Jimmy Williams & Others v Christiana Nicolls (CIV APP 43 of 2009) [2019] SLCA 9 (8 July 2019)

"Civ Apps42 & 43/2009 ‘ IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: JIMMY WILLIAMS (ADMINISTRATOR ©2187 APPELLANT OF THE ESTATE OF DAISY ROBINSON (DECEASED) THE ADMINISTRATOR OF THE ESTATE OF JAMES AN COKER (DECEASED) - 2° APPELLANT AND CHRISTIANA NICOLLS - RESPONDENT

Coram

THE HON MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HON MR JUSTICE E E ROBERTS JUSTICE OF THE SUPREME COURT THE HON MR JUSTICE S A ADEMOSU, JUSTICE OF APPEAL (Now deceased) COUNSEL: IK LANSANA ESQ for the 1" Appellant CF EDWARDS ESQ ( Now deceased) for the 2” Appellant E PABS-GARNON ESQ for the Respondent 6h JUDGMENT DELIVERED me Bt ih DAY OF JULY, 2019 Neti seene uate Isc

Introduction

1. Since Judgment was reserved in this Appeal, the 2" Appellant, James Coker has passed away. As the Judgment of this Court, and any subsequent proceedings flowing from that Judgment, may affect his estate, this Court therefore at the outset, makes the following Orders: * The Administrator of the Estate of the late James AN Coker, deceased, shall be substituted for the 2 Appellant as of today’s date, pursuant to Order 18 Rule 7 of the High Court Rules,2007. The Judgment shall therefore be served on the

Administrator. Consequentially, the title in respect of the 2 Appellant ant shall now read: ‘The Administrator of the estate of James A N Coker, Deceased’ ”

2. This Court does not have any specific rule to deal with the situation which has arisen, i, the death of an Appellant before judgment is delivered. Rule 38 of the Court of Appeal Rules, 1985 which provides for the residual powers of the Court in civil matters, states that where there is no such provision, the Court should go back to the rules, procedure and practice in force before Independence day, 1961. The practice and rules referred to were contained in the Courts (Appeals) Act, 1960 - Act No. 18 of 1960. Those rules were in fact repealed in 1973 by the Court of Appeal Rules, 1973. So, this Court has invoked the appropriate rule applicable in the Court below, to wit, Order 18 Rule 7 of the High Court Rules, 2007 in order to deal with the situation which has arisen,

The Appeal

3, The 1" Appellant in this appeal, is the son of Daisy Robinson who was the 1 Defendant in the Court below. He is the Administrator of her estate. She passed away during the course of the trial. I shall hereafter refer to her as the 1" Defendant, and to her son as 1" Respondent. Also, and sadly, Mr C F Edwards, who argued the appeal before us on behalf of the 2" Respondent has also, passed away. Notice of the delivery of this judgment was however addressed to the Solicitors now running his chambers.

4, The appeal of the 1" Appellant, Jimmy Williams is at pages 242 - 244 of the Record. The grounds of appeal are at 242 &

243. That of the deceased 2"! Appellant is at pages 240 & 241 of the Record. The grounds of appeal are on page

240. None of these grounds raise important or intricate points of law. They are based on the Learned Trial Judge's assessment of the evidence. Having gone through the evidence as recorded by the Learned Trial Judge during the trial, and as we shall state in paragraph 6, infra, we do not disagree with her assessment of the evidence led by both sides to this ‘appeal.

5. Oddly, Mr Edwards filed the appeal on behalf of both Appellants though, during the middle of the trial, he had ceased appearing for the 1" Appellant, who was thereafter represented as Solicitor and Counsel, by Mr Lansana.

