Wilson v Samura & Koroma (SC CIV APP 3 of 1974) [1975] SLSC 4 (3 June 1975)

WILSON v SAMURA & KOROMA SC SUPREME COURT OF SIERRA LEONE, Supreme Court Civil Appeal No 3 of 1974, Hon Mr Justice COS Cole CJ, Hon Mr Justice SCU Betts JSC, Hon Mr Justice E Livesey Luke JSC, Hon Mr Justice SJ Forster JSC, Hon Mr Justice S Beccles Davies JSC, 3 June 1975

[1] Land – Sale of land – Whether tenants had acquired legal or equitable interest in land prior to sale – Proprietary estoppel – Whether purchaser had any prior notice of interest in land – Whether facts established an equitable obligation

[2] Civil Procedure – Court of Appeal – Whether reasonable grounds to overturn trial judge’s findings of fact On 17 August 1961, Mr Lucien Genet sold land in Freetown which he had owned for 39 years to the appellant. The two respondents, who were employed by Mr Genet, had lived on the land since 1955 and 1956. The issue in this case was whether the respondents were monthly tenants of the land or whether they had acquired an interest in the land so as to raise the doctrine of proprietary estoppel which was binding on the appellant. At first instance, the High Court held that, based on all the evidence, the respondents were tenants and could be evicted by the appellant. On 5 April 1974, the Court of Appeal allowed the respondents’ appeal holding that Mr Genet allowed them to build on the land and that the appellant was estopped from denying the interest that they had acquired. Held, per Cole CJ, allowing the appeal:

1. Taking the totality of the evidence before the High Court, the trial judge came to the right conclusion of fact in not believing the respondents but rather in accepting the case for the appellant. It was settled law that it should be on the rarest occasions, and in circumstances where it is convinced by the plainest considerations, that an appellate court is justified in overturning a trial judge’s finding of fact. There were no reasonable grounds for the Court of Appeal to disturb the trial judge’s findings. El Nasr Export &Import Company Limited v Mohie El Deen Mansour (Unreported, Supreme Court, Civil Appeal No 3/73, 25 April 1974) applied.

2. There was no allegation or evidence of mistaken belief in the defence of the respondents such as to raise unconscionable behavior or proprietary estoppel. The facts must be established for the equitable obligation to arise. The evidence showed that the only notice the appellant had when buying the land was that the respondents were tenants. There was no actual or implied notice of any prior interest in the land. Gissing v Gissing [1971] AC 886 applied. Inwards v Baker [1965] 2 WLR 212 distinguished. Katah v K Chellaram & Sons [1957-60] ALR (SL) 7 referred to.

3. This was a case where the respondents were originally monthly tenants of the land with Mr Lucien Genet as landlord. It was not established that the respondents built on the land under any special circumstances. They subsequently became tenants of the appellant who, on 17 August 1961, acquired the fee simple ownership of the land and thereafter lawfully determined the tenancy. Ramsden v Dyson (1866) LR 1 HL 129 applied. Cases referred to Cairncross v Lorimer (1860) 3 LT 130 Dillwyn v Llewelyn (1862) 6 LT 878 El Nasr Export &Import Company Limited v Mohie El Deen Mansour (Unreported, Supreme Court, Civil Appeal No 3/73, 25 April 1974) GB Amancio Santos v Ikosi Industries & EPE Native Administration (joined by Order of Court) (1942) 8 WACA 29 Gissing v Gissing [1971] AC 886 Inwards v Baker [1965] 2 WLR 212 Katah v K Chellaram & Sons [1957-60] ALR (SL) 7 Kissiedu v Dompreh (1937) 2 WACA 281 Plimmer v Mayor of Wellington (1884) 9 App Cas 699 Ramsden v Dyson (1866) LR 1 HL 129

