Sallu v others v Haroun v others (SC CIV APP 3 of 2008) [2012] SLSC 2 (13 March 2012)

-*4r- S. C. CIV.APP. 3/2008 IN THE SUPREME COURT OF SIERR A LEONE

Coram

Hon. Mrs. Justice.S. Bash-Taqi, JSC (Presiding) Hon. Mr. Justice P. O. Hamilton, JSC Hon. Mrs. Justice V. A. D. Wright, JSC Hon Mr, Justice M. E. Tolla Thompson, J SC Hon. Mr, Justice N, C. Browne-Marke, JA BETWEEN:

Alpha Abdul Wahid Sallu

KELFXI7ASESAY MOHAMEB KOROMA APPELLANTS ILilELM lIAROUN JOSEPH ABRAHIM MILHELM HAROUN RESPONDENTS E. E. C. Shears-Moses, Esq. for the Appellants Yada Williams Esq- D . Jail oh, Esq. & O. Kanu, Esq, for the Respondent * - I i S. BASH-TAQI. JSC; - This is an appeal from a Judgment of the Court of Appeal dated 20th June 2008 and it concerns land at Wilberforce in the Western Area. The action was commenced by the Respondents as Plaintiffs, by Writ of Summons dated 15th June 2004. They claim inter alia that they are the fee simple owners of the land in dispute situate at No. l0 Regerit Road Wilberforce Freetown. They further alleged that they became the fee simple owners o f the said land by virtue of Conveyance, dated 1 * July 1948 made between Mary Priscilla Macauley as Vendor and Abraham Milhelm, Anis Milhelm and Michel Milhelm, as Purchasers, and Conveyance dated 29l h June 1949 between Jemima John, Vendor and-Abraham Milhelm as Purchaser. Roth Conveyances were tendered in evidence in the High Court as Exhibits “A l” & “C l”. (See pages 98-100 & p ages 129-131).

Background

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The relevant facts of this case are as follows: Abraham Milhelm, Anis Milhelm, and Michcl Milhelm, were three brothers trading together under the business name ;> f “J. Milhelm & Sons”. During their joint trading days they acquired other properties at 24 East Street Freetown, and No 5 JKestmoreiand S treet^OivJSiaka-Ste^LensLStreet) Freeto wn in_additi on la the properties in Exh. “AT'and “C l” at Wilberforce Freetown. The Respondents herein are the two children of Abraham Milhelm. On 31 1 December 1958, Abraham Joseph Milhelm died survived by his widow and the two Respondents as h»s beneficiaries, and by his Last Will and Testament dated 30n August 1954, he appointed Michel Joseph Milhelm, as one of the Executors. The Will was probated on II February 1955 in the Probate Registry of the High Court. On 3 lL s f July 1971 the surviving brothers agreed to divide the properties acquired from their joint trading with the Respondents. They signed a Deed of Family Arrangement whereby the Respondents relinquished their interests in the properties at 24 East Street Freetown and 5 Westmoreland (Siaka Stevens) Street, in favour of Michel Milhelm and Anis Milhelm in _ Ro^d^reetownTThe Deed was registered as No 553/71 in Volume 248 at Page 63 in the Book of Conveyances. In 1988, the Respondents sold the property at No. 8 Regent Road Wilberforce to c Mr. Daswani and retained No.

10. In 1994, during the - —-------e m H var in the country,-the-Krspondmtr-flecHo-fcebanon'ieaving-omr- T - Fayama Koroma as caretakcr of their property at No. 10 Regent Road. In 1994 the Appellants caused Fayama Koroma to be evicted from the property. On return to Sierra Leone the Respondents instituted this action in the High Court against the Appellants seeking inter alia (i), a Declaration thal the fee simple tide to the land and hereditaments situate lying and known as at No 10 Regent Road Wilberforce is vested and belongs to them, (ii) An Order expunging from the Register Books of Statutory Declarations the joint Statutory Declaration sworn on 29th December 2003 registered as No.96 at Page 78 in Volume 81 establishing possessory title of the 1s t Appellant on the grounds of fraud, (iii) General damages for trespass on the^te^ondents land^aTNo. 10 Regent Road Wilberforce, Freetown. The Writ of Summons was served on the Appellants on 23n ! June 2004. When ihe Appellants did not enter appearance, the Respondents’ Solicitor entered Judgment in default of Appearance on 15th July 2004 and caused

