Caulkery v Kangama (Civil Appeal No. 2/74) [1975] SLSC 2 (18 June 1975);


C.O.E COLE                             Chief Justice (Presiding)

S.C.W.BETTS,                    Justice of the Supreme Court

E.LIVESEY LUKE ,             Justice of the Supreme Court

S.J FORSTER,                    Justice of the Supreme Court

C.A. HARDING                    Justice of Appeal





DR W.S Marcus Jones with him

Garvas Betts., for the Appellant

Dee Smith , Esq., for the Respondent

Cole , C.J.: This is an appeal from the judgment of the Court of Appeal for Sierra Leone dated the 11th day of April , 1974, allowing the appeal from the judgment of Warne , J., lated the 16th day of March, 1973, in an action in which the respondent in this Court was plaintiff and the appellant was defendant . The subject matter of the action touched and concerned certain premises at one tune known as 41 Kainkordu Road Koidu Town Kono District, but later came to be known as 83 Main Kainkordu Road. There is no dispute between the parties as to the identity of the premises in question. I shall therefore in this judgement hereafter refer to it as " the said premises."


By a specially indorsed Writ of Summons dated the 17th day of March, 1972, the respondent claimed possessing of part of the said premises, mesne profits at the rate of Le.403 per month and damages for trespass. In his Particulars of Claim, he allowed, amongst other things, that at all times material to this action, ho was the owner of the said premises and the appellant was in occupation of part of the said promises, that despite several demands by the respondent since April, 1964, for the appellant to quit the said promises, the appellant refused to do so.

The appellant by his amended Defence disputed the ownership by the respondent of the said premises and averred in effect that he was the owner by purchase of the said premises. To this the respondent joined issue.

It. is clear therefore that at the close of the pleadings, one of the main issues which had to be determine by the trial Judge was ownership of the said premises. This naturally involves the question of title to the said promises.

The trail came to an end on the 16th day of March, 1973, when the learned trial Judge delivered his considered judgement dismissing the respondent's claim on the main ground that the evidence of the respondent did not support the pleadings . It should be noted in passing that; there had been previous litigation between the said parties rearding the said premises before the High Court in 1968, the record of proceedings of which case was tendered in evidence in the present case and marked. Exhibit 'A' . In the former case, the appellant was plaintiff and the respondent was defendant . The respondent in that case raised the question of juris-diction of the High Court to try that case but was


overrated by the learned 1 trial Judge. The learned trail Judge , however, after hearing evidence, dismissed both the claim of the appellant and the count reclaim of the respondent. There was no appeal against the judgment in that case. For the purpose of this present appeal,these facts are not very material , expert , perhaps , regarding the issue of Costs.

From the judgement of Warne, J, dated the 16th March ,1973, the respondent appealed to the Court of Appeal for Sierra Leone on three ,grounds, namely -

" 1. The learned trial Judge misdirected himself as to the nature of the appellant's counterclaim in the previous action between the same parties above and which is Exhibit 'A' in this action.

2. The learned trial Judge was wrong in law when he said the appellant was indirectly using his Court as an appellate Court .

3.  The judgement is against the weight of evidence ."

The Court of Appeal for Sierra Leone in their judgment dated the 11th Day of April, 1974, said, Inter alia " We allow the appeal and set aside the decision of the Court below dismissing the appellant 's action with costs. We order that the respondent within 30 days to deliver possession of the 2 terms occupied by him in the premises farmery know as 41 Kainkordu Road,


Kwane distric , and now Known as 83 Kainkerda Road, Koidu Town, that the respondent do pay to the appellant Dasne profits at the rate of Le. 28 per mensem from the date of issue of the Writ of Summons herein."

