Civ. App. 49/2007

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:

 BISHOP J.C. HUMPER  -   APPELLANT 

AND

CLARA ROBBIN-COKER-  RESPONDENT

 

CORAM:

HON. MR JUSTICE N.C. BROWNE-MARKE

HON. MR. JUSTICE E.E. ROBERTS

HON. MR. JUSTICES.A. ADEMOSU

 

JUDGMENT DELIVERED 30th DAY OF  JUNE 2011

 

ADEMOSU, J.A.

This is an appeal against the judgment Hon. Justice Mrs. A. Showers dated the 10^th October 2007 in an action for a Declaration of title in which she found in favour of the plaintiff (who will hereinafter be referred to as the Respondent) as follows:

In the circumstances I give judgment for the plaintiff tha: she has proved her claim, on a balance of probabilities.

The following orders are made:

1. . I hereby declare that the plaintiff is the fee simple owner of all that piece and

parcel of land situate lying and being at Old Railway Line, Wilberforce, Freetown more particularly described in her survey plan LSI742.72.

2.  The plaintiff is entitled to recover possession of all that piece or parcel of land described in her said survey plan.

3. I grant a perpetual injunction restraining the Defendant whether by herself, her servants agents, privies, howsoever otherwise called from enleving or remaining on the plaintiffs land or from disposing of same whether by sale, lease, gifts, exchange of barter of any other description whatsoever.

4.    No damages are awarded for trespass .

5.  Costs of the action to be taxed if not agreed upon.

The Defendant now Appellant being dissatisfied with the above decision has filet the following grounds of appeal.

The Learned Trial judge erred in law and fact when she made her findings and erroneously arrived at a conclusion without fully comprehend the provision of the Conveyancing Act 1881 and the Vendor and Purchasers Act 1874 in that

                        (a)  She confused the Provisions of the aforesaid Acts by stating that the surveyor’s findings.......... must be accepted as proof of the plaintiffs claim that the defendant has trespassed on her land (page 5).

                       (b) She misconstrued the said Act when she held that “there is evidence that the land had been in the family of the vendor if the plaintiffs predecessor in title for a period prior to 1915 without any documentary evidence to this effect.

2.   The learned trial judge misdirected herself in law and fact when she grossly failed to properly consider or consider the Appellant’s defence and Counterclaim or consider them at all and instead opined that “the surveyor's findings not having been controverted must be accepted as proof of the plaintiffs claim” (page 5) when the Surveyor was in the employ of the plaintiff and only used the survey plan of the plaintiff to arrive at his findings.

3.  The learned trial judge erred in law and fact when she failed to properly consider or consider to all the Title Deed of the defendant (Exhibit B) in respect of the predecessor’s in title and instead erroneously held that “The plan of the defendant LSI 3 76/51 is the same as that of LS322/51 which is the original plan of the land in dispute” (page 5).

4.  The learned trial judge offended the rule of Audi Alterem Partem in that the Defendant’s

case was not considered on its merits as she was not afforded the opportunity to be heard and call witnesses to support his case and since it as evident that the defendant did not intend to proceed with his defence the Court acquiesced with the plaintiffs request for the matter to be wi thdrawn for judgment on the evidence of the plaintiff only before the Court, (page 4)

5.  The learned trial judge confused herself with the plaintiffs claim as in the endorsement for a declaration that “she is the fee simple owner” with an action for a declaration of title to land and the misdirected herself on the law governing a Declaration for a fee simple owner as opposed to a mere declaration of title.

6.   The judgment is against the weight of the evidence.

Pursuant to this Court’s direction both sides filed synopsis. In the synopsis filed on behalf of the Appellant Counsel argued grounds 1,2 and 3 together and grounds 4,5 and 6 also together. With the exception of grounds 4 and 6 all the other grounds filed are in violation of Rule 9(2) of the Court of Appeal Rules 19895 which states:

(2) “If the grounds of appeal allege mis-direction or error in law particulars of such mis-direction or error shall be clearly stated.”

In the instant case the particulars of the alleged mis-direction or error in law are not spelt out as the rule prescribes therefore those grounds are struck out.

As regards the ground 4 which alleges that the learned trial judge offended the rule of Audi Alteram partem. Having carefully perused the records this ground lacks merit because the record of proceedings is replete with numerous opportunities given and at the Appellant’s instance to put forward his case. It cannot be denied that counsel for the Appellant had the period 16th January 2006 to 21st November 2006. Whilst the matter was before Justice A. B. Raschid (deceased) and 9 adjournments were granted by the trial judge before the 6th of July 2007 when the matter was finally withdrawn by the trial judge for judgment. I think it is very important to note what counsel for the Appellant said on that day. He said as follows:

“We are still asking for time within which to arrive at an amicable settlement of the matter. The vacation is imminent and we ask that the vacation period be used to see if a consent judgment can be arrived at. In the circumstances, we do not wish to proceed with the defence.”

The record further reveals that it was Mr. D.B. Quee who requested adjournment of the  matter on the 29 of June and specifically asked for Friday 6 July 2007 to which the trial judge acceded and adjourned the matter to the date requested on the understanding that if amicable settlement was not reached counsel would proceed with their case. In the light off the above facts I would say that the Appellant cannot be heard to complain that the Audi Alteram Partem rule was offended because the ground is misconceived as it is completely baseless. The result is that ground is dismissed.

In regard to ground 6 which alleges that the judgment is against the weight of the evidence. This ground clearly disregarded the evidence before the court which went uncontroverted. Among it is the evidence of PW3 a licensed surveyor who produced the composite plan attached to the Survey Report exhibit F which shows the Appellant’s property a: sitting on the property of the Respondent. I think it is significant to note that this damaging evidence was adduced in the presence Counsel for Appellant. In his testimony the witness further told the Court that:

“My opinion is that the defendant has left the area of 6.8 town lot which he paid for and went and constructed/occupied by just under two town lots the property of the plaintiff.”

Cross-examination by Caesar None.

A pertinent point that should not be ignored in this matter is the statement in the counsel for the Respondent’s synopsis which is to the effect that at the time this matter was withdrawn for judgment there was no consideration on floor for an amicable settlement of the matter and that if any payments were made into the judicial sub-treasury as is contended by counsel for the Appellant that they were done without the agreement of the Respondent and without any basis in law.

It is the wish of the Appellant as expressed in the synopsis filed that this matter should be tri id forgetting that the Defence and counterclaim filed on his behalf is incomplete in that he did not plead any document of title to the land being claimed but only relied on the survey plan. In my humble opinion it is manifestly clear that the defendant/appellant has no possibility of success if this case is relied upon. I agree with the Counsel for the Respondent’s submission that the learned trial judge properly evaluated the evidence before her and rightly concluded that the Respondent had proved her case. She did make use of the opportunity of having seen and heard the witnesses and she did not draw wrong inference on the contrary there was enough evidence to justify the stand taken by her in withdrawing the matter for judgment. In those circumstances, this ground of appeal also fails and it is dismissed. The result is that this appeal is dismissed with costs to the Respondent and the costs to be taxed if not agreed.

Hon. Justice N.C. Browne-Marke - J.A.

Hon. Justice E.E. Roberts - J.A.

Hon. Justice S.A. Ademosu - J.A.