SIERRA LEONE No. CC 196/08 2008                                  BNO.27

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION BETWEEN: -MRS CYRILLA A ROSELYN BRIGHT- Plaintiff

AND

WILLIAM COCKIL BRIGHT            - Defendant

CCV TAYLOR                     For The Plaintiff

EEC SHEARS - MOSES For The Defendant

RULING DELIVERED THIS 6th DAY OF October 2008

D. B. EDWARDS J .This is an application by Judges summons dated 30th day of June 2008 for judgment to be entered for the plaintiff /Applicant pursuant to Order 16 of the High Court Rules 2007 on the ground that the defendant/respondent has no defence to that part of the Statement of claim in which she seeks a partition of the premises situate lying and being at 24 Aitkens Street Murray Town Freetown or sale of the said property at the market value and the proceeds of sale be divided equally between the plaintiff and defendant.

2.  Further and / or in the alternative that the defendant by his defence filed in this action having admitted that the property situate lying and being at 24 Aitkens Street, Murray Town Freetown was conveyed to the plaintiff and the defendant by deed of Gift dated 3rd Octoberl995 ; mat judgment be entered for the plaintiff/ applicant for such judgment or order as the plaintiff may be entitled to upon the defendant's admission.

3.  Further and / or in the alternative that the purported defence filed herein be struck out and /or amended on terms on the grounds that it does not comply with the formal requirement for pleadings as stated in High Court Rules 2007.

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4.  Further and / or other relief including but not limited to directions for the conduct of the sale and / or partition of the property situate at 24 Aitkens Street Murray Town Freetown.

5. Costs

The plaintiff before making submissions on the 1st and 2nd orders prayed for decided to deal with the 3 rd order prayed for. Under this 3 rd order prayed, she sought that the purported defence filed herein be struck out and /or amended on terms on the grounds that it does not comply with the formal requirement for pleadings as stated in High Court Rules 2007.

This court however ruled that in as much as the defence filed was not in accordance with the formal requirements for pleadings as stated in the High Court Rules it did not in any way prejudice against the plaintiff in which case amendment on terms would suffice.

With respect to the 1st and 2nd orders prayed, the fact of the matter was simply that the plaintiff applicant had issued a writ of summons intituled CC196 2008 B NO27 dated 8th MAY 2008 seeking the following reliefs:

a) Damages for the dispossession from premises situate at 24 AITKENS STREET MURRAY TOWN FREETOWN in the Western Area of the Republic of Sierra Leone.

b) Recovery of possession of the said premises, mesne profits and /or damages for use and occupation of the said premises.

c) Damages for detinue and /or conversion of goods and / or trespass to goods.

d) Recovery of the sum of GBP 10,000 (TEN THOUSAND GREAT BRITISH POUNDS STERLING) being the assessed value of goods freighted to Freetown and had and received by the defendant for use by the plaintiff.

e) An order for the partition of premises situate at 24™ AITKENS STREET MURRAY TOWN FREETOWN aforesaid or sale of the said property at the

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market value and proceeds of sale be divided equally between the plaintiff and the defendant.

f) Further and other relief

g) That the costs of these proceedings and incidental thereto be borne by the defendant

An appearance was entered by the defendant on the 12th of May 2008 but thereafter he failed to file his defence within the stipulated statutory limit whereupon the plaintiff entered a Judgment in default of defence dated the 29th of May 2008. The defendant was however able to file a defence out of time which this court later on application by the defendant allowed to stand. The defence having stood, the plaintiff decided to contest that part which relates to his specific claim or prayer, to wit, an order for the partitioning of premises situate at 24™ AITKENS STREET MURRAY TOWN FREETOWN aforesaid or sale of the said property at the market value and proceeds of sale be divided equally between the plaintiff and the defendant, claiming that the same constitutes no defence to the said claim. Further or in alternative, the plaintiff contends that in view of the admission by the defendant in his defence that the property situate lying and being at 24 Aitkens Street, Murray Town Freetown was conveyed to the plaintiff and the defendant as joint tenants by a deed of Gift dated 3rd October 1995, the defendant ought be taken to have admitted that the said property belongs to the plaintiff and defendant as joint tenants as a result of which it could be at worse partitioned or at best sold at the market value and the proceeds of the sale divided equally between the plaintiff and defendant as joint tenants . Thus the plaintiff against this background, and claiming that all requirements with respect to Order 16 applications have been complied with decided to apply to this Honourable court on the 30th of June to enter Summary Judgment through the aforesaid Judges summons pursuant to Order 16 of the High Court Rules, Constitutional Instrument No 8 of 2007.

