No. 1550/86 at page 90 in volume 393 of the Record Books of Conveyances kept in the office of the Registrar-General. Attached to that Deed was survey plan LS2383/86 dated 10 October,1986. By a Deed of Conveyance dated 12 0ctober,1990 and duly registered as No. 1456/90 at page 53 in volume 443 of the Record Books of Conveyances kept in the office of the Registrar-General, Freetown, the 3rd Defendant wrongfully purported to convey part of Plaintiff's property to 2nd Defendant 1st Defendant and others had begun trespassing on Plaintiff's property. The Plaintiff therefore prayed for the several reliefs, adding three to the five stated in his genera! indorsement, to wit: Recovery of possession of that part of the Plaintiff's property occupied by the 1st Defendant - not all the Defendants as in the general indorsement; interest, but without stating why it was being prayed for; and any further or other relief. FACTS OF THE CASE - CASE FOR 1st AND 2nd DEFENDANTS

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10. The 1st and 2nd Defendants filed a Defence and Counterclaim dated 6 July,2005 By Order of the Court dated 20 September,2005 the 1st and 2nd Defendants were granted Leave by KAMANDA,JA to amend their joint Defence and Counterclaim, and to file the same within 10 days of the date of that Order. The amended Defence and Counterclaim was filed on 21 5eptember,2005. It went as follows: 2nd Defendant admitted the existence of the 1990 Deed, but denied that the property conveyed by that Deed, was wrongfully conveyed. 1st Defendant averred that her property was located away from Plaintiff's property. 1st Defendant averred in the alternative, that she had been in exclusive possession of that property for at least 14 years, and would thus rely on the provisions of the Limitation Act,1961. In the Counterclaim, 2nd Defendant averred that he brought that claim through his Attorney, the 1st Defendant, by virtue of a Power of Attorney dated 4 April,2005 and duly registered. He had become owner of the property at UN Drive by virtue of the Deed of Conveyance dated 12 October,1990, the cancellation of which, the Plaintiff sought in his claim. His property was delineated on survey plan L5 1985/90 dated 12 September,1990 and measured 0.0823 acre. It was the Plaintiff who had been trespassing on, and laying claim to his property. In particular, Plaintiff's acts of trespass had resulted in damage to his concrete wall fence, costing Lel.5million. He therefore sought a Declaration that he was the fee simple owner of the property at UN Drive; an Injunction; Damages for Trespass; Damages for Malicious Damage; Further or other relief and Costs.

11. On 30 March,H006 V V Thomas was appointed Solicitor for the Plaintiff, and filed two Notices to that effect On 16 May,2006, he filed a Reply and Defence to Counterclaim on Plaintiff's behalf. Later, on 19 May,2006, he obtained an Order from KAMANDA,JA to file this pleading out of time. . PLAINTIFF'S REPLY TO DEFENDANTS' DEFENCE 12 In his Reply, he joined issue with the Defendants on their Defence. In his defence to counterclaim, he contended that the 12 October,1990 Deed could not have conferred title to the property at UN Drive, on the 2nd Defendant. He denied that 1st Defendant had been in exclusive possession of the Plaintiff's property at UN Drive for over 14 years, and averred

that it was only in 1997 - i.e. 7 years before the institution of the action that the Defendants entered a portion of Plaintiff's property. When this occurred in 1997, Plaintiff addressed a letter to the caretaker on Defendants' property as at the time, Plaintiff was unaware of the person laying claim to the land. In 2001, the Plaintiff was compelled to pull down a fence which had been constructed by Defendants. COURT GIVES DIRECTIONS

13. On 12 June,2006 KAMANDA.JA gave Directions for the future conduct of the tria1 . Witness statements, registered instruments, and surveyors' reports were filed by the respective parties Pursuant to an Order of KAMANDA,JA dated 29 June,2007, the 1st and 2nd Defendants were again given Leave to further amend their amended Defence and Counterclaim. This amended pleading was filed on 2 July,2007. The Plaintiff also filed an amended Reply and Defence to Counterclaim dated 3 July,2007 but fiied on 5 July,2007. In his Reply, the Plaintiff averred that the 2nd Defendant had not been in exclusive possession of the land claimed by him for 14 years or for any period which would satisfy the requirements of the Limitation Act. TRIAL COMMENCES - EVIDENCE FOR PLAINTIFF

14. On 20 0ctober,2006 the trial commenced before KAMANDA.JA. The Plaintiff gave evidence on his own behalf as PW2, and called three witnesses: PW1 was the representative of the Administrator and Registrar-General's Office, Abdul Rahman Bangura, who tendered in evidence 4 Deeds of Conveyances; PW3 was the surveyor, now deceased, Shamun Hamid; and PW4, Sulaiman Mansaray, Plaintiff's Attorney. The sum total of the Plaintiffs case, as recorded is this: The Plaintiff, PW2 bought the land at UN Drive from Alhaji Amadu Wurie Jalloh in 1986. His title to the property is recorded in Deed of Conveyance dated 15 October,1986 and duly registered as No. 1550/86 at page 90 in volume 393 of the Record Books of Conveyances kept in the office of the Registrar-General, Freetown. The area and dimensions of the land are delineated in survey plan LS2383/86 dated 10 October,1986. The area is 0.6897 acre. The property is bounded on the west, north and part of the east, by un-named private property. On the south-east axis, it is bounded

by a 20ft access road On the south west axis, it is bounded by property of Dr Mohamed Kargbo. The access road, runs into another road which leads to Wilkinson Road. The survey plan was drawn by the late Mr Boston-Mammah a highly respected licensed surveyor, and signed on behalf of the Director of Surveys and Lands, by W O Hunter. For the avoidance of doubt, my description of the cardinal points are, as shown on page 10 of the Record, is based on the north being on the left of the page, south being on the right, east being towards the top, and west being towards the bottom.

15. The Plaintiff’s vendor's predecessor-in-title was Lahai (Camara, who sold the land to Alhaji Jalloh in 1983, and executed a Deed of Conveyance in Alhaji Jalloh's favour, dated 31 August,1983 and duly registered as No. 1262/83 at page 116 in volume 354 of the Record Books of Conveyances kept in the office of the Registrar-General, Freetown. At the time he bought the property, there was an access road leading from UN Drive, which went past it. The land was undeveloped when he bought it. He employed the 3rd Defendant as caretaker up unto September, 1989. Between 1986 and 1990 Plaintiff built temporary structures on the land, and had rented out the same to tenants. In 1997, he discovered that someone had trespassed on his property. His then Solicitor, Mr Alimamy Kamara wrote to one Michael Sesay, who is now deceased, and was as the evidence turned out, related to the 1st Defendant. He was at the time occupying an unfinished building on the land. In 2001, another letter was written on his behalf and addressed to one Abdulai Bah who gave evidence as DW2. He demolished a fence which had been constructed by 1st Defendant on his land This resulted in criminal proceedings being brought against him in the Magistrate's Court

16. The Plaintiff constructed a boundary wall around the north-east side of his property. After 1990, he learnt that 3rd Defendant had sold part of his land to 2nd Defendant He eventually instituted action against the Defendants in 2005. This was after the wall-breaking incident in 2001

17. It was suggested to the Plaintiff when he was being cross-examined by Mr Johnson, Counsel for the 1st and 2nd Defendants, that he had at one time agreed an exchange of landed properties with 1st Def endant, as a way of settling his claim to the land in dispute at the trial. He denied the suggestion. I have highlighted this suggestion and denial, as it bears