Umu Nabbay v Alusine Jalloh (CIV APP 36 of 2008) [2020] SLCA 21 (21 October 2020)

Civ App 36/2008 IN THE COURT OF APPEAL OF STERRA LEONE BETWEEN: MADAM UMU NABBAY — - APPELLANT. AND

ALUSINE JALLOH ~ RESPONDENT

(SUING by his Attorney Alhaji Borbor Jalloh)

Coram

‘THE HONOURABLE MR JUSTICE P O HAMILTON

JUSTICE OF THE SUPREME COURT (now deceased)

‘THE HONOURABLE MR JUSTICE N C BROWNE-MARKE,

JUSTICE OF THE SURPEME COURT

THE HONOURABLE MR JUSTICE E E ROBERTS

JUSTICE OF THE SURPEME COURT

COUNSEL:

JB JENKINS-JOHNSTON ESQ (now deceased) for the Appellant

YADA WILLTAMS ESQ for the Respondent

JUDGMENT DELIVERED THE 21" DAY OF OCTOBER, 2020

BROWNE-MARKE, JSC

The Appeal

1. This is an appeal brought by the Appellant against a Summary Judgment of the High Court, the Hon Mr Justice A D KONOYIMA, Presiding, delivered on 13 June, 2008. That Judgment, as is well known, though summary in form and in substance, is indeed a final judgment on the merits of the claim brought by the plaintiff in the action in the Court below. The Notice and Grounds of : Appeal were filed on 16 June, 2008 and are at pages 160 - 162 of the Record. We do not intend to set them out in extenso, as we have come to the conclusion that based on the facts presented to the Learned Trial Judge, he was duty bound to give judgment in favour of the Respondent. Whether or

not payments were made by the Appellant to Mr Christie Greene (hereafter, Mr C Greene), and to two other persons on his behalf, was and is irrelevant, simply because there was no evidence whether by way of affidavit or otherwise, that Mr C Greene had title to the property he purported to sell to the Appellant: or, that he represented to the Appellant that he was authorized by the true owners to dispose of the same. Mrs Amy Greene was cat no time a party to the transaction between Mr C Greene and the ‘Appellant, There was no evidence that she colluded with her husband, Mr C Greene in order to deceive the Appellant into parting with her money. There was also no evidence that at that point in time she was living in amity with Mr C Greene.

2. Inthe grounds of appeal, Counsel for the Appellant has contended that Mr & ‘Mrs Greene ought to have been joined as parties to the action in the Court below, and that the Learned Trial Judge was wrong to have refused to hear the application to do so, As we will explain below, it is untrue that the Learned Trial Judge ‘refused as contended by Appellant's Counsel in Ground (2)at page 161 to hear that application. Clearly, it was not heard, But it was not refused, Prolix as the grounds of appeal are, they really amount to nothing more than concentric circles, the centre-point being the payments made by the Appellant to, and for the benefit of Mr C Greene for property which he was not authorized to sell. That the Appellant chose to enter into such a transaction without proper or adequate legal advice may be a matter which calls for sympathy, but certainly, not for judgment on the facts presented to the Court below. Even when Mr Elvis Kargbo wrote on her behalf, he did not deal with the primary issue of whether due diligence had been done before payment was made to ir C Greene.

FACTS OF THE CASE .

3. By deed of conveyance dated 12 February, 2007, Graham Greene and Bjorn Greene, both of them sons of Mr Christie Greene and Mrs Amy Greene, through their Attorney, their mother, Mrs Amy Greene, sold their joint property situate at and known as 89 Main Motor Road, Wellington, Freetown in the Western Area of Sierra Leone, to the Respondent herein. The land is 0.1169acre in size and was and is delineated on survey plan LS2100/06 dated 9 November, 2006. The deed was duly registered as No. 376 at page 90 of

volume 618 of the Record Books of Conveyances kept in the of fice of the Registrar-General, Freetown, As there is no dispute as to the location of the property, or to its size, no further description is necessary. The Respondent paid a consideration of Le28m for the property.