The application by Judges summons was supported by the Affidavit of CYRILLIA ALICE ROSELYN BRIGHT sworn to on the 30™ of June 2008 together with the several exhibits referred thereto to wit exhibits CARB1 -CARB7 .

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The defendant's Solicitor opposed the application and filed an affidavit in opposition sworn to by Henry William Cockil Bright on the 4th of JULY 2008. This affidavit was later amended with no objection from the plaintiff. The Plaintiff's solicitor however objected to the use of this affidavit on the ground that there was no description of the deponent as required by Order 31 rule 1(4) of the HCR2007. This court however allowed the use of it as a defective affidavit. To this affidavit was exhibited no new documents and the defendant in short relied on those documents exhibited by the plaintiff's solicitor

The contentions of the defendant's Solicitor and counsel as gleaned from the affidavit in opposition and arguments were that firstly that looking from the affidavit in support and the exhibits attached thereto, this court would have noticed a defence filed which the plaintiff did not at any time refer to as a sham defence, in consequence of which, he having filed that defence, the same should stand .He submitted that in such applications as these, once there is a defence filed and the affidavit in support has not labeled it a sham, it is a defence on the merits, and the defendant cannot be denied of putting forward that defence in a trial and a Summary Judgment would deny the defendant of that opportunity. He referred the court to the ENGLISH ANNUAL PRACTICE 1999 PAGE 1-73 paragraph 14/4/4 where it was stated referring to the case of MCLARDY VS SLATEUM (1890) 24 QBD 504 that "the fact that he has served a defence may be sufficient to enable a defendant to get leave to defend, but not if it is a sham defence served at or soon after acknowledgment of service."

The Plaintiff's reply to this argument was that the High Court Rules do not oblige the plaintiff to say that it was a sham defence and that in his summation the defence was and is unsustainable, and no defence whatsoever, and that he was not obligated to describe it as sham.

On this point, it would seem to me that the defendant's Solicitor is saying that the defendant has a defence to this claim as confirmed by the fact that it has not been described as a sham by the plaintiff. The defendant having stated that he has a defence to

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that part of the claim for which the plaintiff stated that he had no defence, it behoves this court, to consider whether the defence filed by the defendant and as exhibited in the affidavit in support as CARB 4 was a defence within the true meaning of Order 16. The obligation of the defendant under Order 16 is to show cause against the plaintiff's

