CC: 14/2009    2009  J NO. 2

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION

BETWEEN: AL11AJIAMADU WURIE JALLOH -                             PLAINTIFF

FREETOWN AND

ABDUL BANGURA                                                                           DEFENDANT

ALITAJI KALOKOH MURRAY BANCURA PA SESAY MUBAH

OFF FREETOWN/WATERLOO ROAD WELLINGTON FREETOWN

J.B. JENKINS - JOHNSTON                                                              -for the PLAINTIFF

ABIGAIL SUWU                                                                                - for the DEFENDANT

RULING DELIVERED THIS 1st DAY OF JULY 2009 JUSTICE DESMOND B. EDWARDS J

1. By Notice of Motion dated 13th of February, 2009 made under action intituled CC14/2009 J No2, the 3rd Defendant in this action applied to this Honourable Court for this matter to be disposed of on a point of law pursuant to Order17 (1)(3) of the High Court Rules 2007 by the determination of the question "whether the plaintiff Respondent herein can seek declaration of title by writ of summons dated 19th January 2009 having regard to the provisions of Section 5 (3) of the Limitation Act No 51 1961. Further, or in the alternative, that the writ of summons dated 19th January 2009 intituled CC 14/2009 JNO 2 be struck out pursuant to Order21 Rule 17 (1) (b) and (d) of the High Court Rules 2007 on the grounds that the same was frivolous, vexatious and an abuse of the process of the court .

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2. I have perused documents in this application, to wit, Affidavit in support sworn to on the 13th of February 2009 and the exhibits referred thereto, exhibits MB1-MB4; and also the affidavit in opposition sworn to on the 17th of March 2009 together with the exhibits referred thereto i.e. exhibits A and B and also considered the Affidavit in reply sworn to on the 30th of March 2009. I have also considered arguments by the defendant /applicant's solicitor and the plaintiff/respondent's solicitor.

3. The question put before this court for determination on a point of law is "whether the plainiifffrespondent herein can seek declaration of title by writ of summons dated 19th January 2009 having regard to the provisions of Section 5 (3) of the Limitation Act No 51 1961. In order to determine this question, it is necessary to take into full context the full provision of SECTION 5(3) OF THE LIMITATION ACT NO 51 OF 1961. This section provides as follows:

"No action shall he brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him , or if it first accrued to some person through whom he claims to that person"

4.  It is clear to me that the 3rd defendant/applicant secured title to his Land in 1987 without any interruption whatsoever. By paragraph 3 of his affidavit in support, it is alleged he immediately built a 4 bed room apartment thereon which he occupied and is currently occupying. Not until 2000 was it ever attempted to interrupt his possession. By the plaintiffs own affidavit, paragraph 4 thereof, "the 3rd defendant started trespassing on my land in 2000 and upon my instructions he was served with a criminal summons dated 24th November 2000. I did not serve the 3rd defendant with any civil summons in 2000. A copy of the criminal summons dated 24th November 2000 is exhibited hereto and marked B. On these facts it would seem the 3rd defendant is claiming that the action is statute barred and therefore useless and unmaintainable, totally unnecessary and a complete waste of time and resources to proceed to trial. Having considered what the 3rd defendant is saying on this issue, it is but clear to me that this matter cannot be disposed of on a point of law. This is so because the plaintiff is seeking for a declaration of title as

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opposed to recovery of possession of laud which is envisaged under Suction 5(3) of the Limitation Act 1961. While it is was held in the case of ENGLAND ENGLAND SMART & COSIER VS OFFICIAL ADMINISTRATOR, PRATT AND BECKLEY 1964-66 ALRSL 315 that under a claim for further and better relief in action for declaration of title to land against a defendant in possession, the court may make an order for the recovery of possession of the land in favour of the successful plaintiff, it is even from this case which concerns declaration of title clear that the said reliefs are distinct and separate such that that which is envisaged by the Limitation Act is limited to recovery of possession and does not cover declaration of title which is claimed as the primary action in these proceedings. The plaintiff has claimed further or other order as the court may deem fit and just in the circumstances but this again is not recovery of possession of the land, notwithstanding the dicta in the above case, as it may be open to the court to order recovery of possession or any other order(s) which may include, as the circumstances may warrant, not limited to recovery of possession. Until the matter is gone into through a trial, it becomes difficult to know the type of order the court may give as a consequential order should the plaintiff be successful in the action.

