Zubairu Kamara v Saidu Sesay (CIV 6 of 2019) [2024] SLCA 5 (25 January 2024)

Civ. App 6/2019 In The Court of Appeal Sierra Leone Zubairu Kamara = Appellant ~ ‘ wv Saidu Sesay - Respondent Counsel: Emmanuel Teddy Koroma Esq for the Appellant Brima Koroma Esq for the Respondent

Coram

Hon. Justice Reginald Sydney Fynn JA Hon. Justice John Bosco AlliewJA . Hon. Justice Sulaiman ‘Ahmad Bah JA Fynn JA Cm Judgment dated as January 2024

Background

1. The facts of the case disclose that sometime in 2014 the Appellant Zubairu Kamara had sold land at Ogoo Farm to the Respondent Saidu Sesay. The : Respondent paid a total of $ 9,000 for the land. The tand at Ogoe Farm was chcumbered and Saidu Sesay was unable to take immediate possession and to use the land. He was chased off by rival claimants. A report was made to the Police and Zubairu Kamara was arrested and detained. ‘Whilst in custody the appellant offered his other property at Peninsula Road Goderich’as collateral for the sum paid to him.

2. Atsome point the respondent indicated that he wanted his money refunded. The appellant then raised Le 30, 000,000 which he offered as part satisfaction of the debt but the respondent refused to accept this amount. The Appellant later received from the respondent's solicitors notice to quit his property at Peninsula Road Goderich. The Appellant denies selling or conveying this property to

| anyone. Page court of Appeal A: RS Fyn, JB Alieu & SA Bah ~ Kornorav. Sesoy. A

3, The respondent however relied on a Deed of Conveyance dated 31 December

P 2014 purported to have been made between ‘Zubairu Kamara and Saidu Sesay in which the property at Peninsula Goderich is conveyed to the Respondent.

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4. The Appellant took out 2 ‘Writ of Summons in which he sought among other orders the cancellation of the Conveyance recently mentioned pleading it was rcnis act The respondent filed a defence and counter clalm asserting that he is entitled to possession of the property in the 31 December 2014 conveyance.

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5. During the hearing ‘of the action and after the testimony ‘of the Appellant (who: ‘wae plaintiff below) a motion was filed by the Appellant under ‘order 34 of the High Court Rules 2007. The motion sought final judgment averring that during his testimony the Appellant {then Plaintiff) had made material admissions which reste the respondent (then defendant) entitled to judgment upon his counter dlaim. P|

6. The motion was successful. The Judge ruled that there was no need for a full trial and that the admissions made by the appellant were ‘enough to form the basis of judgment in favor of the respondent. Judgment was therefore entered giving the respondent (then defendant) possession of the property at Peninsula Road Goderich. « ‘ ‘The Appeal

7. The Appellant being dissatisfied with the Learned Trial Judges’s (LT) judgment has come to us on 6 grounds of Appeal as amenaed and filed on 7” May 2021, ‘The grounds of appeal are as follows: F a. The Trial Judge allowed herself to have been misled in misconstruing the applicability of 034 R 3(1) & (2) of the High Court Rules b. That the Learned Trial Judge (LTJ) was wrong in her judgment as she had ignored the pleadings in ‘the matter absolutely « c. That the learned trial Judge failed to appreciate that ‘the law of evidence demands that he who asserts must prove d. That the Judgment is unreasonable as it ignores the pleadings and the . evidence e. That the judgment lacks legal reasoning “ f. That the judgment is against ‘the weight of the evidence.

8. The counsel on either side have filed synopsis and they also addressed the court orally. ‘The Arguments Appellant

9. The appellant argues that this case is not one that is suitable to be decided under the rule dealing with admissions. He contends that even if there was an * 2|Page court of Appeal As RS Fynn,J8Alliew & SA Bah ~ Komarav. Ses0Y

