Kamara v Thomas (SC CIV APP 5 of 2006) [2010] SLSC 6 (29 April 2010)

SC. CIV. APP. S/2096 BAIMBA KAMARA (SUBSTI~ TUTED BY ALIKALIE KAMARA) AND APPELLANT · · · ... .. VERONICA

0. THOMAS RESPONDENT ;··<<::· .{ADMINISTRATRIX OF THE ESTATE OF .. . · _· · FESTUS B. THOMAS (DECEASED) I NT EST .A!TE)

Coram

.. ;. : · HON. MRS. JUSTICES. BASH-TAQI ~- -- .·· r. _.,: ·· HON. MR. JUSTICE P.O. HAMIL TON HON. MRS. JUSTICE V.A. WRIGHT HON. MR

• JUSTICE G.B. SEMEGA-JANNEH HON. MRI. JUSTICE S.A. ADEMOSU E.E. SHEARS MOSES ESQ. FOR THE APPELLANTS A.B. TEJAN-COLE ESQ. FOR THE RESPONDENT

. ·.JUDGMENT DELIVERED ON THE 2q·l~AY OF J.S.C. J.S.C J.S.C. J.S.C. J.A.

. WRIGHT JSC - This is an appeal against the Judgment of the Court of Appeal. . . I the facts of the case are that Sal mba l<amara was a Fisherman and Farmer who lived \ . · .. ·.: :~ in the LokG:> Masama Chiefdom in the Port Loko District. The Respondent's late husband, Festus B. Thomas, was his brother. He told the Respondent's husband that he wanted to buy a house in Freetown, and he was shown 95 Fourah Bay Road, Freetown, after which a Conveyance was prepared in his name. The house was purchased for Le 80,000 (Eighty Thousand Leones). He left the Conveyance with a .· ·- r .' ·,I '

bank as a collateral for a loan to a Lebanese Nadim Asab. Balmba Kamara said that he told Festus B. Thomas to use the rent from 95 Fourah Bay Road towards th ·~ maintenance and education of his five children who were living with him and to buy fishing nets when requested. The transaction was carried out by the Respondent's ' . c·· • ;, d~ce- ased husband, Festus B. Thomas, on behalf of Baimba Kamara.

The Respondent's -deceased husband, Festus B. Thomas, later identified a partly completed house at 31A Old Railway Line, Brookfields, which was purchased by Baimba Kamara for Le60,000 (Sixty Thousand Leones) with money provided by him. The property was conve-yed to Baimba Kamara, as beneficial owner. All these transactions were carried out by the Respondent's deceased husband, Festus B. Thomas, on behalf ofBaitnba Kamara. The Respondent's husband, Festus B. Thomas, was to carry out the necessary repairs to the properties and discharge all rates and taxes imposed on the said properties. Baimba Kamara gave the Respondent's

____ <'·. :, hUsband, Festus B. Thomas, Le 15,000 {Fifteen Thousand Leones) for the repairs and

· · . . --· le 15,000 to complete this house. Baimba Kamara said that when his brother died the Respondent continued to live at 31 A RaJ! way Line, Brookfields. Before the Respondent's husband, Festus B. Thomas, died she drove the Appellant's son, .. . _ Al_ikali, from the house. Baimba Kamara told the Court that he sent money, rice and

Ifish to the Responden t's husband F~st t-J s Bi Thom as. 01"1 the death of the Respondent 's husband Festus B. Thomas the Respondent engaged the services of a Solicitor with instructions to evict all tenants from his two houses •

.:q.2 Baimba Kamara permitted the deceased to occupy the top Floor of the property at . 31A Old Railway Line, Brookfields, rent free as he was looking after his children who · : . ·: :_. ~··., : · ... · ~~·re living with him. The Respondent invoked the doctrine of a trust implied by law

i.e. a resulting trust. Baimba Kamara caused a Writ of Summons to be issued in the High Court against the Respondent, O.S. Lewis, Mrs. M. Lewis and Mrs. Nellie Longstretch jointly and · severally for a Declaration that the Appellant is the fee simple owner of properties 31 A Old Railway Line, Brookfields, and 95 Fourah Bay Road, Freetown, and also for immediate 'possession and mesne profits against the 1st, 2"0, 3rd and 4th Defendants for the properties occupied by them. Also for an order setting aside the Declaration made by the 1st Defendant on the 6th November 1991 of the asset cf Festus B . . :... .. :.r:·:.:: :Thofhas (Deceased). who died on the 2ih July, 1991 prior to granting her Letters of

