Mohamed Borbor Bah V Mohamed Bah (CIV 47 of 2006) [2009] SLCA 10 (19 March 2009)

| 3S | CIV APP 47/2006 | : IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: MOHAMED BORBOR BAH - APPELLANT AND MOHAMED BAH - RESPONDENT.

HON. MS. JSTICE $. KOROMA J.SC HON. MR. JUSTICE P.O. HAMILTON J.S.C

HON MR JUISTICE A.B.N. STRONGE J.A. | R. JOHNSON ESQ. FOR THE APPELLANT A.E. MANLY SPAINE ESQ. FOR THE RESPONDENT th JUDGEMENT DELIVERED ON THE l "Day OF MARCH, 2009 KOROMA J.S.C - This is an appeal against the judgement of the Honourable Lynton B.O. Nylander J. dated 11 May 2006 in favour of the Plaintiff, Mohamed Borbor Bah, the Respondent in this Appeal.

| Briefly, the fact of the case are that the Appellant Mohamed Borbor Bah, the Defendant in the High Court, and the Respondent are both laying claim to what appears to be the same piece of land at Old Peninsular Road Goderich. ‘The 7 Respondent has alleged that the Appellant constructed a fence around a portion of his land on which he had erected a foundation. ‘The Appellant's position is that the fence was erected on land he owned and that the land is different from the Respondent's land, The Respondent’s claim against the Appellant as contained in the Statement of Claim were: | 1, Damages for trespass of all that parcel of land at Old Peninsula Road | Goderich in the Western Area of Sierra Leone.

2. Injunction restraining the Defendant by himself, his servants, agents o | howsoever called from interim or remaining or dealing in any way whatsoever with the Plaintiffs sid land,

3. Costs

4. Any further order or order as this Honourable Court may deem just The defence filed by the Appellant was as follows:- 1, The Defendant denies trespassing on the Plaintiffs alleged land or at all .2. The Defendant will say that he is the owner of a piece of land at Off Peninsular Road Goderich as far back as 1994 in which he is in ¢ possession

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3. The Defendant will further say that the Plaintiffs claim should be dismissed with costs. | ‘Both parties were represented by counsel and each gave evidence on oath, i called witnesses and tendered their respective conveyances. ‘The trial judge after reviewing the evidence gave what was termed “Judgement” on the 2" of December 2006. This in actual fact was a review of the evidence and he stated “After much study find the evidence in totality inconclusive Justice cannot therefore be done to other (SIC) side. In the circumstance I make the | Sollowing orders:-

1. A team shall move to the site for a re-survey of the Parties lands.

2. The team shall consist of a representative from the court; the Plaintiff and the Defendant or their representatives, the licensed surveyor of plaintiff and of defendant. Plaintiff need not contract the same licensed surveyor. Both counsel may or may not be resent at the re-survey. | “3. The representative from the court shall conduct the exercise and his terms of reference is 10 record whether defendant has encroached | jmto plaintiff's land. In doing s0 both surveyors must make sure ‘hat defendant's land is bounded on one side by the access road as stated in his schedule to his conveyance of 1994, * 4, The Representative of the court shall produce and tender his Report x at the next adjourned date stating whether there is encroachment or not.

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5. Lorder the Plaintiff and the Defendant to pay for the exercise which | should be concluded before the next adjourned date” S The trial judge after accepting in evidence the Report of the Court official, on the 11" day of May 2006 delivered judgement in favour of the Respondent. He made the following orders: |

1. The plaintiff is granted immediate possession of that part of the disputed | land occupied by the defendant. |

2. The defendant shall pay 6 million damages for trespass to the plaintiff |

3. An injunction is ordered as prayed for. |

4. The defendant shall pay the cost of this action to be taxed. | The Appellant filed a Notice of Appeal against the judgement of 11 May 2006. ‘The four grounds of appeal are:~

1. That the Learned Trial Judge erred in law and fact in holding that the Defendant had trespassed on the Plaintiff's land even though there was “expert evidence to the effect that there is no encroachment on the plaintiff's land and that the properties of the Plaintiff and the Defendant are separate with a common access road.

2. That the Learned Trial Judge erred in law when he granted “immediate 4, Possessfon of part of the disputed land oceupied by the Plaintiff in his Statement of Claim nor was it part of the Plaintiff's case. 2

3. That the Leamed Trial Judge misdirected himself and consequently erred. in law when he based part of his judgement on a report of a locus in quo

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