Samah Bangura & Another v Salamatu Kamara (CIV APP 44 of 2005) [2009] SLCA 25 (16 June 2009)

Civ.App.44/05 IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN

SAMAH BANGURA - APPELLANTS

REV. JAMES MANYEH

AND

SALAMATU KAMARA - RESPONDENT

Coram

Hor Justice P.O. Hamilton Hen Justice E.£. Roberts Hon Justice A. Showers SOLIC:TORS AE. Manley Spaine Esq, for Appellants S.M. Sesay Esq. for Respondent JUDGMENT DELIVERED ON THE [ba OF Y 2009. HAMILTON J.S.C. - This is an appeal against the Judgment of the Hon. Justice L.B.0. Nylander J. dated 10" June 2005 in which the Plaintiff/Respondent herein instituted an action against the Defendants/Appellants claiming among other things a declaration that she is the fee simple owner and the person solely entitled in the fee simple in possession of the land described on Survey Plan

| No.LS.1158/90, damages for trespass and a perpetual injunction

against tre defendants jointly and severally. Judgment was given in favour of the Plaintiff/Respondent. It is against this Judgement that che Defendants/Appellants have now appealed,

2 oF it must be noted at this stage that the grounds of appeal filed 25 contained in pages 74 and 78 of the records contain certain numberings which were not only irrelevant put absolutely unnecessary 2s they are not grounds of appeal but rather arguments in the appeal. These are numbered 3(1), 5: & and

5. It must Pe made clear here that this '§ a senior Court for which Counsel must 3° through his papers with the best correcting instrument before fling in this appeal therefore there are three (a) grounds of appeal namely: 4, That the Learned Trial Judge was wrond |" law and on the facts in declaring that the plaintiftiRespondent is the owner of the land claimed by the PlaintifRespondent 2, Tratthe Learned Trial Judge ws wrong in Law and on 7 the facts not to dismiss the case against the 4% Defendant m having regard to the evidence led by the Plaintiff and her witnesses against the 4" Defendant and the finding of the Honourable Trial Judge that the Defendants never pouilt on the disputed land: * 3 That the Learned Trial judge was wrong In Jaw to shift the purden of proof from the Plaintiff to the 4* Defendant.

A brief review of the process adcptec in this matter would reveal the anomalies in it. A Writ of Summons dated 15" March, 2000 was served on both Defendants/Appeliants. On 23" March 2000 Franklyn B. Kargbo entered appearance for both Defendants and on 23° March 2000 A.S. Sesay Esq. then entered appearance on behalf of 1 Defendant and on 2" May 2000 the matter was then entered for trial. On 22" December 2004 a notice of appointment of A.S. Sesay Esq. as Solicitor for 2° Defendant was filed and on 17” March, 2005 a notice of motion was filed seeking an order that leave be granted 2° Defendant to file a defence out of time and leave to defend the action. Reading the records this motion was never moved but rather abandoned. However there was exhibited the Conveyance of 2° Defendant at Pages 25 to 28. | shall consider this in detail in the course of this judgment

The parties gave evidence and called witness both for the Plaintiff/Respondent and the Defendant /Appellants. It is worthy to note that it was the 1“ Defendant that was actively involved in these proceedings. The following documents were tendered — Exh. A; the Conveyance between Mohamed Abdul Bangura and Salamatu Kamara tne Plaintiff/Respondent herein) dated 3° August, 1990. Exhibit B, the Statutory Declaration of Sema Conteh (deceased) sworn to on 12” January, 1989 and Exhibit C, an indenture of Conveyanze between Sema Conteh (deceased) and Mohamed Abdul Baagura dated 16" October, 1989. The 1" Defendant/Appellant did not produce any document but merely gave evidence that the land in dispute is the property of his late father which he sold to the 2°

defendant/appellant in the year 2000. The evidence of Kalah Kekura Jawara is important since he prepared the survey plan of the Plaintiff/Respondent in 1990 when she did engage his services and identified the plan in Exhibit A, as that of the Survey Plan he prepared. According to him cne Surveyor Joseph Simor who is the Surveyor for 1" defendant took him to the land which he identified as the plaintiff's land. This evidence clearly shows that 1" defendant did go on the land as indicated by this witness through his surveyor. The Plaintiff in her evidence did state that she bought the land from Mohamed Abdul Bangura who bought it from Sima Conteh in 1989.

It is well established that in an action for a Declaration of Title to land the plaintiff must succeed on the strength of his title and not on the weakness of the Defendant's title (see Dr. Seymour Wilson v. Musa ‘Abess Civ. App. No. 5/79 (unreported) and Kodilinye v Odu (1935) WACA 335 at 337-338, The main issue therefore is whether the Appeliant/Respondent did lead enough evidence to prove that the land she is now claiming belongs to her. It is clear that the claim of title by the Defendant/Respondent as contained in her pleadings was supported by oral evidence especially that of P.W.4 Kalah Kekura Jawara the Surveyor. There is nothing tendered by 1" and 2 Defendant/Appeliant to show their claim to the land except that the land in question is the property of Sama Conteh the deceased father of 1* Defendant who sold to the Vendor of the Plaintiff/Respondent in

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