Administration for the Deceased's estate. the 1st Defendant (now the Respondent) filed a defence and counterclaim to declare . that the properties 95 Fourah Bay Road and j1 A Old Railway Line, Brookfields were · held by her on a resulting trust in favour of the estate of Festus B. Thomas Deceased. The 2"d, 3rd and 4th Defendants also filed defences. After considering the evidence and reviewing the relevant law the High court gave

Judgment

'•:· ; · .. :.<·· ...... _: ~ .. . (a) That the Plaintiff is the fee simple owner of the property at 95 Fourah Bay Road, Freetown;

(b) That the Plaintiff is the fee simple owner of the property at 31A Old Railway Line, Brool~flelds, Freetown. And made the following consequential or d~ r s: .. (c)

1. That the Plaintiff do recover possession of the top floor premises of 31A Old Railway Line, Brookfields, occupied by the ist Defendant. 'j Lb1--.... \ Ex~cution of the writ of pos~_ ess to be stayed until 31st May 1995.

2. That the Plaintiff do recover possession of the bottom floor premises of 31 A Old Railway Line, Brookfields, occupied by the tenants therein.

3. That the Plaintiff recover possession of the bottom floor premiSses of 95 Fourah Bay Road, Freetown occupied by the 3rd Defendant (Mrs. Lewis). The 3rd Defendant to pay mesne profits at the rate of Le10,000.00 per month from the 1

t August 1991wntil possession is delivered up.

4. That the Plaintiff do recover possession of the top floor premises occupied by the 4th Defendant (Mrs. Nellie Longstreth). That the 4th Defendant do pay mesne profits at the rate of l.elO,OOO.OO per month from the 31st May 1995 until possession is delivered up.

5. An order that the declaration made by the 1st Defendant on the 6th November 1991 in so far as it relates to 31A Old Railway Line, Brookfieldes, Freetown and 95 Fourah Bay Road, Freetown as assets of Festus f3. Thomas (deceased) prior to the granting of the Letters of Administration (Exhibit A) be set aside.

In the result the High Court dismissed the counterclaim. Mrs. Thomas being dissatisfied with the decision and appealed to the Court of Appeal on two grounds, namely: I

1. The decision is against the weight of the evidence.

2. The learned trial Judge erred in law in admitting inadmissible evidence in that he admitted hearsay evidence of a statement alleged to have been ,. '; ' t made by the first Appellant's husband when he was ill . In essence the decision of the majority judgement held that Mr. Baimba Kamara's claim was statute barred, upheld the appeal and made the following orders:-

1. I order that the Master and Registrar of the High Court do execute the relevant conveyance transferring the legal estate of the said premises 95 Fourah Bay Road and 31A Old Railway Line, Brookfields, respectively to the Defendant/Appellant's name as the administratrix of the estate of Festus B. Thomas, deceased .

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2. Mesne profits ordered by the learned trial Judge in his judgement if already paid be refunded to the Gefendant-Appellant

3. The Defe.ndant/Appellant shall have the costs of this appeal and the costs below, swch costs to be taxed . During the period the matter was before the Court of Appeal Baimba Kamara died and Alikalie Kamara was put in substitution. Mr. Alikalie l<amara in substitution for

B.aimba Kamara (deceased) was dissatisfied with the majority judgment and · appealed to this Court on the following grounds:

1. The learned Justices wrongly held that the Respondent before this Court had complete and exclusive possession of the properties at 95 Fourah Bay Road, Freetown and 31A Old Railway Line, Brookfields, Freetown.

2. The learned Justices failed to consider the entire circumstances leading to the Respondent's husband paying the rates for the properties while not paying rent . .

3. The learned Justices failed to consider the relationship between the deceased Respondent/Defendant husband and the Appellant who provided rponies for the purchase of the properties

4. The learned Justices allowed themselves to be influenced by evidence as to

, . why the properties were purchased in the name of the Appellant without considering the period of purchase in relation to the claim of trying to avoid a cr~ditor.