5. Surely the action being a declaratory action involving title to land is not one you decide with a Hash in the pan. I sec that the Land claimed by the plaintiff is 0.4818 acre. The conveyance to him is dated 1980. On the other hand, the 3rd defendant's land is 0.0732 acres. The conveyance to him is dated 1987. Both Plaintiff and 3rd defendant obtained their respective pieces of laud from a common vendor a Mr Lam in Sorry Kamara at different periods. Suppose the land of the 3rd defendant was sold to him by the Common vendor after he the common vendor had sold same to the plaintiff, it would mean that the common vendor sold to the 3rd defendant something he had parted possession with and did not have title to and this may have implications; and the out come is not as certain as the 3rd defendant seems to relying on by his request for this mailer to be determined on a point of law. The facts surrounding this case could only come out if the matter proceeds to trial. There is need to know whether those two premises arc separate and distinct or whether the 0.0732 acres which was much later in lime is part of the 0.4818 acres to start with and the circumstances, it is, that would

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determine the outcome. That apart, I should think that with reference to the Limitation Act Time begins to run from the date or lime actual possession took place. The 3rd defendant stales that immediately he acquired the land by purchase he immediately built a 4 bed room apartment thereon which he occupied and is currently occupying. What is immediately? It is relative term and may be 1 week, 2 weeks, 1 year, or even 2years after depending on what the person using it means. We may need to prove in a trial when possession actually look place instead of being confined to allegations in an affidavit and this may take the period outside the limitation period.

6. In the ENGLISH ANNUAL PRACTICE 1999 UNDER THE RUBRIC "REQUIREMENTS OF ORDER 14A"AT PARAGRAPH 14A/2/3 AT PACK 200 ( THIS ORDER IS THE SAME AS OUR ORDER 17 ), it is slated that the requirements for employing the procedure under this order are the following "a) The defendant must have entered appearance

b) The question of law or construction is suitable for determination without a full trial of the action .

c) Such determination would be final as to the entire cause or matter or any claim or issue therein

d) the parlies had an opportunity to be heard on the question of law or have consented to an order or judgment being made on such determination."

While a) supra has been complied with, this could not be said of the other requirements. For the reasons put forward by this court the question becomes hardly suitable for determination without a full trial, and secondly, such a determination could not be final as to the entire cause or the claim for a declaration of title to land because the Limitation Act touches and concerns only recovery of possession of land. 1 note too that the parties have had an opportunity to be heard and that the plaintiff has opposed such determination, making amplified the fact that the parties did not consent to an order or judgment being made via such determination. In the ease of CC591/06 NO 9 WILLIAM JONATHAN - WYSE AND SYLVANIAS JAMES NEWSTEAD (EXECUTORS OF THE WILL OF LEO THOMAS LANGLEY (DECEASED) AND CC554/2006 .J.

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NO 41 DR W S MARCUS -JONES AND REV CANON. DR. J. E. M. TAYLOR PEARCE (EXECUTORS OF THE WILL OF KATHERINE LOIS ROBERTS (DECEASED)VS ROKEL COMMERCIAL BANK LTD UNREPORTED, a

consolidated action, this court had a similar situation to deal with and it was agreed by the parties that the following be argued as a preliminary point of law and determined by the court to wit :

'"Whether an action is maintainable for the recovery or delivery of assets not declared by the executors in their declaration of probable value in the respective actions"

In the instant case, this is not so and 1 think all things considered it would be dangerous to determine this matter on a point of law as it has the tendency of shutting down the plaintiff. The Application on these grounds therefore fails.

7. Turning to the second order prayed for, I could see that the action was noi frivolous vexatious or an abuse of process. Indeed an action was brought in the year 2000 on the criminal summons involving the 3rd defendant for this land but the same was not concluded and the file strangely and unfortunately went missing. This is not due to the fault of the plaintiff. The other action with respect to Ejectment proceedings at Magistrates Court No4 was out of order and dismissed. The plaintiff has all right to another action which is completely distinct and separate from those actions previously commenced and dismissed or unconcluded. It may however be necessary to stay those proceedings not yet concluded, if that matter is continuing, but as it is, it is not continuing as the file is missing. But this does not mean that the action should be struck out as being frivolous vexatious and an abuse of process. I would therefore also refuse the application on this ground. No order as to costs

Hon Mr. Justice Desmond B Edwards J

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