JUDGMENT DELIVERED ON THE 17TH DAY OF FEBRUARY 2020 BY THE HON. LADY JUSTICE F. BINTU ALHADI, J.

1. On the 28th day of Fe b ruar  y 2019 Counsel for the  Plaintiff/ Applicant made an application by Jud g es Summons doted the 2l51 day of November 2018 seeking the fo llow ing O rd ers to wit:

 

1. that pursuant to Order 16, Rules 1 and 3 ( 1l of  the  High Court Rules 2007,  final judgment be entered in favour of the Plaintiff/Applicant against the Defendants fo r the fo llowing :

 

1. a declaration of title to all that piece or  parcel  of land situate  lying and being at No. 2 Spur Lo op , Wilberforce, Freetown in the  Western  Area of the Re p ub li c of Sierra Leone;

 

1. an injunction restraining the Defendants whether by themselves, their servants, workmen, agents or howsoever from interfering by way of measuring the piece or parcel of land situate lying and being at  No. 2  Spur Loop, Wilberforce, Freetown aforesaid in order to obtain a survey plan;

 

1. an Order for immediate possession of all that piece or parcel of land situate lying and being at No. 2 Spur Loop, Wilberforce, Freetown aforesaid;

 

1. an Order restraining the Defendants herein from further instituting any action in the Magistrate Court relating to all that piece or parcel of land situate lying and being at No. 2 Spur Lo op , Wilberforc e, Freetown aforesaid;

 

1. any further or other Order(s) that the Court may deem fit and just in the circumstances;

 

1. that the cost of this application and of this action be assessed by the Court and borne by the Defendants/Respondents;

 

The application was supported by the Affidavit of DrusiI E. Taylor Esq sworn to on the 2l51 November 2018 with several exhibits attached thereto.

 

Submission to the Court bv Counsel for the Plaintiff/ Applic a nt

 

In his submission to the Court on the 28th of February 2019, Counsel  for  the Plaintiff/ Ap p lic a nt, Mr. Ta ylor, told the Court that pursuant to paragraph  13 of the said affidavit in support, the Defendants/Respondents  were  tenants  at  will and that his p rop ositio n is supported by the affidavit of Lansana Dumbuya Esq, Counsel who represe n te d the Defe nd a n ts/ Re sp ond en ts at an earlier matter instituted in the Magistrates Court in 2014. This was exhibited as "DET 6". He explaine d that exhibit "DET 5" memoralises  the  title of  the property  to that held by the Late S. I. Koroma; and that when you reference it to exhibit "DET 6", it solidifies the claim made by the defendants/respondents that they were put in possession of the property by the  Plaintiff,  the  S. I. Koroma  family. He came  to the conclusion that the quality of the title of the Plaintiff/ Applicant herein was therefore established.

 

 

 

 

He asserted that exhibit "DET 5" which is the conveyance to the husband of the Administratrix, show a solid root of  title, since  it  went  as  far  back  as  1955,  when the  property  was   purchased   by   Compagnie   Francoise   De   L' Afrique Occidentale and so ld to the Hon. S. I. Koroma in 1978. Tha t, in other words, the property has been in the ownership and was duly registe re d as No.  1165/78  in volume 305 at page 141 in the Book of Conveyances kept at the Office of the Administrator and Registrar-General.

 

Mr. Ta ylo r said that in view of the submission made and based on the fa c t that the Defend ants/ Re sp o nd e nts did not file a Defence to the motion at the time of filing the sum m o ns , the application ought to suc c e ed .

 

He also said that by way of a  letter dated 28th  November  2017  (e xhibi t DET  4), the Plaintiff/ Applicant demanded that  the Defendants/Respondents  vacate  the sa id   property   and    hand   over   vacant  possession;  and         that in an earlier ejectment proceeding in the Magistrate Court, the Defendants claimed  that  the land was a State Land that was offered on lease to  them  on  the  21st  of November 2017. He said that they produced a letter with the caption "Offer for Lease of Sta te La nd at Wilberforce, Fre e tow n" from the Direc tor of Surveys and La nd s.

 

C o uns el for the Pla in tiff/ Applicant, maintained that an earlier matter in the Magistrates' Court in 2014 pertaining to the same piece of land herein, entitled Kekurah Bund u (Applicant) v Kadie Watfa, lsata  Watfa  and  Others (Respondents), the 1st Respondent herein, who was the 2nd Respondent therein, stated that she was put in possession of the piece of land situated at No.2 Spur Loop by the S. I. Koroma fa mily through one Alha ji Ba kurr, a brother of the Late S.

1. Koroma. Mr. Taylor exhibite d "DET 6" which was 1he submission asserting  same, and made by Counsel for the 1st Defendant/Respondent herein, lsa ta Watfa.

