Ola Korjay (Nee Carew & Others v Abdul Carew (CIV APP 27 of 2013) [2017] SLCA 1227 (8 July 2017)

. Civ App 27/2013 NUM : IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: MRS OLA KORJAY (NEE CAROEW) —- 1°7 APPELLANT. ZUBAIRU CAREW - 2° APPELLANT (Through his Attorney, ALHAJI MODU FREEMAN) AND ‘ABDUL CAREW ~ RESPONDENT COUNSEL: MRS F SORIE for the Appellants CF MARGAT ESQ for the Respondent

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS JUSTICE OF THE SUPREME COURT THE HONOURABLE MRS JUSTICE N MATTURI-JONES JUSTICE OF THE SUPREME COURT(ACTING) JUDGMENT DELIVERED THE Bsay OF MAY,2017

The Appeal

1. This is an appeal brought by the Appellants against the Judgment of the High Court delivered by SHOWERS, JA (now, Acting JSC) on 26 March,2013. The Notice of Appeal was filed on 30 May,2013. It is at pages 302 -307 of the Record. References to page numbers hereafter shall be construed as references to pages in the Record. The Grounds of Appeal are at pages 302 -205, and they are as follows: A. That the Learned Trial Judge erred in law and in fact in deciding that Hawanatu Carew (deceased), divested herself of the property situate at No. 40 Goderich Street.

4 PARTICULARS

i, That the Learned Trial Judge failed to properly interpret/construe the Will of KabbahTuray (deceased) dated 10"* March 1952 and registered as No. 47/52 in volume 22 at page 29 of the Record Books of Wills kept in the office of the Administrator and Registrar-General, particularly Paragraph 3 thereof, which reads: ......all that house and land situate at No. 40 Goderich Street, Freetown aforesaid wherein I now reside to my daughter Hawah Carew and her heirs and assigns forever.”

By the will there is a limitation on the inheritance as the heirs and assigns of Hawah Carew were ascertainable on the death of KabbahTuray deceased

ii, That the Learned Trial Judge erred in law in not finding that the ‘Appellants as well as the Respondent were tenants-in-common of the Property situate at 40 Goderich Street, being that Hawanatu Carew deceased only bore a life interest in the property above mentioned and upon her death the remainder was devised to her heirs and assigns forever.

iii, That the Learned Trial Judge erred in law and in fact in deciding that the Respondent is entitled to sole ownership of the property and as such, entitled to dispose of same as if he were the fee simple owner as Hawanatu Carew deceased bore a life interest in the property at No 40 Goderich Street and she could not then give that which she did not have and consequently the Deed is void and the Respondent could not convey or dispose of the property

iv. That the Learned Trial Judge erred in law and fact in holding that the sale of the property to Hassan Nazzal is valid and that Hassan Nazzal was a bona fide purchaser for value, particularly with respect to the fact that the said Hassan Nazzal has been a Lessee of the premises with full knowledge of the facts surrounding the disputed ownership of the property and as such, cannot be regarded as an innocent purchaser for value who purchased the property at a time when the matter was not only sub judice, but ruling was pending on an application by the Applicant before the Trial Judge dated 14" October 2008 for the res to be preserved and the Respondent restrained from selling or disposing of the property.

: v. That the Learned Trial Judge erred in law and in fact in holding that the Respondent had the sole right to convey the said property to one Hassan Nazzal,

vi. That the Learned Trial Judge in arriving at her decision failed to adequately consider the provisions of Section 12 of the Registration of Instruments Act (Cap 256),

8, That the Learned Trial Judge erred in law and in fact in determining that tthe foilure of the purported Deed of Gift from Hawanatu Carew deceased to the Respondent to meet the requirements of the Tlliterates Protection Act, 1898 (Cap 104) of the Laws of Sierra Leone was not fatal to the Respondent's claim to ownership of the property at 40 Goderich Street.

PARTICULARS

i. The object of the Illiterates Frotection Act 1898 (Cap 104) of the Laws of Sierra Leone is to protect an illiterate person from possible fraud and strict compliance therewith is obligatory.

ii, The Learned Trial Judge must not be seen to interfere with the intent of the Legislature, otherwise, the objective of the Legislature will be rendered nugatory if the Act is not complied with.

iii, That the Learned Trial Judge in arriving at the decision did not adequately consider whether Hawanatu Carew was aware of the nature of the document she affixed here thumbprint on.

C. That the Learned Trial Judge failed to adequately consider the evidence ‘and determine whether in fact the purported Deed of Gift from Hawanatu Carew deceased to the Respondent was properly executed, was done without any improper and undue influence, and was duly registered in accordance with the Law.

PARTICULARS

i. That the Deed of Gift was an incomplete document being that the survey plan attached to the document was only an advance copy that did not and does not bear the signature of the Director of Surveys and Lands, does not bear the an LS number and is undated. Additionally, the schedule of the Deed is incomplete in that it does not bear any of the abovementioned information as required by law.

: ii, That there is no record of any survey done on the property or any record of the property with the Department of Surveys and Lands in the name

: of the Respondent and that the registration of the Deed is therefore improper rendering the purported Deed of Gift invalid

ili, That contrary to what the Respondent led the Court to believe, the deceased was illiterate and the general principle of law is that thumb printing is prima facie evidence of illiteracy. The Learned Trial Judge failed to consider the Amended Defence of the Respondent dated 14°" November 2011 in which it was asserted that Hawanatu Carew deceased was “literate yp to her death, thus implying the reason why an iliteracy clause was not indicated upon the Deed of Gift between Hawanatu Carew deceased and the Respondent.

iv. That the Learned Trial Judge failed to adequately consider the implications of undue influence on a 93 year old woman with respect to the execution of the purported Deed of Gift by Hawanatu Carew deceased to the Respondent.

v. That there is no credible evidence to lead to the conclusion that at least one of the scid witnesses to the Deed of Gift Transaction did in fact witness the transaction,

D. The Judgment is against the weight of the evidence.

2, The relief sought from this Court, is as follows:

i, That the Appeal be allowed and the Ruling of the High Court dated 26" March,2013 be set aside

li, That the Deed of the property at 40 Goderich Street from Hawanatu Carew, deceased to Abdul Carew, be declared void

iii, That the conveyance of the property at 40 Goderich Street from Abdul Carew to Hassan Nazzal be declared void and be revoked.

iv. That the Appellants and the Respondent be declared tenants in common of the property at 40 Goderich Street.

v. That the Respondent account for all his dealings with the property from the death of Hawanatu Carew, deceased,

vi, That the Respondent bears the Costs of the Appeal.

THE ACTION IN THE COURT BELOW

‘THE WRIT OF SUMMONS

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