Holiness Pentecostal Church v Athea Oladuni Morgan (CIV APP 47 of 2014) [2021] SLCA 12 (11 January 2021)

Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

IN THE COURT OF APPEAL- SIERRA LEONE

HOLINESS PENTECOSTAL CHURCH - APPELLANT

vs.

ALTHEA OLADUNI MORGAN (NEE FRASER) - RESPONDENT (Suing By Her Attorney Samuel Williams)

Coram

Hon. Justice Desmond Babatude Edwards CJ Hon. Justice Reginald Sydney Fynn JA Hon. Justice John Bosco Allieu JA

Counsel: Macauley, Bangura & Co for the Appellant Tejan Yillah & Bangura for the Respondent

JUDGMENT DATED …….. January 2021

Fynn JA

Background

1. The orders granted by the High Court included a declaration that the plaintiff is owner and entitled to the disputed property situate at 40B Water Street Congo Town, damages for trespass, immediate possession of the disputed property and a perpetual injunction restraining the now appellants.

2. The facts of the case in brief (see the writ of Summons on pages 3 6-39 and the Defence page 174 -177) are that Madam Seraphina Dowridge, a business woman had made a Deed of Settlement, to which is attached a survey plan with several plots delineated thereon and with names assigned to each plot. One of the plots, Plot 3 ha s the grantors name against it whilst, in the deed itself, the settlor/grantor also names ten Grantees.

3. Madam Dowridge had built a church on this plot , Plot 3, which she used to run herself but later she had let it out to tenants. The appellants had been tenants on these premises before buying it from Rev S Dowridge Wi lliams. The appellant then, defendants have since developed the property significantly. Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

4. During the grantor’s lifetime, Rev. S Dowridge -Williams, her ward, had fraudulently attempted to trans fer the settled property to himself and his children. He was found out. Madam Dowridge approached the Courts for relief and Justice Omerie Golley J. had cancelled and expunged the deeds that the said Rev. S Dowridge-Williams had contrived.

5. After the demis e of Madam Dowridge, Rev S Dowridge -Williams, the ward recently mentioned, by statutory declaration asserted his title to plot 3 and proceeded to convey a portion of it to his son (who was 1st defendant below) and another portion he conveyed to Holiness Pe ntecostal Church who were 3 rd Defendants below and are now the Appellants.

6. The 3 rd Defendant (now appellant) has since pulled down the church which was built by Madam Dowridge and ha s built a new structure in which they conduct services and worship. The Appeal

7. The Appellant being dissatisfied with the Judgment filed an appeal dated 15 th October 2014 on five grounds. The appellant argues that the Learned Trial Judge (LTJ) was wrong to have held that the P ower of Attorney relied on to bring the case did not cover the disputed property. The Appellant argues that the Power of Attorney could only have been made with respect to Plots 1, 2, and 5 of the Deed of Settlement and cannot be used in respect of Plot 3 which is the disputed property in the case.

8. In ground 2 (two) the appellant argues that plot 3 being clearly marked in the Deed of Settlement as property of Madam Dowridge , whilst the other plots belonging to the respondents plots 2 and 5 were also clearly marked, the LTJ was wrong to have declared plot 3 as being the property of the respondent.

9. In ground 3 the appellant contends that the LTJ was wrong to have ordered the appellant and all persons in occupation of the premises and Church situate at 40B Water Street to give up immediate possession of those prem ises to the plaintiff now respondent.

10. Ground 4 asserts that the LTJ had wrongly construed the Deed of Settlement and even if her construction were correct she could not properly conclude that the property at Plot 3 belonged to the respondents alone to the exclusion of the other person’s named as parties.

11. Ground 5 is a “catch all" ground which contends that the judgment is against “all established principles of law” the LTJ having “ failed to take into consideration the issues and questions of law …and subm issions and legal authorities raised and relied on by the parties” Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

The Submissions and deliberations Grounds 1,2 & 4

12. In my opinion all the grounds raised in this appeal are closely interconnected and the whole would be greatly impacted by the outcome of grounds 1, 2 and ground

4. It will be appropriate therefore to first decide whether the LTJ had properly construed the Deed of Settlement. This is the object of ground s 2 and

4. Was the LTJ wrong when she found that “the Grantor therein conveyed the said p iece or parcel of land to the three grantees namely the Rev. Abayomi Cole, Mrs Elizabeth Lucinda Dowridge Dinzy Innis and Miss Oladuni Frazer-Leigh”?

13. The appellant submits that the LTJ had misconstrued the deed. The appellant argues that plot 3 had been g iven to Seraphin a Dowridge ie the Grantor herself and that the other grantees had nothing to do with it whatsoever. If the plaintiff (now respondent) truly has no interest in Plot 3 as the appellant submits then her very standing in the case would be shake n and in all likelihood she may be left bereft of locus standi to have brought this matter at all.