 

Mr. Ta ylo r esp ou sed that, even though the Ministry  of  Lands was sub p o en a e d and  ordered  to  present  the  Director  or  a   representative  to  provide  evidence  of the purported  offer  of  a  lease  and  ownership  of  the  said  land  offered  by  the State, the Ministry a nd / or its  representative  failed  and/or  refused  to  provide  such or the record books to show a map of State lands in  the  Wilberforce  area  in  Freetown.

 

 

Furthermore, he  submitted  that  the  l st  Defendant/Respondent   deliberately made an untrue statement in the Magist ra tes Court by stating that  no proceedings had ever been instituted against her for  the  said  property  in question and that she was put into posse ssio n of the said land by a lease obtained from the Ministry of Lands and  not  from the S. I.  Koroma family. Extract of the Magistrates Court records shown as exhibit "DET 7". Mr. Taylor there fore advocated that an  offence  of  perjury  had been  committed  and  for  which  the 1st Defendant/Respondent ought to be tried.

 

Submission to the Court by Counsel for the Defenda nts/ Re spo ndents

 

In     response      to      the      said             application    made,          Counse l       for             the Defend ants/ Resp o nd e n ts, Mr. E. T. Koro m a , filed an Affidavit in Opposition on the 23rd of November 2018. It had two attachments thereto to wit: exhibit "ETK l" which  is  th e      Judges Summons          filed by the Plaintiff/Applicant dated 2ist November 2018; and exhibit "ETK 2"  a  Defence and  Counter-Claim,  which has no evidence of a filing date and no receipt as evidence of payment for filing.

 

In his affidavit in opposition, Mr. Koroma stated that the matter is not a fit and proper matter to be dealt with under Order  16 of the  High Court  Rules of  2007. He sa id in paragraph l 1 of the said a ffidavit, that  the  property  was  a  government prop erty leased to the Defendant and "which is exhibited as exhibit "ETK 5". Mr. Koroma testified in his affidavit in oppositio n  that  the  property claimed by the Plaintiff to be hers,  is a  government  property  that was leased to the 2nd Defend ant. He said that the exhib it was marked "ETK 5".  He sa id  that this c ruci a l issue is a sc ert aining whether the property is pr iva te owned or belongs to the government, will only be sufficiently dealt with during trial.

 

He averred that the affidavit of search was misleading, since it purported to  have been sworn to on the 9 th of November 2018, when the se a rc h fee re c eip t is dated 15 th November 2018; exhibit ETK 4 (1-2). He said that the said search fee should have been paid before a search was c ond uc ted and not the reverse.

 

He said that the Defendants currently in possession and occupation of the said property and that they have built structures on it.

 

Mr Koroma questioned the authenticity of the  title deed on the Honoura b le S. I.

Koroma  and  rea sons  for  not  producing  it  at  the  Magistra te s  Court. Counse l

 

 

 

 

 

 

 

argued that because of this reason and because the issues would not be sufficiently dealt with on questions of law, the matter should be taken to trial.

 

He maintained that the application was misconceived, the whole originating process was frivolous, malicious and vexatious and that it should be dismissed.

 

D.   Decision of the Court

 

I have carefully considered  the  submissions  of  both counse l and                              note that a plethora of considerations need to be taken into account. These include considerations such as: what factors would the Court want  to  take  into account in deciding on a declaration of title? What  are  the  legal positions  of the parties; and                              whether the Defendants/Respondents are  c orrect  to  say that there are triable issues. Should an injunction be granted against  the Defend ants/ Re sp o nd en ts ?

In order to arrive at a fair decision , the Court may want to start by looking at what Order 16 Rule 1 of the High Court Rules of 2007 say. Order 16 Rule 1 seeks a summary judgment and says tha t: "where  in an  action to which this rule applie s a defendant has been served with a statement of claim and has entered appearanc e, the plaintiff may, on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the w rit, or to a particular part of  the  claim except as to the amount of any damages claimed."

From the fa c ts of the c a se , the  Defendants were served with a statement  of claim on the 1st of August 2018  and  appearance  was  entered  on  6th  of September 2018. On the 21st of November 2018, the Plaintiff/Applicant  filed a Judges Summons. I agree  with  Mr.  Koroma's  submission  that  a  search  fee ought to be paid before a sea rc h is  conducted.  The reverse  was  done in this case and it was wrong. Counsel for the Plaintiff is hereby admonished to take procedural matters seriously and endeavour not to repeat it again.

Ho w e ver, this procedural omission does not negate the fact that no evidence was adduced by the defendants, and no stamp or receipt was shown to substantiate the claim that a defence was filed at the appropriate time. Counsel for the defence was not honest with the Court when he exhibited a Defence as exhibit ETK 2 (1-2) attached to his affidavit in opposition, which he purportedly reported was filed. It is apparent  that  the said Defence was not filed, since it bore no registry stamp, no date and no

 

receipt, as evidence of payment of the filing fee. I  shall however, consider the said unfiled Defence in the interest of equity.