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*rr: the 1 Appellant’s Statutory Declaration to be expunged from the Records kept at ,the Registrar-Generars Office. Subsequently, the Appellants did enter an appearance on. 135 h July 2004, but without setting aside the Judgment in Default of Appearance. And when, the Appellants failed to file a Statement of Defencc, the Respondents’ Solicitors again entered Judgment in Default of Defence on 11th January 2005.__________ On 21 January 2005, the Appellants applied for leave to file a Defence. The application was granted on 21s t February 2005 and they filed a Defence on 7* March 2005 which I will endeavour to summarize briefly here, ^ r -.:,— . •- ■ - • - ' .

The Appellants denied the Respondents’ claim and averred that the Respondents had unlawfully entered their property in 1988 and sold a portion of it to Mr. Daswani; that this caused the T * Appellant’s father, Pa “ SalluTto make ¥ complaint to the^then Inspector General of Police, Mr. Barrtbay Kamara, who effected a compromise to the effect that since the Respondents ted sold the property at No. 8 Regent Road to Mr. Daswami, thfcy should not interfere with Pa Sallu’s ownership at No. 10 Road^Tfie property numbered 10 Regent Road Wilberforce is the — |-----------pfeperty^aew4n- After the death o?- his father in 1989, the 1s t Appellant and two others swore to a joint Statutory Declaration on 29 December 2003 to establish his possessoiy title to the property at No. 10 Regent Road Wilberforce. He said that lie lived on the property during all the years from 1988 . — following hi&-&ther-^-death-vvith--n<>-adverae--elaim-being-made against - him He denied that he obtained the Statutory Declaration fraudulently. . He stated further that his father, Pa Sallu, made a gift of the property to him before Ms death but he was unable to prepare the deed transferring ownership of the property. He denied that No 10 Regent Road T" Wilberforce belongs to the Respondents. i • . ■ ■ ; / . • \ ] . -. ' , ^ t . . ■ • t . These briefly were the state of the proceedings when the matter went to trial-before Matturi-Jones, J, (as she then was) in the High Court, and she, having heard £he witnesses and examined the exhibits dismissed the Respondent’s claim. She held as follows: v . . . . . . ' _ “ Considering all the evidence in this case, and having listened to the arguments by both. Counsel fo r the Plaintiff and (the Defendant) ana I am not satisfied that the Plaintiff n . has proved their claim as appears in the Writ o f Summons ' filed in this case. I therefore dismiss their claim fo r a

w declaration as fee simple owners, general damages and | ' • costs....±.„ ” The Respondents dissatisfied with the above Judgment appealed to the Court of Appeal.