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5. The learned Justices erred in holding that the Appellaht was not vigilant to take up his interest in possession of his right within the limitation period thus contradicting themselves having held that he was not the owner of the properties; .At the hearing Counsel for the Appellant relied on the case filed with the .:: .. ·· .. : .. ~ > a'me'ndments on page 3 of his case. He said that the Glaim Gannet loe time barred

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. since the 12 year limitation did not arise in this case and there was no adverse

possession. Counsel for the Respondent also relied on his case and emphasized that there was a resulting trust in favour of the Respondent. the learned Justice in the Court of Appeal stated that the trial Judge did not properly evaluate the evidence because he considered certain statements to be in consistencies in the evidence. Let me highlight the evidence . . B.aimba Kamara in the High Court said "I am a Fisherman and Farmer I know one

Fest~s Thomas. He 'was my brother. I know the property at 95 Fourah Bay Road, I am the owner. I bought it after I told my brother Festus Thomas that I wanted a house in Freetown. He told me that he had found a house in Freetown for sale. I agreed to buy the house. I gave him the money. My brother then made a paper for me and sent it to me. I have left the paper with a bank as a collateral for a loan to a Lebanese Nadim Aseb. When my brother bought the house for me I was having five of my children in Freetown. They were staying with my deceased brother Festus Thomas. He died sometime last year. I told him to be using the rent from Fourah Bay Road towards the education of the children and to give me some money whenever I requested it for buying fishing net .. I gave my brother Le80,000 for purchasing the house. I know 31~ Old Railway Line Brookfields. I gave the purchase money of Le60,000 to rny brother. He then gave me a Conveyance for the house. 1 also gave my brother Le15,000 for repairs to the house. The 1

t Floor of the house was not completed and he was to take this amount of Le15,000 to complete it". He said that • _after his brother died his wife the Respondent continued to live in the house and when his brother was seriously Ill, the wife drove away his son Allkalle from the

house. "I went with one Mr. Hassan M. Kolleh who is now dead and Alikalie Kamara to investigate the matter. The wife Interrupted me and did not allow me to · · · investigate the matter. My brother told his wife to leave Alikalie alone as he was not the owner of the house". The learned trial Judge said "there is no evidence that the purchase money or part . · 9f ::it .. was provided by the Deceased Festus . B. Thomas on the basis that the

··Deceased was an affluent man who was engaged in fishing and poultry business I' ·,

and also worked as a Paymaster in the Sierra Leone Military Forces, and he managed those properties without accounting to the Plaintiff in the management of them. What is required is positive evidence that the person claiming the benefit . or for whose estate the benefit is claimed must have provided the purchase money . As I have said there is uncontroverted evidence that the Plaintiff provided the purchase money, and which was corroborated by the evidence of D.W 6 the 1st Defendant that the receipt for Le5,000 the balance of the purchase price for 31A Old Railway Line w.as issued by Stella John in the name of the Plaintiff". 1. ~ • :: ' .: : : ·: ·: : ~ • I t

"The evidence is that the possession of these premises by the Deceased was permissive of the Plaintiff. There is evidence that the children of the Plaintiff were · ·staying with the Deceased at 31A Old Railway Line up to the time of his death. It cannot be· said that he had axclusive possession of the premises see Pratt v Nicol · ~;;: · : .. · .)937/49 AER 271

·.· I • .. In the light of the above .and reading through the judgment it cannot be said that the learned trial Judge did not properly eval~Jate the evidence. I shall deal with this more fully it'l my judgment ,

I will now turn to ground (1) of the appeal. It is clear from the evidence that the husband of the Respondent Festus B. Thomas was in possession with the consent and under the permission of Baimba Kamara. Baimba Kamara as P.W 3 said "when my brother bought the house for me, I was having five of my children in Freetown . . _ Th~ywere staying with the Deceased brother Festus Thomas. He died sometime

. ·lasf year. I told him to be using the rent from 95 Fourah Bay Road towards the

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education of the children and give me some money whenever I requested for buying fishing net". ·. : In Cross examination he also said that he gave his brother the 2nd Floor of his ·,,. property at Brookfields for the duration of his life and to use the rents for the maintenance of his children. I agree with learned Counsel for the Appellant that the learned Justices were not :: co~_r.e. ct in finding that there was no evidence of an agreement between Festus B . ·Thomas the Respondent's husband and the Appellant. This case is clearly different from what1 was referred to in Nicol v Spilsbury 1937-49 ALR S.L.

