Horse Fishing v the Attorney-General & Minister of Justice (CIV APP 71 of 2017) [2018] SLCA 1274 (20 April 2018)

a . 7 S . vets | pe Za IN THE COURT OF APPEAL OF SIERRA LEONE CIVIL DIVISION CIV. APP. 71/17 HORSE FISHING CO, LTD APPELLANT AND THE ATTORNEY-GENERAL & MINISTER OF JUSTICE © RESPONDENT

REPRESENTATION; OSMANIKANUESQ. COUNSEL FOR THE PLAINTIFF/RESPONDENT C.F, MARGAI ESQ.& M.P, FOFANAH ESQ. COUNSEL FOR THE DEFENDANT/APPELLANT

Coram

HON. MR. JUSTICE REGINALD S. FYNN J& (PRESIDING) HON. MR. JUSTICE SENGU M KOROMA J& HON, MR. JUSTICE ELDRED TAYLOR-KAMARA JA

JUDGMENT DELIVERED ON THE 20 APRIL, 2018 BY THE HON. MR JUSTICE SENGU M KOROMA JA

1. The Respondent in this appeal, the Attorney-General and Minister of Justice is the principal Legal Adviser to the Government of Sierra Leone, j the Lessor of all that state land and premises situate, lying and being at | Jui Hastings, Greater Freetown in Western Area of the Republic of ' Sierra Leone. The said land was by indenture of a lease and supplemental lease dated the 20 October, 2003 registered as No. 150/2003 at page 11 volume 96 and 9' December, 2014 registered as No. 241/2014 at page 106 in volume 112 respectively of the Book of Leases kept in the office of the Registrar-General, Freetown (hereinafter referred to as the’ Lease’) to the Appellant herein, Horse Fishing Company for a term of 50 (fifty) years upon the terms and conditions stated therein. By a Writ of Summons dated the 17" day of June, 2016, the Respondent instituted proceedings against the Appellant seeking the following relief: i. An Order for immediate possession of the premises situate lying and being at Jui Hastings, Greater Freetown in the Western Area aforesaid as the lease previously held by the Respondent has been forfeited but continues to hold and occupy the said premises. ii. An Order for the cancellation of any other interest in the aforesaid premises iii. Damages for breach of contract iv. Any other or further Orders that this Court may deem fit v. Cost

2. The Respondent in its defence did not admit that the Plaintiff was entitled to possession of the said land and premises and averred that the RULING SMK/CK | 2

Government through the Ministry of Lands, Country Planning and the Environment were only entitled to the reversionary interest as Lessors.

3. The Appellant admitted that the Appellant correctly described the premises in its particulars of claim and averred that in breach of the Principal and Supplemental Leases described above, the Respondent proceeded to lease the said premises to a third party notwithstanding the subsistence of lease Agreement between the Appellant and the Ministry of Lands, Country Planning and the Environment representing the Government of Sierra Leone.

4 The Appellant denied having breached clause 2 (x) of the Principal

Lease or failed to comply with the covenant to repair, cleanse, uphold, maintain or keep in good and tenantable repair, the buildings and structures on the demised premises.

5. Inview of the aforesaid, the Appellant counterclaimed as follows: i. Damages for breach of contract ii. Damages for wrongful interferance with quiet enjoyment of demises premises.

iii. A declaration that the Principal and Supplemental lease Agreements dated 21t October 2013 and 9 September, 2014 respectively be held to be valid and subsisting until its expiration.

iv. Cost.

6. In reply to the Defence, the Respondent contended that _ by virtue of

Clause 4 (1) of the Lease Agreement, it had the right to re-enter and reposesss

the demised premises in the event of a breach of any of the covenants

contained in the said lease, which was the case in this instance as the

Defendant had breached both clauses 2 (iii) and 2 (x).

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7. It also contended that the Appellant sublet the premises without obtaining the required consent; the fact that the lease was terminated four months after it was signed was irrelevant.