application and this is normally done by a preliminary /technical objection that the claim is not within the terms of the Order or by showing a defence on the merits. A defence on the merits would warrant that the matter proceeds to trial rather than being settled by Summary Judgment .A defence on the merits is one which shows a bonafide defence on the merits or raises an issue/dispute which ought to be tried because it has a reasonable prospect of success. Having no defence is a term of art; it carries a technical meaning; It does not mean that the defendant has not filed a defence; it does not mean that the defendant has not stated a defence but that the defence filed must be of a standard of merit, failing which it would be considered as "no defence." It would seem to me that the Solicitor for the defendant is saying that his having filed a defence to the action which has not been described as a sham should perse entitle him to defend the action. This however cannot be true as the rules clearly do not create such an obligation on the plaintiff. A sham defence is a defence that is not good or true as it seems to be. In short the fact that you filed a defence in answer for what ever it is worth would give the impression that you have a defence, but in truth it lacks substance or merit, and simply has the effect of wasting the courts time in circumstances where the court ought not to waste time . It is all inclusive in what is referred to as "no defence" within the meaning of Order 16. There is however no obligation under Order 16 for the plaintiff to describe the defence proffered by the defence as a sham defence as it tends to impute dishonesty but simply that the defendant has "no defence" to the claim. In the same vain the defence may not be a sham defence but is one which is not likely to succeed and therefore no defence within the meaning of Order 16 .In the Supreme Court case of AMINATA CONTEH VS APC SC.CIV APP.4/2004 unreported, it was held that the new test with respect to applications of this sort is to examine the issues of law and fact raised and to determine whether the defendant has a good chance of succeeding. It is not sufficient to show that that there are triable issues but there must be a prospect of success. It is for the judge to look at the issues raised and the law on the matter to see if there is any prospect

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of success. This case which is the most updated CASE law on Applications of this court and by the Supreme Court imposes a test stronger and much higher than the arguable/triable issue test which had hitherto dominated the law on the subject in this country. For this reason the treatment of Order 14 applications in the white book is not ipsissima verba the law as found in Order 16 applications in this country.

Having stated the law on the subject, it behoves this court to consider whether the defence raised by the defendant could be treated as "No defence" within the meaning of Order 16 rule 1. In other words was the defence raised by the defendant a defence as to merits. The issue is not whether they have filed a defence or that the defence shows mere arguable issues but rather whether that defence is substantial enough to qualify as a defence on the merits with a reasonable prospect of success or raises an issue which ought to be tried as showing a very reasonable prospect of success in light of the claim by the plaintiff that exhibit CARB1 is jointly owned by the plaintiff and defendant entitling her to a share equal to the defendant entitling her to a partition of 24 Aitkens Street Murray Town or sale of the said property with the proceeds being divided equally between herself and the defendant. The defence to this part of the claim as gleaned from exhibit CARB4 is as detailed in paragraphs 1-3 thereof

1. The defendant admits that he made a deed of gift dated 3rd October 1995 registered as Nol93/95 at 131 of volume 84 of the books of conveyances in respect of property at 24Aitkens Street Murray Town Freetown to himself and plaintiff but only to enable them secure a loan from their employers.

2. The defendant denies that the plaintiff jointly built a dwelling house on the piece of land aforesaid with him and avers that the plaintiff being a co-member of staff at Rokel Commercial Bank intended to get a supporting loan from the office hence the building was put up in their joint names

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3. The plaintiff was able to get some amount from the bank which she used to give some assistance to the defendant

The above no doubt makes for interesting reading. Does it raise a good defence on the merits ? Does the defence as whole raise a good defence on the merits to that part of the plaintiff's claim to which she has postulated so much confidence with this application for summary Judgment? Connected to this is the further argument by the defendant's solicitor that EXHIBIT CARB 1 being a matrimonial property it could not be partitioned in circumstances where the defendant had brought a petition for divorce as the court has to look at the rights of the parties and their respective interest and whether as joint tenants of matrimonial property one party could ask for sale or partition especially so as in paragraph 8 he has deposed to his offering a percentage of the value of the property . The defendant's solicitor submits that the court would have to assess her financial contribution and non financial contribution to the property. He refers court to JW MILLER FAMILY PROPERTY AND FINACIAL PROVISION PAGES 77-78

