Chrispin Deigh v O-Smart (CC: 165/2015) [2016] SLHC 1142 (21 October 2016);

CC: 165/2015                                              15                               D.        NO. 7

 

IN THE HIGH COURT OF SIERRA LEONE

(GENERAL CIVIL DIVISION)

 

BETWEEN:

 

CHRISPIN DEIGH                                         -                       Plaintiff/Applicant

7 Road Off Spur Road, Wilberforce

Freetown

 

And

 

JOHN DUDLEY OKRAFO-SMART               -                       1st Defendant

14 Bathurst Street

Freetown

 

GEORGES EL KOUSSA                                  -           2nd Defendant/Respondent

137D Wilkinson Road

Freetown

 

Counsel:

Patrick Lambert Esq of Lambert & Partners

Glenna Thompson (Ms) of BMT Law

 

BEFORE THE HONOURABLE JUSTICE MIATTA MARIA SAMBA, J.

DATED THE   21st    DAY OF OCTOBER 2016

 

Ruling:

 

1. The application before this Court is by way of Notice of Motion dated the 18th day of April 2016, made pursuant to Order 17 Rules 1 & 2 of the High Court Rules of Sierra Leone, 2007 (hereinafter referred to as ‘The Rules’) for answers to the following points of law:

 

  1. Whether according to the Registration of Instruments Act, Cap 256 of the Laws of Sierra Leone (as amended) there was any valid and/or enforceable agreement between the Plaintiff/Applicant and the 1st Defendant/Respondent for the sale of the property situate at 127 or 129 Wilkinson Road, Freetown also known as 1 Korpor (Copper) Water.
  2. If the answer to Order 1 above is no, then for this Honourable Court to dismiss the claims/reliefs numbered 1 to 6 inclusive of the Plaintiff contained in the Writ of Summons herein to wit:

 

  1. An injunction restraining the 2nd Defendant whether by himself, his servants and/or agents from entering into and/or remaining on the said piece of land situate and lying at 127 Wilkinson Road and also known as Korpor (Copper) Water, that is to say the Metropolitan Funeral Home.
  2. An injunction restraining the 2nd Defendant whether by himself, his servants and/or agents or otherwise from pulling down, demolishing or removing any structure on the said property.
  3. An injunction restraining the 2nd Defendant whether by himself, his servants and/or agents or otherwise from erecting or doing or causing anything to be done to the property.
  4. An Order setting aside and/or cancelling and/or revoking purported sale by the 1st Defendant to the 2nd Defendant of the property known as 127 or 129 Wilkinson Road otherwise known as 1 Korpor (Copper) Water that is to say Metropolitan Funeral Home.
  5. An Order that the Conveyance dated 26th February 2015 and registered as No. 337/2015 and in Volume 745 at page 55 of the Record Books of Conveyances kept in the office of the Registrar-General be expunged from the said Record Book.

 

  1. Further, if the answer to Order 1 above is no, then for this Honourabe Court to grant a declaration that the transaction between the 1st Defendant and the 2nd Defendant contained in the Deed of Conveyance dated the 26th day of February 2015 and registered as No. 337/2015 at page 55 in Volume 745 of the Books of Conveyances kept in the office of the Administrator and Registrar-General is valid.
  2. Any further or other order as the Court may seem just.
  3. That the costs of this application and the action by the Plaintiff against the 2nd Defendant be paid by the Plaintiff.

 

2. In support of the application is an affidavit sworn to on the 18th day of April 2016 by Patrick Lambert with the following exhibits attached and filed herein:

 

  1. Exhibit PL1 is a copy of a Writ of Summons which commenced the action against the Defendants herein, same dated the 6th day of May 2015.
  2. Exhibits PL2 is a copy of a Memorandum of Appearance dated the 16th day of June, 2016 filed for and on behalf of the 2nd Defendant herein.
  3. Exhibit PL3 is a copy of a Notice of Appearance dated the 16th day of June 2016 filed for and on behalf of the 2nd Defendant.
  4. Exhibit PL4 is a statement of defence and counter-claim filed on behalf of the 2nd Defendant.
  5. Exhibit PL5 is a reply and defence to the counter-claim filed on behalf of the Plaintiff.
  6. Exhibit PL6 is a copy of a Conveyance dated the 26th day of February 2015 expressed to be made between the Metropolitan Funeral Services Ltd (In liquidation) therein described as the Company and John Dudley Okrafo-Smart therein described as the Liquidator and Georges El Goussa, the 2nd Defendant herein, therein described as the Purchaser, same registered as No. 337/2015 in Volume 745 at Page 55 in the Record Books of Conveyances kept in the office of the Administrator and Registrar-General in Freetown, Sierra Leone.
  7. Exhibit PL7 is a copy of a letter dated 25th March 2011 from the law office of Marcus Jones & Co, same addressed to the 1st Defendant herein.
  8. Exhibit PL8 is a copy of a letter dated 23rd May 2011 from the law office of Marcus Jones & Co, same addressed to the Plaintiff herein.
  9. Exhibit PL9 is a copy of a letter dated 7th April 2015 from the law office of  BMT Law, same addressed to the law office of Jenkins-Johnston & Co in respect of sale of 127 Wilkinson Road, Freetown.
  10. Exhibit PL10 is a copy of a letter dated 28th April 2015 from the law office of BMT Law to the 2nd Defendant herein in respect of 127 Wilkinson Road.