The appelant being dissatisfied with this judgment and order has appealed to this Court on a murder of grounds. The first principal question posed for our consideration is -

"Whether the High Court of Sierra. Leone had any Jurisdiction to entertain this suit in view of the fact that the matter between the parties which the Court had to determine was a question of title to land in the Province , and whether the proper forum ought not to have been the local Court in the Kono District, "

It should be observed at the outset that on examination of the record of proceedings before the Courts below this question of jurisdiction was never raised. I am of the view, however, that since the pleadings before the learned trial Judge disclose sufficient material on which the issue of jurisdiction can be based, this Court can properly entertain the question in spite of the fact that it was not raised in the Courts below. I wholeheartedly adopt the views expressed in the Privy Council case of CHIEF KWANE

ASANTE v CHIEF KWANE TAMAI (1949) W M 40 at page 41 that -

"If it appeared to an appellate court that an order gainst which an appeal was brought had been made without


jurisdiction , it would never bo too late to admit and give effect to the plea that the order was a nullity."

I shall not confine this legal doctrine to orders only but would extend it to cover judgment or other decisions of any court . This ought to be the case Tor, in my considered view, jurisdiction is not only the legal authority but it is also the extent of the power of a court or judge to entertain an action, petition or other proceedings. Due consideration .. ought to be given to it at any stage - particularly so where that jurisdiction is conferred or taken away by statute.

Now , what is the gravamen of this principal question of jurisdiction raised by learned Counsel for the appellant It is this. He contends , amongst other things , that in the first place, from the pleadings it is clear that the said premises ; was land situated in the Provinces, secondly, that the pleadings disclose; that one of the main issues Warne , had to determine was the title of either party to the said premises; thirdly. that no question any title to a leasehold granted under the Provinces Land Act (Cap. 122) arose; and lastly, that therefore the jurisdiction of the High Court was custed by virtue of the provisions of Section 21 (a) (1) of the Courts Act, 1965 (No. 31 of 1965). These contentions automatically call for the construction of Section 18 ( 1 ) and (2) and 21(a)(i) of the Court Act, 1965 for the purposes of this appeal. These three subsection are as follows:

"18. (1) The High Court shall exercise the jurisdiction and powers conferred


 upon it by the Constistution and any (2) Except as provided in sub-section (2) of Section 7 and Section 19 or its jurisdiction is expressly excluded by an enactment , the High Court shall exercise unlimited original and supervisory jurisdiction in all causes and matter in the same manner . and with the same powers and authorities as immediately before the commencement. of this Act . "

"21. Nothing in this Act shall be deemed to invest the High Court with jurisdiction in regards to -

(a) any action or original proceedings -

(i) to determine the title to land situated in the Provinces other than the title to a leasehold granted under the Provinces Land Act."

These three subsection should be read together. It is my considered opinion that section 18 is subject to Section 21. Therefore, where in any action any question arises for determination ; relating to title to land situated in the Provinces, unless, of course, the question relates to title to leasehold granted under the Province Land Act (Cap 122), the jurisdiction of the High Court is busted . No question arises for consideration in the present appeal of any leasehold granted to either party of the said premises under the Provinces Land Act. Both parties were each claiming ownership of the said premises which was disputed by the other side.


The Court therefore , had to determine and in fact determine this issue.

The expression "title to land" is not defined in Courts Act, 1965. It is also not defined in the Provinces Land Act nor in the Interpretation Act, (W .8 of 1971). But the expression "land" is defendant in Section 4 of the Interpretation Act, 1971 include "land covered by water, any house, building or structure whatsoever and any estate , interest or right in, to or over land or water;",

In. the circumstances, I interpret the expression title to land" for the purposes of this appeal to mean this - namely , which of the two parties to this Appeal is entitled to the ownership of the said premises . This interpretation , in my view, clearly called for a determination by the High Court of the questions of title to land situated in the Provinces. This question , both the High Court and the Court of Appeal , did determine . It is my considered view that neither court had any jurisdiction under the afore-mentioned provisions of the Courts Act, 1965 to have Determined this question nor did the High Court have may jurisdiction in law to have tried the action.