 

The next issue that arises is thi s: can the Court order a declaration of title? At common law as applied in many Commonwealth countries, where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the title proved by the rival claimants. If party "A" can prove a better title than party "B", he is entitled to succeed

notwithstanding that "C" may have a better title than "A", if  "C"  is neither  a party to the action nor a person by whose authority "B" is in possession or occupation of the land. It follows that as against a  defendant  whose  entry  upon the land was mode as a trespasser, a plaintiff who  con  prove  any documentary title to the land is entitled to recover possession of the land; Ocean  Esta tes Limited v Pinder (1969) 2 A.C.19 at pp 24 - 25 as per Lord Diplock.

Furthermore, in on unregistered system of land, title is evidenced by the title deeds and the Purchaser is given details of  the  more recent  title  deeds, starting with the root of title and tracing the chain of ownership to the  Vendor. The question is: how                                   far back shou ld we go to find the root title? Thomas, M.

'Casebook On Land Law' f1992) Blackstone Press Limited at 24.

 

Section 1 of the Vendors and Purchasers Act 1874 provides that a  vendor  or owner of land should show the  history of  the  ownership  of  the  land for a period of at least 40 years; and that there should be  evidence  that  the  vendor/owner had been in possession of the land for at least 40 (forty) yea rs. In other words, the_very foundation on which the claim for trespass is made should exist; Re

Cox and Nevo's Contract [18911 2 Ch 109; Bangura v Bangura CA - Civ. App.

35 of 1977 as per Warne JA at p 151.

 

From the facts and evidence of the case, the Court is able to discern that the Plaintiff has been able to show a good root of title by establishing that the said property was sold to the  Vendor, Compagnie  Francaise  De  L'Afrique Occidentale by Francoise Bozon. That the  Late S. I. Koroma  then bought  the said property from the vendor, Compagnie  Francaise  De  L' Afrique  Occidental on the l 3th day of December 1978. This shows  a  root of  title  that goes back as far back as 1 6th December 1955 and properly registered. In other words, the

root of title goes back as for as 65 years ago; and the property hos been in the possession and occupation of the Koroma family for 42 years. What better title can the Plaintiff/Applicant get? It is apparent that the Administratrix inherited a

 

fee simple absolute in possession, free from encumbrances. The fa mily posses s a good root of title  evidenced  by exhibit  "DET 5" attached  to  the affidavit  of  D E Ta y lor Esq sworn to on the 21s t day of November 2018.

 

On the other hand, the Defendants/Respondents have not prod uc ed a single documentary proof of their right  to  the  land they  occupy  and  claim posse ssio n of. Even the said proof of Government ownership or permission  by  a  relative of the Koroma family for them to occupy the said piece of land, referred to by Mr. Taylor, were not produced  and  tendered  to  this  Court.  Counse l  for  the Plaintiff/ Applicant was also able to show the submissions made in an affida vit sworn to by Mr. Lamana Dumbuya, Counsel for the Defe nd an ts/ Resp o nd en ts herein in an earlier matter  at  the  Magistrates  Court  in  2014;  where  c ounse l test ified tha t the Defendants/Respondents herein, admitted not to own the said property.  How can  one  therefore  begin  to   make   a   comparison   of   titles? Thro ug hou t the p roc eeding s, it was clear that the Pla int iff/ Applicant was the fee simple owner and entitled to recover possession of the disputed land.

 

Furthermore,  not   only  has  the                                Plaintiff/Applicant                                been able to show her entitlement by  the  title deed of the property, she has been able  to show  de tails of the previous vendors; thereby  tracing  the chain  of  ownership  to  the  vendor. As to the question of how far back they should go to  find the  root of  title, they  have gone back as far as 65 years and been in actual possession for 42 years. I therefo re cannot adjudge that the Defendants/Respon.dents have  esta  b lished any p roo f of title; let alone a good root of title.

 

Additionally, in Wyse v Turay C. A. (19791: 1 SLBALR (1974-821 at p 340, Mr. Justice Ken During said that, it would be incorrect  to  sa y  that  one could  claim land on the basis that he/she has been in occupation for  20  years.  He  observed  that there was no form of conveyance  of  the  land to  the respondent  and  that  since no such evidence  was produc ed;  on  that ground  alone, the respondent  fail e d to prove that he had a valid title from the vendor. He pointe d out  that even if he had been in possession of the la nd , it was not for a period of 40 years in accordance with the Vendors and Purchasers Act 1874.

