Sesay v Bahsoon (SC CIV APP 6 of 2005) [2010] SLSC 3 (12 February 2010)

SC. CIV.APP NO. 6/2005 IN THE SUPREME COURT OF SIERRA LEONE B E X W E E K : ALHAJI ABDULAI SESAY - APPELLANT AWJD EMAD BAHSOON - RESPONDENT C O M M : THE HON. MRS. JUSTICE S. BASH-TAQI THE HON. MRS. JUSTICE V.A.D. WRIGHT THE HON. MR. JUSTICE G.B. SEMEGA-JANNEH THE HON. MR. JUSTICE N.C. BROWNE-MARKE THE HON. MR. JUSTICE E. ROBERTS * - f , COTCTSZIX.: E.E.C. SHEARS-MOSES ESQ. AND MS. M.A.P. DAVIES FOR THE APPELLANT R. JOHNSON ESQ. FOR THE RESPONDENT JUDGEMENT DELIVERED ON THE 12 th DAY OF FEBRUARY 2010 ^ ^ ^ ‘ EMEGA-JANNEH - JSC . Alhaji- Abdulai Sesay (Appellant herein and Plaintiff at the trial Court) and Emad Bahsoon (Respondent herein and Defendant at the trial Court) knew each other as employer and builder since about 1984. The relationship apparently blossomed into a friendship well before the dispute arose between them. Mr. Bahsoon did construction work for Mr. Sesay at various places in Freetown, including No. 24 Siaka Stevens Street, and also in Sefadu, kono, - J.S.C. J.S.C. - J.S.C. - J.A. - J .A.

where he lived in the premises of Mr. Sesay. Mr. Bahsoon at some stage even managed Mr. Sesay’s Cinema house, "Roxy”, in Freetown. ©In about 1990, Mr. Bahsoon came to live at the premises in Bolling Street, occupying the 1s t floor (ground floor) of the storey building. A sale agreement (Exhibit A) dated the 15th December, 1990, was entered into by Mr. Sesay and Mr. Bahsoon for the sale of property at Bolling Street, by Mr. Sesay to Mr. Bahsoon. The agreement was prepared by Ibrahim B. Kamara (PW2), a lay person. It was agreed that the sale transaction should be completed within three years as at the date of the agreement, that is, in 1993. Completion did not materialize in 1993. In 1998, after demanding execution of the conveyance of 4, Bolling Street, Freetown, prepared, by his solicitors, without success, Mr. Bahsoon caused a writ to issue, claiming:

1. Specific performance of the said agreement.

2. Damages for breach of contract Mr. Sesay counter-claimed for possession and mesne profits at the rate of US $ 1000 per month until possession is yielded up or damages for trespass. On the 19th March, 2002, the trial Judge gave judgement for specific performance and dismissed the counter-claim of Mr. Sesay. As a result, Mr. Sesay appealed to the Court of Appeal against the decision of the trial Judge. The Court of Appeal, in its judgement dated the 30th day of November, 2004, upheld the judgement of the trial Court and, accordingly, dismissed the appeal. It is against this judgement of the Court of Appeal that Mr. Sesay appealed to this Court on six grounds of appeal, namely:

1. That the learned Justices ignored the conduct of the Respondent in affirming the judgement which ordered specific performance of the agreement.

2. That the learned Justice a * did not avert their minds to the evidence that possession of the property by the Respondent was not

consequent upon the purported agreement but prior to it, before affirming the order for specific performance. W «-. - --

3. The learned Justices did not avert their minds to the identity of the portion of property involved in the purported agreement having recourse to the evidence. 4 L The learned Justices failed to ignore the conduct of the Respondent in preparing a plan without the approval and knowledge of the Appellant who would demarcale the boundaries. 5 \ The learned Justices wrongly took the delay by the Appellant in canceling the agreement as acquiescence to the breach by the Respondent < ■

