Turay v Balfour (CIV APP 17 of 2006) [2010] SLCA 2 (26 January 2010)

)I DC

CIV. APP.17/2006 IN THE COURT OF APPEAL FOR SIERRA LEONE

Coram

The Hon Mrs. Justice S. Bash-Taqi, JSC

~·... The Hon Mr. Justice N.C. Browne-Marke, JA The Hon. Mr. Justi!ce E. E. Roberts, JA BETWEEN: DR. HARRY TURAY AND JOAN BALFOUR (NEE WILSON) . (Suing by Her Attorney Mr. Charles Ayodeji Dixon) APPELLANT ·c-..-.. ~ _ n , RESPONDENT ,..J '-f cffJ~~ dfL' ~ <CY.. i-C.Q &~'f.c. d~ vJ :jq u_.(.-1ct_1CJ b<OlO U Counsel (j J S. M. Sesay, Esq. of Serry Kamal & Co. for the Appellant J. B. Jenkins-Johnston, Esq. for the Respondent S. BASH-TAQI, JSC: This is an appeal from the judgment of the High Court (A.B. Rashid, J) dated the 22"d December 2005, allowing the Respondent's claim against the Appellant and declaring the Respondent the fee simple owner of the land and property situate and being{9ff Hill Station Wilberforce Freetown, damages for trespass an injunction restraining the Appellant from trespassing on the Respondent's said land. " The relevant facts of this case are as follows: - The action was commenced by the Respondent, through her Attorney, Mr. Charles Ayodeji Dixon, as Plaintiff, by a Specially endorsed Writ of Summons

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dated 17th June 2002 against the Defendants jointly and/or severally. He claimed that at all material times before and during this action, the Respondent was the fee simple owner of a piece or parcel of land and hereditaments situate lying and being Off Hill Station, Wilberforce Freetown. He further alleged that she became the fee simple owner of the said land by virtue of a Deed of Conveyance dated 19th October 1992 and registered as No. 858 at Page 33 in Vol. 472 in the Books of Conveyances kept in the Registrar-General's Office in Freetown. The Conveyance was tendered in evidence at the trial as Exhibit "Bl". The Respondent further alleged that the Appellants and their servants entered the said land and the 1st Appellant started building on it and the access road abutting and leading into the said land; that despite repeated demands and warnings to the Appellant to vacate the land and cease construction work thereon, he refused to do so, and eventually he instructed his Solicitor to institute the action asking for the relief set out in the statement of claim. The records do not disclose whether an Appearance was entered by or on behalf of the Appellants, nor do they disclose whether the Appellants filed a Statement of Defence, although Counsel, Mr. Serry-Kamal, in his address referred to a Statement of Defence being filed and to the fact that the Second Defendant was not served with the Writ of Summons (see page 51 of the Records of the proceedings in the High Court}. Despite these irregularities, the action was nonetheless entered for trial on lOth February 2003, and on 23rd September 2002, the Respondent applied under Order 37 R 9-10 of the 1960 High Court Rules for an interim injunction to restrain the Appellants from continuing to trespass on the disputed land. The injunction granted on 23rd September 2002 on the written undertaking by the Respondent to compensate the first Appellant for any loss he may sustain in consequence of the Injunction. The Court then ordered a speedy hearing of the action. There is no indication that the case against the Second Defendant was discontinued in default of service or if serviced with the Writ that interlocutory judgment was entered against him in default of appearance. Presumably the Respondent's Solicitor was content with having served the First Defendant, and therefore proceeded with the action against him alone.