4, Prior to the execution of this deed, the father of the Vendors, Mr C Greene, it seems, had purported to agree to sell the same property to the Appellant for the total sum of Le26,500,00. For this purpose, the Appellant had initially paid the sum of Le2Omillion to Mr C Greene on 6 March, 2006. He acknowledged receipt of this amount of money. The Appellant is referred to in the receipt as Umu Bangura. As there has been no argument about this, ‘this Court accepts that it is a reference to the Appellant, otherwise known ‘as Umu Nabbay.

5. On13 March, 2006, she paid an additional sum of Letmillion, but this time, to one Joseph Bangura who issued a receipt to that effect. The Appellant contends that this was payment for the property at Wellington. There was no affidavit from Mr Bangura to verify this; nor was there any from Mr C Greene to the same effect. The receipt did not state that it was issued on behalf of Mr C Greene.

6. On3 June, 2006, the Appellant claims she paid a further sum of Le500,000 to one Mr Melbourne Greene. So, in all, she paid, the total sum of Le21,200,000 for this property, with an outstanding balance of Le5million to be paid. There was no evidence in the Court below as to when the balance should have been paid off: nor, to whom it should be paid, as Mr C Greene had informed the Appellant that he would be travelling out of the country.

7. Based on these payments, the Appellant commissioned a survey plan, 5549/06 dated 4 April, 2006 in the names of Humu Bangura, i.e. herself, ‘and one Isata Kanu, Isatu Kanu did not take part in the proceedings in the Court below. The Appellant proceeded to put up a structure on the land, and according to her, she was actively encouraged in this by Mr C Greene. There matters stood up to the end of 2006.

8. To her surprise, the following year, on 1 June, 2007, she received a letter from Shears-Moses & Co dated 10 May, 2007 who stated that they were acting on the instructions of Mr Christie Greene, She was told that since she had defaulted in making full peyment for the property, the same had been sold to.a third party, and she was invited to go and collect her money. She

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was warned also to cease all acts of trespass on the land, as the new owner of the property, i.e. the Respondent herein, was not happy about it. The Solicitors acted as if Mr Christie Greene was indeed the true owner of the property, when evidently he was not. The Appellant instructed her then Solicitors, Betts and Berewa to respond on her behalf. The Solicitors replied by letter dated 1 June, 2007. In that letter, the Appellant's claim to the property was re-stated. The purchase price quoted by the Solicitors was Le26.5million, The last paragraph will be set out in full, because it bears on the decision which this Court has arrived at. *..We have therefore advised ‘our client that since you are now representing the vendor, she should make the balance payment of Le4,500,000 to you and/or your of fice. Meanwhile, we have further advised our client to ignore your letter as your client's and (sic) intention (we think ‘and’ should be omitted) of abdicating his original agreement is unlawful...”

9, The stance taken by the Appellant's then Solicitors was obviously mistaken. Their first enquiry should have been about the ownership of the property. The Appellant did not say whether she consulted a lawyer before making payment to Mr C Greene. But it was not too late in the day for these Solicitors, Betts & Berewa, to have done so. Our understanding of legal practice is that where one’s client proposes to buy property, a lawyer's first obligation is to request the putative vendor's title, and to investigate the same at the Registry. Bearing this in mind, it was rather high-handed and perhaps foolhardy for the Solicitors to put down in writing that they had advised their client to ignore a timely warning from another set of Solicitors ‘that the purported vendor had nothing to sell anymore.

10. The next development as found in the Record of the iriai, isa letter dated 28 November, 2007 from Messrs Shears-Moses & Co, to Messrs Yada Williams & Associates. It refers to an earlier letter from Yada Williams & ‘Associates dated 3 August, 2007 on behalf of the respondent herein, addressed to Mrs Greene on whose behalf, Shears-Moses & Co were acting on this occasion, and not on behalf of Mr C Greene. The position now taken was that if the Appellant herein had completed payment of the full purchase price, that paid by the Respondent would have been returned to him. But, claimed Shears-Moses & Co, she was unable to do so for a period of about ‘two months. As such, the Respondent was free to take possession of the

Y

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