6. The learned Justices failed to consider the validity of the purported, receipts tendered by the Respondent In its judgement dated the 30th day of November 2004, the Court of Appeal only dealt with the first ground of appeal which is that the decision of the trial Court is against the weight of the evidence having dismissed ground two, which is

based on misapplication of the principles of law, on technical grounds. In dealing with ground one, the Court of Appeal proceeded to evaluate some aspects of the evidence and making some findings of fact in support of the trial Court’s decision before deferring to its judgement, even though, the Court of Appeal was not oblivious to the submission of counsel for Mr. Sesay that the witnesses for Mr. Bahsoon were not truthful. In my view, the trial Court, unlike the Court of Appeal, did not evaluate the

Evidence

The trial Court, after setting out the pleadings (from pages 70 to 72, inclusive, of the record), proceeded to recount (or narrate) the evidence (from pages 72 to 89, inclusive, of the record) and then plunged directly into dealing with the law and what she considered the legal issues of the case (from pages 86 to 96, inclusive, of the record) before finding for Mr. Bahsoon; and, consequently, ordered Mr. Sesay to* sign the conveyance prepared by Mr.

S3 Bahsoon's solicitors. What I consider to be an exception to the lack of findings of fact is the trial Court’s view, that, and I quote: “The defendant (Mr, Sesay) feigned not to be aware of the claim of government. In contrast to this there is Exhibit “F” which was written by PV/2 [Ibrahim B. Kamara) to the Department of Surveys and Lands and it was at the instance o f the Defendant I had the opportunity to, watch the demeanor of the witnesses both of the plaintiff, Pw2 and the Defendant and I am satisfied the Defendant was aware o f the stalemate* However, this finding of fact has no basis on the evidence; Mr. Sesay never

denied or pretended that certain government officials were claiming that his landed property at kingtom, Freetown, belonged to the state. He was absolutely certain that the claim was misguided and erroneous and took successful steps to correct the view. • « i The trial Court dealt briefly with the counterclaim (from pages 96 to 97, inclusive, of the record) and, surprisingly, in contrast to its treatment of the claim, made some findings of fact, that is, firstly, that Mr. Sesay at some point in time was the fee simple owner of property numbered 4 Bolling street, kingtom, and that sometime later he disposed of a portion to the government and by exhibit A (the sale agreement) he agreed to sell the remaining portion to Mr. Bahsoon; and, secondly, that it was agreed that Mr. Sesay took possession and occupation on a concluded agreement evidenced by exhibit A. Part of the first finding was never in dispute. What is in dispute is what portion or area of land Mr. Sesay agreed to sell and Mr. Bahsoon agreed to buy. As regards the second finding, there is no evidence that the parties agreed that Mr. Bahsoon took possession and occupation, not to speak doing so on the basis of Exhibit A. On the contrary, there is a sharp contention whether Mr. Bahsoon came to live in Bolling Street before the making of the sale agreement (Exhibit A) or after on the basis of the agreement; and, also, whether at the time Mr. Bahsoon came to live there, Mr. Sesay and his family were living there.

It has been said on several occasions that it is not enough for a trial Court to simply recount the evidence and abruptly come to conclusions on the facts particularly if based on the tenuous statement that U I believe this or that”; or that U I believe or disbelieve” a witness without any or proper analysis or evaluation of the factual evidence and therefrom make findings of primary facts upon which the relevant law can properly be applied. The legal principles or issues involved cannot stand independently of the foundational facts; they depend on their practical applicability on the particular findings of fact. For instance, in the issue of the grant of specific performance the trial judge needed to make findings of fact, for example, whether there was a contract or not; and if there was a contract, whether Mr. Bahsoon had discharged his obligations under the contract and, if not, was he willing and able to discharge his obligations. Fundamental to any sale contract is the payment of the purchase price and, in the instant case, so also is the time frame within which payment was to be effected. In my view, the trial Judge did not make any unequivocal findings of fact whether Mr. Bahsoon did make the alleged payments to Mr. Sesay as evidenced in the receipts prepared by Mr. I.B, Kamara, an erstwhile employee of Mr. Sesay; and whether as a matter of fact the employee was authorized to issue the receipts and to receive one of the alleged payments. These alleged payments are a matter of serious contention between the parties and the trial Judge ought to have evaluated all the evidence pertaining to the alleged payments before making a finding of fact whether the payments were actually made or not; and if made to whom and on whose behalf. The trial Judge, in my view, failed to do this. The trial Judge limited herself to recounting the evidence as illustrated by the narration of the evidence of Mr. I.B. Kamara (Pw2) (See Page 91). It seems to me that the trial Judge did not make proper use of her advantage of having seen and heard the witnesses. Therefore the appellate Court is in as good a position to evaluate the evidence. As for documentary * evidence an appellate court is generally equally positioned to evaluate the evidence and come to its own conclusions. See Watts (or Thomas) v Thomas 1947 All E.R.

