Kamara & Anor v Deveneaux (CIV APP 4 of 2009) [2012] SLCA 8 (31 May 2012)

CIV.APP. 4/2009 IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: JOHN KAMARA & MOHAMED KAMARA APPELLANTS AND VICTOR ALPHONSO DEVENEAUX RESPONDENT ssmm Hon. Mrs, Justicc S. BashTaqi, JSC (Presiding) Hon. Mr. Justice N. C. Browne-Marke, JA Hon. Mr. Justice E. E. C. Roberts, JA Barristers N. D. TejarvColc Esq. (A. E. Manly-Spain) for the Appellants Crisoin F. Edwards. Esq . for the Resoondent S.BASH-TAQI, JSC: - By this action the Respondent, then the Plaintiff in the High Court, claimed, against the Appellants, then Defendants, inter alia: (a) 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. In his Particulars of Claim, the Plaintiff averred that:

1. He is and was at all material times the owner and person entitled to possession of that piece or parcel o f land situate lying and being Off New Freetown/Waterloo Road Wellington Freetown, measuring 0.9071 Acres delineated on Survey Plan L S. 3416/83 attached to a Conveyance dated 14th December 1983 made between the one Santigie Bangurc o f the one part and the Respondent o f the other part.

2. That the defendants (now Respondents) and their agents, privies have trespassed and are trespassing on the Plaintiffs said piece or parcel o f land and unless restrained by this Honourable Court the defendants intend to continue their act o f trespass and to wrongfully remain on the land.

3. By reason o f 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 title and trespass to the land in dispute. The 1st 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 delineated in Survey Plan No. .. S. 51/81 attached to the Deed of Conveyance dated 6th July 1981 which Survey Plan is also attached to the Deed of Conveyance dated 4th January 1983 {Exh. "Bl"). 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 land 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 sell the land held in trust on his behalf.

Background

Briefly and from the evidence, the Appellants' father, one Allie Kamara, was the original owner of the above piece or parcci of land measuring 1.2946 Acres. Allie Kamara, had three children: N'Bailia Kamara, a daughter, John Kamara and Moharned Kamara, the two Appellants, Their mother was one Amie Kanu. Atlie

Kamara died when the 1st 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 piccc or parcel of land in dispute. By an Indenture dated 4th January 1983, registered as NO. 1/83 in Volume 62 at Page 48 of the Books of Voluntary Conveyance made between N'Ballia Kamara and Mohamed Sesay therein described as "the Donors" of the one part and Santigie Bangura therein described as Trustee for and on behalf of John Kamara' described as "the Infant Donee", this piece or parcel of land was conveyed to the Santigie Bangura, as such 'Trustee*', for and on behalf of John Kamara, the "Infant Donee". The Indenture was tendered in evidence as Exh."Bl", The recitals in Clause 2 of Exh. "B l" stale that by a Deed of Gift dated 6th April 1981 registered as No 63 at Page 96 in Volume 59 in the Register of Voluntary Conveyances in the Registrar General's Office in Freetown made between M. A. Bakarr 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. "B l" at page 118). On 30ih ' 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 Kamara, the infant. The circumstances under which the fand was sold to the Respondent were not disclosed to the Appellants or members of his family. The Appellant was still a minor. By Indenture dated the lfc1 * day of January 1954, 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 as the Purchaser of the other part, Santigie Bangura sold the portion of the Properly measuring 0.S462 Acres to the Respondent for Le 8,000.00, (Eight Thousand Leones) pursuant to the said Court. Santigie Bangura, the Trustee, later died and I will here assume that on attaining his majority, the 1st Appellant started selling portions of the land. The evidence is B

