Rugiatu M. Mansaray V Isatu Bangura (CIV 49 of 2005) [2009] SLCA 11 (26 March 2009)

¢ CIV. APP. 49/2005 IN THE COURT OF APPEAL FOR SID} INE BETWEEN: 7 RUGIATU M. MANSARAY - APPELLANT AND ISATU BANGURA - RESPONDENT

Coram

Hon. Mrs. S. Bash-Taqi, - JSC Hon, Ms. S.Koroma - JSC Hon Mr, Justice E. E. Roberts - JA Barristers S. M, Sesay, Esq. of Serry-Kamal & Co for the Appellants K.L. Lisk Esq. for the Respondent pore JUDGMENT DELIVERED ON 26 DAY OF Ml cc, 2009 a S.BASH-TAQL: - On the 14" day of July 2005, the Hon. Mr. Justice M. E. Tolla ‘Thompson, JA (as he then was) delivered Judgment against the Appellant in the matter, ‘The matter concerns ownership of a piece of land at New Freetown/ Waterloo Road Kissy Freetown. By a Writ of Summons dated 30” July 1992 issued in the High Court by the Appellant, then Plaintiff, against the Respondent, then Defendant, the Appellant claimed

(1) Damages for trespass,

(2) Damages for malicious damage

(3) An injunction restraining the Respondent by herself her servants agents or privies or howsoever called from entering and remaining on the Appellant's said land. In her Statement of Claim the Appellant pleaded, inter alia, that she is the fee simple ‘owner and entitled to possession of land situate Off Grassfield Power Magazine Kissy Mess Mess Freetown bounded from property beacon marked FC 142/91 on a beating of 294 degrees’ 15-minute for a distance of 50.5feet along private property to property beacon marked FC143/91 on a bearing 107 degrees 30 minutes for a distance of 65.0ft along an Aecess Road on to property beacon marked FC 145/91 on a bearing of 219 “degrees 00 minutes for a distance of 100 feet on to property beacon marked FC 142/91 which isthe starting point the whole enclosing an area of 0.121 Acres as shown in Survey Plan numbered L. 350/91 dated 24% April 1991. After purchasing the said land she . surveyed it and erected beacons thereon; that between December 1991 and July 1992, she discovered that the Respondent had unlawfully and wrongfully entered her land and maliciously damaged her beacons; that shortly after this incident the Respondent on

| Su 7 another occasion unlawfully entered her land and dug up soil thereon and had been doing s0 on various other occasions. She threatened to continue in the said acts. | ‘The Respondent filed a Defence and Counterclaim. She denied that she had trespassed on the Appellant's land and put her to strict proof thereof. She averred that she is the: fee 2 simple owner of the land in dispute by virtue of a Conveyance dated 13" December 1990 registered as No. 1728/90 at page 25 in Vol. 445 of the Record Books of Conveyances (Exh. “G"); that the land she entered was her bona fide property and denied thet she unlawfully entered the Appellant’s land; she also denied that the Appellant is entitled to the special damages claimed. In her counterclaim, she asked for a declaration of title to the land, damages for trespass as the Appellant, since 1991 unlawfully entered her land and had proceeded to erect a structure thereon and has remained in unlawful possession and persisted in her unlawful conduct. She also claimed recovery of possession and an injunction. ‘The Appellant filed a Reply and Defence to the Counter claim. In her Reply she denied the several allegations in the defence and joined issue with the Respondent. In the Defence to the Counterclaim, the Appellant, inter ala, alleged that she acquired the land from a Vendor who was the fee simple owner and the person entitled to possession of the said land, She stressed that her Vendor was the fee simple owner and entitled to possession of the said land; that she was lawfully on the land and denies that she was trespassing or encroaching on it. The trial at the High Court was conducted by Tolla Thompson J. (as he then was). Both Parties were represented by Counsel, and each gave evidence on oath and called witnesses including their respective Surveyors and tendered documents including their respective Conveyances in support of their titles. In the course of her evidence in the Court below, the Appellant contended that she paid Le 68,000.00 for the land in 1989 and started laying a concrete foundation and a ‘panbody’ structure thereon early in 1990. Her Vendor Saidu Bangura executed a Conveyance in her favour on 21" November 1991 which she caused to be registered on 26" November 1991 as No. 1722/91 in Vol. 456 at page 122 in the Books of Conveyances in the Office of the Registrar-General Freetown. The Learned Trial Judge after hearing the evidence delivered Judgment on 14" July 2005 dismissing the Appellant’s claim and awarding the Respondent the Declaration of title she claimed in her Counterclaim. The Judge also dismissed the claim for general damages. In dismissing the Appellant's claim, the Learned Trial Judge, after reviewing the evidence, had this to say: - ‘1 can be gleaned from the above documentary evidence that Exh “B” the 4 conveyance of the Plainiff was registered abou! a year after Exh. “G”, the * conveyance of the defendant. The law is settled that when the issue is as to who hhas a better right to possess a particular piece of land the law will ascribe 2 possession (0 the person who proved{sic} a Better title...