582. The facts surrounding the receipts (Exhibits B,C, and D) alleged to have

been authorized by Mr. Sesay create doubt in my mind about the veracity of that allegation. It is commonly agreed that Mr. Sesay is an illiterate (see p. 25 line 10-11 of the record) but can sign documents in his name. 'It is commonly known, and it stands to reason, that illiterates, especially illiterate business people, learn to sign their name so that they can execute documents by their hand. This was the case In respect of the sale agreement (exhibit A). No explanation was given why the receipts that were supposed to have been prepared at different times by Mr. I.B. Kamara (P.W.2) were not handed over for signature by Mr. Sesay in his hand. This could easily have been done. Mr. I.B. Kamara gave evidence that he was present when the 1s t two payments were allegedly made (see p 29 line 13 - 15 of the record). The receipts, as with the sale agreement, merited the signature of Mr. Sesay. Secondly, the receipts followed one another serially and all three were undated. If the receipt book was used generally for Mr. Sesay, one would expect intervening payments for Mr. Sesay. According to Mr. I.Bo . Kamara (Pw2), Mr. Bahsoon made the first two payments before the sale agreement was made (see p 3 lines 21 -26 of the record) but Mr. Bahsoon seems to be saying he did not make any payment on or before the execution of the sale agreement in contravention of clause one. Mr. Bahsoon said that one of the first two payments was by cheque. This was not so stated in the receipts and, more importantly, Mr. Bahsoon failed to adduce evidence of the cheque, the counter-foil or, even better, production of the cheque (or a copy thereof) in evidence by the Bank which would have been extremely useful in determining whether payments were made to Mr. Sesay or not pursuant to the sale agreement. Mr. Bahsoon in these words. a I have never transferred money to Alhaji Sesay except for this transaction through his manager1 '. seems to be saying he had never paid money to Alhaji except in this sale transaction and that the payments were done through Mr. I.B. Kamara (Pw2). On the issue of the receipts Mr. I.B. 'Kamara played a significant role. Here was a man (a relation to and brought, up by Mr. Sesay, who, subsequently employed and housed him), who unceremoniously left his house and employment without informing his benefactor and employer. Such behaviour does not

S f c > engender trust or credibility. I find him untrustworthy and his evidence in support of Mr. Bahsoon’s claim unreliable in all the circumstances. In the premises, I find that Mr. Sesay never received the pajTnents represented in the receipts (Exhibits B, C and D) and that he never authorized the preparation and issuance of the receipts. There are factors pertaining to the evidence relating to the land at Bolling Street that seriously undermine the reliability of the evidence adduced in support of Mr. Bahsoon’s case. The evidence of Mr. Bahsoon was that when he moved into the property at Bolling Street, it was unoccupied and that Mr. when he stated that he invited the plaintiff to buy 4C portion of the premises if in the compound. This is the explanation given by Mr. Sesay for offering to sell a portion of the property to Mr. Bahsoon. There is no evidence that Mr. Sesay was offering to sell a portion to all and sundry. This version was not challenged and Mr. Bahsoon, on his part, did not explain the circumstances leading to the offer. Further, Mr. Bahsoon’s own witness, I.B. Kamara (Pw2), gave evidence that, Mr. Bahsoon moved into the property with the consent of Mr. Sesay. In the given circumstances, I find it reasonable to accept the evidence of Mr. Sesay on the issue. Mr. Bahsoon, in evidence, stated that the building he moved into 40,000,000,00 to complete the ground floor. Yet the evidence of these workers who carried out the stated works (see page 24 lines 11-16 of the Record) were not provided. This is to be contrasted with the evidence of Mr. I.B. Kamara (Pw2) whose evidence is that Mr. Sesay built 4 Bolling Street and the Sesay’s family came in sometime later at the request of Mr. Sesay. This is

