Madam Lucinda Dassama Nee Davies v Rokel Commercial Bank Ltd & Anor (CIV APP 31 of 2015) [2020] SLCA 15 (19 June 2020)

CERTIFIED COPY Dassamu vs. Rokel Commercial Bank & Anr Coram: Edwards CJ, Fynn JA & Taylor-Camara JA 1 ………

Civ. App 31/2015 In the Court of Appeal- Sierra Leone

Madam Lucinda Dassama Nee Davies - Appellant

vs.

Rokel Commercial Bank Ltd - Respondents Ismail Sesay

Coram

Desmond Babatunde Edwards CJ Reginald Sydney Fynn JA Eldred Frank Taylor-Camara JA

Counsel: Charles Francis Margai Esq & R B Kowa Esq for the Appellant A M Bangura for the Respondent

JUDGMENT DATED …….. 2020

Fynn JA

Background

1. This case has arrived at the Court of Appeal after a journey which had started at the Local Court, Kenema. Mrs Lucinda Dassama nee Davies had sued the Rokel Commercial Bank Ltd. Mrs Dassama’s claim is that she is owner of the property at 15 Dama Road Kenema which is occupied by the bank. Mrs Dassama was not successful in her claim at the Local Court Kenema, so she appealed to the District Appeals Court Kenema. At the Districts Appeals Court, she was successful, and the Local Court decision against her was reversed. The Magistrate handed down a judgment in her favour, overturning the judgment of the Nongowa Local Court No 2 and in effect declaring her owner of the disputed property.

2. The Bank and its landlords not being satisfied with the decision of the District Appeals Court appealed against that decision to the Local Appeals Division of the High Court, Kenema. Judgment was given against Mrs. Dassama by The Local Appeals Division of the High Court, Kenema returning the property to the Bank and its landlords.

3. The appellant, Mrs. Dassama’s case is that her father, Mr. Albert Edward Davies had acquired this property which the Bank is occupying through a grant dated 1913. The bank is not paying her rent and is therefore illegally occupying the property. In its defence the bank asserts that it is tenant to the Sesay family represented by Ishmail Sesay, the sec ond respondent. The second respondent traces his family’s ownership of the land through one Simon Aboud who had held a leasehold of the property and also through the land owning families. Several other material facts and nuances where raised during the sev eral phases of the case and these will be referred to later in this judgment as they may be deemed necessary.

4. The present appeal is against the judgment of the Local Appeals Division of the High Court Kenema which was given in favour of the Bank and Ismail Sesay.

Certified Copy

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Counsel’s Submissions

5. In all there are five grounds of appeal. The appellant is dissatisfied with the Judgment of the Local Appeals Division of the High Court, Kenema. The appeal is a mixture of fact and law. In the main it does complain that the Learned Presiding Judge (LPJ) had misconstrued several facts and misapplied the law.

6. The appellant’s counsel submits that the LPJ was wrong to have treated the Seymour Wilson & Musa Abbess case as if its principles did not apply to land in the province s. He urged that there are five applicable ways of proving title to land naming these as: a) traditional Evidence b) Documentary evidence c) Acts of Ownership d) Proof of possession of adjacent land and e) Acts of continuous possession. Counsel relied on a nd referred the court to Oyelola v Bannekan 203 9WRN.

7. The appellant argued further that being a non -citizen Simon Aboud was incapable of conveying freehold title to land in the provinces to anyone as he himself was incapable of owning freehold title to lan d. Counsel referred the court to S.2 of the Non Citizens Interest in Land Act and relied heavily on the doctrine of nemo dat quod non habet.

8. Relying on the case of Kateu & Others vs. Momoh Dowu the appellant has also complained that the LPJ had neither sat with Assessors when he delivered his judgment nor had he recorded the opinion of Assessors (if any) in the said judgment. For this and the other grounds mentioned the appellant seeks relief which will set aside the judgment below and substitute it with one in favour of the Appellant.

9. The respondent on his part has maintained steadfastly that the LPJ was correct in his judgment and that the court was properly constituted at all times. He insists that the appellant is claiming more land than that in the pape rs on which she relies. He has submitted also that statutory intervention, to wit the Local Courts Act of 2011 has made obsolete the weight of Kateu & Others vs. Momoh Dowu .

10. These in brief are the submissions of counsel and any other specific submissions which have proved necessary to the deliberations and conclusions reached will be raised as the judgment progresses.

Deliberations on The Grounds of Appeal

Ground One

11. In this ground it is alleged that contrary to Section 41 of the Local Courts Act No 10 of 2011, the Court below was not properly constituted when Judgment was delivered on March 11 th 2017. The allegation is that there had been non -compliance with section 41(4) of Act No. 10 0f 2011 as only the Presiding Judge as Chairman had sat and delivered the judgment without the assessors being present.

