Nathale Ina Koto Eleady-Cole & Ors And Jeanne Pierre Eleady-Cole (CIV APP 6 of 1993) [2006] SLSC 7 (7 September 2006)

F fae L24— IN THE SUPREME COURT OF SIERRA LEONE CIV APP.6/93 NATHALIE INA KOTOELEADY-COLE - APPELLANT AND 3 MAGNUS KOSO-THOMAS (EXECUTOR OF THE ESTATE OF REGINALD HOWARTH ELEADY-COLE) AND JEANNE PIERRE ELEADY-COLE - RESPONDENTS

Coram

‘THE HONOURABLE DR. ADE RENNER-THOMAS - C.J. ‘THE HONOURABLE JUSTICE SIR J. MURIA - 1S.C. ‘THE HONOURABLE JUSTICE S.C. WARNE - IS.C. ‘THE HONOURABLE MRS JUSTICE V.A. WRIGHT - J.S.C. ‘THE HONOURABLE JUSTICE U.H. TEJAN-JALLOH - J.A. bated THe + Day oF SERTEMBER root Y.H. Williams Esq. M.M. Tarawally Esq. & Ms. Kamara for the Appellant | J.B. Jenkins Johnston Esq. for the Respondent Wright J.S.C. ‘This is an appeal from the judgment of the Sierra Leone Court of Appeal ; delivered on the 20" day of May 1993.

‘The grounds of appeal are as follows:- “> 1, That the leamed Justices of Appeal erred in law when they held . that the allegations of cruelty by the appellant were not grave and weighty to amount to legal cruelty and that the absence of independent evidence adversely affected the appellant’s case with regard to her allegations of cruelty;

2. That the learned justices of Appeal erred in law in substituting a decree of dissolution of the marriage in place of a decree of judicial separation;

3. That there is no legal ground for the granting of a “decree of Divorce by the learned Justices of Appeal;

4. ‘That as the law stands, a decree of Divorce cannot be granted unless prayed for the leamed Justices of Appeal had rejected the prayer of the respondent for dissolution of the marriage and the appellant had not prayed for dissolution of the marriage;

5. That it is not a legal ground for the granting of a decree of Divorce that the court thinks it would be better that the relief to be granted for a dissolution and judicial separation;

6. ‘That the irretrievable breakdown of the marriage is not a legal

| ground for the granting ofa decree of Divorce in this jurisdiction;

7. That the concept of public policy as a ground for the dissolution of a marriage is not recognized by the Matrimonial Laws in this Jurisdiction;

a 8 That the learned Justices of Appeal having correctly stated the Law } relevant to the exercise by the Court of its discretion in favour of : the respondent inspite of his own adultery with the woman named

: S26 = and decided not to exercise its discretion then proceeded to consider matters in the discretion statement filed by the respondent E in arriving at its decision to grant a decree of divorce;

‘ 9, That the learned Justices of Appeal erred in Law in allowing the Appellant 12% share of the current price of the property in question as her beneficial interest when there was no sufficient or any basis, for such a computation;

10, That having regard to the evidence and the law applicable the Judgment is unsatisfactory”;

Background

‘The appellant and the respondent in the court below hereafter called: “the deceased” were married in England on the 7” day of January 1961. After the marriage the parties lived at divers addresses. There were no children of the marriage. The appellant petitioned the High Court on the 30" June 1992 for a dissolution of marriage and that she be — granted a half share in the land and premises known as 14 Spur Loop, Wilberforce. On the 10 September 1982 an order was granted to the appellant amending her prayer in the petition for a dissolution i of marriage to read “that she may be judicially separated from the | respondent”

On the 21* February 1990 the High court granted a judicial separation between the parties and that the property at 14 Spur Loop,

; Wilberforce in Freetown of the Republic in Sierra Leone was the

joint property of the parties. The Justice of Appeal granted a dissolution of marriage between the parties and awarded the appellant

ee 12% share in the property at W14 Spur Loop Wilberforce for which the appellant has appealed to the Supreme Court 7 Counsel for the appellant was given leave to argue ground 9 because he conceded that because of the death of respondent Reginald Howarth Eleady- Cole (hereinaficr called the “deceased”) the cause of action, the basis for grounds 1-8 of this appeal abated. Learned Counsel for the appellant stated that the leamed trial judge was right in deciding that the appellant was entitled to a 50% share in the property at W14 Spur Loop Wilberforce citing Rimmer vs Rimmer (1952) 2 AER

863. He said that the issue in dispute in this appeal was the quantum to which the appellant was entitled. Counsel for the respondent submitted that the Court of Appeal was right in awarding 12% of the value of 14 Spur Loop on the evidence before the couit. He stated that the appellant did not make any contribution towards the } PI building of the house and that there was not enough evidence to support a resulting trust. (See Gissing v Gissing (1970) 2AER 781. | It was ordered by this Court on the 6” April 2006 that Magnus Koso- ‘Thomas one of the Executors of the estate of the deceased be substituted as respondent in this appeal in place of the deceased who died on the 9” October 1997. : Before arguments were closed the Court referred to the affidavit of Yada Hashim Williams sworn to on the 3 March 2006 which was supported by a

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