contradicted by the evidence of Mr. Sesay (see p 42 lines 23-27 of the record) he did not want to be disturbed by the noise that his son, Ismael, was causing was unfinished and that he finished the ground floor and expended about Le expenditures in terms of receipts, cheques etc. or even the testimony of store (see page 30 lines 28-30 of the Record). The evidence of Mr. I.B. Kamara supports the evidence of Mr. Sesay when he stated:

"The Plaintiff (Mr,. Bahsoon) occupies 4 Boling Street at the time of the contract (Exhibit A - the sale contract), the house has been completed (Brackets Provided) Au concerned the payment of City rates, Mr. Bahsoon had this to say: “ I started paying the City Rates when I completed the 1s t Floor (ground Floor) and I was given a new number in 1990 The bill first came in the name of the owner. The bill was first addressed to me in 1992 - 1993. When I completed the 1s t floor City called at the house. I onlu keep the current bills but destroyed the others ” (Brackets and emphases providedI). It is strange, to say the least, to destroy rate receipts for pajmients which are a term of the sale agreement (Exhibit A) contained in clause 3 thereof; or could the statement be a mere cover for failure (breach of agreement) by Mr. Bahsoon “to pay and discharge all rates and taxes and assessments duties imposed on the land”. I am inclined to find a positive answer to the question. Again one can discern from the statement that the City Council gave a new number when Mr. Bahsoon allegedly completed the 1s t Floor (ground floor) of the two storey building. The new number can only be referable to a portion of the property since it would appear the property had already been designated a city number of 4 Bolling Street, Kingtom, Freetown. This designation of a new number for the affected portion is supported by the City Rate receipts and demand note (Exhibits L1 , L3 and L2 respectively) which bear city number 4B (or 4P ). Let me touch on the question whether Mr. Bahsoon took occupation and/or possession of the ground floor on the basis of the sale agreement or on the invitation and consent of Mr. Sesay'before the existence of the sale agreement (exhibit A). The sale agreement is in writing and, in my considered view, was

intended to contain all the terms. Terms as to who should pay city rates and the manner of the payment of the purchase price were expressed in exhibit A . and not the matter of occupation or possession. I am of the view that if Mr. Bahsoon was already in occupation and/or possession of the property, and it was a term of the sale agreement, exhibit A ought to have expressly recognize such a salient term; and even more so if it was intended that Mr. Bahsoon should be in occupation and possession on the basis of exhibit A, it certainly ought to have been expressed explicity in exhibit A since the sale agreement was reduced in writing, that is, exhibit A. There is a presumption that exhibit A was intended to include all the terms of the contract. In my considered view, this presumption has not been rebutted. In all the circumstances, I accept the version (or evidence) of Mr. Sesay on this issue. The issue of part performance has been unnecessarily drawn into the controversy. The term “part performance” is a term of art associated with the English statute known as the Statute of Frauds, 1677. Contracts under the purview of the Statute of Frauds must be evidenced in writing, failing which, they become unenforceable. (See section 4 of the Statute of Frauds, 1677). The nature of the evidence required to meet the requirement was not specified by the statute and as a result the Courts set down rules that the memorandum in writing, which can be one or more documents, should reflect the common features of a contract of the transaction in consideration, such as, the identity