I When the appeal came up before their Lordships in the Court of Appeal, they discovered that neither of the two Judgments 'n default has been set side when the matter proceeded to trial before the High Court. They held v that they could not proceed with the appeal as they lacked jurisdiction to do so. This was how the Presiding Justice of Appeal puts it: . “ The law is settled that jurisdiction is fundamental in any Judicial , v . process. A, it has been clearly demonstrated above, any Judgment however irregularly obtained stands until it is set aside. In this ^ ~~ case the irreguldrjudgmenf~wds not set aside or vacated at the time the matter went to fu ll trial. As stated earlier the Learned • * t '7 ^ Trial Judge should have stopped the case when she discovered tlmt ■ the Statutory Declaration had been expunged from the records. In the premises, it is fruitless going into the merits o f this appeal. You v ' r - r - --------— — —r — eannot have ....two— contradictory— judgments-------inr ~orie~ action........................As the Judgment in Defaidt o f Appearance . . . • dated 15th July 2004 has not yet (been) set aside 1 hold that it still stands. ’ • / J ’ ’ . . . . . . • • * . i The Appeilants have now appealed to this Co urt on four (4) grounds: • ; ■ . _—___- i----- i . ------------L .-------------------------------------------—---------— _-.v- 1 (i) The learned Justices ignored the order dated 21s t February 2005 consequent upon the granting of the application dated 214 t January 2005 r;T~. could not have been made if the Court recogniscd the Judgment in default . of appearance. ^ ... ' held ....that the Judgment in default of appearance was irregular were wrong in law to affirm it, as it affected the jurisdiction of the court. '■ » . j - > J J i 4 - • • ■ • • i • , : • * • 4 * . • . . . . . . . . . . . . . . . . . . . . . . . . . .. ; , . (i ii) The learned justices did not have the full records and so deliberated on an incomplete record of the proceedings in the High Court as the Notice of Motion dated 21s t January 2005 was lot included in the records even though Solicitor for the Appellants had asked for it at settlement.* • 'V . ' * r * ^ * . _ _ _ ..... (iv) The learned Justices failed to evaluate the evidence before the Court. . . v ’ * £ * 4 • • * • • / ' ' ’ SeveiraJ submissions have been made on behalf of both the Appellants ■ ' and the Respondents, Briefly on the one hand, v 4 r. Shears-Moses for the

. * . j r . * Appellants argued inter alia, that since the Justices of Appeal acknowledged that the Judgment in default of appearance was irregular as appearance had been entered before the Judgment was signed, and the Trial Judge had gone on to pronounce .a regular Judgment after hearing evidence, the Court of Appeal should have invok.eflR.ules c f the Court of Appeal to enable them set aside both irregular Judgments and proceed to give Judgment on the merits of the appeal as if there were no default Judgments. He stressed that the Court of Appeal has the same powers to give any Judgment and make any order that ought to have been made by the High Court under the said rule; that D y upholding the irregular Judgment instead o f the Trial Judge’s regular Judgment, the Court of Appeal approved an irregularity which has led to injustice. He further submitted that their lordships misdirected themselves when they held that there were two Judgments in the action, when it was clear " that one of these is irregularj thaf they lost sight o? the fact that the Learned Trial Judge had or 21s t Febmary 2005 granted leave to the Appellants to file a defence thereby nullifying the irregular Judgments, He submitted that the Appellant’s document of title was not crucial in the action so that by upholding that the High Court lacked jurisdiction to hear — rhe raatter-bee^use -the l-LAppellantrsStatutorr-Deolaration had been expunged from the Records, their Lordship failed to consider the principle of law that a Plaintiff must succeed on the strength of his own title and not on the weakness of the defendant’s title. He concluded that the Court of Appeal failed to evaluate the evidence when they held that it was fruitless to go in to the merits of the appeal. As regards the facts, Mr. -----Sh©a^s-Moses-submitted-that-the4and-that-wa3-oonveyed-in-exhibit “ A P 2 - by Jemima Cole to Abraham Milhelm in 1949 made no reference (o the number of the property being No.

8. Hu referred to Pages 129-132 in support of this submission. As regards the property conveyed in Exhibit “C l”, that is, No. 10 Regent Road, by Mary Priscilla Macauley to Abraham Milhelm, he submitted ■ that the property is located on the Southern boundary of Regent Road, but that he Survey Plan in Exhibit “A l” which was made in 1948, shows adjacent properties belonging to a Mrs. Davies on the one hand and property of Mr. Milhelm on the other hand. He concluded from that that the property in Exh. “A l” is not the same property the Respondents are claiming, since Mr. Milhelm was hot the owner of the adjacent property . ' ;( inT948. He stressed^that what was conveyed in Exh. "A l” was property known as No. 8a, not No 10 Regent Road and that since the Respondents ; are here claiming No. 10 Regent Road, they have the burden of proving . that No. 10 has always belonged to them. Counsel concluded that the • ; X . Respondents have not established a clear title to No. 10 Regent Road.

v. T ’