The legal position being such as I have found it to be, it is not surprising that Mr. Doe Smith, learned Counsel for the respondent, with his usual candour had to concede to this principal question. He shall be commended for this. As 1 mentioned earlier, he himself had in the previous action in 1968 raised the issue before the High Court but he was overruled .


It might be of interest to compare the  present section 21 (a)(i) of the Courts Act, 1965,   with the provisions of Section 11 of the Courts Act   (Cap 7) which latter Act was repleaded and replaced  by the Courts Act, 1965. Section 11 of the Courts Act (Cap 7) as far as is relevant reads as follows: -

"11. In addition to the jurisdiction conferred by this or any other Act, theo High Court shall, within Sierra Leone and subject as in this Act mentioned, possess and exercise all the jurisdiction, powers and authorities, which are vested in or capable of being. exercised by Her Majesty's High Court of Justice in England:

Provided that nothing in this Act shall be deemed to invest the Court with jurisdiction in regard to

(a) any question arising exclusively between natives -

(i) involving title to land situate within the Provinces . "

The Courts Act, 1965, which, as I have already said, repealed and replaced the Courts Act (Cap 7) came inte force on the 7th October , 1965. It would be seen that. in comparison, up to the 6th October, 1965, for the jurisdiction of the High Court in matters .

involving; title to land situated within the Provinces to be ousted such matters must also arise exclusively between "natives". The present legal position in relation to the High Court's jurisdiction regarding title to land situated in the Provinces appears to be,


rather all-embracing. The main question to be considered as the law stands at react are, in my view -

(a) Is the land in question situated in the Provinces, and if so,

(b)Does the the action relating to the said land raise for determination by the High Court the issue of title to such land other than title to a leasehold granted under the Provinces Land Act?

If  these questions are answered in the affirmative, then the jurisdiction of the High Court is ousted. This is exactly the position in the present case.

I hold that the whole trial before Warne, J., was a nullity become of want of jurisdiction. Having so held it follows that the judgment and order of the Court Appeal are consequently null and avoid. In the circumstances , it is unnecessary for me to consider the other principal questions raised in this appeal,

I would allow the appeal and set aside the judgment and order of the Court of Appeal as well as the judgment and order of the High Court.

I now turn to the question of costs. It is true that costs should follow the event and that the appellant having succeeded in his appeal should have his cost. In view, however , of the peculiar circumstances of this case where the very question of jurisdiction on which the appellant non succeeds before is had previously been raised by the respondent in the 1968 action before. Browns-Warke, as he then was, and was strongly opposed by this very appellant, I would rather in the name of equity that each party


bears his own cost in this Court , in the Court of Appeal and in the High Court. any cost which may have been paid in either of the Court below by either party should be refunded . In this connection, I would live liberty to apply .

C.O . E . Cole -Chief Justice

I agree

S.C.W. Betts- Justice of the Supreme.- Court

I agree

E . Livesay Luke - Justice of the Supreme Court

I argee

S.J. Forster - Justice of the Supreme Court

I agree

CA. Harling -Justice of Appeal

Hon. Justice Betts:

In the main, I agree with the conclusion arrived at by the Chief Justice.

I have only this to add: that there are certain factors which one must take into consideration and there he has already outlined.

First Section 11 (1) of the Act - Section 6 of the Act Cap 143 and Rule 10 of the Act; but also what I think is most important and I think has been referred to by my Brother Justice Rule is the case of Royal Exchange Assurance Ltd. versus Toffric Rassil , Civil. Appeal No.172 unreported.

In that cane it wars established at least it was said that the Insurance policy at the time that the accident occurred run concurrently .I do not agree with the conversation of the principal strict interpertation xxx against the whole xxxx of the Act which provide for xxxx with the Lord chief Justice judgment. I would allow the appeal.

Hon. Justice Awumor-Renner:

I agree with the conclusion arrived at by the Learned Chief Justice and I would allow the appeal.

50th April, 1976.