Sharbel A. M. Haroun And Another v Alpha A.W. Sallu & Others (CIV APP 28 of 2006) [2008] SLCA 54 (20 June 2008)

Be:

JUDGEMENT z SIV. APP 2972005 IN THE COUR | TOF APPEAL OF SIERRA LEONE | BETWEEN: SHARBEL ABRAHIM MILHEMHAROUN 45° app PH ABI in JOES! RAHIM MILHEM HAROUN - 2 APPELLANT AND ALPHA ABDUL WAHID SALLU - 4™RESPONDENT KELFALA SESAY - 2 RESONDENT MOHAMED KOROMA - 3®° RESPONDENT

Coram

HON MS JUSTICE U.H. TEJAN-JALLOH - J.S.C. HON MS JUSTICE SALIMATU KOROMA - J.A. HON MR JUSTICE A.N.B. STRONGE - J.A. HEARING DATE: 7™ JUNE, 2007.

Judgement

+ — 20" JUNE, 2008. ADVOCATES: AMADU KOROMA ESQ, FOR THE APPELLANT E.E.C. SHEARS-MOSES ESQ, FOR THE RESPONDENTS.

DELIVERED ON 20™ DAY OF JUNE, 2008. 14 the TEVAN-JALLOH ~ J.S.C, ~ By a writ of summons dated the 45" June 2004 the “— on ts claiming. Plaintiffs in this matter instituted this action against the defendants n ; ‘i land hereditaments of al

1. Declaration that the fee simole title to the lan ‘ ing being id hereditaments situate lying that piece or parcel of land an f

| eee nd known ae a" a8 No

10. Regent Road, Wilber Western Area of the Republic of §; Orce, Freetome in the ; ierra Leone to the plaintiffs herein ‘8 vested and betong

2. An order expunging from the Registrar Book o Declarations kept in the offi Of statutory - office of the Registrar-General Rox Building Walpole Street, Freetown Sierra Leone. the jowt stat _ Declaration Establishing possessory title of Alpha pe de hae Sallu, 15" Defendant herein swom to on the 29" day of December 2003 and registered as No. 96 at page 78 in volume 81 on the Grounds of Fraud.

3. General Damages for trespass to plaintiff's land and herecitaments at 10 Regent Road Wilberforce, Freetown aforesaid. 4, Costs of this action. There is on record an affidavit of personal service on the defendants sworn to by one Ibrahim Kuyateh on the 29 day of June 2004. On the 8" day of July F.M. Carew Esq. swore to an affidavit of search : nd stating that no appearance had been entered by any of the nee * le on the Seeking leave to sign judgement against all the defendants. eae ae ° 13" of July 2004 appearance was entered on behalf of all the sen a icl Shears Moses Esq. By then judgement in default of sane 7 July 2004 applied for since on the 8" July 2004 was not signed = ‘ ‘rete can be no defendants. two days after the late appearance 0” behalf of ihe But pursuant {0 that gument that the judgement signed “— ner nd Registrar-Genersl itdgement FM, Carew Esa. wrote 10 the adminis’ this Culminated a . . earance an exhibiting the judgement in default of ve respordent 7 the Record Books ®xpunging the statutory declaration of the 1 config 8 evidence of the is o Statutory Declarations page 43 of the ae tery Dectaration was cancelled q Respondent that the 1" Respondent's Stal

andlor expunged. The learned trial Judge he ices a follows: Gout ecards show the document was expunged tom te rca as the 4 Respondent Alpha ihe is recorded to have seid in rter ate | 1 was never Send (sic) with an order my Statutory Declaration” This shows that at the time of the trial of the action the Statutory Declaration had —_ expunged and the judge without ensuring that the orginal | Statutory Declaration was produced she allowed the 1® Respondent to continue to give evidence using the photocopy of a document which legally speaking no longer existed. This is to say, the least, palpably wrong - procedurally. Strictly speaking, what has been expunged fom the records cannot be admissible evidence or made use of unless there is an order to reinstate it. In this case there was no such order. The legal consequence of this is that the court was not clothed with jurisdiction at the time it is purported to be trying the case. The judgement in default of appearance dated 15" day of July 2004 reads as follows:-

1 “NO APPEARANCE having been served by all the 1“ 2md and 3% Defendants in this Action. IT IS THIS DAY ADJUDGED that the olaintiffs are declared the fee simple owners and do reccver possession of all that piece or parcel of land and hereditaments situate lying and being at no. 10, Regent Road, Wilberforce, Freetown the Westem Area of the Republic of Sierra Leone.

2. That the joint Statutory Declaration Establishing possession title of Alpha Abdulai Wahid salu, 1% Defendant herein and others swom to on the 29" day of December 2003 and registered as no 96 at page 78 in volume 81 in teveet of statutory Declaration kept in the office of the Administrator

Z and Registrar-General’s Office No. 8 Walpole a f Freetown be expunged there from on the Grounds of Frau ‘ t

i —_

LULU

3. That plaintiffs do recover general damages from defendants for trespass to land such damages to be assessed

4. That Plaintiffs do recover all costs from Defendants. Such costs to be taxed”. . Order of court . Signed: Kamara Ag. Master and Registrar.

Certified true Copy Signed Kamara Ag. Master and Registrar. | think it is pertinent to state that any judgement entered prematurely |.¢ before actual default had been made by defendant, whether failing to enter appearance or service of defence entitled defendant to have such judgement set aside exdebito Justitae C. Anlaby V Praetorious (1888). 20 QBD

764. It has also been the duty of the defendant to apply to set it aside for irregularity “within” a reasonable time and before he has taken ‘any fresh steps after he becomes aware of the irregularity. (see Singh V Atombrook Ltd) 14989 1 WLR 810; (1989) 1 ALL E.R, 385 C.A. In the instant case the Respondents solicitor cannot be heard to say that he was unaware of the above default judgement. If he claimed to be 'gnorant of it, the question would be asked what did he do when his client 'estified about the cancellation of his statutory declaration. The Law is settled that jurisdiction is fundamental in any Judicial process. As it has been clearly demonstrated above. any Judgement however irregularly Obtai . : i j s not ‘aired stands until it is set aside. In this case the irregular judgement wa: - aside or vacated at the time the matter went to full trial. As stated early the ®amed trial j ’ : iscovered that the ne ed trial judge should have stopped the case when she dis! ne in remises, de Declaration had been expunged from the records. imtneie itless going ; . 8S going into the merits of this ape!

You cannot hi t A ou ave two contradictor 1889) 24 QB ny judgerionts in one ecfon. In Homy V Hodron ( ) D 103 at page 107, Lod Esher said that judge effect from the date of the entry and it is an effective sioaielk from th —_ ' nat date | think it is appropriate to recall the words of Lord Denning in Macfoy V UAC Ltd (1962) A.C. 452 where he said “you cannot put something on nothing. It wil fall” AS the judgement in default of appearance dated 15” July 2006 is not yet set aside. | hold that it still stands. We order that costs paid by Appellant to Respondent in High Court be refunded to the Appellant. 2. f} hist. HON|MS JUSTICE U.H. TEJAN-JALLOH -J.S.C. HON MS JUSTICE SALIMATU KOROMA — JA.-! AGREE pe Ke Oeysn one HON MR JUSTICE STRONGE - J.A.- LAGREE TIS 5