Unfortunately for the Defendants they did not produce the  offer  letter  for  the lease of sta t e land they claimed in the Magistra tes C ou rt. Lo o king at the survey plan, I see nowhere around the said property where it is sta t e d tha t a Sta te land exists. The Defendants/Respondents, have not been consistent in their defence

 

to the Court; a conduct that the Court takes a dim view o f. They have not been honest with the courts and it is clear that their conduct borders on perjury; for which they could be cited for a trial.

 

On  the  sub m issio n  b y  Defe nc e   Co un se l   that   the   title   deed   of   the Plaintiff/ Applicant was not  submitted  to  the  Magistra  te s  C ou rt;  I  need  not remind Counsel on the jurisdiction of the Magistrate  Court  and  that  of  the  High Court. Counsel oug ht to know that land issues p e rta ining to  ownership  are  dealt with at the High Court and not the Magistrates Court.

 

Furthermore, I am in no doubt that the issues before this Court can be dealt with sufficiently on questions of law  sum m arily; and I do not consid er  the  a p plic  a ti on to  be   misconceived, frivolous, malici ous and                                                     vexa tiou s.

 

On the claim of tresp a ss, a  plaintiff has to prove a better right of posse ssion  than a defendant. One  of  the ways  that  he  may do  this  is  to prove  that  he has  a be tter title to the land than the defendant. Th is means that, the Court is only concerned with the relative stre ng ths of the titles or possess io n proved by the rival claimants; Dr. Seymour - Wilson v Musa Abess C.A. at p 82. From the facts and evidence before the Court, such as exhibit "DET  5" ,  it  is evident  that  the Plaint iff/ Applicant is in a stronger position and can prove a stronger title to the property and is the fee sim p le absolute in posse ssio n owner of the sa id property.

 

Also, there is a clear distinct  ion  between  a  claim  for  trespass  based  on  title  to land and that based on  possession  of  the  land.  If  th e  claim  based  on  title  fails, the Court should proceed  to  examine  the  evidence regarding  posse ssio n ,  if  any. Th e st and a rd      of       p ro o f in a c la im based on title to land, is  higher  than  that required in a claim based on possession; Bangura v  Bangura  (supra  )  at  p  152. Again, the  fa c ts and                        evidence in this case, speak for them se lves. I need not reiterate  the  point  that,  the  Plaintiff/Applicant's  title  and  possession   to   the property is stronger than that of the Defendants/Respondents.

Conclusion

 

I have carefully evaluated the facts and evidenc e before the Court; and I am satisfied that there is no  question or issue which ought to be tried. Thi s is because it is a clear case of a fee sim p le owner, exercising her right to her property. Also, the Defe nd a n ts/ Re sp o nd e nts have not shown any form of title/ ow nership to the said property; or any right to possess No. 2 Spur Lo op , Wilberforce, which they are in occupation. As d isc usse d a b o ve, mere occupation of land for even the

 

statutory period of 40 years will not amount to long possession as contemplated by the said Vendor and Purchasers Act of 18 74. I therefore see no reaso n why the Defendants/Respondents should succeed.

 

In view of the above stated, final judgment is entered in favour of the Plaintiff/Applicant herein , the said Haja Mabinty Koroma (suing as Administratrix of the Estate of the Late Sorie Ibrahim Koroma) of No. 2 Taylor Woodrow Drive, Off Spur Loop, Freetown. The Orders are as follow:

 

1. . that the Plaintiff/ Ap p lic a nt, Haja Mabinty Koroma aforesaid, is and was at all material times, the fee sim p le  owner  of  all the  piece or parcel of land situate lying  and being  at  No.  2  Spur  Loop,  Wilberforce,  Freetown in the Western Area of the Republic of Sierra Leone;
2. that the Defend a nts/ Resp o nd ents , lsatu Watfa and Habib Watfa both of

No. 2 Spur Road, Wilberforce, Freetown aforesaid by themsel ves, their servants, workmen and agents or otherwise be forthwith restrained from interfering by way of measuring the piece or parcel of land hereinafter described in Order 1 above in order to obtain a survey pla n;

1. that the Defendants/Respondents do give immediate possession of the the said property to the Plaintiff/ Applicant;
2. that the Defendants/Respondents are hereby restrained from further instituting any action in the Magistrates Court relating to the above stated property;
3. that the Defendants/Respondents do pay the sum of Le 100,000,000 (One Hundred Million  Leones)  to  the  Plaintiff/Applicant  being  damages  for tresp a ss and wrongful entry upon the said land described in Order  1 above;
4. that the Defend a n ts/ Resp o nd en ts do pay  the  costs, which is assessed to be Le 100 ,00  0,000 (One Hundred Million Leones)  occasioned  by  this action to the Plaintiff/Applicant herein.