12. The thrust of this ground if I have construed it properly is that on the day on which judgment was delivered the Presiding Judge as Chairman had sat alone. This is separate and distinct from the challenge in ground five of the appeal. In ground five the challenge goes to the purported failure of the Chairman Judge to have recorded the advice if any, which he had received from the assessors. The respondent points out that the appellant has not made submissions on this ground and I will agree that I have not found in the appellant’s synopsis arguments which are specific to this ground. For completeness if not for any other reason however it is important that we rule upon it.

13. I have not seen any evidence to su pport the complaint that the Presiding Judge sat alone on the day he delivered his Judgment. In fact on the face of the Judgment itself the names

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of the assessors with whom the Judge sat have been written in albeit by hand whilst the rest of the judgment is typed out.

14. The assessors in my opinion are not required to play any given role in the writing or the reading of the judgment. Their role is specific and it is to “advise the Judge on questions of customary law”. One will expect that the Judge would have , if need be , sought the assessors advise on any questions of customary law before or whilst he considered his

Judgment

The Judgment it will be expected , will be the sum total of all the Judge’s considerations and decisions including any advice he may have received from the assessors on customary law. It will not be expected that on the day the Judgment is being delivered the Judge will be requiring advice from the assessors on customary law. I do not here intend to suggest that Assessors need not attend t he delivery of a judgment in the Local Appeals Division of the High Court : they need to be present for the court to be properly constituted. I have no reason to believe that they had been absent at the delivery of the

Furthermore I am satisfied i n the absence of evidence to the contrary , that the appeal below was heard by the LPJ with Assessors in attendance and advising the learned Presiding Judge (LPJ), as and when they are required by law to do so.

15. It is worth noting that Section 41 (4) of the Local Courts Act No10 is also specific in its provision that “the decision shall be vested exclusively in the Judge” . This will suggest that the assessors, having given their advice, would have no role in the decision. I find that the Assessors were present when the Judgment was read. In my opinion whilst the Assessors are duty bound to be present and properly constitute the Court when Judgment is being delivered, I must opine further that they cannot , by being present or absent on that day , add anything to the substance of the decision. If at all , their contribution on the day that the Judgment is read , will go merely to form , and in the unfortunate circumstance where this occurs, I w ill not, in keeping with the spirit and intention of S.43(2) of the Local Courts Act 2011, on that alone , allow an appeal of this nature. An Order for the Judgment to be delivered in their presence would in those circumstances be the recommended cure.

16. Ground one will therefore not be allowed.

Ground Two

17. In ground two it is alleged that “the Learned Judge in assessing and analysing the evidence adduced at the District Appeals Court misconstrued the evidence hence arriving at an erroneous decision.” The particulars of this ground go on to highlight three portions of the challenged Judgment. In these portions the LPJ analyses a number of exhibits and comes to respective conclusions each. We are invited by this ground to go back to those facts and see if the LPJ had come to unsustainable positions on the facts before him.

18. As a general rule , the Court of Appeal will not disturb the findings of facts made by the Court below; it is none the less within the mandate of the court when dealing with a ground of appeal based on the misconstruction of the evidence as is alleged here, for the court to reevaluate the evidence and where it deems it proper to do so and replace the conclusions reached by the court below with its own. (see Seymour Wilson v Musa Abess SC Civ App 5/79 .) I will now take a closer look at the portions of the judgment that have been specifically challenged.

19. The first portion of the evidence highlighted by the appellant in this ground brings Exhibits B and C up for further scrutiny. These are letter s found at pages 56 and 57 of the records. The letters are dated 25th July 1977 and 27th July 1977 respectively and are from the Senior District Officer to Paramount Chief Vangahun and the latter’s reply thereto. Without a

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doubt, both letters relate to Davies land situate at Dama Road and which was occupied by the Sierra Leone Produce Marketing Board. The crucial question would be whether these letters about the land which was occupied by the Sierra Leone Produce Marketing B oard can provide evidence with respect to the land subject matter of this appeal. Relying on the letters, and just on these letters , they do not at all mention in their letter, any other occupant other than the Sierra Leone Produce Marketing Board. It woul d appear to me therefore that these letters cannot at all , without more, be used as evidence in respect of land occupied by Rokel Commercial Bank. No such connection is found in the letters or elsewhere at the time these letters were written ie 1977. What seems to emerge therefore, is a possibility that the land occupied by Sierra Leone Produce Marketing Board is separate from, and unconnected with, the land occupied by the respondents herein.

