Idrissa Turay And Others v Issa Turay And Others (CIV APP 35 of 2019) [2021] SLCA 15 (3 August 2021)

CIV. APP. 35/2019 INTHE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:

IDRISSA TURAY 2 APPELLANTS. SULLAY TURAY

SALLAY TURAY

MOHAMED SEMBU TURAY

HAJA NYEMA TURAY.

(For and on behalf of the beneficiaries

of the Estate of Pa Brima Turay)

AND

ISSA TURAY = 15" RESPONDENT

7 Turay Street

Makeni

UMARU TURAY - 28° RESPOONDENT Stadium Bye Pass road

Makeni

ALIE MUNU - 38” RESPONDEENT. Mens Road

Makeni

Coram

HON. JUSTICE ANSUMANA IVAN SESAY ~ JA PRESIDING

HON. JUSTICE SULAIMAN A. BAH - JA.

HON. JUSTICE MOMOH-JAH STEVENS - JA.

SOLICITORS:

B.S. Kamara Esq.for the Appellants

Ibrahim Sorie Esq for the Respondents JUDGMENT DELIVERED ON THE 3®° DAY OF AUGUST 2021. BACKGROUND FACTS: ‘An Originating Notice of Motion was filed in the High Court of Sierra Leone, holden in Makeni, Bombali District. in the Northern Province of the Republic of Sierra Leone, by the Appellants herein (therein described as “Plaimtiffs/Applicants"), seeking for the determination of certain questions on points of law relating to property situate lying and being at 3 Rogbaneh Road, Makeni aforesaid. The questions were:

“1. Whether the I" and 2™ Defendant beneficiaries to the estate of Pa Brima Turay (deceased0 situate and being at No. 3 Rogbaneh Road, Makeni have the right (0 sell the said estate without the consent of the Plaintiffs/Applicants who are also beneficiaries to the said estate.

2. Whether the 3" Defendant has assumed both legal and equitable rights over the said estate by purchasing same from the I" and 2 Defendants even after several protests against the sale or purchase having been made by the Applicant beneficiaries not to purchase the estate aforesaid.

3. That if the answer to both questions is no, that the court makes an order estopping the 3" Defendant whether by himself, his servants, agents, workmen, privies, or howsoever called from entering upon and or remaining on, leasing, ‘renting, selling or mortgaging the said piece or parcel of land and hereditament situate lying and being at no. 3 Rogbaneh Road, Makeni in the Northern Province of the Republic of Sierra Leone.

4. That the court make an order resting the sale or conveyance or execution of any deed of conveyance to the 3" Defendant or any other purchaser. $. That this court grants an order for the cancellation of any document or deed of conveyance executed by the I and 2" Defendants in favour of the 3 Defendant or any other purchaser or beneficiary.

6. Any further or other orders this Honourable Court may deem fit and just.

2. That the cost of this application be borne by the Defendants.” (On the 15* day of July, 2019, the Learned Judge (LJ) Justice | M Koroma (now retired), ruled in favour of the Respondents. And on the 20 day of May, 2019, the Appellants being dissatisfied with the said Ruling filed theie Notice of Appeal containing five (5) grounds. These said grounds were later amended pursuant tothe order of this court, and they are: “1 The Learned Trial Judge erred in law and in fact by not considering the factual ‘matters placed before him and disregarded settled legal principle in regards a sale of land in the province for which a conveyance is executed, and by relying on the Provision of Section 170 of the 1991 Constitution of Sierra Leone and by failing to avert his mind to the Provision of Seetion 1 of the Local Court Act No. 1 of 2011. PARTICULARS The Learned Trial Judge noted in his Judgement noted that the sale ofthe Estate of Pa Brima Turay (deceased) situate at No. 3 Rogbaneh Road, Makeni is legal under the theme customs because Obomi Turay conducted the sale with some other members of the family disregarding the fact that the applicable law ina sale of land/property in the province where a conveyance in executed is not the themne Customary Law.