Legislation referred to Freetown Municipality Act (Cap 65) s 95 Freetown Municipality (Amendment) Act 1964 (No 31 of 1964) Other sources referred to Snell’s Principles of Equity [27th Ed] (1973) p 566 Appeal This was an appeal by Ayo Wilson against a decision of the Court of Appeal on 5 April 1974 which held that the respondents, James Samura and PA Koroma, were not mere tenants and had acquired an interest in land acquired by the appellant. The facts appear sufficiently in the following judgment of Cole CJ. S Hudson Harding for the appellant. G Okeke for the respondents. Cole CJ: For well over thirty-nine years Mr Luc Genet was the fee simple owner of a certain piece of land which he disposed of to the appellant by deed of conveyance dated the 17 August 196l. That deed was put in evidence as Exhibit “A” in the trial court, namely High Court. In it the piece of land in question was said to be at Kingtom in Freetown at Hand Street, off Hennessy Street. Both in the High Court and in the Court of Appeal as well as in this Court there appears to be no dispute between all concerned regarding the identity of this piece of land. I shall therefore hereafter refer to it as “the said land”. The respondents had been on the said land for a number of years, the first respondent since sometime in 1955 and the second respondent since sometime in 1956. When they went on the said land Mr Lucien Genet was still the owner in fee simple. The dispute regarding the said land relates to the question whether the respondents were merely monthly tenants of the said land up to and after 17 August 1961 (the date of the disposition to the appellant) or whether the respondents had acquired such interest in the said land as to raise the equitable doctrine of proprietary estoppel binding on the appellant. As regards the latter question it is but proper to mention that at no time was Mr Lucien Genet ever sought to be made a party to the action. The appellant issued her writ of summons on 18 September 1970, claiming a declaration that she is entitled in fee simple in possession of the said land; possession of the said land and mesne profits from November 1965 until possession is given up. In her statement of claim, after alleging that she was the fee simple owner absolute in possession of the said land it having been conveyed to her by Mr Lucien Genet her predecessor in title she further claimed that the respondents were tenants of Mr Lucien Genet on the date of the deed of conveyance. The respondents, on the other hand, denied these averments. The first respondent alleged: “3. Further and in answer to paragraph 4 of the statement of claim, this defendant says that the said Lucien Victor Genet and his wife Mrs Genet gave him permission to build on the said land in 1955. He did build on the said land between 1955 and 1956 and has been in possession of the said land and building from the said date till now. This defendant admits paragraph 5 of the statement of claim and says that the plaintiff on several occasions from 1965 onwards took action for ejectment against him in Magistrate’s Court No 4 but on each occasion, over four times, the plaintiff’s claim was dismissed. Further this defendant says that if in fact the said land was conveyed to the plaintiff as alleged in paragraph 3 of the statement of claim, the plaintiff had notice of this defendant’s interest in the said land and took subject to the defendant’s interest.” The second respondent also alleged: “3. Further and in answer to paragraph 4 of the statement of claim, this defendant says that the said Lucien Victor Genet and his wife Mrs Genet gave him permission to build on the said land in or about 1955. He did build on the said land in or about 1956; and has been in possession of the said land and building from the said date till now.

This defendant does not admit paragraph 5 of the statement of claim. Further, this defendant says that if in fact the said land was conveyed to the plaintiff as alleged in paragraph 3 of the statement of claim, the plaintiff had notice of this defendant’s interest in the said land and took subject to this defendant’s interest. Further or in the alternative, this defendant will object in law that the plaintiff’s alleged claim is barred by the Limitation Act.” At the close of the pleadings it would appear that the main issues to be determined by the High Court were: (a) Was Lucien Genet, previous to 17 August 1961, the fee simpl e owner absolute in possession of the said land? (b) If so, did he effectively in law pass that interest to the appellant? (c) What was the nature of the interests of the respondents in the said land? (d) Were their interests such as to encumber the said land legally or equitably as alleged in their respective defences? (e) If so, did the appellant have notice in law of any such encumbrance? (f) Did any of the Statute of Limitations apply? It is clearly apparent from the record of proceedings both of the High Court and of the Court of Appeal that the defence set up by the second respondent based on the Limitation Act was never pursued. The learned trial judge after an exhaustive review of the evidence and after consideration of the legal authorities applicable, said as follows: “Considering the entire evidence of the case with all its surrounding circumstances, I hold that the defendants (respondents) are the tenants of the plaintiff (appellant) in respect of the land in dispute and that she has successfully established her claims. I will give judgment for the plaintiff (appellant) and I make the following orders: (a) That the plaintiff (appellant) is the owner of the land. (b) That the defendants (respondents) give up possession of the land within three months from the date of this judgment. (c) That the first defendant (respondent) pay as mesne profit to the plaintiff (appellant) the sum of Le5.00 monthly from December 1965 until possession is delivered. (d) That the second defendant (respondent) pay as mesne profits to the plaintiff (appellant) the sum of Le3.00 monthly from December 1965 until possession is delivered.” The burden of proof was on the appellant to prove that she was the fee simple owner of the said land and that she bought without notice, actual, constructive or implied, of any legal or equitable encumbrance which would prevent the fee simple ownership in the said land legally passing on to her. The appellant without objection produced her registered deed of conveyance Exhibit “A”. She called as a witness her predecessor in title, Mr Lucien Genet, before her acquisition of the said land. The respondents were monthly tenants of the said land of Mr Lucien Genet, the first respondent paying a monthly rent of Le2.00 since 1955 and the second respondent paying a monthly rent of Le2.00 since 1956. There was abundant evidence before the learned trial judge of this fact both on the side of the appellant and of the respondents. The first respondent was for some time a tyreman working in the tyre factory of Mr Lucien Genet. The second respondent was for quite some time a cook employed