 

3. Order 17 Rules 1 and 2 of the High Court Rules, 2007 provide as follows:

 

(1). The Court may on the application of a party or on its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that:-

 

a.The question is suitable for determination without a full trial of the action; and

b.The determination will finally determine subject only to any possible appeal, the entire cause or matter or any claim or issue in the cause or matter.

(2). Upon the determination, the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

 

3.1. I am satisfied that I have afforded an opportunity to Counsel for both the Plaintiff/Respondent and the 2nd Defendant/Applicant to be heard on the points of law to be determined by this Court and both Counsel consented in writing on the 21st day of June 2016 as follows:

 

  1. That an interim injunction be granted restraining the 2nd Defendant/Respondent whether by himself, his servants or agents or howsoever otherwise from erecting any structure, leasing, renting, selling or disposing of all that piece of property situate lying and being at 127 Wilkinson Road, otherwise known as 1 Korpor (Copper) Water, Freetown in the Western Area of the Republic of Sierra Leone in any way whatsoever pending the herein and determination of the application hereinbefore referred.
  2. Cost of this application to be cost in the cause.

 

3.1.2. Basically, the application is for this Court to determine whether, appreciating the provisions of the Registration of Instruments Act, Cap 256 of the Laws of Sierra Leone 1960, as amended by Act No. 6 of 1964, there was any valid and enforceable agreement between the Plaintiff/Respondent herein and the 1st Defendant herein, in respect of the sale of the property situate lying and being at No. 127 or No. 129 Wilkinson Road, Freetown, the subject-matter of this application.

 

4. Counsel for the 2nd Defendant/Applicant argues that all agreements executed in the Western Area in respect of real property must be registered within 10 days of such execution failing which such agreement shall be void in so far as regards any land to be thereby affected. Counsel submitted, that any agreement which may have existed between the Plaintiff/Respondent and the 1st Defendant was never registered with the office of the Administrator and Registrar-General.

 

4.1. In support of his submission, Counsel referred the Court to paragraph 5 of the affidavit of Glenna Thompson sworn to on the 10th day of May 2016 in which the deponent admitted that the agreement of sale in respect of 127 or 129 Wilkinson Road, Freetown, between the Plaintiff/Respondent and the 1st Defendant was not registered.

 

4.1.2. Counsel referred the Court to and relied on the Supreme Court judgment of the matter between Alhaji Abdulai Sesay, Vs. Amad Bahsoon SC. Civ.App. No. 6/2005, delivered on the 12th day of February 2010 where at page 65, all five (5) Supreme Court Judges agreed that an agreement (in respect of real property) if not registered within the stipulated period as provided by Statute is dead. Counsel submitted that neither party, that is, neither the Plaintiff/Respondent nor the 1st Defendant can benefit under the terms of an unregistered sales agreement.

 

4.1.3. Counsel for the 2nd Defendant/Applicant submits that by virtue of Section 122(2) of the 1991 Constitution of Sierra Leone, Act No. 6 of 1991, this Court is bound by the decisions of the Supreme Court on points of law, it being a superior court.

 

5. Relying on an affidavit in opposition sworn to by Glenna Thompson on the 10th day of May 2016, Ms. Glenna Thompson opposed the application hereinbefore referred. The following exhibits were attached to the said affidavit.

 

  1. Exhibit GT1 is a copy of a registered Survey Plan in the name of Chrispin Deigh in respect of No. 129 Wilkinson Road or No. 1 Kopor Water.
  2. Exhibit GT2(A-K) and GT3 is a Notice of Motion for an injunction dated the 16th day of March 2016, the affidavit of Glenna Thompson in support of that Motion, a copy of the Plaintiff’s Writ of Summons hereinbefore referred which commenced this proceedings, letter dated 25th day of March 2011 from the law office of Marcus Jones & Co to the 1st Defendant, letter dated 23rd day of May 2011 from the law office of Marcus Jones & Co to Chrispin Deigh, the Plaintiff/Respondent herein.