14. There is no denying that th e deed subject of this appeal is not the best crafted instrument that has been brought to our attention. Two disquieting issues in the deed, which are crucially significant, are that the draughtsman was economical with the recitals and so we do not have a full narrative of the history and purposes which the Deed sets out to achieve. Also the term “grantee” is used in respect of two sets of names leading to some confusion as to whether all those so named are of the same category. There are other issues of concern within the deed but these two are seminal in any resulting vagueness.

15. The short comings of this deed however should not be allowed to defeat the intentions of the grantor, if that intention can safely be ascertained. In The Construction of Deeds and Statues , Charles E Odgers, puts it this way quoting form Gwyn v Neath Canal Co (1865) LR 3Ex 209, “The result of all the auth orities is that when a court of law can clearly collect from the language within the four walls of the deed or instrument in writing the real intention of the parties, they are bound to give effect to it by supplying anything necessarily to be inferred fro m the terms used and by rejecting as superfluous whatever is repugnant to the intention discerned”. The intention of this deed is clear as will now be shown: Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

16. The parties to the Deed are described as “the grantor of the one part” and “the grantees of the other part” then the deed proceeds to later state “whereas the Grantor doth hereby name the ten grantees with their addresses as follows”. The second use of the term “grantee” does raise the following question; are the ten “grantees” named also parties to the Deed considering that when naming the parties only three names are listed and referred to as “the grantees”?

17. In my opinion the answer to that question must necessarily be in the negative. As a wholesome construction of the Deed , taking into considerat ion the usual purpose of a deed such as this one , whilst at the same time applying a construction that does not lead to a complete absurdity; will produce a construction that the ten so called “grantees” are not parties to the Deed but rather that they are “beneficiaries”. One is led to this co nclusion primarily because of three significant pointers. First, the Deed begins by proclaiming itself to be a “Deed of Settlement”. Deeds of Settlement usually establish a Trust which would have “a Grantor”, “a Grantee” and “a Beneficiary”. Of course it is possible in such a deed for one individual to be in more than one role and possibly even in all the roles. As would be the case when a person settles property on himself for his own benefit.

18. Another pointer resides in the fact that one of the persons named as a party “grantee” the Rev . Abayomi Cole is not seen to have any other interests whatsoever in the various plots . He is named as a Grantee and nothing else. This suggests strongly that the second class of “Grant ees” (who I hold are beneficiaries) have a separate and distinct role from that of the first who are also parties. As a named party and grantee , the deed is made in his favour but he is not named among the “ten grantees”. It would appear that the Rev Abayomi Cole as a party only holds the legal interest but not the beneficial interest ; he must certainly be a Trustee and I so hold.

19. The Appellant mentions in his filed submissions the presence of the name of Rev. Abayomi Cole in the Deed and the possible interest which Rev Abayomi Cole may have had. Even though the appellant does not concede that grantees became the owners of plot 3 clearly the appellant recognizes that the name could not have been put in the deed together with the other grantees “of the other part” for no reason at all, t he appellant however entertains the possibility that the grantees ; ie the parties may have become joint owners by virtue of this deed.

20. A third pointer as to the true nature of the deed is the inclusion of the covenant which if not included is usually implied in Deeds of settlements (see The Construction of Deeds and Statues, Charles E Odgers 4 th Ed at pg 125). In the present deed, the covenant is clearly included that “at the request and costs of Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

the grantee….. for further and b etter assuring all or any of the premises unto and to the use of the Grantees in the manner aforesaid as by them shall be reasonably required”. If this were not a trust I doubt there would be the need for any such further assurance of this kind or the need for the future perfection of a Deed which ought otherwise would have been complete needing no further action.

21. In my considered opinion the whole of the property settled in the deed which is subject of this appeal was conveyed by that deed to the “Grantee s” who were named as being of “the other part” for them to hold the same for and unto the use of the beneficiaries who were wrongly described in the deed as the “ten grantees”. It is my opinion and I hold that in this deed it is only plot 3 that is being conveyed. Whilst the attached survey plan is intended to and does provide a clear guide on what specific portion other parties may be entitled to it is only plot 3 that is described in detail in the schedule to the deed. This underscores the point that this deed is solely in respect of Plot 3 which is the property of the Trustees in trust for the named beneficiaries.

22. I have already mentioned that “a settlor” otherwise called “the grantor” (as is the case in this deed, can at the same time designate himself as one of “the grantees” and may yet still be a beneficiary; all in the same deed. In such a situation the “Settlor” or grantor does not divest himself of the legal title to the property. What he does in such a situation is to change the nature in which he now holds the property. The Grantor may thereby become a trust ee holding the legal estate for himself and others or as the Deed may out line. In the present deed the “grantor” completely divested herself of the legal title. Her name only appears as “Grantor”. She is not a “Grantee of the other part ” nor is she named in the list of “ten grantees” that I hold are beneficiaries.

