Case No: MISC APP 493/14 UNION TRUST BANK LIMITED

AND MOHAMED BAH HAWA BAH
 

 

 

-PLAINTIFF

 

 

 

- FIRST DEFENDANT

 

-  SECOND DEFENDANT

 

 

 

REPRESENTATION

YADA WILLIAMS & ASSOCIATES    -COUNSEL FOR THE PLAINTIFF

 

1. THOLLEY & CO.                        -COUNSEL FOR THE DEFENDANT

 

 

 

 

BEFORE THE HON . MR. JUSTICE SENGU M. KOROMA JSC

JUDGMENT DELIVERED  ON THE 15T  H JULY.  2019

 

 

Background

1. The Plaintiff/Respondent herein filed an  Originating  Summons dated the 21st day of November , 2014 praying for the payment of th e sum of Lel. 903.183.8 26.29 due and owing the  Plaintiffs  herein  by  the  1st Defendant  herein  or  in  the alternative, an Order that the said Mortgage be enforced by sale of property  situate  at  off  Main Motor  Road, Juba  Hill , Fr eetow n.
2. The  1st Defendant  (then  the  sole  Defendant  )  did  not  enter

appearance     though     service     was    effected     on    him    by advertisement  in the local  newspapers.

1. As  the   ist  had  not  entered  appearance,   the   Plaintiff    was

allowed   to   prove   his   case  and  Judgment    was   delivered against the said 1st Defendant on the 15th J anu ar y, 2016.

1. I shall return to the Orders given in  this  Judgment  in  due cour se.
2. The  2n  d   Defen dant/ Appl icant  herein  filed  a Notice  of Motion

dated 27th F ebr uar y, 2017 praying  for,  amongst  others  that the  Applicant  therein  be added as  a party.

1. By a Ruling delivered  by this  Court  dated the  17t h   May, 2017,

the   said   application   was   granted   for    the   reasons    given ther ein .

 

THE PRESENT APPLICATION

1. Augustine      S     Marah     Esq.             Counsel     for      the Plaintiff/Respondent herein (hereinafter referred to as the "Respondent") cross-examined the 2n d Defen dant/ Appl icant herein  (hereinaf ter  referred  to  as  the  "Appl icant")  on her

affidavit  in support  dated 31st May, 2017.

1. In the course of the said cross-examination. the Applicant testified as foll ows:-

1.        That  she was  the  first  of  two  wives  of  the s1t Defendant, Mohamed

Bah and  she  knew  that  he  had  an account  with  the Respondent

Bank

1. That she knew that the its  Defendant had business in Freetown and

Kono but  did not know of any in Magbur   aka.

iii.     That   she   was   never    involved    in   the  151    Defendant's    banking transactions  including his applying for  and been granted a loan

1v.    That she did not  know  why the ist Defendant  surrendered the   title

deeds to the property which is the subject matter of this   act ion

v.    That  apart  from  the subject-matter  of  this action, the Applicant also had another property at Kabba Drive which is in the name of

 

v1.    That  she  had  receipts  for  all  the  materials  she  bought   for  the construction  of  the  subject-matter  of this action.

1. In  the  affidavit  in  support.  the  Applicant  averred  that   the

Respondent   knew   at   the   time   of   the   action   that   the   its Defendant was not ordinarily resident in Sierra  Leone  and that she has an equitable interest in the proper ty -the subject-matter of this action since  2011.

1. The Applicant  further  averred that  she had been told by  the

1s t  Defendant  and  verily  believe  that  he  did  not  create  any equitable Mortgage in favour of the Plaintiff rather . he deposited the title-deeds for safe keeping with one Wusu, a senior officer at the Respondent Bank as the latter  is  his friend and in whose hands the first Defendant left the day to day Management  of his fuel station situate in Kono.

1. The Applicant denied that the ist Defendant owed any  money

to the Respondent and did not receive any letters on  his behalf  from the said Respondent.

1. Paragraph 3 (J) and 4 of the said affidavit are particularly important to this appl icat ion.
2. Paragraph 3 (J) states"  that  the 1st Defendant  and I are  still

in possession of the property situate at Off Main Motor Road (otherwise known as No. 1 Cheryl Drive) Juba Hill Freetown because it is our freehold property to which I am the undisputed legal and equitable owner, free from encumbrances".