In proffering answers to the above questions, it is clear to me that exhibit CARB 1 is the deed of gift from the defendant to the plaintiff and the defendant as co-owners. The defendant of his own free will, for diverse good causes, love and for good consideration decided to convey what used to be his property single handedly to himself jointly with his wife the plaintiff. This was witnessed by a deed signed sealed and delivered by the Defendant to the plaintiff and himself the defendant as joint tenants. The parties therein who are the plaintiff and the defendant do now have one single property in which no party has a distinct share but a potential share equal to the size of the other . This was done during the subsistence of the marriage and the only conclusion this court is able to form is that they intended it to be so. There is no mention therein that the purpose there of was to secure a loan but rather of his own free will, for diverse good causes, love and for good consideration. The issue of the loan therefore becomes extraneous and irrelevant. I take support for this by the following provisions of the CONVEYANCING ACT 1881 SECTION 50 (1) which PROVIDES

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50 (1) Freehold land . or a thine in action may be conveyed by a person to himself jointly with another person , by the like means by which it be conveyed by him to another person; and may in like manner, be conveyed by a husband to a wife , and by a wife to a husband, alone or jointly with another person

and section 63(1) which provides that

"Every conveyance shall by virtue of this Act be effectual to pass all the estate , right, title , interest, claim and demand which the conveying parties respectively have in , to or on the property conveyed or expressed or intended so to be , or which they respectively have power to convey in, to or on the same 63(2) this section applies only if and as far as a contrary intention is not expressed in the conveyance , and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

There is nothing in exhibit CARB 1 which suggests that the Defendant never intended to convey and convert his whole share into 1 property being held by 2 persons who have no distinct share but 2 potential shares equal to the size of the other as joint tenants and in fact he did it by his own free will, diverse good causes, love and for consideration.

Similarly under rules of construction as could be gleaned from Halsbury's laws of England 3rd Edition vol 2 paragraphs628,629,635,643, 646 and 648, the circumstances of this particular agreement as detailed in the deed of gift requires that you do not go beyond the deed of gift exhibit CARB1 and this court would be right in doing just that.

Further still even if as the defendant claims the conveyance of the land in exhibit CARB1 was to secure a loan one would be constrained to ask what was this loan for? Who did this loan benefit? In paragraph 3 of the defence we see that the loan was obviously

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secured and secured by the plaintiff. Could it be doubted that it does bear into her resources to have it repaid by the several deduction that would be necessary from her salary and further still it was with the self same deductions that the plaintiff was able to contribute to the erection of house at No 24 AITKEN STREET MURRA Y TOWN. In the affidavit in opposition paragraph 5 thereof the defendant attempts to present a different picture which surely does not add up with his defence paragraph 2&3. Thus while the obtaining of the land was by the defendant's own free will, for diverse good causes, love and for good consideration it would appear to me that the erection of the building or house was by the laboured contributions of the plaintiff through the loan secured from their employers the bank . This court there fore takes Judicial notice of the fact that there must have been deductions from the Plaintiff's salary if at all to repay the loan secured. Thus the defendant would have been unable to build the house without the contributions of the plaintiff. Could it thus be doubted that on both counts the plaintiff and defendant have a potential share equal to the size of the other making partitioning a possibility.

Surely on these considerations alone, I should think, the defendant has no defence to that part of the Statement of claim in which she seeks a partition of the premises situate lying and being at 24 Aitkens Street Murray Town Freetown or sale of the said property at the market value and the proceeds of sale be divided equally between the plaintiff and defendant.

However for completeness, I would be remiss in my duties, if I fail to consider the arguments of the defendant solicitor which has been summarized that EXHIBIT CARB 1 being a matrimonial property it could not be partitioned in circumstances where the defendant had brought a petition for divorce as the court has to look at the rights of the parties and their respective interest and whether as joint tenants of matrimonial property one party could ask for sale or partition especially so as in paragraph 8 of affidavit in opposition he has deposed to his offering a percentage of the value of the property . That further, that the court would have to assess her financial contribution and non financial contribution to the property.