23. Title, it must be noted , usually moves from “grantor” to “grantee” and if it is intended for the grant or to retain the legal title then it is allowable for the “Grantor’s” name to be mentioned in “the other part ”. In the present case “the grantor’s” name does not appear as being in “the other part” . One can conclude therefore that t he grantor did not pass the title to the property to herself and there is nothing to suggest that she intended to do so.

24. Similarly the Grantor’s name does not appear amongst the ten beneficiaries listed. This , of course , is not an uncommon occurrence where the grantor is completely divesting herself of the t itle; legal as well as equitable . I have already mentioned that the grantor can create a Trust in h er own favour, transferring the property to another but for that other to hold the property for the benefit of the grantor herself, but this is not what happens in this instance. The legal estate for Plot 3 which is marked out but bears the Grantor’s name was conveyed to and Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

vested in the three grantees/trustees named. It is my opinion and I hold that until the legal estate was conveyed to the listed beneficiaries’, title to property in Plot 3 was conveyed by this deed to and remains vested in Rev. Abayomi Cole, Mrs Elizabeth Lucinda Dowridge Dinzy Innis and Miss Oladuni Frazer-Leigh.

25. A careful reading of the deed reveals that not all of the ten persons named “as grantees” who I hold to be truly ‘beneficiaries’ have their names appearing on the survey plan as being interested or being owners of any plot. The following; No. 1 Miss Ibidunni Frazer Leigh, No.3 Mrs. Omoboni Kamara-Cole, No. 5 Mr. Ronald Frazer Williams, No.6 Miss Linda Dowridge- Williams, No.7 Mr. Victor Dowridge- Williams and No. 8 Master Charles Dinzy Innis do not have their names on the survey plan whilst they are clearly named in deed. I hold that their mention in the deed is as beneficiar ies. As I also hold that the deed relates only to Plot 3 , it necessarily follows that they and the others were named in the deed as the beneficial owners of plot 3.

26. It is not lost on me that on the survey plan attached to the Deed , the Grantor’s name appears against plot

3. The appellant has raised this matter specifically as an indication that the Grantor retained this plot for herself. This position is not tenable in the face of the foregoing deliberations. It may have been for convenience that Plot 3 on the plan retained the name of the Grantor and does not have the names of all ten benefic iaries, or the names of the trustees (which would have been the more appropriate path) . Notwithstanding this further opacity, it is well known that it is the literature, the words in the deed that control and give efficacy to the instrument over and above the survey plan . Retaining the name of the Grantor against plot 3 does not detract in any way from the overall purpose of the deed which is still discernable on a careful reading.

27. I am unable to come to any other practicable construction of this deed dated 13 th July 1979 (page 270 of the Records) and I hold the above to be the correct and intended construction. The Grantor, Seraphina Dowridge , intended to and had in fact settled land at 40B Congo Town on three grantees to hold same on trust for ten (10) beneficiaries. The settled parcel of land is the same as the plot bearing the grantor ’s name on the survey plan attached to the deed; plot 3, the same which is the subject matter of this action. Civ. App 47/2014

Hol. Pentecostal Church v. Althea O. Morgan Coram: DB Edwards CJ, Fynn & Allieu JJAs

28. Having construed the deed of settlement , one can now give attention to the concern brought up in ground one. This is whether the respondent can properly grant a power of attorney in respect of plot 3 and whether the power of attorn ey granted did in fact extend to and include powers relating to plot 3.

29. Had my recent construction of the deed excluded the respondent from plot 3, this ground would have had instant success . However, since I have found that the respondent and the other t rustees hold the whole of the legal estate to the property in the deed , the issue in ground one remains a viable enquiry but one that is now in my opinion easily resolvable.

30. Having held that plot 3 was conveyed to Rev. Abayomi Cole, Mrs Elizabeth Lucinda Dowridge Dinzy Innis and Miss Oladuni Frazer -Leigh jointly (as there is no mention of a contrary co -ownership) it would follow that each of them becomes liable for the protection of the property whether jointly or severally.

31. It is trite that each of joint o wners is equally entitled to the possession of the whole of the property. The evidence discloses that the respondent Althea Oladuni Morgan is one and the same person as Mi ss Oladuni Frazer Leigh who is named amongst the three grantees of the other part - the trustees. She thereby becomes entitled by virtue o f the Deed of S ettlement and her trusteeship to take steps which will protect the trust property. I hold therefore that she was in a position to give a power attorney to someone else, in this case Mr. Samuel Williams to act for and on her behalf with respect to the Trust property.