Sampha Kamara & Another v Fatmata Kargbo (CIV APP 21 of 2006) [2010] SLCA 22 (26 January 2010)

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ive 2S'app.2172006 IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: , SAMPHA KAMARA ) q KADIATU KAMARA } APPELLANTS AND

FATMATA KARGBO - RESPONDENT

Coram

Hon Mrs. Justice S. Bash-Taqi, JSC (Presiding) Hon. Ms. Justice S. Koroma, JSC Hon. Mr. Justice E. E. Roberts, J. A. Barristers E. Kargbo, Esq. for the Appellants C.C.V. Taylor, Esq. for the Respondent A JUDGMENT DELIVERED ON THE 74, " DAY OF JANUARY

S. BASH-TAQI, JSC: - Tae Appellants in this matter are brother and sister jointly sued in the High Court in an action brought by the Respondent, as Plaintiff, for the following relief: -

1. A declaration that the Plaintiff, (Respondent), is the fee simple owner of a piece or parcel of land situate lying and being No. 77D Kissy Bye Pass Road, Freetown. 2, A declaration that the Defendants (Appellants) are trespassers;

3. An injunction restraining the Defendants (Appellants) from further ‘ets of interference on the Plaintiff's land. In, in her Particulars of Claim, she alleged, inter alia:

1, That the piece or parcel of land lying at Ne _ ig at No. 77D Kissy Bye Pass Road Freetown was conveyed to her in fee simple by Mamy lye Kamara in a Deed of Conveyance dated the 23” day of January 1981 duly cepsnen aN 89/89 at Page 119 in Volume 422 of the Record me Gate any athe Office of the Registrar General in % Sai is defined on Surv No. LS 1599/87 dated 1* day of July 1987, = ee

2. That the Defendant together with his agents and followers have been going to her land with a view to survey and demolish part of the premises thereon on the ground that it is his personal property

3. That each time “the Defendant and his followers go to the land violent situations will result some of which have been the subject matter of police investigation.”

The Appellants filed a Statement of Defence and Counter claim. They denied the Respondent's claim, and averred that they are the children of Alimamy Kargbo and N'Jama Koroma (both deceased), and that their parents are and were the fee simple owners of property situate lying and being Bye Pass Road Kissy Freetown; that they are in lawful occupation of the said land and had been such occupation before and after their parents’ death. They counter claimed for a declaration of title on the strength of their parents’ title and ownership of the said land.

The High Court (Nylander J, as he then was) gave Judgment for the

Respondent. In his judgment, after reviewing the evidence, the Leamed

Judge concluded, inter alia:

“As regards the Pan Body Shop building attached to the building under construction in the compound of the defendant, (it) encroached in the property of the plaintiff. I have reminded myself that the defendants have not (sic) title deeds in their names for the land they counterclaim. I therefore enter judgment in favour of the Plaintiff ‘who has proved her case on a balance of probabilities.”

In dismissing the Appellants’ Counter Claim, the Judge said inter alia - “The defendants’ counterclaim fails on the facts and also there is no proof that they personally own any land in the area....-...~

4A He then went on: “If there was no counterclaim the defe He oat) tet etm the defendant in their defence could ig persons to be sued. Their parents should have been the proper defendants. Thus on this point above the defendants cannot succeed in their counterclaim.” ‘The Judge then wade the following orders, which I ha inview ofthe Appellants’ 3rd ground of appeals ns oouess Pe “1 A declaration in favour of the plaintiff as prayed for.

2. The defendants shall pay damages for trespass in the $000,000.00, ag in the sum of Le

3. A perpetual injunction is granted as prayed for; 4, The defendants shall end that part of the Pan Body Shop on the plaintiff's land; 5, The defendants shall pay the costs of this action to be taxed. The Appellants being dissatisfied with the above judgment filed four grounds of appeal alleging misdirection and error of law. The grounds of ‘Appeal read: -

1. The Learned Trial Judge erred in law in deciding that the only contentious issue is the “Panbody Kitchen built by the Plaintiff (Respondent) but proceeded to decide on the Appellants” shop. |

2, The Leamed Trial Judge erred in law having stated in his judgment that the defendants (Appellants) land is not in the Plaintiff's land by virtue of the locus visit report prepared by ‘the court clerk Mr. Ansu and that the beacons in the Access | | Rood form the common boundary between the defendants and | the Plaintiff's land but further proceeded to adjudged that the | ‘Appellants’ shop encroaches on the Respondent's land. ] 3, The Leamed Trial Judge further erred in law in deciding that I] “the defendants shall end that part of the “Pan body” structure |

4 Gz on the Plaintiff's land without specifyi specifying what part in terms of en that encroaches into (or forms part) of the said 4, That the judgment is against the weight of the evidence. Both Counsel filed Skeleton Arguments upon which they rely. Mr. Kargbo, for the Appellants, arguing, Grounds 1 and 4, pointed out that, the real issue in dispute between the parties, which was bome out by the evidence, is the presence of “a Pan Body Kitchen” built by the Respondent on the Appellants’ land in 1990; but stated that the Leamed Judge based his judgment on an area described as a ‘Shop’. He referred us to page 107 of the records, and submitted, that the area described as “ a shop” was never an issue in the case; that the Respondent in her pleadings and oral evidence, not having complained that the “Shop” encroached on her land, Learned Judge ought not to have based his Judgment on the “shop”. To buttress his submission, Counsel referred us, firstly, to the evidence of Marion Koroma, DW 4, at page 109, where the Learned Judge, in reviewing her evidence recorded her as saying: “One day Plaintiff, her son and two men came to her (DW4) asking her to beg the defendants for the Kitchen she had built on the land"; ‘And also the Court Registrar’s Record of the evidence obtained at the locus in quo (page 109), where he recorded:

“The only dispute is the location of the kitchen. The measurement is 8°x 4". The second measurement is 8° x 3”. The kitchen is owned by the Plaintiff.”

Counsel again referred us to the Respondent's oral evidence at pages 98-100 where she said inter alia: -

“Defendants objected to a Kitchen I built, They say it was on their land. The defendants only objected in July 31 2003 to the Kitchen I built in 1990”.

He submitted that from the above pieces of evidence, it is clear that the Gigpute is about a ‘Kitchen’ not a ‘shop’ thatthe Leamed Judge therefore | Geary misdirected himself when he ordered in his Judgment that:

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