Ronald Lisk Carew v Alimamy Samuel Bangura (39 of 2009) [2016] SLCA 1185 (22 July 2016)

1 cav arp 39/2009

IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN:

RONALD LISK CAREW — - APPELLANT

AND

ALIMAMY SAMUEL BANGURA - 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 MS JUSTICE V M SOLOMON JUSTICE OF THE SUPREME COURT

‘COUNSEL:

EEC SHEARS-MOSES ESQ for the Appellant

IMP FOFANAH ESQ for the Respondent U

ay or mie JUDGMENT DELIVERED THE XCDAY OF ott ‘THE APPEAL

1. This is an appeal brought by the Appellant, Mr Ronald Lisk- Carew, by way of Notice of Appeal filed on 3° November,2009 against the Judgment of

KONOYIMA, J dated 8" October 2009, The Notice of Appeal is at pages

240 - 242 of the Record. Hereafter, references to page numbers shall be

references to pages in the Record.

2. ‘The grounds of appeal are at the said pages 240 to 242, and are as follows:

(1) The Learned Trial Judge erred in law and in fact and consequently misdirected himself in arriving at the erroneous conclusion that the Respondent's daughter Fatmata B Bangura, who is not a party to the proceedings in the High Court and was never directed to be ‘added as such, neither on application by Counsel nor by the Court “suo motto", “is the fee simple owner entitled to possession and

7 ‘ownership of all that piece or parcel of land situate, lying and being at No. 5 Barracks Road, Murray Town, Freetown in the Western ‘Area of the Republic of Sierra Leone, by virtue of a deed of gift dated 27" August,2008, registered with the office of the Registrar-General in Freetown”

The Rule of Law strongly favours the point that a person, who is not a party to the proceedings cannot benefit from the fruit thereby. That the Learned Trial Judge seriously misdirected himself on this vital point of law.

(2) The Learned Trial Judge erred in law in adjudging in favour of the Respondent even though he did not counter-claim for any reliefs; bearing in mind the principle of law that a party stands or falls by his pleadings.

PARTICULARS When the Judge says, .....l will hold for the Defendant in this: action.... hat the Defendant's deughter Fatmata 8 Bangura is the fee simple owner entitled to possession and ownership of all that piece or parcel of land situate, lying and being at No. § Barracks ‘Road Murray Town, Freetown aforesaid.” That the Plaintiff, his servants, relations, agents, heirs, administrators, trustees and/or privies are restrained perpetually from entering upon or interfering with the land at No. 5 Barracks Road, Murray Town, Freetown in the Western Area of the Republic of Sierra Leone,

(3) The Learned Trial Judge erred in law and fact and consequently failed to consider the issue of recovery of possession claimed by +the appellant as being distinct from a declaration of title; never claimed or alleged by either party to the proceedings, but which forms (sic) the basis of his Judgment.

PARTICULARS When the Judge said: *... The main question I have to decide is this - whether the Plaintiff has satisfactorily proved his title to the land i.e. No. 5 Barracks Road, Murray Town, Freetown... The Defendant through or by himself and his witnesses have produced no documents of title to the land, rather seeks to establish his title through his land (sic) and undisturbed possession of the land to the exclusion of everyone from 1955 to 2006... To my mind the Defendant's over 50 years of undisturbed stay on that

a land has enabled him to establish a possessory title to the land in issue within the full meaning and limits of the Statute of Limitation of 1961."

(4) The Learned Trial Judge erred in law and in fact in failing to consider throughout his judgment that the main claim of the Appellant is that the Respondent is and was at all material times to the action his tenant, who has been paying rent to the (Appellant's) then Solicitor, Dr Marcus-Jones, and for which payment receipts were issued to the Respondent by Dr Marcus-Jones. Instead the Learned Trial Judge strenuously tried to establish the Respondent's purported possessory title, in a case where the Appellant has although (sic) not claimed a declaration of title, shown good root of title by way of documents the last of which was signed by the Administrator-General.

(5) That in determining the issue of title to the said land, the Learned Trial Judge did not advert his mind to the maxim that he who is first in time is stronger in law and the provisions of Section 4(1) of Cap 256 of the Laws of Sierra Leone,1960 as amended.

(6) The Learned Trial Judge misdirected himself in ordering that the ‘Appellant bear the costs of the action, which action was never decided on the weight of the evidence before the Trial Judge but which is based on some seriously extraneous claims that reach (sic) the Judge and persuaded him to hold for a party who is not claiming any relief in Court in respect of the land, subject matter of the action and who has not stated before the Court that she is 50 interested in same even though the said Fatmata 8 Bangura was a witness for the Respondent.

(7) That the Learned Trial Judge misconstrued the facts of the case cand by deciding in favour of a party who is not party to the proceedings.

(8) That the Learned Trial Judge misconstrued the Appellant's claim and went against the weight of the evidence before the Court.

(9) That the Learned Trial Judge erred in law and fact in dismissing ‘the Appellant's claim.

3. The relief sought from this Court are that;

(@) The Judgment of the High Court delivered by KONOYIMA, J on

8" October 2009 be set aside, and judgment accordingly be

entered in favour of the Appellant as per his claim in the writ of ‘summons dated 19" June,2006. (b) Any further order or orders that this Court may deem fit and just. (©) Costs.

Arguments of Counsel

‘A. MR SHEARS-MOSES for the Appellant

4, At the hearing of the appeal, Counsel on both sides filed written ‘arguments in support of, and against the appeal, respectively. In his written arguments, Counsel for the Appellant, Mr Shears-Moses argued ‘that Fatmata Bangura, the Respondent's daughter, could not benefit from tthe judgment as she was not a party to the litigation. Another argument canvassed by him, was that parties are bound by their pleadings: and that since the Respondent had not filed a counterclaim, no reliefs ought to have been granted to him, or to anyone else, purporting to derive title from him. A third argument was that what went before the Learned Trial Tudge, was an action for recovery of possession, rather than one for a declaration of title to land. He emphasised that it was rather odd for the Learned Trial Judge to decide on the question of the Appellant's title to ‘the property in dispute, when he had himself prepared the Appellant's deed of conveyance. He must also have been privy to the contents of a file which contained a letter dated 23 April,1990 - page 208 of the Record - written by Dr Marcus-Jones, then acting on behalf of the children of the deceased Esther Lisk Carew, of which the Appellant was one, to the Administrator and Registrar-General at the time. He argued that the Learned Trial Judge should have focused on the issue of receipts issued by Dr Marcus-Jones to the Respondent as proof of a landlord/tenant relationship. The fifth argument was that the Appellant's vesting assent, prepared by the Learned Trial Judge on 30 May,2007 ought to have taken precedence over the Respondent's deed of voluntary conveyance executed in favour of his daughter on 16 May,2008. The sixth argument was that the Court below ought not to have awarded Costs to ‘the Respondent, as that Court had not properly adjudicated on the. matter before it. The last contention was that the Learned Trial Judge wrongly dismissed the Appellant's claim.

8 - MR FOFANAH'S ARGUMENTS:

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