 

5.1. Counsel for the Plaintiff/Respondent argued that there was an offer and an acceptance as evidenced in the exchange of letters between the Plaintiff and the law office of Marcus Jones & Co, which she referred to as an agreement for sale of the property concerned in writing.  She informed the Court that there was performance on the part of the Plaintiff/Respondent herein on the terms of the said agreement and that the Vendor, the 1st Defendant herein had surrendered his title deeds to the Plaintiff/Respondent herein to enable the Plaintiff prepare the necessary title deeds in his interest and that the Plaintiff/Respondent had paid what she considered effectively the entire purchase price. Counsel submitted that the above provision is sufficient in satisfaction of contracts in respect of real property.

 

In respect of the above submission, Counsel referred to the case of Abdul Hakkem Vs. Naiyaz Ahmed AIR 2004 AP 299 and submitted that there was an enforceable contract between the Plaintiff/Respondent and the 1st Defendant.

 

5.1.2. Counsel argued that the stage at which the Plaintiff/Respondent and the 1st Defendant were at, it was impossible to have any Conveyance capable of registration and that the Registration of Instruments Act, Cap 256, 1960 (as amended) could only be referred to at the stage of registration of a Conveyance. She said until then there was no agreement capable of being registered because there was no Conveyance in existence. Counsel referred however to what she termed, an agreement of sale of the property, now the subject-matter herein, as evidenced by the exchange of letters hereinbefore referred.

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5.1.3. Counsel argued that it could not have been the intention of the drafters of Cap 256 as amended nor could it have been the intention of the Learned Justices of the Supreme Court to deny a party his right to an equitable remedy long established where that party had performed all that was required of him. Counsel commented on the Statute of Frauds as referred to in the case of Sesay Vs. Bahsoon hereinbefore referred and argued that even in the strictest sense, the Statute of Frauds did provide a defence where it was found that the contract was not evidenced in writing for which submission Counsel referred to and relied on the case Eldemire Vs Koniball Appeal to Privy Council No. 5 of 1990 delivered in 1991. I wish to state though that the evidence before this Court discloses sufficient memorandum in writing in respect of the contract herein. In effect, Section 2 of the Statute of Frauds has no place in this litigation.

 

5.1.4. In her written submission dated the 29th day of June 2016 in furtherance to her reply in opposition of the Notice of Motion for and on behalf of the 2nd Defendant/Applicant, Counsel referred to the case of Alhaji Abdulai Sesay Vs. Emad Bahsoon hereinbefore referred and submitted that the said case is distinct from the instant case and is inapplicable to the matter herein among other reasons because in the instant case, there is incontrovertible evidence that payment was made whereas in the Sesay Vs Bahsoon case, the Learned Justices were not satisfied that payment was made; this is not in controversy. She argued that whereas in the instant case the property in contention is certain, in the Bahsoon case, the portion of the property to be conveyed remained uncertain. This is also not in controversy. Counsel argued that only draft conveyances were presented by both parties where as in the present case, there is a preponderance of documentary evidence including the Vendor’s title deed which remains undisputed. To my mind, what is common to this case and the Sesay v Bahsoon case is this; if Counsel says there is a contract between the Plaintiff and the 1st Defendant herein, albeit same is not a Conveyance, then, like the Sesay v Bahsoon case, same ought to be registered within the stipulated time failing which the said contract is void.

 

5.1.5. Counsel submitted that Section 2 of the Registration of Instruments (Amendment) Act 1964 deals with a situation where a Deed/Conveyance which may have been prepared is not registered. She argued that Section 2 did not envisage agreements for sale but Conveyances because pursuant to Section 4 of Cap 256, a Conveyance ought to be registered within a stipulated time which is 10 days after its execution. For that submission, Counsel referred to and relied on Section 2 (2) & (3) of the Registration of Instruments (Amendment) Act 1964 as according to Counsel, would be evidenced by a Conveyance, which she refers to as an agreement of sale or the transfer of title as opposed to an agreement for sale. She stated that “It would make a mockery of the law itself if at the stage of an agreement for sale (which for argument sake is reduced in writing), the parties were compelled to pay a tax before the final Conveyance is completed, signed by all parties and registered”.

 

5.1.6. Counsel referred to Section 3(1) of the Conveyancing and Law of Property Act, 1882 and submitted that a contract is not void where there is no registrable document, deed or contract and that if that were not the case, the Registration of Instruments Act would have amended the Conveyancing and Law of Property Act, 1882. She submitted that the 2nd Defendant/Applicant was not a bona fide purchaser for value without notice.