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However, he, Mr Edwards, was allowed to proceed on behalf of the 2 Appellant only, as Mr Lansana was evidently, Solicitor and Counsel for the 1”

z Appellant. But, he, Mr Lanasana, in signing of on the Notice of Appeal - page 244 of the Record describes himself as ‘Solicitor for the Appellant’. Since the appeals were filed separately and respectively on 18" November, 2009 for 2" Appellant, and on 26 November, 2009, there is no uncertainty as to who is representing each Appellant. And at the oral hearing, it was clear that both Appellants were separately represented, I have referred to this question of representation here, because, during the trial, Mr Edwards had started off filing a defence, and appearing as Counsel on behalf of both Appellants when it was clear, he was only instructed on behalf of the 2" Appellant. Changes had to be made later, after he appropriate Notices had been filed, but this caused some amount of delay in the proceedings.

6. This appeal is essentially about whether the Learned Trial Judge, SHOWERS, JSC(Ag) was right in the way she assessed the evidence given by the respective surveyors called by the opposing sides during the course of the trial, The Learned Trial Judge came to the conclusion, after an exhaustive examination of all the evidence led, that the Respondent's surveyor's testimony fitted the other evidence which had been led, showing that the Appellants had trespassed into the property which had been bought by the Respondent as far back as 1966, The duty of this Court is to determine whether she was right in reaching that conclusion.

FACTS IN ISSUE AT THE TRIAL

7. The facts presented by both sides at the trial were that the Respondent had paid for the piece of land in 1965, though the deed of conveyance to her was only executed in 1966. Her neighbor and cousin-in-law, PW4, Thomas E

0. Thorpe, bought the piece of land adjacent to the Respondent's in 1965, and they planted beacons next to each other's plot of land. He, Mr Thorpe, bought the piece of land from the Kaitells, just as the Respondent had done. Her husband also had a portion of land not far from hers, and they used to visit his piece of land at least six times a year. She had been visiting the land regularly since she purchased the same. In 1996, she found out that the Appellants had been trespassing on the land. Further, some of the pillars she had erected on the land, had been destroyed. She instituted eviction

proceedings in the Magistrate's Court against Mrs Robinson, the deceased 1 Defendant at the trials son, Ebenezer Robinson, and one Kapri Conteh. The matter was abandoned after the civil war reached Freetown in January, 1999. After the war ended, she found out that the now deceased 2% Appellant, had erected a “pan-body" structure on the land.

8. On the other hand, the case presented by the deceased 1" Appellant at the trial was that the land she was laying claim to, had been owned previously by her deceased father, Alfred Robinson. Her father used to live on the land, and her uncle, Sessie (Cecil, I believe) James, used to cultivate the same. She, and I suppose her siblings, used to sleep on the land, though she did not say exactly where, or whether they slept in a house or shelter, or, in the land, or, in the open air, In 1996, she sold portions of the land she was claiming to the now deceased 2” Respondent, and to his brother, She relied on a Statutory Declaration sworn to by herself, and Cecil James and Alfred Robinson on 18" October, 1994 and duly registered. The Deed does not state whether, Alfred Robinson was the father she referred to in her evidence, nor whether the other Declarant, Cecil James, was the uncle she had referred to. No mention was made in the deed that the property had originally belonged to her father, nor, that the piece of land had been tended in the past by her uncle, Cecil James. The basis of her entitlement is recorded in paragraph 3 of the deed: that the land had been in her family for over three generations, She sold a portion of this land, as stated above, to the now deceased 2™ Appellant.

9. The case presented by the 2” Appellant depended on the soundness of the titled claimed by the deceased 1% Appellant. His own witness, the licensed surveyor, Alexander Coker, testified that there was indeed an encroachment into the Respondent's property by as much as 20ft, but that the encroachment had been corrected by a previous surveyor,-and that a wall had been built to demarcate the separate properties. This piece of evidence clearly contradicts the evidence of the Appellants’ other witness, the licensed surveyor, James Bangura, who had testified that the land claimed by the Respondent was not the same claimed by the Appellants, and that both pieces of land were separate and distinct.

10.It seems to us, and this was the position taken by the Learned Trial Judge, that if, the Respondent had purchased the land in 1966, and had been

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