1. Paragraph 4 states "that in addition to the above, apart from our household, I am occupying the property with my lawful tenants". A tenancy agreement was exhibited and marked "HNl"
2. In his oral submission, Sahr Bernard Mondeh Esq. for the  Applicant contended that the Respondent in their  affidavit have not challenged the claims of the Appl icant in her  affidavit meaning that they have  no  answer  to  the application. Mr . Mondeh assumed without conceding that  if the 1st Defendant had deposited the said title deeds as security for loan,  this  would  not  destroy  the  equitable interest of the Applicant in the  pr oper ty. For  this, he cited the case of WILLIAMS & GLY'S BANK - V- BOLAND AND ANOTHER (1991). Mr . Mondeh further submitted that the Applicant was and is still in occupation  of  the  property  in dispu te .
3. Mr.  Mondeh  finally  submitted  that  the  Applicant  was  not a

party  to  the  agreement  between  the  1st Defendant   and   the

 

Respondent nor was she aware of any loan or overdraft  facility extended to the 1st Defendant.

 

1. The Applicant  filed a supplemental affidavit  sworn to on the In the said affida vit, the Applicant swore that her name did not appear on          the         conveyance             because   at    the    material     time, 1st Defendant prevailed on her to agree to the property being in the name of their adopted son who is also known as Mohamed Bah. A true photocopy of the passport of the adopted son is exhibited as  HBl
2. The Applicant also exhibited photocopy of receipts for building materials  bought  for  the construction  of the  said

house as well as a copy  of  her  architectural  plan  and design as HB2 (A)-(Ol and HB3 (Al (Ol respectively.

1. The Respondent through an affidavit sworn to by Millicent Macauley-James, the credit Manager of the bank Respondent sworn to on the 21st June, 2017 together with the exhibits attached thereto  replied  to  the  affidavit  in opposition.
2. In the said affidavit, the deponent swore that  contrary  to  the affidavit of the Applicant, the  l51  Defendant  applied  for and  was  granted an overdraft  facility  by the Respondent on

two occasions. Copies of the application letters  were  exhibited and marked Exhibit A; Exhibit B 1- 2 ( copies of letters  granting  overdraft  facilities)

1. Paragraphs 5 and 6 of the said affidavit are particularly germane herein:-
2. Paragraph 5: " That in consideration of the said fac il i ties, the  1st Defendant herein deposited two separate title deeds as security for the said facilities". Copies of the  said title deeds were exhibited and marked D and  E r espectivel y.
3. Par agr aph 6:" That based on advice by Plaintiff's Solicitors, Exhibit D which is in the sole name of the l51 Defendant was retained  by  the Plaintiff  to create  an equitable  Mortgage  in

regard the property in order to secure the said overdraft  facility granted the 1st Defendant.

1. The deponent further averred that the l51 Def end ant utilised the said overdraft facility granted by the Respondent but has defaulted  in the discharge  or  repayment  of  the  sum due. A

copy Defendant's statem ent  of accounts  from  January,  2011 to 31st May, 2017 is now  exhibited and marked Exhibit F

1. In his oral submission, Mr. Marah for the Respondent argued that there was a valid mortgage between the ist Defendant  and the Bank. He referred to Exhibits A D and   E

 

1. Mr. Marah further submitted  that  the  affidavit  in  opposition of the Applicant did not disclose  any contribution  made by  her .
2. He cited the case of LLOYD'S BANK PLC -V-  ROSED  &  ANOR. (1990) IAC 107 in which the case of GLN'S BANK (cited by Counsel for  the Applicant)  was consider  ed.
3. In his submission on Exhibit HBl -  (copy  of  passport bearing the name of Mohamed  Bah). Mr. Marah  argued that at the time the subject-matter of this matter bought, the said Mohamed Bah lacked capacity to enter into a contr act .

29.0 n Exhib it HB2-HB3, Mr. Marah submitted that the purpose for which the materials were bought has not been stated or who provided the funds.

