Osman Conteh v Islamic Awareness Mission & Others (CIV APP 44 of 2014) [2021] SLCA 10 (26 November 2021)

i | INTHE COURT OF APPEAL OF SIERRA. LEONE CIV.APP 44/2014 | BETWEEN: | OSMAN CONTEH | 28 WILL STREET | FREETOWN |

| ISLAMIC AWARENESS MISSION | | 28 WILL STREET i} | FREETOWN | AND | | THE MAYOR COMMUNITY AND CITIZEN OF FREETOWN |

ADE LEWALLY 28 BASS STREET | FREETOWN

Coram

1. HON.MR JUSTICE SENGU M KOROMA JSC-PRESIDING

2. HON MRS JUSTICE JAMESINA E.L. KING- JA |

3. HON. MR JUSTICE SULAIMAN A. BAH -JA | REPRESENTATION | HALLOWAY & PARTNERS- FOR THE APPELLANTS | | GARBER 6cO - FORTHE 1® RESPONDENT | JUDGMENT DELIVERED ON THE 25™ DAY OF NOVEMBER, 20 21 | ae een, fee ee

JUDGMENT DELIVERED ON THE 25" DAY OF NOVEMBER, 2021 BY THE HON.MR.JUSTICE SENGU M KOROMA JSC

1. This is an Appeal from the Judgment of Hon. Justice V.M. Solomon

JA (as she then was) dated the 9” day of September, 2014 on the

following grounds: -

(a) That the Learned Trial Judge having correctly cited the “Locus classicus” case of WALSH-V-LONSDALE 21 (1882) Ch. D. 9 in setting out the case for the Plaintiff, then failed, and/or omitted ‘and/or neglected to apply the legal principles enunciated therein, ‘to wit:

“That an agreement for a Lease is as good as a Lease”, as was borne out by the evidence in this case, and consequently wrongly dismissed the Plaintiff's case.

(b) That the Learned Trial Judge was totally wrong to have held that there was no evidence that the Plaintiffs had accepted the offer of a lease as contained in Exhibit “D”, notwithstanding that she had before her a Survey Plan prepared by the Lessor, the Department of Surveys and Lands ( now Ministry of Lands and Country Planning) in favour of the Plaintiff dated after Exhibit “D” (i.e. on the 26" August, 1994) and that she also had further documentary evidence from the Lessor as contained in Exhibit “H” dated 22” September, 1997, and Exhibit “L” dated 2011, all of which were cast aside and the Plaintiff's claim dismissed.

(c) That the Judgement was completely against the weight of

Evidence

2. The Appellants sought the following relief:

(a) That the Judgement of Hon. Justice V.M. Solomon JA (as she then was) dated the 25" June, 2014 BE SET ASIDE.

(b) That Judgment be entered for the Plaintiffs as per their statement of claim dated 26" May, 2008.

() That the costs of this Appeal and the action in the High Court be borne by the Respondents.

Procedural History

3. The Plaintiffs instituted proceedings in the High Court against the Defendants (Respondents herein) dated the 26” May, 2008 seeking the following relief:

1) A Declaration that the Plaintiffs are Lessees of all that piece or parcel of Land apportioned PLOT 1 and PLOT 2 respectively on the Survey Plan dated 26” August, 1994, with the Department of Surveys and Lands ( now Ministry of Lands, Housing and the Environment) as Lessor.

2) An interim injunction restraining the Defendants, their servants, agents, workmen or howsoever from going upon, remaining and/or in any other manner dealing with the said property pending the hearing and determination of this action.

3) Perpectual injunction.

4) Damages to be assessed by the Court.

5) Costs to be assessed by the Court.

4. All of the procedural rules as provided for in the High Court Rules, 2007 were complied with and the matter was heard and determined in favour of the Respondents herein. It is against this Judgment that the Appellants have appealed to this Court on the grounds hereinbefore set out.

5. The second Respondent herein did not appear in the proceedings in the court below nor in this court.

6. | shall determine all of the grounds of Appeal together based on the submissions of each Counsel.

7. Counsel for the Appellants argues that the LTJ ignored the principle enunciated in WALSH-V-LONSDALE (supra) which is aptly applicable to the instant case and dismissed the Plaintiff's case.

8. He submits that, the rule is when there is a contract for the grant of a legal interest, equity regards that has done which ought to be done and thus treats that interest as if it has already been granted. In other words, if a tenant holds under an agreement for a lease, he does so under the same terms in equity as if the lease has been granted at law.

9. Counsel for the 1* Respondent on the other hand, argues that, even if the document is to operate as an equitable lease, applying the test in WALSH-V-LONSDALE, there is no clear evidence proffered by the Appellants of rent payments made to seal the leasehold relationship. The Building permits and other NRA receipts submitted by the ‘Appellants lack sufficient probative value to confirm that they were making payments under the equitable lease.

10.The LTJ had this to say on this point “Though in equity the void lease is equivalent to an agreement for a lease as seen in WALSH-V- LONSDALE, a written lease exceeding three years confers an equitable lease provided that there is sufficient memorandum as required by the Law of Property Act, 1925. At Common Law, a parol lease was sufficient to create the relation of Landlord and Tenant in the case of corporeal hereditaments, and there was no necessity to employ either a deed or writing provided the lease does not exceed three years. In the instant case, the Plaintiff has not complied with this”. She says further, “In the instant case, the offer of a lease is a contract subject to its acceptance and consideration, but there is no evidence of acceptance of Exhibit “D” nor can the receipt marked Exhibit “P 1” be deemed to be sufficient consideration. Even if this Court holds that the terms of the offer of the lease were accepted, no lease was prepared”.

11. The LTJ held that though the Appellants may have an equitable lease, the principle in WALSH-V-LONDALE (supra) could not be applied in this case as the offer was not accepted nor was consideration provided by the Appellants.

12. With respect, | do not agree with this restrictive interpretation of the rule in WALSH-V-LANDSDALE. The rule established in the case presupposes non-compliance with strict legal rules leading to reliance on equity and so any attempt to use the former to defeat the latter would be considered non-sequitur.

13.Though the lease was not allegedly accepted and registered, the Appellants have an equitable interest by virtue of Exhibit “D”. The existence of an equitable right gives rise to an equitable remedy. It is only when there is no available equitable remedy that the court

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