 

5.1.7. In the alternative, Counsel asks this Court to award damages should this Court hold that Specific Performance which is one of the reliefs prayed for in the Writ of Summons hereinbefore referred cannot be enforced. For the alternative prayer, Counsel referred the Court to and relies on the case of Du Boulay & Oths Vs. Raggart & Another (1989) 58 PNCR p 138.

 

5.1.8. I have read the Notice of Motion dated the 18th day of April 2016 together with its supporting affidavit sworn to by Patrick Lambert on the 18th day of April 2016, with exhibits attached. I have also read the affidavit in opposition sworn to on the 10th day of May 2016 by Glenna Thompson with exhibits attached. I have listened to the arguments by both Counsel for the 2nd Defendant/Applicant and the Plaintiff/Respondent herein. I have also read and considered the authorities by way of case law referred to by both Counsel for the 2nd Defendant/Applicant and the Plaintiff/Respondent.

 

5.1.9. Section 2 of the Registration of Instruments Act, Cap 256 of the Laws of Sierra Leone 1960 defines an ‘instrument’ to mean any … contract … hereby authorized to be registered.’

 

6. Section 4 of the said Registration of Instruments Act, Cap 256 provides as follows:

 

Every deed, contract or conveyance executed after the ninth day of February 1857 so long as regards any land to be thereby affected shall take effect … from the date of its registration ….:

 

Provided that every such instrument shall take effect from the date of its execution, if registered within any of the periods limited for registration as follows, that is to say-

 

a. if such instrument be executed in Freetown, if registered within ten days from its date; ….

 

6.1. Section 2 of the Registration of Instruments (Amendment) Act 1964 provides that failure to register an agreement within the relevant stipulated period renders the agreement ‘void’.

 

6.1.1. I refer to what Counsel for the Plaintiff/Respondent said in paragraph 5.1.5 inferring that the requirement in respect of Section 4 of the Registration of Instruments Act has to do with the registration of Conveyances and not Agreements of sale. I refer to paragraph 5 of the affidavit in opposition of Glenna Thompson sworn on the 10th day of May 2016 where Counsel admits that the Agreement of sale between the Plaintiff/Respondent and the 1st Defendant was not registered with the Office of the Administrator and Registrar-General. The Registration of Instruments Act as amended provides that an agreement of sale of real property must be registered within 10 days of execution if same is executed within the Western Area. Counsel for the Plaintiff/Respondent has not contested that what she refers to as an ‘agreement’ which constitutes a ‘contract’ was executed in Freetown; i.e correspondence from the Plaintiff and Marcus Jones & Co and other documents including the Deed of Conveyance of Metropolitan Funeral Services Limited which is attached to the affidavit of Patrick Lambert sworn on the 18th day of April 2016 and marked Exhibits PL6, 7 and 8 respectively as in pages 32 to 44 inclusive of the Court bundle. These documents were sent from Freetown and were capable of being registered. This Court therefore accepts that the said agreement/contract, howsoever it may be referred to, was executed in Freetown and accepts same as a contract as referred to by Counsel for the Plaintiff, there having been an offer, acceptance and performance according to Counsel.

 

6.1.2. Exhibit A referred to in the Bahsoon case, for purposes of clarity is a sale agreement dated 15th day of December 1990 for the sale of property at Bolling Street by Mr. Sesay to Mr. Bahsoon. According to the Learned Justices of the Supreme Court, Exhibit A, which was a document in writing contained all the requisite features of a written contract but same was clearly not a Conveyance. The Learned Justices of the Supreme Court were quite clear when they stated at pages 62-63 of their judgment as follows: ‘Exhibit A ought to have been registered. In the Western Area in which the land in issue lies the appropriate period is ten (10) days from the date of execution of the relevant document. Exhibit A was never registered and thereby became void ten (10) days after the 15th day of December, 1990, the date of execution of Exhibit A. There is no dispute that Exhibit A became void immediately after the stipulated period for registering same’.

 

6.1.3. Again at page 65 of the Bahsoon judgment, the Learned Justices of the Supreme Court reiterated their position in respect of registration of the sales agreement within what they termed the statutory stipulated period even further. They held: ‘On the other hand, as regards section 2 of the Registration of Instruments (Amendment) Act 1964, failure to register the document (agreement) within the relevant stipulated period renders the agreement “void” as opposed to “voidable” or “unenforceable”. Therefore, immediately after the stipulated period for registration, Exhibit A became not voidable or unenforceable but dead; and for all practical purposes non-existent.’

