The SL Enterprise Ltd v Attorney General v Minister of Justice (SC 4 of 2005) [2008] SLSC 3 (18 July 2008)

“a ) $.C. 4/2005

INTHE SUPREME COURT OF SIERRA LEONE BETWEEN: THE SIERRA LEONE ENTERPRISES LTD, - APPELLANT AND ’

1. THE ATTORNEY-GENERAL & MINISTER OF JUSTICE- DEFENDANT | } 2, THE MINISTER OF LANDS HOUSING & THE ENVIRONMENT - DEFENDANT

Coram

HON. MS.JUSTICE U.H. TEJAN-JALLOH + Ag. Cd. HON. MR.JUSTICE G.B, SEMEGA-JANNEH = S.C. HON. MR. JUSTICE BODE RHODES-ViVOUR : JS.C. HON. MR.JUSTICE M.E.T. THOMPSON . JSC, HON. MS. JUSTICE S. KOROMA + AL SOLICITORS/COUNSE’, B. MACAULAY JNR. ESQ. FOR THE APPELLANT LM, FARMAH ESQ. FOR THE 197 AND 2"° RESPONDENTS 0.1. KANU ESQ. WITH HIM ar | JUDGMENT DELIVERED ON THE 18 pay oF JULY, 2008 BY HON. MR. JUSTICE BODE | RHODES-VIVOUR. JUDGMENT | tion 21, 28, 122 and 124(1) (a), of By way of Originating Notice of Motion brought under Section | f the Supreme Court Rules 1982, the Plaintin seeks | the Constitution, Part XVI Rules 89-98 of 7 , ‘ 21(1) of the Constitution, and Orders of this Court | from this Court the interpretation of Section Granting the following reliefs:

Se : (a) A Declaration that the Plaintiff is (a) th 1@ Plaintiff is the fee simple owner free from all incumbrances * of the property at Fisher Lane, Kissy, Greater Freetown in the Western Area of the Republic of Sierra Leone,

(b) That the Defendant vacates the property and deliver possession of same (o the Plaintiff.

(c) Damages to be paid by the Defendants jointly and severally for contravention of the Plaintiffs fundamental rights provided by Section 21 of the Constitution as from the 14" of October 2005 until possession of the property is delivered to the Plaintiff.

(d) An injunction restraining the Defendants, and or severally, by themselves, their servants or agents or howsoever or otherwise from conveying, leasing, mortgaging, parting with possession or in any way whatsoever disposing of the property or part thereof.

(e) Any further order or relief as this Honourable Court may deem fit and just

In support of the Originating Notice of Motion is an eight paragraph affidavit deposed to by Mr. Nabil Bahsoon, a director in the Plaintiff Company. Annexed to it are documents marked, Exhibits NB1A, NB1B, and NB2.

Berthan Macaulay (Jnr.) Esq., a legal practitioner deposed to an eight paragraph affidavit Verifying statement of Plaintiff case. Arnexed to it are documents marked Exhibits BMJ1A and B respectively.

Mr. Nabil Bahsoon deposed to a further four paragraph affidavit verifying statement of Plaintiffs case,

There are series of correspondence telween the parties marked as Exribits. On being served

with the Originating process in this suit O.I, Kanu Esq. State Counsel, entered conditional

@ppearance for the Defendants and filed a three paragraph affidavit verifying statement of the

‘and 2" Defendants case. 7

2S ‘The facts in this case are simple and straightforward (On the 15” of March 2000 the 2 Defendant executed a Deed of Conveyance in favour of the Plaintiff. (See Exhibit NB*). By the said Deed of Conveyance the Plaintiff went into possession and remained therein i.e. on the subject matter of the case. A parcel of land situate lying and being at Fisher Lane, Kissy, Greater Freetown in the Western Area of the Republic of Sierra Leone. On the 5" day of October 2004 the 2" Defendant wrote to the Plaintiff informing it that the Government of Sierra Leone has instructed it to take possession of the land. Letters were ‘exchanged by the Plaintiff and the 2" Defendant, and on the 29" day of August 2005 the ca Defendant gave the Plaintiff 7 days Notice to vacate the land and handover same to the 2" Defendant. The Plaintiff complied and since 14” of October 2005 the 2" Defendant has been in possession of the Plaintiffs land and is still in possession of the sald land We heard learned Counsel for the Plaintif, Mr.

