Alpha Abdul Wahid Sallu and Others v Milhelm Haroun and Another, SC Civ App 3/2008 (SLSC)

Judgment of the Supreme Court of Sierra Leone in SC Civ App 3/2008, an appeal against a Court of Appeal judgment of 20 June 2008 about land at No 10 Regent Road, Wilberforce, Freetown. The court sat as Bash-Taqi JSC (presiding), Hamilton JSC, Wright JSC, Tolla-Thompson JSC and Justice N.C. Browne-Marke. Bash-Taqi JSC gave the leading judgment, and the other members of the court agreed.

The respondents, the two children of Abraham Milhelm, claimed the land as fee simple owners through conveyances of 1948 and 1949 to the Milhelm brothers' family business, followed by a 1971 deed of family arrangement. While they were abroad during the war, their caretaker was evicted in 1994, and the 1st appellant claimed the land through a statutory declaration of possessory title registered in December 2003. The respondents sued in 2004 for a declaration of title, cancellation of that declaration, damages for trespass and an injunction.

Judgments in default of appearance and of defence were entered, but an order of 21 February 2005 gave the appellants leave to defend, and the case went to trial. The High Court (Matturi-Jones J, as she then was) dismissed the claim. The Court of Appeal held that it lacked jurisdiction because the default judgments had never been set aside, so there were two inconsistent judgments in the action.

The Supreme Court held that the default judgments had in effect been set aside when leave to defend was granted and the case went to full trial. Because the Supreme Court can make any order the courts below could have made, it decided the appeal on the merits rather than sending it back.

On the merits, a statutory declaration does not by itself prove possessory title, and the 1st appellant's declaration gave no real facts to support his claim. The respondents proved a good root of title through their conveyances and the deed of family arrangement, together with possession through their caretaker.

Orders: the appellants' appeal dismissed; the High Court judgment set aside and judgment entered for the respondents, with a declaration of title; the 1st appellant's statutory declaration (No 96, page 78, Volume 81, Books of Statutory Declarations) cancelled and to be expunged; damages for trespass to be assessed by the High Court; costs of the appeal and of the court below to the respondents.