8. The Respondent contended that the Appellant failed to develop the

premises.

9. In the reply to counterclaim, the Respondent denied breaching any

covenant and contended that the Appellant breached fundamental covenants

in the lease Agreement.

10. It averred that the Lease Agreement was void ab initio as it did not

comply with Section 4 (1) of the citizens (Interest in Land) Act, 1966.

11.The Appellant filed and issued a Judge’s Summons dated 10% July, 2017 praying the High Court to grant the Orders prayed for in the counterclaim.

The Respondent filed an Affidavit in Opposit6ion to the said application sworn

to by Precious V. K Fewry on the 28 day of July, 2017. This was followed by a Supplemental affidavit sworn toon the 7 September, 2017. Exhibited to the said Supplemental affidavit was a letter of offer leasing a portion of the premises to a 3" party, SABCO FISHING COMPANY.

12. The Judge’s summons was moved on the 20' July, 2017 and responded to on the 1% August, 2017.

13. In her Judgment dated 12" September, 2017, the Learned Trial Judge, Hon. Justice A Wright J. made the following findings:

i) The Plaintiff/Respondent’s conduct in its entirety in all the transactions with the parties, i the Plaintiff/Respondents and SABCO Fishing Company was unprofessional, haphazard, disjointed and conducted with

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reckless disregard for the nature of the Defendant/Applicant’s business and operations. The remedies employed to the perceived breaches of the lease agreement and their timing were not only unlawful but not practical and only served to complicate all the respective parties even further, two wrongs did not make right.

ii) The Lease Agreement dated 21 October, 2003 and the Supplemental Lease dated 9th December, 2014 respectively are void ab initio and thus not valid in law by the negligence of both the Plaintiff/Respondent and the Administrator General

iii) The Plaintiff/Respondent has to some extend interfered with the Defendant/Respondent’s quiet enjoyment of the demised premises whose Employee/Management became involved in confrontation with the Defendant/Applicant. Furthermore, the purported termination of the lease and the subsequent withdrawal all served to confuse, scare and to some extend paralyse the Defendant/Applicant from continuing with its fishing operations and further investments as per its operational plan for 2017 which was prepared and submitted to the Ministry of Lands at their request.

iv) The 3" party SABCO which the Plaintiff/Respondent offered a lease of portion of the demised premises was a bona fide or innocent purchaser for value. In the light of the lease, the party has also engaged in a not insignificant investment on the portion of the demised premises but is yet to execute a lease Agreement with the Plaintiff/Respondent; this, its own legal interest on the demised premises is also questionable as it has only complied with certain terms and conditions of the offer letter.

Based on these findings, the Learned Trial Judge Ordered as follows:

1. The Defendant/Applicant shall be granted a new Lease Agreement by the Plaintiff/Respondent (at its own cost as damages for the wrongful interference with the quiet enjoyment of the demised premises) from the date of this Order for the maximum statutorily required term and an option if it so desires at a rent in line with the

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reviews that were provided for in the Lease Agreement dated 20th October 2003, the demised premises in the Lease Agreement shall be clearly demarcated by the Ministry of Lands and the Defendant/Applicant shall immediately erect a concrete wall on its boundaries.

2. The Plaintiff/Respondent shall ensure the full compliance of the terms and conditions of the offer letter to SABO Fishing Company dated 12* October 2016, including the clear demarcation of the Land area to be granted and Sabco shall, with immediate effect construct a concrete wall between its operating area and the Defendant/Applicant’s area and establish a new and different Exit and Entrance to its operating area, different from the existing entrance and gates of the Defendant/Applicant.

3. The Defendant/Applicant shall have full and unfettered access to the Jetties at the Jui Fishing Complex and shall work out a timetable of operations with Sabco Fishing Company on its usage of the said Jetties.

4. The Ministry of lands shall carry out regular inspection/monitoring of the Jui Fishing Complex (including the Jetties) that shall be demised to both the Defendant/Applicant Sabco Fishing Company and shall involve the Ministry of Fisheries and Marine Resources for its expertise. Whenever so required.