8. Macaulay Jnr., on 9/7/2008 and on + 467772008 he concluded his submissions. In his closing speech learned Counsel for the Plaintiff observed that the land was validly conveyed to the Plaintif by the 2" Defendant, and that it was wrong for the 2% Defendant thereafter to compulsorily acquire the said land without complying with the provisions of Cap 116, Laws of Sierra Leone 1960. He submitted that the Tights ofthe Plaintiff under Section 21 of the Constitution have been contravened. Relying on Rockson v Agadzi Another 1979 G.L.R. P.106, He urged us to grant all the reliefs sought. ‘ter stoning attentively to Mr.

8. Macaulay Jnr's. Submissions, Mr. LM. Farmer, learned counsel for the Defendants Informed us that he was not contesting the case since the Acquisition of the property was not properly done. efor |. 90: tnc.siv. omuee fh Ahie-cane:|ceiand ie, comapent on learned Counsel fi the Plaine oral application to amend one ofthe section under which this application was brought, “As tong ago as 1879 the Courts have held that 2 party I not bound to state under which Rule oF Order he proposes to move, There is no hard and fast rule that the Order and Rule must be

; ep stated on the Motion paper although it is desirable that they be so stated. See Hall VC in Re ‘ Barkers Estate 1879 10ChD P.165 Stating the Section, Rule, Order is to be regarded as a procedure to be taken but failure to take it does not, and ought not render such non compliance fatal. | row turn to the substantive matter. Affidavit evidence of the Plaintiff has not been controverted. The position of the Law is that where material facts in support of an application have not been controverted by the Defendant, the facts contained in the said affidavit in | support ofthe application are to be taken by the Court as true it has been clearly established by the Plaintiff that he is the owner of the parcel of land at Fisher Lane, Kissy, Freetown in the Western Area of the Republic of Sierra Leone and that the 2 Defendant acquired the said land contrary to the provisions of Section 3 of Cap 116 of the Laws of Sierra Leone 1960 and Section 21 of the Constitution. The Plaintifs case is very clear and credible since the Defendants Counsel concedes. When the adverse party concedes as is the case here, that means that there is no defense to the Plaintiffs case, and where there is no defense to the Plaintiffs case the Court is still enitled to be satisfied that the evidence adduced ’ is credible and sufficient to sustain the claim. In this case the Plaintiff has supported his case vita documentary evidence, to wit: Exhibit NB2 to show that he is the owner of the property, and Exhibit BMJ29 the Defendants letter ordering the Plaintiff to vacate the land in clear contravention of Section 3 of Cap 116 of Sierra Leone 1960 and Section 21 of the Constitution. The well laid down position of the Law is that where documentary evidence supports oral or affidavit evidence such affidavit evidence becomes more credible. This is so because ) documentary evidence-serves as a hanger from which to assess oral or affidavit evidence. The Exhibits supra lend more credence to the Plaintiffs case. Section 28 of the Constitution confers original jurisdiction on the Supreme Court to hear and determine matters pertaining to fundamental rights. In interpreting these fundamental rights and provisions of the Constitution the Courts use the technique of interpretation laid down by Hon. Justice Udo Udoma, Justice of the Supreme Court of Nigeria in A. Rabiu v the State 1981 2 NCLR P.93. The principles Stated by Udo Udoma JSC were reaffirmed by the Privy Council Per Lord Diplock while interpreting the Constitutions of Gambia and Mauritius in AG of the Gambia v Momodu Jobe t 1984 AC P.689 at P.700, His Lordship said inter alia.

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