by Mr Lucien Genet. Mr Lucien Genet categorically denied that it was with his permission that the respondents built on the said land. The appellant gave evidence which was corroborated by Mr Lucien Genet that on a Sunday in 1962, after the acquisition of the said land from Mr Lucien Genet, Mr Lucien Genet called both respondents and herself at his 13 Mandalay Street, Kingtom residence where in the presence of the appellant he told the respondents that he had sold the said land to the appellant and that he was no longer the owner of the said land. She enquired of the respondents what rents they were paying. The first respondent said he was paying Le3.00 monthly. The second respondent said he was paying Le2.00 monthly. The appellant there and then increased the rents to Le5.00 and Le3.00 respectively. The respondents not only agreed to pay, but in fact paid, the increased rents. This incident was however denied by the respondents. The respondents on the other hand gave evidence that Mr Lucien Genet and wife gave the said land to them to build on and told them then, that after paying ten years rent starting from the completion of the buildings, the said land in question would become theirs absolutely. Relying on these arrangements they proceeded to build on the said land and paid what the second respondent described as ground rent. The first thing of particular interest to note is that in spite of the case for the respondents as to the existing arrangements between them and Mr Lucien Genet I find the following answers being given by Mr Lucien Genet to learned Counsel for the respondents: “I did not tell them (respondents) that if they paid rent for eight years, I would convey the property to them.” Later on in answer to learned counsel for the respondents Mr Lucien Genet said: “It is not true that I arranged with the first defendant (respondent) that I would convey the land to him after he had paid rent for about eight years.” The second respondent in answer to his own counsel said: “I said that I was paying rent for land. Mr Genet told me that, after ten years he would give me a document and that the land would belong to me. I built a house in 1956. I started to pay rent in 1951. I paid rent up to 1967”. In answer to the Court this respondent said: “The agreement was to pay rent for ten years. I started to pay rent in 1951. I paid rent up to

In that very unsatisfactory state of the evidence relied on by the respondents how could any reasonable court have held that the alleged arrangements between Mr Lucien Genet and the respondents, other than that of a monthly tenancy simpiliciter was proved? The second thing about the case as the evidence was before the High Court is this. Evidence was led that the appellant took the respondents before the Magistrate under summary ejectment proceedings on three occasions after the acquisition of the said land by her. If there was any semblance of truth in the story of the respondents one would have thought that they would have taken such appropriate steps as to give effect to the arrangements alleged by them. There is no evidence that they took any such steps not even at that late stage when proceedings commenced in the High Court. Taking the totality of the evidence before the High Court which I have carefully considered, the learned trial judge came to the right conclusion of fact in not believing the respondents but rather in accepting the case for the appellant. I shall consider the legal position later. From the decision given by the learned trial judge (which decision was against the respondents) the respondents appealed to the Court of Appeal on the following grounds: “1. The learned trial judge misdirected himself in law in distinguishing the case Inwards v Baker [1965] 2 WLR 212.

2. On the facts to wit: (a) that the defendants were given permission to build on the land by PW2, Lucien Genet; (b) that they did build on the land on or about 1956; (c) that the appellants had spent substantial sums of money in putting up their buildings as per evidence of JGE Valentine-Cole; and (d) that the respondent knew at the time the purported conveyance was made to her that the appellants had built on the land and were in possession of the lands: the appellants had established an equitable right to remain in occupation of the property and the respondent, if at all, should take subject to the appellant’s interest.

3. The learned trial judge was wrong in law in that he failed to take into consideration the fact that PW2 Lucien Genet said on oath that the respondent did not pay any money for the land.

4. That the judgment of the learned trial judge was wrong both in law and in fact and was unjust and inequitable and the decision was against the weight of the evidence.” The Court of Appeal heard arguments on 14, 15 and 16 November 1973. On 16 November 1973 the appeal was “adjourned to a later date for decision.” The record of proceedings before the Court of Appeal discloses that the appeal came up before that Court on that date and the record of proceedings for that day, signed by all three justices, reads: “Court notifies parties that in the interest of justice the Valuation Officer of the Freetown City Council be called upon to produce the Record of Rate, Demand Note or Rate Valuation Roll of the property in dispute from the year 1950 to 1970. Counsel on either side to render the Valuation Officer all necessary assistance. N.B. Both counsel state that they have no objection. Court accordingly so orders. Adjourned to 19 December 1973.” On the 19 December 1973 the appeal was adjourned to 22 January 1974. On that date Mr Frederick Eusobius Ngozika Kawallay, Valuer, Freetown City Council gave evidence as a witness of the Court. In view of the observations I shall make later it would be in place to set out, in extenso, the evidence this witness gave. He said: “I have in my custody the Valuation Lists for 6A Handel Street, Kingtom for as far back as 1949/50. The owner is Musa Kamara and the assessment was Le.6.00 then per annum in 1949/50. He is also owner of No