2 That the Learned Trial Judge erred in law by holding that Section 15(3)(a) [of the Local Court det 2011,] Act No. 10 of 2011 grant jurisdiction to the Local Court to hear and determine an application by way of an Originating Notice of Motion for the determination of certain question in point of law. That the Learned Trial Judge noted at page 87 of his judgment that the action of Obomi Turay is in all fours with the definition of Customary Law in 1991 Constitution of Sierra Leone PARTICULARS The Learned Trial Judge noted in his Judgement that as a result of the provision of Section 15(3)(a) [of the Local Court Aet 201 1,] Act No. 10 of 2011 he fully support that the Local Court has jurisdiction in the determination of civil matters govern by Customary Law involving also a question of ttle to land without aversing his mind to the fact that the issue before him is not for the determination of ttle to land but for the determination of question on point of law. 3. ‘The Learned Trial Judge misdirected himself in holding that the I PlaintiffApplicant did not pay house rate to council for the property in question ‘because his name is not in the receipt exhibited. PARTICULARS The Learned Trial Judge held that exhibit ITI has the name of the deceased Brima Turay and not the name of the I* Appellant, not averting his mind to the fact that the name of the deceased Brima Turay who is the father of the I" Plaintiff is still in the books of the council as no change of ownership has been done. 4 That the Learned Trial Judge erred in law or misdirected himself when he ‘considered in his judgment a Deed exhibited as exhibit “1” even though same has not bearing to the subject matier as the said Deed touches and concerned a different subject matter altogether. PARTICULARS The Learned Trial Judge noted in his Judgement that in this case we have in the Deed ‘exhibited and marked as “AI” went on to hold that same has been signed by Pa Yamba Missiri together with others including Ansumana Turay, Abdul Kamara, Kapri Soya ‘and Kapri Wusum. $. That the Learned Trial Judge erred in law and in fact by not considering the ‘factual materials placed before him and disregarded settle legal principles in regard ‘the equitable doctrine bonafedi purchaser with notice and went on to concluded that the 3" has no notice or an equitable interfere even though a letter speaking to the fact of notice was exhibited. PARTICULARS The Learned Trial Judge noted in his Judgement that having regard to the false statement disposed by the I" PlaitiffApplicant in his Affidavit in Support that he was

head of the Turay family nobody would believe that indeed the 3” defendant had notice

before the purchase of the said property.” ‘THE APPELLANTS CASE: Counsel for the Appellants B S Kamara Esq., commenced by submitting that the Leamed Judge’s (L's) Ruling thatthe sale of property at 3 Rogbaneh Road, Makeni aforesaid, by Ali ‘Obomie Turay - being the eldest surviving son of the late Pa Yamba Missiri - in consultation with the 1* and 2" Respondents is valid under Temne Customary law, was wrong, when as a ‘matter of fact the consent of the other beneficiaries ofthat Estate ought to have been sought. {In support of his submission, he referred to Section 21(1) of the Administration of Estate Act | (Cap 45) of the Laws of Sierra Leone 1960. He further submitted that the LJ Judge in | considering customary law, should have taken into account the principle of natural justice and equity. He referred tothe case of Fullah VS. Kondowa (1970 ~71) ALRS 306. ‘Counsel for the Appellant contended that the Local court has no jurisdiction to determine questions on points of law raised in the said Originating Notice of Motion, as the questions ‘were purely within the jurisdiction of the High Court, He further submitted that the LJ. was ‘wrong to have held that Section 15(3)(a) ofthe Local Court Act, 2011 was applicable. ‘Also, Counsel did submit that the LJ misdirected himself when he held at page 27 of his Ruling that it was doubsful whether it was the 1* Appellant who effected the payment as contained in Exhibit IT at pages 12, 13 & 14 of the Court Records. Furthermore, Counsel submitted that ‘what is of importance is that payment was made by the I* Appellant and it matters not whether the receipt bear the name of the I* Appellant, because Pa Brima Turay is deceased. Counsel continued to submit that the LJ considered irrelevant material that was not germane to the matter. Counsel also submitted that the 3° Respondent was never a bonafide purchaser for value without notice, because he the said 3¥ Respondent had imputed notice ofthe equitable interests of the Appellants. He referred to a Letter of complaint against the sale of the property at 3 Rogbaneh Road Makeni aforesaid, dated the 12 October, 2015, and found at page 6 of the Records. According to him, both the 3% Respondent and his solicitor - the Customary Law Officer doubling as state Counsel in the North - who prepared the Deed of Conveyance had notice of the said letter advising the 3° Respondent not to buy the said property. He referred to the Case of BERWICK & CO. VS PRINCE (1905) CH G 32 at Pages 639-640. RESPONDENTS CASE: In response, Ibrahim Sorie Esq., Counsel for the Respondents commenced by submitting that the property in question situate at No.3 Rogbanch Road, Makeni aforesaid, never belonged to the Estate of Pa Brima Turay. Counsel further submitted that the deceased just like several ‘other family members, only had a beneficial interest in that property. Also, Counsel submitted that the Appellant's ‘contention that under Temne Customary law, the consent of all

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