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To this argument this court holds that even if we accept that 24 AITKENS STREET MURRAY TOWN is matrimonial property, I think that it should be obvious that 24 AITKENS STREET MURRAY TOWN is undeniably and irrefutably a joint Tenancy between the plaintiff and the defendant. I say so because this is not a property that was merely acquired and acquired from somebody else and in the joint names of the plaintiff and defendant, but acquired by the plaintiff and defendant from the plaintiff specifically as a free will gesture for good causes love and consideration as joint tenants. The intention is clear and distinct and becomes undeniable and irrefutable. There ought not be an Inquiry as the defendant's solicitor seem to suggest to determine the Plaintiff's and defendant's interest or financial contributions which have been clearly determined by the conveying of the property 24 AITKENS STREET MURRAY TOWN from no other person than the plaintiff to the plaintiff and defendant as joint tenants meaning that the plaintiff intended that no person as between himself and his wife should have a distinct share but a potential share equal to the size of the other.

In LATEY ON DIVORCE 15th EDITION the learned luminary on the subject of MATRIMONIAL PROPERTY PARAGRAPH 2686 under the rubric "COURT PRINCIPLES" states as follows:

"As difficult and complicated questions often arise, the court has to do its best to infer from an inquiry into the facts what was the intention of the parties. If they intend that one piece or parcel of property should belone to one or the other that intention should prevail. Where such intention is lacking the beneficial interest in any property acquired by the joint efforts of the husband and wife belongs to them both jointly"

In this case such inquiry becomes unnecessary for the intention is clear undeniable and irrefutable from exhibit CARB1 that 24 AITKENS STREET MURRAY TOWN was

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intended by the plaintiff to be held by the plaintiff and defendant as joint tenants. That intention according to Latey must prevail..

Surprisingly, in the context of the facts which which this court has been greeted with even if we were to go beyond the mere intention, I think that it is clear to me that 24 AITKENS STREET MURRAY TOWN in its present state as admitted in their defence was built through assistance from the plaintiff and therefore was acquired through the joint efforts of husband and wife and belongs to them jointly .

Worse still, the fact that 24 AITKENS STREET MURRAY TOWN was conveyed by one spouse to both spouse takes it out of the usual situation and buttresses the intention of the defendant.

Against such background this court holds that it would not be improper to hold that the defendant has no defence to that part of the claim.

Also on Order 34 rule 3 of the High Court Rules 2007 under which the plaintiff had prayed the his 2n relief there cannot be any doubt that from the defendants admission reference to exhibit CARB 1, judgment ought to be entered for the plaintiff in respect of the claim for partition of the premises situate lying and being at 24 Aitkens Street Murray Town Freetown or sale of the said property at the market value and the proceeds of sale be divided equally between the plaintiff and defendant.

This being the case, it only remains to decide whether partition would be well advised or ill advised in the circumstance. Turning to this issue I think it is clear from the plaintiff and defendant's affidavit that they could not cohabit. Paragraphs 8-13 of the Plaintiff's affidavit shows that partitioning may not be the best option in the circumstances. In such situation I will have no option but t to take resort to section 3 of the PARTITION ACT 1868 which provides

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In a suit for partition , where if this Act had not been passed, a decree for partition might have been made , then if it appears to the court that, by reason of the nature of the property to which the property relates, or of the number of parties interested or presumptively interested therein, or of the absence or disability of some of those parties , or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between them, the court may , if it thinks fit, on request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions

Against this background all arguments considered, I hereby order as follows:

1. That the property situate lying and being at 24 AITKENS STREET MURRA Y TOWN Freetown be valued and sold at the best market value possible and the proceeds of sale be divided equally between the plaintiff and the defendant.

2. That the Master and Registrar of the High Court be in conduct of such sale

3. That the Master and Registrar provides evidence of the value of the property

4. Either party be given first option to purchase the property in question within 14 days of this order.

5. That the costs of this application is assessed at Le 1,000,000.00

6. Costs on terms in respect to order 3 prayed assessed at Lel50, 000.00.

7. Liberty to apply

8. Directions as to the future conduct of the other reliefs prayed for to be made on or against the 7th of October 2008

Hon Mr Justice D.R ODWARDS J