William S. M . Perry V Admira Smith & ors (CIV APP 10 of 2015) [2015] SLCA 1131 (10 November 2015)

oc : l tet , Civ. App {THE COURT OF APPEAL.OF SIERRA LEONE IN THE MATTER OF A CASE STATED BY THE HON. MR. JUSTICE N.C. BROWNE- MARKE JUSTICE OF THE SUPREME COURT SITTING AS A JUDGE OF THE HIGH COURT IN THE MATTER OF WILLIAM SENAMI MAGNUS: PERRY Vs.

(1) MRS. SDMIRA’ SMITH, () MISS ONIKE PERRY, (@) MR. ARNOLD SNELL,

(4) MR. * KELVIN SNELL MADE PURSUANT TO SECTION 56

(4) OF THE COURTS ACT 1965. AND INTHE MATTER OF Misc. APP, 28314 2014 Pp Nos INTHE HIGH COURT OF SIERRA LEONE (LAND AND PROPERTY DIVISION) INTHE MATTER OF ‘THE ESTATE OF MRS. ONIKE REMISA PERRY ( DECEASED) INTESTATE AND IN THE MATTER OF AN APPLICATION FOR THE SALE OF PROPERTY SITUATE LYING AND BEING AT 74 CAMPBELL STREET, FREETOWN BETWEEN: WILLIAM SENAMI MAGNUS PERRY = APPLICANT (Administrator ofthe Estate of Mrs. Onike Remisa Perry (Deceased). AND

1. MRS. ADMIRA SMITH

2. MRS. ONIKE PERRY 3) MRCARNOLD SNELL 4 MMR. RELVIN SNELL ~ RESPONDENTS

Coram

HON. MRS, JUSTICE NJ. MATTURI JONES - 3A HON. MRS, JUSTICE A. SHOWERS “a HON. MR JUSTICE A. POFANAH mn counstt: . 1.B.JENKINS JOHNSTON, ESQ. FOR APPLICANT 1°" AND 2“ RESPONDENTS

{ye s 2 : CCV. TAYLOR, ESQ, FOR THE 3"? AND 4" RESPONDENTS 1UDGMENT DELIV! IO" payors Jove her 2015 NB: MATTURI-JONES, JA. This question nas been referred to us by the Hon. Mr. Justice N.C. Browne-Marke JSC, under the provisions of Section. 56 (4) of the Courts Act 1965, in S. 56(4) ofthe Courts Act 1965:

“In addition and without prejudice to the right of appeal conferred by this or any

other enactment, a judge of the High Court may reserve for consideration by the Court of Appeal on a case to be stated by him, any question of law which may arise in any suit or matter, and may give his judgment or make his order subject to the opinion of the Coun of Appeal, and the Court of appeal shall have jurisdiction to hear and determine any such question.” Hoon, Justice Browne-Marke JSC’s question arose from an Originating Notice of Motion dated 16" June 2014 which was before him. WILLIAM SENAMI MAGNUS SNELL (the Applicant) applied to the High Court for several Orders, orders including the sale of property at No. 74 Campbell Street Freetown,

‘The application was supported by an affidavit sworn by the Applicant. Mr. Perry deposed that he was the eldest surviving child of MrsOnike Remisa Perry, (the grantor) who died in Freetown and Letters of Administration were granted. He claims that the property at 74 Campbell Street belonged to his mother and that it was necessary to sel the property. He exhibited his grant of Letters (Exhibit *A") and his mother's title deed as (Exhibit “B’). A copy of Valuation Certificate is exhibited as °C”

CCV Taylor Esq entered appearance for the 3° and 4% Respondents as beneficiaries of Elizabeth Perry, (the grantee), and daughter of the grantor. The 4 Respondent — Kelvin Snell is also the Administrator of the said Elizabeth Perry.