5. Each party shall bear its costs.

14. On the 18th September, 2017, the Appellant filed notice

appointing C.F. Margai & Associates as Solicitors in place of Tejan-Cole, Yillah

& Bangura.

15. Being dissatisfied with the decision of the Trial Judge, the Appellant

appealed to this Court against the whole decision on the following grounds: RULING SMK/CK | 6

1. The Judge having correctly evaluated the evidence in favour of the | Defendantt/Applicant erred in law in her findings and Orders which are at variance with the evaluation of the evidence aforesaid. Particulars (a) Page 3 under Judge’s consideration and ruling paragraph 4: the Plaintiff/Respondent wrote to the Defendants solicitor on 16 June, f 2016... In my mind the Plaintiff/Respondent should have come to the ' Court to obtain the necessary orders by proving the several breaches it was claiming. Paragraph 5: The Plaintiff/Respondent proceeded to offer a leasehold interest to a third party (another fishing company6 SABCO Fishing Company)... A letter from the Plaintiff dated 11/2016 confirmed this conduct (b)Page 4 paragraph 1: however, the Plaintiff/Respondent in 2007 wrote another letter to the Defendant/Applicant. If the Plaintiff/Respondent claims to have the right of re-entry and forfeiture of the lease, why then was it requesting an action plan from the Defendant/Applicant on its operations on the demised premises claiming diplomatic intervention? Paragraph 2: The questions in my mind are ... are the principal and supplemental leases void in law, thus cannot be valid? Paragraph 3: The Plaintiff/Respondent in its affidavit in opposition of 28h July, 2017... [have not been able to come across any clause whatsoever therein that can be considered as a clause to sublease the demised premise. Paragraphs 4,5,6 and 7 refers (b) Page 5 -Paragraph 1: it thus follows therefore that the Plaintiff/Respondent had no right whatever to lease a portion of the demised premises to a third party ... And SABCO Fishing Company does not seen to have as valid lease agreement. RULING SMK/CK | 7

2. The Judge should in law have discountenance the Affidavit in Opposition sworn to by Precious V.K. Fewry at Freetown on the 28 July, 2017 together with the exhibits attached thereto as well as the Supplemental Affidavit in Opposition sworn to and filed by Precious V.K. Fewry at Freetown on the 7h day of September, 2017 as deponent and Solicitor for the Plaintiff on the grounds that both Affidavits contravene Order 59 of the High Court Rules C.1. No. 8 of 2007 which when juxtaposed with exhibit SES1 Writ of Summons dated 17% June, 2016 FICC 170/2016 No. 49 jssued by Osman I. Kanu, Principal State Counsel, as Solicitor for the Plaintiff, in the absence of a Notice of

Change of Solicitor.

3. The title the Attorney-General & Minister of Justice as Plaintiff in the said proceedings is unsupported in law, considering that the office is a creature of statute with prescribed functions.

4. The Learned Judge having found in paragraph 1 of page 5 that the Plaintiff/Respondent had no right to lease a portion of the premises to a third party, even if the Defendant had breach the covenant of the lease agreement, the Learned Judge erred in law in not setting aside the said lease as well as ordering its expunction from the Deed of Leases

registered in the office of the Registrar and Administrator-General and by extension, ordering the third party, ie. SABCO Fishing Company to forthwith hand over possession of the portion of the premises purportedly leased by the Plaintiff/ Respondent to them; this the Learned Judge failed to do. Particulars

(a) Page 5 1: it thus follows therefore that the Plaintiff/Respondent had no right whatsoever to lease a portion of the demised premises to a third party... The Defendant/Applicant’s lease may be void and SABCO Fishing Company does not seen to have a valid lease

agreement. RULING SMK/CK | 8

16. Inconsequence, the Appellant sought the following relief: (a) That the findings and Orders be set aside and one in favour of the Defendant/Applicant be substituted therefore,

(2) Such other or further reliefs to be granted to meet the Justice of the case &

(3) Costs | I have listened to my Lord Taylor-Kamara and agree with his narration of events. I shall now therefore proceed to deal with the grounds of appeal.

