CIV. APP. NO 11/98

IN THE COURT OF APPEAL FOR SIERRA LEONE

BETWEEN

YADA NASIM WILLIAMS                                                   -APPELLANT

AND

THE ADMINISTRATOR & REGISTRAR-

GENERAL                                                                              -RESPONDENT

CORAM:-

YADA HASIM WILLAMS ESQ, FOR THE APPELLENTS                 

This Appeal arose out the refusal of the Learned Trial Judge Hon,Justice Umi H. Tejan Jalleh to grant an application by the Appellant/Applicant by originating summons that the Deed of Conveyance dated 23/10/30 be registered out of time.

The complaint raised by the appeal is that the Learned Trail Judge took into consideration extraneous matter which have no relevance to the issues she was called upon to decide. That she excluded relevant piece of evidence which are the basis for the application. In this respect I will quote the relevant Passages in her judgement .The application is by Originating Summons and the evidence in normally by affidavit evidence. Indeed , there was no viva voce evidence .It follows that relevant material is the admiable evidence as contained in the affidavit. In the instant case the affidavit of the Applicant.Briefly,the Vendor on the 29^th September ,1998 executed a deed of Conveyance to which was attached an advanced plan prepared, date and signed by a Licensed Surveyor plan by the Director of Surveys and Lands within the Statutery pre~ He deposed that the surveyed promised to let him have the approval plan by the Director of Surveys and Lands within the tatutory prescribe time. This is the only admissible evidence

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In my view the illness of the surveyor and the reasons for the unavailability of the approved survey plan ought to have been deposed to by someone other than the applicant , nor was it proper for the applicant to inform me in court about the clerical mistake in the plan attacked to Exh, "A" and/or "the circumstances leading to the execution of the Esed of Conveyance. I attached no importance or weight to these assertions" I may mention that an application of this nature requires the applicant to make full disclosure in presenting the evidance to the court. This has not been done in this case and the result is that there was no satisfactory evidence before me on either leg of the statutory provision for me to exercise my discretion judicially. I refuse the application .Liberby to apply.

With respect to the Learned Trail Judge the affidavit evidence before her was not Limited as she puts it. The reasons for the delaye are clearly spelt out in Paragraph 5 and 6 of the said affidavit to Paragrapb. 6, Paragraph 5. That my surveyer took ill shortly after the 29th of September 1998 and there was nobody left in his office to pursue the plan attached to Ext. "A" from the Ministry of Lands and Housing and the Enviroment, the plan in Exh "A" from my surveyor and had it attached to the said

Therefore for the Learned Trial Judge to have limited her conside-ration only to those as referred. to above is our view a wrong exercise of her discretions Since this court is a court of rehearing we have thought it fit in review of the affidavit that these sufficient materials on which the discrection of granting the application can be made. The illness of this surveyor which unfortunate the Learned Trial Judge seems to have held not being admissible due to the fact that it was not deposed to by the surveyor (for which i hold she was wrong ) is material to show the-attendant circumstance for the failure to register the instrument cut of time. Also as to whether or not there was a clerical mistake on the date of the plan attached to the conveyance should not be a matter to

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to which the Learned Judge should have averted her mind. The fact that she stated in her judgment that she attached no importance or weight to it,does not dispute the fact that she took it into conside-ration but attached no weight or importance to it. This assertion by the Appllant/Applicant not being contained in the affidavit before her ought not to form part of her judgment. To this artend the Learned Trial. Judge erred.

It is also clear from her judgment that she was influenced by her belief that the Appelant/Applicant did not make full disclosure in presenting the evidence before the court far which she said. "This has not being done in this case and the result is that there was no satisfactory evidence before me on either leg of the Statutory Provision for me to exercise my discrection judicially. I refuse the application". I think it is partanant to energy what pieces of evidence have not been disclosed to the court? This issue was never raised by this other side that there are pieces of evidence which are available which the court was ao^lwea of. This is also an sample of the Learned Judge taken into account irrelevant matters in the exercise of her discretion The advance plan, Exh "A" attached to Exh"A" was clearly not signed by the Director of Surveys and Lands Exh"A" was

OERIGINAL VERY FAINT

if not register within this period it shall be valid Exh "A" was not registered within this

ORIGINAL VERY FAINT

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tration and if the judge is satisfied the either

(i) The failure if register was not due to any fault of the applicant of

(ii) The applicant' failure to secure registration in time was , in all the circumstance of the case unusable he may permit the applicant to register out of the time and

the transaction in question shall be deemed never to have been avoided and shall take affect against other transaction affecting the same land and train such date as shall seem to the judge to be just."

From the evidence before us the failure to register Ex "A" within the prescribed period was due to the inability of the surveyed to present the survey plan for the counter signature of the Director of Survey and Lands pursuant to Section 15 of the survey Act Cape 128 of the Laws of Sierra Leone . In our view the failure to sand the signed survey plan to the Director of Surveys and land cannot be attributed to any fault of the applicant:

Also from the circumstance the Applicant/Applicants Failure to secure registration in time,was on the evidence excusable As I have said supra this court is a court of rehearsing and can review a discretion which it may reverse or many .Lord Wright in Evans v. Batham(1937) 2 AER state at Page 654.

It is clear that the Court of Appeal Interface with the descretion of a judge sitting within his jurisdiction, unless the court is clearly satsified that the was wrong . But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him. This Court of Appeal cannot review his order, unless he is same to have applied a wrong principle .The court use is necessery,crime xxxxx xxx and circumstance ,in order to exercise by way and review a discretion which may xxx xxxx the order."

In the same case at Page 650 Lord Atkins said: "Appellants jurindiction is always xxxxx

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there is in the statute no restriction upon the jurisdiction of the Court of Appeal, and the appellate court in the exercise of its appellate power, it is no doubt doubt entirely justified in saying that normally it will not interfere . with the exercise of the judge's discration. except on grounds of Law, yet ,if it sees that, on other grounds the decision will results in. injustice being done, it has, both the power and duty remedy it. The decision in Donald Campball. Co.v Pollak (1927) A.C. 732 was based upon the fact that an appeal in the matter of costs was

Court of Appeal by the Act and rules,"

"This Court can and will interfere if it is satisfied that the judge was wrong. Thus it will interfere if it can see that the Judge has given no weight (or no sufficient weight) to those consideration which ought to have weighed with him.

It sometimes happen that the Judge has given consideration which have weighed with him but even if he has given no reasons , the Court may inter from the way he has decided that the judge must have gone wrong in one respect or the other, and will thereupon reverse the Appellant/Applicant is granted leave to register the Deed of

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the 13/10/98.

The Respondent not having opposed the appeal, the Appellant/ Applicant will dear his costs.

(Sgd) Hon. Mr. Justice N.D. Alhadi J.A.