As to proof of a better right to possession the Learned Trial Judge relied on and adopted the dictum of Livesey Luke, C.J. in the case of Seymour Wilson v Musa Abess, S.C App. 5/79 {unreported} where he held: “In a case of trespass what the plaintiff had to prove is 4 better right 10 possession then the defendant. One of the ways that he may do this is 10 : prove that he had a better title to the land than the defendant, But “better ttle” in the a context in a case for trespass the court is concerned only on the relative strengths of the title or possession proved by rival element. The party who proves a better right or better right (0 possession succeeds even though their may be another person or a party who has a better title than him" The Leamed Trial Judge then went on to conclude his findings when he said in his

Judgment

“It seems 10 me, on the relative strength of the documentary evidence, that the

defendant has a better claim to the disputed land than the plaintiff In the result I hold that the plaintiff has failed to prove his claim for trespass against the defendant. The plaintif’s claim is dismissed.”

As regards the Defendant's Counterclaim for a Declaration of title, the Leamed Trial Judge in his judgment concluded inter alia:

“The defendant has counterclaimed for a declaration of title to land and trespass in her particulars. There is clear and sufficient evidence which I accept and believe that the land was first conveyed to the defendant and then subsequently conveyed to the plaintiff by PW2, The defendant subsequently registered the conveyance of the land in dispute on 13" December 1990 almost one year before the plaintiff's conveyance was registered on 26" November 1991 which gives her 4 better right of ownership to the land as against the plaintiff. On the evidence therefore I am satisfied that the defendant has proved her claim for a declaration af itle o and possession ofthe said land. She is therefore eminently entitled to the declaration prayed for in his (her) counterclaim....n

‘The Plaintiff being dissatisfied with the judgment has appealed to this Court on four

(4) Grounds appearing at pages 79-80 of the Records of proceedings. They are as follows:

1, The Learned Trial Judge failed to consider or failed to consider adequately that the time the AppellanU/Plaintiff issued the writ of summons she was in exclusive possession of the land in dispute and was erecting a dwelling house ‘on the said land, That in fact the Appellant had a concrete foundation on the Jan s

2. That tedeiion is against the weight of the evidence.

3. “That the Learned Trial Judge failed to consider the evidence of PW2 Saidu 7 Bangura when he told the Respondent that her land was by the sea and not where the appellant was erecting her dwelling house. 4, ‘The Learned Trial Judge failed to consider that the appellant was in exclusive possession of the land in dispute

Both Counsel filed Skeleton Arguments upon which they relied for the appeal. Mr. S. M. Sesay for the Appellant argued all four (4) of his grounds of appeal together and rightly so since Grounds 1, 3 and 4 relate to the issue of possession, namely, whether or not the Learnéd Trial Judge ‘failed to consider or adequately considered’ the issue that . the Appellant was in exclusive possession of the disputed land, and trespass and the third ground deals with the decision being against the weight of the evidence. Mr. Sesay of Counsel submitted that the Learned Trial Judge rejected clear evidence that the Appellant was in exclusive possession of the land she having already built a concrete foundation and structure thereon at the time the Writ of Summons was issued; that the Judge based his judgment on the fact thatthe land was first sold to the Respondent whose Conveyance was then registered before that of the Appellant, and thus concluding that by Virtue of first registration of the Conveyances, the Respondent has a better claim to the land. He submitted that in coming to that conclusion the Trial Judge ignored or wrongly applied the dictum of E. Livesey Luke C.J in the case of Seymour Wilson v Musa Abess SCA 5/79, when he said in his judgment, citing the said dictum: “Lentirely agree with the law propounded above. However, I venture to say, since in this jurisdiction there is no provision for the registration of title, registration of instrument will not confer title on the purchaser but in my judgment it can be used as evidence of ownership of the land in dispute.” ‘He submitted that the evidence of the common Vendor, PW2, was clear that he did not sell the land in dispute to the Respondent but to the Appellant; that PW 2 was quite emphatic that the land the Respondent was claiming belonged to the Appellant even though the Appellant's Conveyance was registered one year after that of the Respondent's; that the prior registration of the Respondent’s conveyance before that of the RERSAGER, did not confer any title to the Respondent as the Appellant has always been in exclusive possession of the land; that in the premises it was the Respondent who trespassed on the Appellant's land. To buttressed his submission, Counsel relied on the evidence of PW1, PW2 and PW3 the Surveyor who prepared Exh. “J” the encroachment plan. Counsel further submitted that the Trial Judge did not take advantage of the benefit ‘of hearing the witnesses and therefore drew the wrong inferences from their evidence. In his reply Mr. Lisk of Counsel for the Respondent submitted that the Leamed Trial Judge adequately considered the issue of trespass based on the evidence before him. He submitted that at page 64 of the Records the Trial Judge said quoting the decision in Bristow vs. Carmincan {1873} 3 App. Cas. 641 that: “...Jm an action for trespass possession is sufficient. to support an action by a wrongdoer so long as it is clear, exclusive and exercised with the intention to possess.”; also quoting the decision of Kamara v Fafanah {1964-66} ALR (SL) at page 413 the Judge said: “When possession «becomes doubtful the law aitaches it to title provided such possession is clear and exclusive.” He submitted that this is a clear indication that the Trial Judge averted his mind to the issue of possession and trespass. In addition, Couasei referred to the evidence of the Respondent and that of the Appellant at page 23 to buttress his submission that the Judge adequately considered the issue of exclusive possession; that the Appellant in her evidence said she met beacons on the laud

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