Nazih Hassanyeh V Eugemo Satori (11 of 1992) [2006] SLCA 9 (24 October 2006)

: Oratij— CR.APP.11/92 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: NAZIH HASSANYEH APPELLANT AND EUGEMO SATORI RESPONDENT

Coram

Hon Justice Sir John Muria JSC Hon Justice U.H. Tejan-Jalloh JA Hon Justice S. Koroma JA ' Hearing: 31° May 2006 Judgment:24 October, 2006 Advocates: B Macaulay Jr and C.F. Edward for Appellant E.E.C Shears-Moses for Respondent JUDGMENT i Delivered this 2g dayof Cctshiy 2006. TEJAN-JALLOH JA: This is an appeal against the Judgment of Hon. Justice F.C. Gbow delivered on the 13" March 1992 in which the learned Judge made the following Orders against the Appellant (i) delivery up of possession of the premises ; (ii) mesne profit; (ii) be restrained from parting with possession of the premises other

: t2 os than to the Respondent (iv) pay damages for breach of contract and (v) pay cost of the action The appellant being dissatisfied with part of the Judgment appealed to the Court regarding the delivery up of possession, injunction and mense profit. The grounds of Appeal are: 1 The learned Trial Judge having found that:

“(a)_ This 1990 was he same year in which the Plaintiff's own lease, the Head lease with Government in respect of the land on which these buildings are located was to expire ... The plaintiff himself had been a sub Lessee to one Dr. Sitta, who was the original Lessee to Government the lessor of the land. Dr. Sitta’s unexpired term had been assigned to

: the Plaintiff.”

“(b) Since according to the evidence the Plaintiff's term of years come to an end in 1990”

“(c) There is no evidence that the Plaintiff has exercised his right of option”

Erred in law in ordering, on the 13" March 1992, that the 2™

Defendant “... do delivery up of possession of both houses situate at No. 28 & 28A Horse Shoe Road, Kissy Dockyard.”

; ; U3 * “..... that the 2" Defendant by himself his servants or agents or otherwise howsoever be restrained from parting with possession of the said premises save to the Plaintiff” in that the Plaintiff no longer had any legal interest and or rights in respect of the said premises after the expiration of same as found by the learned trial Judge himself.

2. The learned trial Judge having reviewed the evidence of the Plaintiff with regard to the latter’s instructions to the 1" Defendant that he wanted the revised rent to be in the sum of £5,000.00 (Five Thousand Pounds Sterling) misdirected himself in assessing mense profit when he said

“For any assessment of the mense profits | am going to adopt the amount of £2,500.00 (Two Thousand Five Hundred Pounds) as a , fair rent for the dwelling house per annum for the period 1986 -

in the absence of any evidence whatsoever that such a figure represented the fair value of the said premises for the period in question.

3. The learned trial Judge in assessing mense profit with particular regards to the exchange rate prevailing over a period of time misdirected himself when he stated as follows:-

“With the aid of information obtained from Commercial Rank as well as the Bank of Sierra Leone | am in a position to consider this issue”

in that -

‘ ue ial (a) _ no such information has been given in evidence during the course of the trial and (b) The learned trial Judge was acting on information received by him personally which was not “evidence” for the purpose of adjudication on the issue of mense profit. Itis clear from the grounds of appeal that at the heart of this case is the legal status of the respondent's lease over the property in question. Itis therefore necessary that the status of the respondent's right to the property concerned must first be ascertained. This is crucial to any claim that he may have against the appellant over the latter's reliance on his subsequent leasehold right in the property. Status of the Plaintiffs Lease . According to the evidence before the court, the plaintiff was granted a sublease over the property in 1967 for a term of 22 years by one Dr. Sitta who held the head lease from the Government. The sublease was to expire in 1990 which was the same year in which Dr. Sitta's head lease was to expire. However, in or about 1985, Dr. Sitta's unexpired term was assigned to the respondent, thus making the respondent's sublease as well as the head lease expiring at the same time, that is, at the end of 1990. The evidence on this can be found at pages §4 and 55, as well as. in “Exh. K and L” at pages 298 and 299 of the Record), Further it is pertinent to note a very important finding of fact made by the learned trial judge relating to the status of the respondent's lease. His Lordship had this to say, before deciding on the question of mense profit (at page 272 of the Record) :

. : Us . . “Before however coming to the issue itself | should state that whatever amount that | would arrive at, would be in respect of the period, 1986 - 1990, since according to the evidence the plaintiff's Term of Years came to an end in 1990. Although in his evidence the plaintiff told the Court that Dr. Sitter assigned his lease to him and that the Government gave its approval of the assignment and also an option to renew as stated in Exhs. ‘K’ & ‘A’ was given to him, there is no evidence that the plaintiff has exercised his right of option” As the learned trial judge found, there was no evidence that the plaintiff (now respondent) ever exercised his right of option, although Exhibit “k” showed that he was allowed to do so. The only conclusion is that having not exercised his right of option to renew the lease at the end of 1990, his egal right to continue as a lessee of the property concerned (Nos. 28 and ‘ 28A Horse Shoe Road, Kissy Dock Yard) ceased at the expiration of the lease at the end of 1990. The appellant's Lease Learned Counsel for the Appellant sought and obtained leave to adduce fresh evidence and such evidence to be by way of affidavit. Such fresh evidence has revealed that on 19 March 1991 a lease of the property, the subject matter of this action was granted to the Appellant and that Subsequent to that, by Deed of Conveyance dated 17" day of May 1994, Conveyance of the said property was made to the Appellant and it is registered as No.404/94 in Volume 477 at Page 71 of the Book of Conveyances kept in the Office of the Registrar-General. The contention of learned Counsel for the Respondent is that there had been a cancellation of the lease granted to the appellant vide Irrevocable Deed dated 9" May, 2001. This now raises the issue of the legality or validity of

| Lb Pom the Irrevocable Deed of Cancellation. Learned Counsel for the Appellant submitted that the purported cancellation is invalid, null and void and of mo effect. For this proposition, he referred us to Halsbury's Laws of England 3% edition Vol. Il page 365 at Para.593 under rubric “Cancellation Discharge” where the learned author states inter alia: “A deed may lawfully be cancelled either by the person who has it in his possession as being solely entitled thereunder or by anyone (including the party bound by the deed) to whom the person has delivered it up to be cancelled. The deed may be cancelled by mutual consent, or under the terms of an agreement between the parties or by order of the Court.”

It is plain from the evidence, and it is not disputed by the Respondent, that the purported cancellation was not by the Order of the Court. We note the . appellant strongly denied being a party or privy to the purported

cancellation. We are, of the view that the Appellant's case is strengthened

by the fact that his Lease Agreement was still with him and so is his

Conveyance in respect of the property. Counsel also placed great

reliance on Registration of Instruments (Amendment Act 1964) which

made registration of Instrument compulsory. Section 4 as far as relevant reads:- 4(i) Every deed, Contract or Conveyance executed after eighteen hundred and fifty seven, so far as regards any land hereby affected shall take effect as against other deeds affecting the same land from the date of its registration.” In Dr. C.J. Seymour-Wilson v Musa Abess (17" June 1981) S.C. Civ. App 5/1979 (Unreported) the principle was restated that registration of an

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