q - g that the Respondent objected to certain encroachment by the 1st Appellant on the portion of the land he had bought and he had warned him off; when the latter did not ceasc 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 above. On the above pleadings the matter went to trial before the Hon, S. A. Ademosu, J A sitting in the High Court and he after hearing evidence from both parties delivered judgment on 9th October 2008 in favour of the Respondent. The relevant portions of his Judgment read as follows: ”........Pa Santigie obtained an order o f the High Court on 3Cfh November 1983 authorizing the sale o f the property in question before he sold and conveyed the same to the plaintiff. The law is clear that Orders o f the Court are 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 seeking 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 relied on See. 70(1) The Conveyancing Land and Property Act 1881. He held that the sale to the Plaintiff was valid and unimpeachable. He also relied on the dictum of Butler Lloyd Ag. C.J. in Carmarah vs. Macaulay (1920-36) A.L.R (S.L). 150, wherein he stated: "I am therefore o f the opinion that the sale by the administrator to the defendant gave the latter a valid and unimpeachable title." The l earned Judge went further to hold: “I accept unhesitatingly the evidence that Pa Santigie was Trustee for the 1st defendant (Appellant) who was by then a minor. I note that nobody could tell the court why Pa Santigie Bangura sold to the plaintiff. I hold that having sold to the plaintiff pursuant to a Court Order the plaintiff acquired a valid title. The 1st defendant should not have waited fo r so long before attempting as he is seeking to do in these proceedings to impeach the validity o f the sate to the plaintiff. In the absence o f any evidence that the plaintiff acted in collusion with Pa Santigie Bongura I hold as a matter o f

law that the plaintiff obtained a good title despite irregularities in the administration of the Trust "fEmphasis added) On the 1st Appellant's countcr claim for an Injunction, the Trial Judge held that the 1st Appellant had not yet obtained possession of the land because he was still a minor and therefore cannot claim for an injunction to restrain the Respondent from interfering with his possession of the land. It is against the above judgment that the Appellants appealed to this Court on the following grounds:

1. That the decision is against the weight o f the evidence. On 27U | May 2010 they filed additional grounds of appeal which read as follows:

2. The learned Trial Judge misdirected himself when he agreed with Counsel for the Respondent that under Section 70(1) o f the Conveyancing Land and Property Act 1881 that the Order o f the High Court dated 30t h November 1983 authorising the sale and conveyance of the property in question was conclusive, (see pages 105 llnes-10)

3. The Learned Trial Judge failed to avert his mind to the fact that the Trust- Deed in question did not expressly authorise the Trustee Power of sole of the property or part thereof.

4. The Learned Trial Judge was wrong in law to grant the Respondent a Declaration of the title to the property, the subject-matter of the action. Furthermore the Learned Judge erred when he dismissed the Coun ter claim o f the Appellants." Both Counsel filed Skeleton Arguments on upon they relied; these am be found in the records. After hearing Counsels' various oral submissions, we reserved Judgement on the matter on 01/07 2010. This our Judgment Various arguments have been canvassed by Counsel for the Appellants and the Respondent. In the main, it is contended by Counsel for the Appellants, Mr. Tejan- Cole, that Exh. "Al"(see pages 107 110) rela tes to property held in trust; the Exh. "A l", the deed creating the trust does not contain a Power of Sale and consequently it falls to be considered under Section 13 of the Trustee act 1893; that by subsection 2 of that Section, it applies only if and as far as a contrary intention is not expressed in the Instrument creating the trust or power, in which

S o case it shall have effect subject to the terms of the instrument and the provision contained therein. He also referred us to the evidence of the various defence witnesses and to that of the Respondent to buttress the fact that the action concerns trust property. Counsel further drew the Court's attention to section 3 of the Act and submitted that provisions of the act apply to trust or powers created by instrument coming into operation after 31st December 1881. He submitted that the Trustee Act 1893 is an adopted Act under the Imperial Statutes (Law of Property) Adoption Act 1960 (CAP 18) of the Laws of Sierra Leone; that the whole Statute applies except for Sections 6,16,34,41,44,46 and

Counsel submitted further that a Trust without a Power of Sale on the face of the instrument held in trust for the beneficiary on attaining majority, the legal estate is vested in the beneficiary and not in the Trustee, Consequently, the Trustee not having the legal estate in the property cannot convey it to a purchaser whether or not such purchaser is one of value without notice. In the instant case, Counsel, stressed, that even if it is accepted that when the Trustee Santigie Bangura handed his Conveyance to the Respondent who said he did not read it but merely handed it over to his Solicitor; his Solicitor if he was a prudent Solicitor and had made enquiries, might have discovered that the wife and some relations of Pa Allie Kamara, the original owner of the property, were still Irving on the disputed land; he submitted therefore that knowledge of the Solicitor is imputed or constructive notice of the Purchaser. Mr. Tejan Cole further submitted that the property in dispute is not governed by the Conveyancing Land and Property Act 1881; that subsection 2 of that Act provides that the Section shall have effect with respect of any lease, sale, or other act under the authority of the Court purporting to be in pursuance of the Settled Estates Act 1877. He submitted that the Learned Trial Judge was wrong to have invoked the provisions of Section 70(1) of the Conveyancing Act 1881 and to rely on the principle of law that Orders of the Court are conclusive. He submitted that the Conveyancing Land and Property Act 1881 ;s an adopted Act in Sierra Leonw, and that it is applicable only if the lease of sale is under the Settled Estates Act 1877. He also called in aid the decision in the case of IN RE HALL DAROS CONTRACT, 21 CH. D.

