Sylvanus I. Cole v Musa Tarawally (CIV APP 54 of 2006) [2011] SLCA 38 (12 July 2011)

; TWh 5 en IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: SYLVANUS INA COLE = APPELLANT AND MUSA TARAWALLY ANITA COLE = RESPONDENTS

Coram

HON. JUSTICES. BASH-TAQL - JSC. HON.JUSTICES.KOROMA = JSC. HON. JUSTICEE.E.ROBERTS - 3A. ADVOCATES: E.E.C. SHEARS-MOSES FOR THE APPELLANT F. CARLTON HANCILES FOR THE RESPONDENTS JUDGMENT DELIVERED THIS_12"" DAY OF Tuy 2011 ROBERTS, J.A.

Background

‘The brief facts of this case ae that Eliza Thomas also known as Becummy “Thomas, (deceased) was owner of property at 17 Dillet Street Freetown until her desth. Upon her death, her daughter Mrs. Modu Elizabeth Cole (Nee Thomas) purportedly took out Letters of Administrations in respect of her estate and then vested property at 17 Dillet Street upon herself. The said Mrs. Modu Eliza Cole was married to the father ofthe Appellart and so the Appellant was her stepson. Mrs. Modu Cole had no child of her own but she had an adopted child, Anita Cole (the 2" Respondent). The appellant lived in the house at 17 Dillet Street with Mrs. Modu Cols for several years until her death in October 2003. Before her death Mrs. Modu Cole purportedly made a Deed of Gift of property at 17 Dillet Stret to the Respondents herein. The Respondents then gave notice to quit to the Appellant who rejected their claim, challenging their ownership and commenced an action in the High Court accordingly. The action commenced in the High Court was by Writ of ‘Surrrsons cated 23" June 2004. The Appellant who was Plaintiff in the action

: 4s claimed that there were serious defects and irregularities in the Letters of Administration, Vesting Deed and Deed of Gift (upon which the Respondents” title is based) which rendered them void and that the said Mrs. Modu Cole did not make those instruments. The defects and irregularities complained of by the Appellant (as contained in the Writ of Summons and at the trial) are summarised here as follows:

1. That the defects in the Vesting Deed dated 28 December 1999 are:

a) The date of death of Elizabeth Thomas (mother of Mrs. Modu Cole) jis stated in the Deed as 15" September 1960 whereas her death certificate (page 56 of the Records) states the date of death as 3° November 1981.

b) Though the Vesting Deed was purportedly made by Mrs. Modu Cole the thumbprint was recorded as that of Elizabeth Thomas.

2. The defects on the Deed of Gift dated 28" December 1999 are the same though purportedly made by Mrs. Modu Cole was stated to be signed by “Elizabeth Thomas”

b) the Deed of Gift (unlike the Vesting Deed ) did not contain an illiteracy protection clause as required by Section 2 of Cap 104 of ‘ the Laws of Sierra Leone. ©) The Deed of Gift stated the date of death of Elizabeth Thomas as 15" September 1960 whereas the death certificate (p.56 of Records)confirm the date of death as 3"' November 1981...

3, The defect in the Letters of Administration granted on the 18" October 1999 is that it contains the date of death of Eliza>eth Thomas as 15" September 1960 when the correct date of death as per the death certificate (page 56 of the Records) is 3" November 1981.

In the light of the above defects complained of by the Appellant he prayed in

his Writ of Summons for inter alia a) A declaration of title to house at 17 Dillet Street b) Cancellation of Deed of Gift dated 28" December 1999. ) Recovery of possession etc.

i 16

‘An appearance was entered on behalf of the Respondents dated 2~ July 2004 and a Defence and Counterclaim dated 15" July 2004 was duly filed on their behalf ‘The Defendants’ counterclaim in effect claimed a declaration that they are fee simple owners of property at 17 Dillet Street Freetown.

‘After close of pleadings the trial commenced during which the appellant testified and called one other witness and closed his case. The 1 Respondent and two other witnesses testified for the Defence.

‘After addresses by counsel for the Appellant and the Respondents respectively judgment was delivered on the 29" September 2006 dismissing the Appellant's action ‘and granting the reliefs prayed in the Respondents’ counterclaim. Being dissatisfied with the judgment and decision of the Leamed Trial Judge (LTS) the Appellant filed an appeal to this Court.

‘THE APPEAL

‘The Appellant filed a Notice of Appeal on the 12" October 2006. By order dated 22" May 2007 leave was granted to the Appellant to amend his Notice of ‘Appeal ard an Amended Notice of Appeal was accordingly filed on the 24” May 2007. The Grounds of Appeal (as amended) are as follows:

“1, The leamed trial judge erred in law in failing to appreciate the defects

in the purported deed of gift bearing the name of a deceased person as a party thereby rendering it defective.

2. The learned trial judge erred in law and in fact in holding that the deed

of gift was thumb printed by Modu Cole.

3, The leamed trial judge erred in accepting the letter of administration as

a valid document from which title could be derived and conveyed, in the light of the serious inconsistence in it about the deceased (intestate)

4. The learned trial judge erred in failing to discountenance the letters of ‘administration by which the said Modu Cole acquired title to 17 Dillet Street Freetown. ‘5. The learned trial judge erred in shutting her eyes to what was wrong in law and so gave credence to a questionable document.

6. The learned trial judge in consequence of accepting what was wrong erroneously concluded that the defendants/respondents are the fee simple owners of the property situate at 17 Dillet Street Freetown and consequently granted them possession.

7. The learned trial judge was mistaken in giving credence to a witness

who said he did not know Modu Cole before that day.”

Counsel for the Appellant and the Respondents filed their respective synopses of Arguments and made oral submissions.

In dealing with this appeal I note that the complaint of the Appellant is of errors of law and fact on the part of the Leamed Trial Judge and I have therefore reminded myself of the powers and duties of this court in such circumstances.

Rule 9(1) of the Court of Appeal Rule 1985 provides that “appeals” shall be by way of rehearing and this in my view empowers this court to review the trial and the decision of the Lower Court based on the material available to that court, in order to discover whether there are material errors of law and fact which vitiate the judgment of that Lower Court (see judgment of Roberts JA in the case of MOHAMED BAI SAMA KAMARA V MOHAMED BAI MARU KAMARA CIV. APP 16/2010 delivered on the 25" January 2011). Also in the case of COGHLAN V. CUMBERLAND (1898) 1 CH.D. 704 Lindley MR had this to say:

“Even where, as in this case, the appeal tums on a question of fact, the court of appeal has to bear in mind that its duty isto rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong, When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written

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