1. As regards Exhibits D and E attached to the affida vit in reply, Mr. Marah submitted that these two separate prices of land purchased in 2006. The names of the Defendants were on Exhibit D but not on Exhibit E. He concluded that  there  was no intention for Exhibit E to be jointly  owned.
2. In his respondent, Mr. Mondeh stated that the age of Mohamed Bah was of no movement.
3. As regards the purpose for which the materials were bought, Mr. Mondeh referred this Court to paragraph 5 of the supplemental affidavit .
4. Before  proceeding   further.  I  would  want    to  refer   to  the

 

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Judgment of this Court dated the 151    January 2016.

1. In paragraph 6 of that Judgment, I ordered tha t "in  the event  of default of repayment  as stipulated in paragraphs  3-

5   supra,   the   Defendant   immediately   executes   a   legal mortgage in favour of the Plaintiff in respect of the mortgage property"; and in paragraph 7. I ordered that"  After the execution of the legal mortgage, the Defendant delivers up possession of the mortgaged property to the Plain ti ff for foreclosure for sale. In the event of the Defendant failing to execute legal mortgage as herein ordered, the Plaintiff shall seek leave of this Court for possession and sale of the said mortgaged pr oper ty".                      1>¥J

1. My reason for  giving  these  orders  that  there  was  no legal mortgage created in this case  but  an  equitable  one; and also the creation of a future mortgage . The said mortgage would therefore confer no right  to  possession before the execution of the mortgage intended to be  cr eated.

36.1 concluded by saying  that, "to remedy this. I shall direct  the Defendant  to  convev  the mortaaaed  orooertv unconditionallv

 

37.I have made this reference because it came out during the arguments that the Applicant came to know of the Judgment when an attempted execution on  the  property  was  made. This would have been wrong as there is no evidence  in  the  file that Orders 6 and 7 of the said Judgment had been complied with . If they have not been complied with, no legal estate in the property has yet vested in the Plaintiff and therefore  had no right  to possession.

ISSUE FOR DETERMINATION

38.The main issue here for determination is whether the 2n d Defendant/Applicant has established an equitable interest in the property   which               would    prevent  the            Plaint i ff            from exercising  its power of sale, if at  all

 

THE LAW

39.Co unsel for  the  2n  d  Defendant  relied  on  the  case  of WILLIAMS & GLY'S BANK LTD -V-BOLAND & ANOR  (ubi  supra) whilst the Counsel for the Plain tiff relied on that of LLOYD'S BANK PLC V ROSED and ANOR.( ubi  supra)

1. Counsel for the 2n d Defendant argued that his client had contributed to the construction of the subject-matter of the action (which is their matrimonial home) and therefor e had an equitable or beneficial interest therein.
2. In WILLIAMS V GLY'S BANK, the question was whether a husband or wife, who had a beneficial interest by virtue of having contributed  to its  purchase  price, but  whose  spouse is the legal and registered owner, has an  ·over r idin g  interest" binding on a mortgagee who claims  possession  of the matrimonial home under a mortgage granted by that  spouse   alone.
3. The facts of this case were repeated by me in my Ruling on the Intervener application dated 17th May. 2017. They are that. Mr. Boland took a loan for the purpose of his business and it requir ed him to mortgage his matrimonial home by way of secur ity. The house was registered solely in his name so his wife did not have to sign anything. Mr. Boland defaulted and when the bank wanted to take possession and enforce the security, Mr s. Boland claimed that she had an interest in the house. She claimed that she had assisted substantially in buying and improving it so although it was registered in her husband's name, he actually held it in trust for both of them . The House of Lords upheld Mrs. Boland and would not give the Bank  the possession  order  it  wanted. The question in

 

takes effects against the matrimonial home, or whether the wife's beneficial interest has priority over it.

1. Lord Wilberforce  was of  the  view that  the question  was

whether the wife was in actual  occupa tion . He stated  that the practice of dispensing with enquiries as to occupation by the vendor and accepting the risk of doing so should be replaced by more careful enquiry as to  the  fact  of  occupation, and if necessary, as to  the  rights  of  the occupiers

1. Quoting the dictum of Lord Denning in the Court of Appeal, Lord Wilberforce said "As Lord Denn ing MR points out. to describe the interests of spouses in a house jointly bought to be lived in as a matrimonial home as merely an inter est in proceeds of sale, or rents or profits until sale. is just a little unreal." In the Court of Appeal, Denning MR stated that the court "should not give moneyed might priority over social Justice" and the bank was not entitled to throw these families into the Street simply to get the last penny of the husband's debt.
2. Counsel for  the Respondent  bank on the other hand  relied

on the case of LLOYDS BANK PLC V ROSED (1990) IA C. 107 a

case decided after GLYN'S BANK.