 

6.1.4. It is as clear as day light that Exhibit A referred to by their Lordships is not a Conveyance but an Agreement same as Exhibits GT3 Letters from Marcus Jones & Co attached to the affidavit of Glenna Thompson sworn to on the 10th day of May 2016 forming what Counsel for the Plaintiff/Respondent refers to as the contract document for the sale of the property herein to the Plaintiff by the 1st Defendant to which as said was attached the Conveyance of Metropolitan Funeral Services Limited. There was also available, a Survey Plan in the name of the Plaintiff and as held, all of these documents could have been registered with the office of the Administrator and Registrar-General.

 

6.1.5. I refer to Section 122(2) of the 1991 Constitution of Sierra Leone Act No. 6 of 1991 which reads:

 

The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears right so to do; and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of law.

 

6.1.6. The Learned Judges of the Supreme Court have already ruled on the interpretation of Sections 2 and 4 of the Registration of Instruments (Amendment) Act 1964 in the case of Sesay Vs Imad Bahsoon hereinbefore referred. This Court is bound by the decisions of the Supreme Court on questions of interpretation of those laws which I now apply to the present case.

 

7. The general rule with regards purchase of real property is that once property has passed to an innocent 3rd party purchaser for value without knowledge of any defect in the title of the seller, such 3rd party will be entitled to retain the property. It must however be clearly established that:

 

  1. The purchaser was an innocent purchaser
  2. That the purchase was for value. That is, the property was not sold at a greatly reduced price but at a reasonable market value.
  3. That the purchaser was totally unaware of any defect in the seller’s title.

 

7.1. I refer to the Defence and Counter Claim of the 1st Defendant delivered and filed herein on the 4th day of June 2015 by Messrs Jenkins-Johnstons & Co, paragraph 7 thereof where the 1st Defendant said ‘the agreement between the Plaintiff and the 1st Defendant having been frustrated, the property has been sold to an innocent purchaser for value without notice for a sum almost twice what the Plaintiff had offered to pay for the property’. I refer to the final written submission made by Counsel for the 2nd Defendant where he states that the 2nd Defendant is not privy to any arrangement between the Plaintiff and the 1st Defendant in respect of the subject matter herein. That the 2nd Defendant is an innocent 3rd party purchaser for value without notice, having met the above threshold has not been contested by Counsel for the Plaintiff.

 

7.1.2. In light of the above therefore, I refer to the Consent Judgment dated 21st day of June 2016 by which an interim injunction was issued against the 2nd Defendant/Respondent and or his agents from entering upon or dealing in any way what so ever with the property at 127 or 129 Wilkinson Road otherwise known as 1 Korpor (Copper) Water, Freetown, in the Western Area of the Republic of Sierra Leone. I will deal with this in my Orders.

 

 In the circumstance, I HOLD AS FOLLOWS:

 

  1. According to the provisions of the Registration of Instruments Act Cap 256 of the Laws of Sierra Leone (as amended) therefore, there was no valid or enforceable agreement between the Plaintiff/Applicant and the 1st Defendant/Respondent for the sale of the property situate at 127 or 129 Wilkinson Road Freetown also known as 1 Korpor (Copper) Water.
  2. The claim and interim injunction restraining the 2nd Defendant whether by himself, his servants and/or agents from entering into and/or remaining on the property situate and lying at 127 Wilkinson Road and also known as 1 Korpor (Copper) Water, that is to say, the Metropolitan Funeral Home is hereby dismissed.
  3. The claim/relief for an injunction restraining the 2nd Defendant whether by himself and/or his agents or otherwise from erecting or doing or causing anything to be done to the property at 127 or 129 Wilkinson Road Freetown herein before referred is hereby dismissed.
  4. The claim/relief for an Order setting aside and/or cancelling and/or revoking the sale by the 1st Defendant to the 2nd Defendant of the property known as 127 or 129 Wilkinson Road, Freetown aforesaid otherwise known as 1 Korpor (Copper) Water that is to say Metropolitan Funeral Home is hereby dismissed.
  5. The claim/relief for an Order that the Conveyance dated 26th February 2015 and registered as No. 337/2015 and in Volume 745 at Page 55 of the Record Books of Conveyances kept in the office of he Registrar-General be expunged from the said Record Books is hereby dismissed.
  6. That the transaction between the 1st Defendant and the 2nd Defendant contained in the Deed of Conveyance dated the 26th day of February 2015 and registered as No. 337/2015 at Page 55 in Volume 745 of the Books of Conveyances kept in the office of the Administrator and Registrar-General is valid.
  7. In the circumstance each party will bear its own cost.

 

 

 

…………………………………………..

Delivered on:21/10/2016