At the hearing of the action, the Respondent's Attorney gave oral evidence. He identified his Power of Attorney as Exh. "Z", but somehow, this document was not . tendered in evidence. The witness said he knows the Respondent's land situate Off Hill Station Wilberforfce, and that she has title Deeds to the disputed land. He visited the land about four times and observed construction work going on, on part of the land; he made enquiries and was informed the land under construction belonged to the two Appellants. Although he made efforts to find them, the witness was unable to locate them. When he visited the land again he noticed that the construction of the building was progressing. He instituted this action seeking the reliefs set out in the Statement of Claim. PW3, a representative of the Administrator-General's Office tendered the Respondent's Deed of Conveyance to the disputed land as Exhibit "Bl".This Conveyance is dated 19th October 1992 registered as Number 858/93 in Vol. 472 at page 33 of the Books of Conveyances. The Respondent's Surveyor also gave evidence as PW2. For reason which will become clear later in this Judgment it is necessary to give a detailed summary of this witness's evidence. He said the Respondent's Attorney, Mr. Charles A. Dixon asked him to do a survey of the Respondent's land at Off Hill Station Wilberforce. He saw some pillars and observed a structure being built on the land; he asked for the Respondent's Survey Plan and saw that it was a sub-division of Survey Plan .. .. L$.2671/86; he plotted Plan LS 2671/86 and prepared a composite plan together with a report which he tendered as Exh." Al-2". He took details of the structure and found that part of it was in L.S. 105/92, (Respondent's land, see page 96) and the other part on L$574/2000, (Appellant's land see page 106}; he observed some beacons on the land numbered B 126/2000, 127/2000 and B 128/2000, which appear on the Parent Plan L.S.2671/86; he requested the coordinates of these pillars was he was given Survey Plan L$574/2000 (the Appellant's Survey Plan). The First Appellant also gave evidence. He said he purchased his land from one Pa Ali many Conteh on 8th January 2001; that the land is situate at Fudia Terrace at the South overlo6king Hill Station, and he commenced building on the North west part of the land. He had floated the floor with concrete and was preparing to float the main floor when he received the Writ of Summons. His Solicitor advised him there is an injunction and to stop his building. His iron rods and cement blocks are still on the land. Prior to the advice from his Solicitor no one had claimed the land. He said further that his vendor told him he bought the land from the Staffords. He denied building on the Respondent's land; he made enquiries as to the ownership of the land before purchasing it; it was confirmed to him that the land belonged to his Vendor. I knows one Mansaray who claims to also have land in the area; he saw other people building in the area. The Appellant's Surveyor also gave evidence; he surveyed the Appellant's land and produce L$574/2000; one Alimamy Conteh showed him the boundaries. A year later he was given the Respondent's land; he went to the ground and took measurements; he prepared a plan which he tendered as Exhibit "C", showing the Appellant's property marked 'Red' and that of the Respondent marked 'Green'. Exhibit "C" appears at page 98 of the Records. Unlike Exhibit "A 1-2", Exhibit "C" shows no overlapping/encroachment. The learned Trial Judge having reviewed the evidence adduced at the trial gave judgment in favour of the Respondent and had this to say: "From this it seems quite clear that each party alleged ownership of the land in dispute and they based their respective claim on deeds of Conveyance. The simple issue before the Court is which of t~em has a better title. The position therefore is this namely the plaintiff has traced her title to the deed of Conveyance which was registered on the 24th March 1991, Exhibit B whereas the Defendant has traced his title back to a Conveyance which was regi~tered and made on the 16th May 1991 Exhibit Dl of the two therefore it would appear that the plaintiff has a better title than the defendant." The Appellant has now appealed to this Court on three grounds, namely:-

1. That the learned Trial Judge acted on wrong principles of law in arriving at his decision

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2. That the Learned Trial Judge failed to consider adequately that the Appellant's predecessors in title had been in exclusive possession of that property for over 20 years before the

defendant went into possession of the same land.