Mr. Taylor on behalf of the 3" and 4" Respondent applied by motion dated 26" June 2014 objecting to the Application. ‘There were several orders prayed for in the interlocutory application. The learned Judge has already dealt with them fully in his judgment; (paragraphs 15, 16, 17 and 18). ‘The 3” objection raised by Mr. Taylor was thatthe property the Applicant applied to sell, belonged to the estate of Elizabeth Perry, the grantee, and not

that of Onike Perry, Further, as an alternative, C.C.V. Taylor Esq, asked the Judge to stay

‘ proceedings in this action until and unless the court determines the question of ownership of 74 Campbell Steet 7 ‘The application is further supported by Kelvin Snell’s affidavit. He deposed that he is & Administrator ofthe estate oftheir mother Elizabeth Perry who die intestate in Freetown on the 13" January 2010. The Grant of Letters of Administration and papers are exhibited as KS

1. He deposed further that the 74 Campbell Street was owned by the estate of the late Elizabeth Perry as evidenced in the Deed dated 2" May 1991 and duly registered as No. 107/91 at page 106 in Volume 78 of the Record Book of Voluntary Conveyances. (Exhibit “KS 2°; The operative clause reads a flows: “Now this Indenture Witnesseth that in pursuance of the premises and in consideration ofthe natural love and affection which the Donor hath and beareth for and towards the Donee and for..... diverse other causes the Donor as Beneficial ‘Owner hereby Grants and Convey's Unto and tothe Use ofthe Donee All that Piece or Parcel of Land and hereditaments situate lying and being at No. 74 Campbell Street Freetown ‘To HOLD the same UPON TRUST UNTO AND TO THE USE OF THE DONOR for and during the term of her natural life and after her death UNTO AND TO THE USE of the Donee in fe simple absolut forever.” ‘The Applicant argues that express words used in the Deed mean that Mrs. Perry conveyed the property to herself for her lifetime, and after her demise to her daughter, Elizabeth .Mr. Perry argues further that as Elizabeth predeceased her mother the grant to her did not vest in interest or in possession and could not therefore pass to her children (3 and 4" Respondents) at her death. The Applicant argues that the property reverted to the estate of her mother Mrs .Onike Perry. The 3“ and 4'* Respondents disagree with the applicant's contention.

Arguments

Both solicitors presented synopsis and argued their case inthe High Court and in this Court. Solicitor for the applicant, Mr JB. Jenkins-Johnstone submits that

A tay 2 “Where in an inter vivos transaction, property is conveyed by the grantor to herself Jor life, and thereafter to her daughter absolutely and the daughter pre-deceases the ° ‘mother at that point in time as she is still alive, and lies with her until she dies, or does it devolve at the time of the daughter's death, 10 the daughter's two sons? Further at present in whom does the beneficial imerest lie, and who are the persons & enitted 10 sell the property? “The Applicant argues that according to words used in the Deed, Mrs. Perry conveyed the property to herself for her lifetime and after her demise, to her daughter Elizabeth. That since Elizabeth died before the grantor, the grant to her did not vest ether in interest, or in possession and could not therefore pass to her children at her death. Further. that the property reverted to the estate of her mother Mrs. Perry, Solicitor for the 3° and 4" Respondent disagrees withthe above interpretation of the deed of transfer. Mr. Taylor's argument is firs, that Mrs. Perry conveyed the property to her daughter for her lifetime and after her demise, to her daughter Elizabeth in fee simple absolute forever. 1 note here that both Solicitors suggest each of the two ways in which inter vivos trusts are usually created, The issue is, which method was actually used by Mrs Perry in this case?. ‘The Hon Mr, Justice N.C. Browne-Marke JSC, presiding as justice of The High Court writes, in paragraph 8 of his judgement thus: “The Deed is exhibited as” KS2". It is a voluntary conveyance executed by Mrs Onike Perry {o her daughter". (Same View as Solicitor for the 3° and 4 Respondents). 1 also note that the question referred to this court for our consideration and determination concer the other method , ie where the grantor transfers the property to herself on trust for her lifetime and after to the grantee, 1'do not think that it makes a great deal of difference to our answer in terms of ownership of 74 Campbell Street. | shall therefore continue with the arguments as presented on behalf of the partes. Mr Taylor submitted that prior to her death The Property had vested in interest and in possession in Elizabeth Perry and that at her death the property devolved (o the 3" and 4 Respondents and didnot revert fo the estate of her mother Onike Perry. ‘The question posed to us is from the stand point ofthe applicant, 1 say so because it says that “where in an inter vivos transaction property is conveyed by the grantor to herself * for life and thereafter to her daughter absolutely. :

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