Santigie Kamara v Milicent Mansaray And Others (CIV APP 48 of 2010) [2019] SLCA 23 (12 February 2019)

Civ Appeal 48/2010 Aue , 23 e3 IN THE COURT OF APPEAL OF SIERRA LEONE wl )! BETWEEN: SANTIGIE KAMARA ~ APPELLANT > AND 1, MILICENT MANSARAY ~ RESPONDENTS ( (Nee KAMARA- TAYLOR)

2. LYNDON KAMARA-TAYLOR

3. RAYMOND KAMARA-TAYLOR

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 MRS JUSTICE A SHOWERS JUSTICE OF THE SUPREME COURT (Acting, now retired) COUNSEL: Y H WILLIAMS ESQ, and B E JONES ESQ for the Appellant S TG SAQUEE-KAMANDA ESQ for the Respondents JUDGMENT DELIVERED THE 12" DAY OF FEBRUARY,2019

1. This is an appeal brought to this Court by the Appellant, Santigie Kamara, against the judgment of SOLOMON, JSC, (then JA), delivered on 4" November,2010, The original appeal was filed on 12" November,2010 by Brewah & Co, then, Solicitors for the Appellant - see, pages 121 & 122 of the Record, On 30" January,2012, Yada Williams & Associates, with the leave of the Court, filed an amended Notice of Appeal. It was included as part of the Record as an appendix.

2. The Grounds of Appeal are as follows:

(1) That the Learned Trial Judge erred in law and fact when she " concluded that the action in the lower Court was instituted without

: the authority of the Respondents and that this was an irregularity a + that was capable of being waived. PARTICULARS

(@)__ That the Power of Attorney was granted almost a year after proceedings commenced.

i (b) That it was only one of three Respondents that granted the said power of attorney.

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(2) That the Learned Trail Judge erred in law and fact in making forfeiture an issue in the matter when forfeiture was never pleaded by the Respondents, nor a relief connected thereto, prayed for by the Respondents in the lower Court.

(3) That the Learned Trial Judge's conclusion that the tenancy created was a yearly one and not one for a term of thirty years certain was wrong in fact and in law.

(4) That the basis of the judgment of the Learned Trial Judge was wrong when she concluded that the Appellant never paid and/or attempted to pay rents for the demised premises when there was evidence of the Appellant of fering to pay rent, refusal to accept rent by an agent of the Respondents, thereby creating a deadlock between the ‘Appellant and the Respondents on the issue of quantum of rent payable.

(5) That the decision of the Learned Trail Judge is against the weight of

The Evidence

3, The reliefs sought from, and in this Court are that the said judgment be set aside wholly; that judgment be entered for the Appellant: that the annual rent of the demised premises be fixed as stipulated in clauses 1 and 3 of the Lease; and that the Appellant be awarded the costs of the appeal.

4, Written submissions were filed by the Appellant on 6" March, 2012 and by the Respondents, on 22” March,2012. At the oral hearing, Mr Williams, lead Counsel for the Appellant, opted to rely on the Appellant's written submissions, and also commented on the lease drawn up by the Respondents’ Solicitor, and contended that in view of this fact, the contra proferentem rule applied as against the Respondents. He added that the lack of a power

of attorney on the side of the Respondents was not something which could ye

be waived, as had been held by the Learned Trial Judge. Mr Saquee-Kamanda * on his part, reiterated the arguments canvassed in the Respondents’ written

Submissions

5, The action was tried by HALLOWAY, J (now JA). Mr Kabba gave evidence as the Respondents’ Attorney, and the Appellant gave evidence in his defence. They were the only two witnesses who testified at the trial. The

> Respondents closed their case on 24" November, 2008 after Mr ‘Sandy's testimony. The Appellant opened his case on 8" December, 2008 and closed it finally on 22%° January, 2009. The Learned Trial Judge then invited

. respective Counsel to submit written addresses. There is no record of what transpired thereafter as regards addresses, but it appears the file was re~ assigned to SOLOMON, JA for judgment whilst HALLOWAY, J was out of office. No further proceedings were taken until 4" November, 2010, when SOLOMON, J delivered Judgment

THE POWER OF ATTORNEY GIVEN TO JULIUS KABBA

6. T think it would be a good idea to start off with the Power of Attorney. It is at pages 93 - 96 of the Record, It is dated 22 May, 2008, and was duly registered on 26" May, 2008. Power is conferred on Julius Kabba by Millicent Kamara-Taylor, on her own behalf, and acting on behalf of Lyndon Kamara-Taylor and Raymond Kamara-Taylor, to do the things listed in paragraphs 1 - 9 on the first page of the deed, One such power is that conferred in paragraph 6, to wit: * To institute and defend any legal action against any person whosoever touching and concerning our property situate, Iying and being at 4 Ecowas Street, Freetown." It was tendered by Mr Sandy as exhibit "A" at the trial, The Presiding Judge was HALLOWAY, J (now JA), Appellant's contention is that this deed was registered several months after the writ herein was issued, and was therefore invalid, It was argued further, that it could not ‘re/afe"back to the date when proceedings were instituted, i.e. 25" October, 2007: and that the Learned Judge who delivered judgment, i.e. SOLOMON, JA (as she then was) was wrong in concluding that the Appellant had waived his right to contest the validity of the deed, as his Counsel had not taken any objection to it being tendered. \ at the trial

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7. Since the validity of the deed and its effect has been so hotly contested, it

* is necessary that it be examined critically. Registration of Powers of Attorney as with other registrable instruments is provided for in the | 8, Registration of Instruments Act, Chapter 256 of the Laws of Sierra Leone, 1960 as amended by Act No, 6 of 1964. By this amendment, Section of the principal Act, became Section 4(1), and a new subsection (2) was added on. 7 Powers of Attorney are not affected by the amendment. Section 4(1) as amended reads: "Every deed, contract or conveyance, executed after the * ( day of February, 1857, so far as regards any land to be thereby affected, shall take effect, as against other deeds affecting the same land, from the date of its registration, and every power of attorney, unless for the institution or defence of judicial proceedings only, and executed in Sierra Leone, shall take effect from the date of its registration." And then, the proviso follows, The statute draws a distinction between Powers of Attorney for the institution, or, defence, of court proceedings, and other powers of attorney. It seems therefore, that there is no real legal requirement for powers of attorney to be registered if they concern court proceedings. It is of course true, that in this case, the donee is empowered to do several other things, but this does not affect the position as regards the institution and/or defence of court proceedings.

9. Further, our rules, the High Court Rules, 2007 - HCR, 2007, do not make provision for institution of proceedings by attorneys. Order 6 is the relevant rule. Rule 1(1) simply states: "Every writ shall be in an appropriate form and shall be indorsed with a statement of the nature of the claim, relief, or remedy sought in the action.”Rule 4, deals with indorsement as to capacity: “(1) Before a writ is issued, it shall be indorsed - (a) where the plaintiff sues in representative capacity. with a statement of the capacity in which he sues; or (b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued." Rule 4(2) provides for the proper indorsements in probate actions, and does not really concern us.

10, Rule 6 of the English Supreme Court Rules, 1999 - " White Book, 1999" is in similar terms to our Order 6 Rule 1, It states: “Every writ must be in form No. 1 in Appendix A.” The note relating to Attorneys is to be found in paragraph 6/1/10, and it reads: “Attorney plaintiff - If one person sues as

* attorney for another or others under power of attorney, he should sue in u

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