395. I agree with learned Counsel for the Respondent's submission that at no time

· O· . . during the trial did the Appellant base his claim on possessory title. Therefore cases

like Rahman v Elt>a 1950·56 AL.R S.b. 88 ana Spaine v Abdullah Muctarld 1950·56 ALR S.L. 384 Pratt v Nicol1937-49 ALR S.L.877 which stated that the Plaintiff must rely on the strength of his title are in applicable to the Appellant's case in this case •

The evidence is very clear on the matter that the Appellant provided the monies for the purch~se of the two properties, namely, 95 Fourah Bay Road and 31 A Old · ··· .. · ... Railway Line, Freetown and that the rents were to be used for the up keep of the _.·:: .... •. Appellant's children and the upkeep of the houses and the payment of rates. From the evidence it is clear that Baimba Kamara and the Respondent's Deceased husband were brothers of the same mother. The Appellant resided in Loko Masama · · · . . . Chiefdom in the Port Loko District and engaged in farming and fishing. The 1st

Respondent's Deceased husband was a very educated man who had a job at the IDA an International Agency. Baimba Kamara told the 1st Respondent's husband that he was interested in buying a house in Freetown wh.ereby he told him about a house at 95 Forurah Bay f{oad, Freetown. The Appellant gave the deceased the Le80,000 .yvhich.was the purchase price for the house and a Conveyance was prepared in his :r, • . , - ~ ,. ·•. :name. He told the deceased that the rents to that property were to be used for the

education of his five children who were living with him, and to buy fishing nets when requested. The Appellant guaranteed a loan for a Lebanese by putting his title deeds of that property as a security. The deceaseGJ agreed to that arrangement. The Deceased was later shown an incomplete building at 31A Old Railway Line, Brookfields for sale ~nGf the Appellant tsld him that he was interested in buying it.

. ···· · · The evidence of the Respondent was that after her marriage to the deceased she

lived and comabited at the top floor of 31 A Old Railway Line, Brookfields, rent free .

I . · . _The Respondent's Deceased husband paid the City Rates for both properties until his

. :. :. · . · death. It was after the death of the Defendant's husband that the names of the

holders of the properties were changed. In relation to the defence the Respondent's husband accounted to no one for the rents received from the tenants. She said that her deceased husband was a Businessman engaged in fishing business, pig and poultry and was also a Paymaster in the Sierra Leone Military Forces. She also said that she accompanied her deceased husband to 31A Old Railway Line, Brookfields when it was under construction with barely four walls without windows or doors. She said that on another occasion she accompanied a Mr. Ralph Woode to the Vendor, Mrs. Stella John, and the Deceased paid her LeS,OOO. She said the Deceased . .. .. :, told .. Mr. Ade Hamilton who was preparing the Conveyance that the receipt of : 'I :· • • ' • , ~ • :.1:...-;: ..... . . ' .. .... , payment for the house was in the name of Baimba Kamara and that the Conveyance

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was to be prepared in his name as a lady with whom her husband had children was threatening to take court action. She said that she accompanied her deceased husband to demand rent for 31 A Old Railway hlne, Brookfields . After her husband became ill she took over the maintenance of the properties and did repairs. She told the court that she had been living with her children at 31A Old Railway Line as a wife of Festus B. Thomas, and he never paid rent to anyone . ·::: :: ·. ;,; The ~ Court of Appeal, in its majority judgement of the 2nd May 2006, positively held . ,'~ ,\ - , .: : :~· . • I in agreement with the trial Judge that "the doctrine C>f resulting trust cannot apply here" (meaning this case) and refrained from fin{jing a resulting trblst in favot.:Jr of Mrs. Thomas as Administratrix of the estate of Festus B. Thomas (deceased). In spite of the conclusion the GolJrt failed to make rJOSitlve findings thet Baimba t~ a mara