John Kamara & ANOR V Victor Alphonso Deveneaux (CIV APP 4 of 2009) [2012] SLCA 28 (31 May 2012)

CIV.APP, 4/2009 4S / IN-THE COURT OF APPEAL FOR SIERRA LEONE P BETWEEN: , JOHN KAMARA & a3 MOHAMED KAMARA ‘APPELLANTS AND VICTOR ALPHONSO- DEVENEAUX RESPONDENT

Coram

Hon. Mrs. Justice S. Bash-Taqi, JSC (Presiding)

Hon. Mr. Justice N. C. Browne-Marke, JA

Hon. Mr. Justice E. E. C. Roberts, JA

Barristers

N. D. Tejan-Cole Esq. (A. E. Manly-Spain) for the Appellants

Crispin F. Edwards, Esq. for the aap

JUDGMENT DELIVERED ON. HE 3, DAY OF p “ 2012

$.BASH-TAQI, JSC: -

By this action the Respondent, then the Plaintiff in the High Court, claimed,

against the Appellants, then Defendants, inter alia:

{a) declaration that the Plaintiff is the owner and person entitled to possession of all that piece or parcel of land lying being and situate Off New Freetown-Waterloo Road Wellington in the Western Area of the Republic of Sierra Leone.

_ (b) Damages for trespass.

(c) Perpetual injunction.

‘Any further orders; and costs. ue

Inhis Particulars of Claim, the Plaintiff averred that:

1. Heis and was at all material times the owner and person entitled to possession of thai pirce or parcel of land situate lying and being Off New Freetown/Waterloo Road Wellington Freetown, measuring 0.9021 Acres

‘i delineated on Survey Plan L. S. 3416/83 attached to a Conveyance dated 14 December 1983 made between the one Santigie Bangura of the one part ond the Respondent of the other part.

2. That the defendants (now Respondents) and their agents, privies have trespassed and are trespassing on the Plaintiff's said piece or parcel of land cand untess restrained by this Honourable Court the defendants intend to ‘continue their act of trespass and to wrongfully remain on the land.

3, Byreason of the aforesaid premises the Plaintiff has incurred loss and damages.

‘The Defendants (Appellants) entered Appearance by Counsel and delivered a Statement of Defence and Counterclaim. In their Defence, they denied the Respondent's claim to ttle and trespass to the and in dispute. The 1 Appellant in addition to denying the Respondent's claim, Counter claimed that he is the fee simple owner of the piece or parcel of land delincated in Survey Plan No. L. S. 51/81 attached to the Deed of Conveyance dated 6" July 1981 which Survey Plan is also attached to the Deed of Conveyance dated 4" January 1983 (Exh. “B1"). He further claimed to have acquired his land while he was still a minor and that the same was held by Santigie Bangura in trust for him. He contends further that Santigie Bangura was to have handed over the jand to him when he attained his majority in accordance with the terms of the trust. He alleged that Pa Santigie Bangura had no authority to sel the Tand held in ust on his behalf.

Background

briefly and from the evidence, the Appellants’ father, one Allie Kamara, was the + original owner of the above picee or parcel of land measuring 1.2946 Acres. Allie Kamara, had three children: N’Ballia Kamara, & daughter, Joho Kamara and Moharned Karnara, the two Appellants, Their mother was one Amie Kanu. Allie

by Kamara died when the 1* Appellant was still a minor. On his death, the family, «appointed Pa Santigie Bangura to be in charge of the deceased’s property, which included the piece or parcel of land in dispute. By an indenture dated 4* January 1983, registered as NO. 1/83 in Volume 62 at Page 48 of the Books of Voluntary Conveyance itiade between N’Ballia Kamara and Mohamed Sesay therein described as “the Donors” of the one part and Sontigie Bangura therein described as ‘Trustee for and on behalf of John Kamara Jeseribed as “the Infant Donee”, this piece or parcel of land was conveyed to the Santigic Bangura, as such “Trustee”, for and on behalf of John Kamara, the “infant Donee”. The Indenture was tendered in evidence as Exh.”B1". “The recitals in Clause 2 of Exh, “B1” state that by a Deed of Gift dated 6" April 1981 registered as No 63 at Page 96 in Volume 59 in the Register of Voluntary Conveyances in the Registrar-Gencral's Office in Frectown made between M. A. akarr of the one part and M’Ballia Kamara and Mohamed Sesay described as ‘Donors’ of the other part, the deceased's land was conveyed to N’Ballia Kamara and Mohamed Sesay. (See Exh. “81” at page 118). On 30" November 1983, that is, ten (10) months after the property was conveyed to him, Santige Bangura applied to the Court for an Order to sell 0.9462 Acres of the said Property. Pursuant to the application, Johnson, J, ordered that the Trustee, Santigie Bangura, should sell the 0.9462 Acres of the land and deposit the Purchase money into a Post Office Savings Account in trust for John Karnaray the infant. The circumstances under which the land was sold to the Respondent were not disclosed to the Appellants or members of his family. The Appcliant was still a minor. By Indenture dated the 16"" day of January 1984, registered as No. 85/84 in Volume 359 at Page 117 in the Books of Conveyances, made between Santigie Bangura, “as Trustee and Vendor” the of the one part and the Respondent 25 the purchaser of the other part, Santigie Bangura sold the portion of the Property measuring 0.9462 Acres to the Respondent for Le 8,000.00, (Light Thousand Leones) pursuant to the said Court. Santigie Bangura, the Trustee, later died and | will here assume that on attaining his majority, the 1" Appellant started selling portions ‘of the land. The evidence is

4s that the Respondent objected to certain encroachment by the 1" Appellant on

«the portion of the land he had bought and he had warned him off; when the latter did not cease his activities on the land, he reported the matter to the police. ‘Subsequently, the Respondent instituted this action against the two Appellants

~ for the reliefs already stated abuse.

___ Onthe above pleadings the matter went to trial before the Hon. S.A. Ademosu, JA, sitting in the High Court and he after hearing evidence from both parties delivered judgment on 9" October 2008 in favour of the Respondent. The relevant portions of his Judgment read as follows:

”. suau Pa Santigie obtained an order of the Hligh Court on 30" November 1983 authorizing the sale of the property in question before he sold and conveyed the same to the plaintiff. The law is clear that Orders of the Court ‘ore conclusive”. His reason for that conclusion was that the purchaser from the representative has the right to infer that the representative was acting fairly in the execution of his duty and that it rests upon the person secking to impeach the validity of the transaction to prove that the purchaser had notice of the true state of the facts> He therefore concluded that the Respondent had acquired a fee simple ownership of the land pursuant to the Court order and relicd on Sec. 70(1) The Conveyancing Land and Property Act 1881. !le held that the sale to the Plaintiff was valid and unimpeachable. He also relied on the dictum of Butler Lloyd Ag. CJ. in Carmarah vs. Macaulay (1920-36) A.L.R (5.L). 150, wherein he stated: “1am therefore of the opinion that the sale by the administrator to the defendant gave the latter a valid and unimpeachable title.” The learned Judge went further to hold: “accept unhesitatingly the evidence that Pa Santigi¢ was Trustee for the 1 defendant (Appellant) who was by then a minor. note that nobody could tell the court why Pa Santigie Bangura sold to the plaintiff. | hold that having sold to the plaintiff pursuant to a Court Order the plaintiff acquired a valid title. The 1“ defendant should not have waited for so long before attempting as he is seeking to do in these proceedings to impeach the r validity of the sale to the plaintiff. In the absence of any evidence that the plaintiff acted in collusion with Pa Santigie Bangura I hold as a matter of

The pages read for this report end here. The judgment continues in the PDF.