- V .i. . On the issue of possession, Mr. Shears-Moses submitted that the 1s t Appellant's father and family had lived on the property in dispute for several years and because of such occupation they must have built structures on the land evidencing ownership. He relied on the evidence of DW2 who testified that he “knew the 1s t Appellant’s father_on the land and they worked on it for him”. Finally he submitted that though the Respondents have produced Conveyances purportedly for the property in dispute these have not sufficiently identified the property at No. 10 Regent Road as the property to which they relate. He asked that the ai Counsel for the "Respondents conceded that the learned Trial Judge’s order of 21s t February 2005 d;d set aside the Judgments in default and gave-the Appellants leave to defend the action. He also conceded that the Coun of Appeal shouldTiave gonelnto the merits of the appeal as if there was no irregular Judgment. By conducting the trial the Learned Trail Judge effectively set aside the Judgments in default entered against the Appellants. Counsel therefore urged this Court, being the final Court of Appeal, to re-hear the appeal by reviewing the evidence before both the Trial Jndge and the Courftff appeahj-and tagive anjr-Judgment or Order that ought to have been given/made by the Court of Appeal citing Rule 57 of the Supreme Court Rules Public Notice No.l of 1982 in support of his submission. Counsel’s other submissions in respect of the evidence and facts of the case are to be found in the case for the Respondents filed herein. It is not necessary to set down all the submissions here, but I shall -refer, to some-ef-them-4n-the~course-of-thi9-Judgmem-a»-and-when "theneed arises. I have also taken into consideration Rule 57 of the Supreme Court Rules Public Notice No. 1 of 1982. Both Counsel have urged this Court to re-hear the appeal on the merits. It is the duty o f the Courts to ensure that justice is done to litigants who come to our Courts. It will serve no useful purpose to remit the case to the High Court for rehearing. Since this Court can make any order vested in the High Court, I will exercise my discretion under the Rules quoted to proceed to review the case on the merits in order to put an end to this matter which has been in the Courts for the past seven years, .e. since 15th June 2004. As both Appellants and Respondents are claiming ownership of the property in dispute, the first point which I have to consider is the question whether either party proved that they have a better title to the land in dispute. I will assure Mr. Shears-Moses that I will not lose sight of the fact that this is an action for a declaration of title and since the

Respondents are claiming to be the fee simple owners of the property in dispute, they have to prove that they had title in themselves or through some person from whom they are claiming. The question to be deter nincd is whether the Respondents have done so from the evidence they have actually adduced to establish their tMe and thereby entitled them to the declaration of title they are seeking., ___________ .i • In th’s regard it will be necessary to examine the Respondents’ title and the ti tles of those from whom they claim to have derived same In a long line of cases beginning from Macauley vs. Stafford and Others (SC Civ. App. 1/73) to the leading -authority o f Seymour Wilson vs. Musa A bhess (SC Civ, App. 5/79) delivered on 17/06/81 ( unreported) it has been established that in. an action for a declaration of title the Plaintiff must succeed on the strength of his own title and not on the weakness of the Defendant’s title. Ia other words, in the word of Webber, CJ: “The onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration o f title. The Plaintiff in this case must rely on the strength o f his own case and not on the weakness o f the defendant’ s case. I f the onus is not - -discharged, the weakness-of the-defendant’ s-ease^will-not help-him and the proper judgment is fo r the defendant. Such a Judgment decrees no title to the defendant he not having sought the ' declaration. ‘'(See also Kodolinye vs Odu (1935) 5 WACA 336 at Pages 337-338) .. Seymour Wilson supra. m It is clear that both parties are relying on paper titles and both produced conveyances in fee simple as proof of their title. In the words of Livesey Luke C.J in Seymour Wilson supra , the Learned C J had this to say regarding paper titles of Conveyances: . "The mere production in evidence o f a conveyance in fee simple is not proof o f a fee simple title. The document may be worthless. As • a general rule the Plaintiff must go further and prove that his •' predecessor-iri-title had title to pass to him. And o f course if there is evidence that the title to the same land vests in some person other than the vendor or the plaintiff, the plaintiff would have failed to discharge the burden on him. ” . , In the instant case, the question arises whether the Respondents have discharged the burden put on them to prove they were the fee simple