17. Despite these rather detailed grounds of appeal, the issues to be determined by this Court can be summarised as follows: I. Whether the Trial Judge was right in arriving at her findings and \ making the Orders thereof in the light of the evidence adduced. | Il. Was the Learned Judge correct in law to Order the Respondent to ensure full compliance of the Terms and conditions of the offer letter to SABCO Fishing Company dated the 12% October, 2016 including the clear demarcation of the land area to be granted and SABCO Fishing Company shall with immediate effect construct a concrete wall between its operating area and the Appellant’s area and create a new and different exit and Entrance to its operating area, different from the existing entrance and gates to the Appellant.

18. In answer to the first question, I shall enquire whether there is any available evidence upon which the Trial Judge could have relied on the in concluding that the Lease Agreements dated 21: October, 2003 and the Supplemental Lease dated 9" December, 2013 respectively are void ab initio and thus not valid in law by the negligence of both the RULING SMK/CK | 9

Respondent and the Administrator General. The reason for this enquiry | is that if this was the correct position of the law, then it would justify the Order made in favour of SABCO. Subject to the fact to the fact that the said SABCO was neither a party in the court below nor in this court. 19.In his synopsis, Osman I. Kanu Esq. Counsel for the Respondent argued ‘ that the Appellant had breached clause 2 (x), a fundamental clause of | the Principal Lease agreement which provides for the Appellant not to sublet or part with possession or occupation of the premises demised or any part thereof without the written consent of the land lord, such consent should not be unreasonably withheld, and clause 2 (iii) which require the Appellant to at times during the said term of the lease to repair, uphold, maintain and keep in tenantable repairs the buildings and structures of the demised premises. He submitted that due to the breaches, the Respondent consistent with clause 4 (i) of the principal Lease, the Respondent re-entered the vacant part of the demised premises and instituted court proceedings to obtain possession of the un occupied part.

20. Mr. Kanu argued in the alternative that the lease Agreements were void ab initio for failure to comply with Section 4(1) of the Non-citizens (interest in Land) Act, 1966 Act No. 30 of 1966 which provides that’ No non-citizen shall purchase or receive in exchange or as a gift any reserved leasehold in the Western Area without obtaining first a licence from the board.’ On this point, Mr. Kanu relied on pages 6 and 7 of the Judgment of Wright J. in which Her Ladyship stated as follows :” The above transaction and the resulting instrument is non-compliant on three levels, first, the required licence not obtained by the Defendant from the Board, secondly, the term of 50 (fifty) years granted when it should be twenty-one (21) years; thirdly, the fact that the Registrar- General proceeded to register the resultant Lease Agreement without RULING SMK/CK | 10

ascertaining that all the requirements for non-citizen have been

complied with.”

21. In his synopsis on the issue of subletting, C.F. Margai Esq. Counsel for the Appellant referred to page 44 of the Records and page 3 of the Judgment wherein the Trial Judge said as follows:-

e Paragraph 4 “..In my mind, the Plaintiff/Respondent should have come to court to obtain the necessary Orders by proving the several breaches it was claiming

Page 245 of the Records and page 4 of the Ruling: ¢ Paragraph 1: However, the Plaintiff/Respondent in 2017 wrote another letter to the Defendant/Applicant, requesting a 1 year Action plan from the Defendant/Applicant. If the Plaintiff/Respondent claims to have the right of re-entry and forfeiture of the lease, why then was it requesting an action plan from the Defendant on its operation on the demised premises claiming diplomatic intervention e Paragraph6é: The Agreement in this instant case is called a cooperation contract “... nothing therein makes reference to sub- Leasing. The Plaintiff has not adduced any evidence whatsoever to back its assertion that the Defendant indeed subleased the demised premises to a 3™ party.