20. I can come to this conclusion relying also on the occupation his tory of the disputed portion as recounted first by the appellant (pages 4 and 5 of the records) and also by the respondents (pages 13 and 14 of the records) before the Local Court. They do not diverge from each other much except that each claims to be the party entitled to the freehold ., They however, both agree that possession was first with Simon Aboud who took out a lease in 1948, then transferred possession to Alhaji Foday Sesay and then to Barclays Bank (now Rokel Commercial Bank) . Neither of them men tions the Sierra Leone Produce Marketing Board. The Sierra Leone Produce Marketing Board, it can safely be deduced, was not ever in occupation of this disputed parcel of land.

21. Considering that the Sierra Leone Produce Marketing Board did not occupy the portion of land, the subject matter of this appeal, it is no surprise that the LPJ concluded that the two letters (Exhibits B & C ) touching and concerning the land occupied by that Board “had nothing to do with the Petitioners/Appellants herein in relatio n to the said piece of land which is the subject matter of the action herein commenced in the Local Court”. I cannot fault the LJP on this conclusion at all.

22. The next portion of the evidence alleged, in this ground, to have been misconstrued , relates to Exhibit H which is a record of the Magistrate Court at Kenema. This judgment is found at pages 72 & 139 of the records. A perusal of that judgment shows immediately that it deals with and concerns the parcel of land which was occupied by the Sierra Leone Produce Marketing Board. It relates to a parcel of land occupied by defendants named in that case (the respondent herein not being one of them). That judgment does not in anyway purport to bind the respondent in this appeal or the parcel of land which is the subject matter of this appeal. For these and the reasons recently stated once again I am unable to fault the LPJ for holding as he did that this particular magisterial judgment “had absolutely nothing whatsoever to do with...” the parties or the parcel of land which was subject matter of the dispute.

23. The third issue raised under this head has to do with a letter written by the appellant’s Solicitor to the respondent. The letter is dated 2 nd November 1991 (page 137 of the records). In that letter the appella nt’s Solicitor relays his instructions that the land which the bank is occupying belongs to the appellant. The solicitor then requests the respondent to enter into a lease failing which legal process will be instituted. The respondent’s reply to that letter, found on the following page in the records and dated 13th February 1992 invites the appellant’s solicitor “to draw up a lease for our perusal”.

24. Suffice it to say that this exchange of letters, do not in my opinion provide any proof of title to the disputed property. The respondent it may be said by her letter did assert her title to the parcel of land subject matter of the action, for the first time that such an assertion is

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made and addressed to the occupiers of the land. This assertion cannot itself be proof of what it seeks to assert, some independent fact, document or other evidence must lend it credence and support. The issue of laches and delay which the LPJ refers to with respect to this letter will be more conveniently discussed later in the Judgm ent, for this ground, suffice it to say that on the forgoing deliberations and the reasons discussed, I am unable to allow ground two of the appeal. The LPJ cannot be faulted on his reasoning and the appreciation of the facts which this ground raises.

Grounds Three & Four

25. These two grounds possibly by some error in the presentation in the notice of appeal are conjoined in that four is sub -headed as the “particulars” of three. In any event in his synopsis counsel for the appellant had argued grounds 2, 3 & 4 together. In grounds three and four the challenge is that “The LPJ applied wrong principles of law in respect of ownership to land in the provinces” particularly when he stated in his judgment that “ The 2nd Petitioner/Appellant’s father the said Alhaj i Foday Sesay then acquired the fee simple from the Chiefdom Authorities and the said land owners’ disregarding the fact that there is a judgment against the Chiefdom authorities (see Exhibit H)”

26. The parcel of Land in dispute being situate in the provinces , the parties had deemed it proper to have commenced this action in the Local Court. As it turned out, issues touching the general principles of law arose and had to be used to reach a decision. Section 15(5) of the Local Courts Act 2011 envisages this pos sibility and appropriately provides that “and where there is no provision of customary law, the general law shall apply”. I agree with counsel for the appellant therefore that the principles in Seymour Wilson vs. Musa Abess are not confined in their appli cation to land in the Western Area. Those principles and indeed the five accepted principles set out in Oyelola vs Bannekan when properly applied, can certainly assist a court to establish the true owner of property or in the very least, point at who has a better claim of two rival claimants.

27. I have not been able to find in the evidence which has been adduced in all the courts , any “traditional evidence” to support the appellants claim to this land. No chiefs or elders have come forward to say that their me mory supports the claim that the respondents land includes this particular portion of land. On the contrary the rival claim has the chiefs and elders supporting its root, they being parties to the original lease and subsequent purchase on which the respondent’s title is anchored.