3. That the decision is against the weight of the evidence. Various arguments have been adduced on behalf of both the Appellant and the Respondent. Mr. S. M. Sesay of Counsel for the Appellant, relied on his written

Submissions

He argued that the Learned Trial Judge, to a large extent, based his judgment on the evidence of Appellant's Licensed Surveyor, Mr. Shamun Hamid, who prepared and tendered the encroachment Plan and Report, Exhs. "A 1-2". He asked us to observe the Survey Plan, L.S. 574/2000 at page 20, and to the boundaries of both the Appellant's and Mr. Mansary' s lands reflected thereon and to compare that at page 4, the encroachment plan prepared by Mr. Hamid, in which he concluded that Survey Plan L.S. 574/2000 reflects the land belonging to the Appellant and Survey Plan L.S. 105/92, as that belonging to the Respondent. It should be noted that the Plan does not reflect the land belonging to Mr. Mansaray, the original 2"d Defendant in the High Court. Counsel therefore submitted "that the plan is completely erroneous" as what the Surveyor (Mr. Hamid, I assume) did was to combine the two plots of land belonging to the Appellant and Mr. Mansaray, (2"d Defendant,) reproduce an encroachment plan n based on the combined lands, and portrayed it as belonging to the Appellant. Counsel submitted that a careful scrutiny of the exhibits will confirm that the Appellant did not trespass on the Respondent's land. He submitted that the position of the Appellant and Respondent's respective lands is correctly reflected in Exhibit HT2 (See page 23) the composite plan prepared by James M. Bangura, Licensed Surveyor; he submitted that Exh. HT2 clearly shows that the Appellant did not trespass on the Respondent's land, and further that the Appellant's land and that of the Respondent are separate and distinct; he therefore submitted that the action is misconceived. Arguing ground 2 of the Grounds of Appeal Mr. Sesay submitted that the learned judge failed to consider adequately that the Appellant's predecessor in title had been in exclusive possession of the property over 20 years before the defendant went into possession of the same land; that there is no evidence that the Appellant entered into the Respondent's land, and therefore the Trial Judge was wrong to have held that the Appellant trespassed on the Respondent's land. Counsel quoted the following passage from the Judgment: "In my opinion Exhibit "Al and Exhibit "A2" have satisfactorily clarified the position of the land in dispute which is shown to fall within the area of the plaintiff's land which is particularly delineated on LS 105/95. Suffice it to say that I find that 1st Defendant liable. The result is that the plaintiff's claim for Declaration of Title, Damages for Trespass upon the plaintiff's land by the defendant and injunction must succeed." He submitted that in coming to the above conclusion the Learned Trial Judge was misled by the evidence of PW2, who produced an erroneous report which then led the Judge to come to that erroneous conclusion. Finally on the issue of trespass, Counsel submitted that there is no issue of title between the Appellant and the Respondent, since the Appellant contention is that he is lawfully on his land and has not laid claim on the Respondent's land; that the Appellant has always maintained that his land is separate and distinct from that of the Respondent, he claimed that it is the Respondent who has trespassed on his land. He submitted that the evidence in support of the above submissions, was before the Learned Trial Judge, who disregarded it. He urged us to up hold the appeal for the above reasons. Mr. Jenkins-Johnston of Counsel for the Respondent in reply also relied on his written submissions. He contended that the Learned Judge came to the right conclusions having regard to the evidence led; he also relied on the Respondent's evidence of title, that of her predecessor-in-title, and on the evidence of PW2 the Respondent's Licensed Surveyor, and more particularly on the evidence of DW2, the Appellant's licensed Surveyor who said in cross-examination at page 48, as follows: II " ••••••••••••••• 1 see two (2) plans- LS 105/92 and LS574/2000. L. S. 105/92 is properly shown, but L. S. 574/2000 is not properly plotted. The coordinates of L.S 574/2000 are not properly shown .••.••••••• " He submitted that the burden of proof is on the person asserting title to prove such title in accordance with the pleadings, and that the Respondent has clearly discharged that burden and was therefore entitled to a declaration of title claimed In respect of Grounds one & two, Mr. Jenkins-Johnston submitted that these are vague not having given any particulars or instances of the alleged "wrong principles of law relied by him as is required by Rule 9(4) of the Court of Appeal Rules PN No. 29 of 1985; that the grounds, should not be considered as proper