admission it-was not unequivocal and clear as is envisaged by the rules, He j serra the court to several cases on this isues the majority of them being from foreign jurisdictions and some coming from first instant Judges with singe Judge . ponels (including Markan v Markan & Others Delhi 70,97(2002, Raj kumar Chawla U. Lucas Indian Services AIR 2006 Delhi 266, Himani Alloys Ltd v Tata Steel Ltd {zo1i)). In the main they have been received with great respect but with persuasive effect only. t0.rhe appellant maintains thatthe conveyance of the property having bee” denied by the appellant there cannot truly be an admission on which the court could hve proceeded to give judgment without a trial, He contends that the pleadings disclose sufficiently that there was a defence to the counter claim. 11s tortherance of his impugning of the judgment the appellant also contends that the contract relied on in which the appellant allegedly provided his conveyane for property at Peninsula Road, Goderich as collateral for his agreement sell . land at Ogoo farm was a contract procured by force. Consent was not voluntarily given and the appellant should be entitled to extricate himself from any Sbligations under the purported guarantee/ collateral agreement; Respondent . 12-poctie part counsel forthe respondent's thrust is that the admission is that the money was received and that despite time to make good the appellant has failed rego so. He urged that the purpose of R34 of the High Court Rules s for + curnstances lke this when the issue is clear and the party has admitted his of”) Tabilty or facts which disclose that liability without doubt. He submits that the aaorethere to save court time. To avoid a long and expensive tral in situations ‘where the court can conclude there is no need for atrial. 13 re Teepondent agued further that an admission need not only be in pleadings : Relying on Elis v. Allen 4Ch 104 pg 904, counsel submitted that the admission vray be found elsewhere than in the pleadings. He urged that in the present fase the appellant's testimony together with the undertaking and the conveyanc® vreartand definite picture can be seen which justifies the judgment now impugned. : Deliberations 14. order 34 of the High Court Rules 2007 is intended to be used in circumstances rier a full Blown tral is not needed due to the fact that one party has made 2 whettial admission. The parties do not dispute this proposition. at al tis the ature of the qualifying admission that is vibrantly disputed by the parties.

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15. Re Beeny (1894) 1Ch 449 quoted in the Supreme Court Practice 1999 at pag sho suggests quite clearly that the admission may be made orally: Whilst ls a2 ei that admissions about a thing during oral testimony in other

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proceedings will become actionable, (British Thompson Houston Co v. British | insulated & Helsby Cables (1924) 2Ch 1160), no such doubt is cast on admissions wach are made in the cause of proceedings for and about thesmatter which is t admitted. 16.admissions may be made in pleadings “or otherwise”. The reference to metherwise” in the Order 34 suggests that the possibilities in which admissions may be made are not limited to pleadings. tis our ‘opinion that the rule grants the court discretion to decide whether the admissions 26 such that judgment may be based upon them reflective of the Justice of the dispute between the parties. : 17.1n this case the admission is allegedly found i) in court testimony in which the appellant admitsahat he received 9,000 from the respondent for land which was not received ii) pleadings which disclose that the money Was received for the aid purpose and that there was 2 complete fallure in return

Consideration

iti) acknowledgement that a document was signed‘which promised tO eubsttute land at Goderich inthe failure to refund the money received and in 18, in each of these the appeliant explains the admission shy He suggests he had tog the respondent that the land was encumbered. He also insists that he only . signed the collateral agreement to secure his Own release from detention. He sai not deny receiving the money and would want the court to think that he ‘wanted to be released but had no intention to provide security for the respondents’ money.

19, The appellant argues that the main documents relied on by the respondent were vot freely and voluntarily executed. He insists that duress was present especially it the police station and this would make invalid any documents of guarantee Signed at that time. He cited several cases in this regard.

20. thie trite law that where consent is not genuine its valve is diminished greatly. Its Tosence when required usually leads to a document being voidable or void. Even in criminal law were consent is a required element but is found to be lacking or

. counterfeited the case begins to crumble. Counsel reminded us that: i uress that is said to invalidate gifts contracts or deeds ‘made or entered under such duress is either actual or threatened violence 40 the person or the threat of imprisonment or such moral coercion as 0 threat of dishonour

or violence to a husband or wife or child”

21.tt should be noted however that in civil cases there is a constant weighing of probabilties. Also the burden of factual proof keeps swinging between the parties. Even though consent is found to be lacking this maysnot necessarily alpage

court of Appeal IAS RS Fyn, JB Alleu & SA Bah ~ Kamara v.Ses0

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