41. He also relied on the House of Lords' decision in CHAPMAN V. CHAPMAN (1954) 2WLR 723) on the limits of the Court s jurisdiction to sanction deviations from the strict terms in a trust. He submitted that the case of Chapman makes it clear that the cour t does not possess plenary powers to alter a trust because alterations if thought to be advantageous to the beneficiaries who are infants or not yet born....He submitted that the Respondent's use of the Court to approve of the sale of the Trust Property is an

I.

attempt to give validity to the sale because there was no authority for the sale in the instrument; that it was also an attempt to conceal the collision between Santigie Bangura and the Respondent through the Solicitor conccrncd. The result is that innumerable irregularities occurred as the Trial Judge himself observed. Turning to the Respondent's claim for a declaration of title, counsel submitted that for this to succeed the Respondent must rely on the strength of his case; that the mere production of his Conveyance is insufficient to prove his title. On the other hand Mr. Tejan-Cole submitted that the Appellants have proved their case on a balance of probabilities; that the 1st Appellant had a right to sell the property on attaining his majority. He pointed out that the Learned Trial Judge did not treat the counterclaim as a cause of action in its own right, since he never treated the counterclaim as a separate action, but merely dismissed it, He asked that the appeal be upheld and Judgment entered for the Appellants. In reply, Mr. C. F. Edwards of Counsel for the Respondent submitted that there is no evidence of any irregularities in the administration of the trust apart from the Trial Judge's pronouncement that there are irregularities; that the Trial Judge accepted the evidence that Pa Santigie Bangura was trustee for the 1s t Appellant who was then a minor; that there was no evidence to show why Pa Santigie Bangura sold the property to the Respondent; that the sale having been done pursuant to a Court Order the Respondent acquired a valid title. I te further submitted that the appellant should not have wailed for so long before seeking to impeach the validity of the Respondent's title to the land which he only did after the Respondent had instituted these proceedings in the Court, a period of 20 years after the land had been sold to the Respondent. He submitted that in the absence of any evidence the Respondent acted in collision with the Pa Santigie Bangura, the Trustee, the Respondent obtained a good title as a matter of law; he stressed that the Learned Trial Judge in holding that Pa Santigie sold the land to the Respondent pursuant to a valid Court Order, his pronouncement that the sale to the Respondent was valid and unimpeachable was correct in law. Mr. Edwards, further pointed out that the Appellants had made no attem pt to challenge the Court Order authorising tl*e sale of the land since 30t(l November 1983. He argued that the l sl Appellant testified to knowing the Respondent only for about 10 years, which calculatcd backwards from the date of his evidence meant that he knew the Respondent on or about February 1995, whereas the Respondent had bought the land since 1984; that that being the case, the evidence adduced does not support the Appellant's argument that the Respondent cannot be said to have obtained a good title because he had notice of the 1st Appellant's interest and he bought from one who cannot pass title to him. Counsel relied on the case of Camorah vs. Macauley (1920-36) ALR SL ISO at page 152-153 and submitted that

where such a sale/purchase is sanctioned by an Order of Court, the title obtained therefore becomes both unimpeachable and unassailable. He asked the Court to dismiss the appeal. I have given full details of both Counsels' submissions to remind myself of the issues to decide in this case. It is perhaps noteworthy to observe that from the outset that the action concerns the sale of Trust Property held by the Trustee Santigie Bangura in trust for the 1s t Appellant There is considerable evidence both from the witnesses and the documents tendered in Court that this action not only concerns Trust property held in trust but the sale thereof by the Trustee. The relevant Statutes which have been relied on by the various parties as governing such actions are: The Trustee Act of 1893 being and adopted Act under the Imperial Statutes (Laws of Property) Adoption Act i960 (CAP 18) of the Laws of Sierra Leone; The Settled Estates Act 1877 and the Conveyancing Land and Property Act 3