1. The brief facts of this case were that in 1982, the husband and  wife  decided  to   buy  a  semi-derelict   farm  house   for

£57,000.00 using money given to the husband by Trustees of a family trust. who insisted that they buy the house in the husband's name. It was the common intention of the parties that the renovation  of  the house  was  to  be a joint  venture. af ter which it was to be the family home. The husband and wife entered the property before the renovation  was completed with the consent of the vendor and the builders engaged by the husband and the wife started wor k on extensive repairs that were necessary to make the property habitable. The wife co-ordinated works and assisted in renovation and decoration. The husband. without the wife's knowledge obtained a bank overdraft for £15,000.00 towards the purchase price and cost of repairs of   the property.

1. The husband defaulted on the loan and the question arose as to whether the wife had beneficial interest  in  the house prior to com pletion. The decision was on the facts; the monetary value of the wife's work expressed as con tr ibution was de minimis and although discussions had taken place between  the  husband and wife.  no decision  had been made

 

property. It follows  that  the  wife  was  not  entitled  to  a  benef icial  interest in the property.

1. It could be seen from the foregoing discussion of the two conflicting cases relied on by both Counsel that I have to make a decision as to which one to rely on.

 

1. As I stated in my decision in the Intervener action, the correct course here is to adopt  the authority  most  germane  to the matter before  this  Court. To my mind,  the WILLIAMS­ V- GLYN'S BANK case is more applicable here.

 

1. The LLOYDS BANK case. on the other hand was decided on the basis that the wife's activities  in  relation  to  the  renovation of the property between the  beginning  of  1982  and the date of completion, on which the Trial Judge had, essentially, based his inference of a common  intention  that she should have  a benefit interest  in it, had been insufficient  to justify the finding that the husband held the property as constructive Trustee for himself and his wife. Anything Less than a direct contribution by the non-owning par tne r will be sufficien t.

 

1. The decision in the WILLIAM -V- GLYN'S BANK case was based on "beneficial interest" and " over r iding interest" to which the bank's charge was subject, so that possession should not have been or dered. The appropriateness of this case herein can be ascertained in the following ways:
2. In the instant case, Counsel for the Respondent and the affidavit  in  reply  established  that  two  separate  title   deeds

were  submitted  by  the l't'   Defen dant:  one  in  his  name  alone

and the other together with the name of the Appl icant. This fact alone should have put the Plaintiff on enquiry as to the existence of a beneficial owner warranting a further investigation of the absoluteness of the ist Defendant's titl e. This  was not  done but  rather  the plaintiff  used the  one  with

the its  Defendant named as sole owner .

1. The second issue here is to establish, following on the foregoing, that the 2n  d  Defendant  had  beneficial  interest  in the pr oper ty. In her supplemental affidavit, receipt s for the purchase of building materials and other expenses - Exhibit HB2 A-o and Exhibit HB3 A- 0 . These receipts were dated from August,  2006  to  June,  2008 . The  validity  of  these receipts

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the2n d  Defendant  made contributions  to  the construction  of the property.

1. The third matter  concerns the occupation of the   pr emises.

It has not been controverted that the Applicant is in occupation of the premises and has tenants therein. The Plaintiff did not apparently make proper enquiries when they went to assess the premises to determine its suitability as a secur ity.

1. It   is  my  conclusion  therefore  that  the  Applicant   has   a

beneficial interest in the property which is her matrimonial home. She enjoys by reason of  her  interest. a present  right  of occupation as well as a right to a share in the proceeds of sale. if and when the house is sold. She has the right to participate in any  mortgage  transaction  regarding  the  proper ty . In effect. the wife had an overriding interest in the property. Since Bank made no enquiry of the  wife in either case before granting the husband a mortgage. its claim as mortgage to possession is. defeated by the wife's overriding interest.

1. As  regards  the  liability  of  the  1st Defendant  on  the equitable

mortgage. I shall leave the decision  of  this  court  dated the 151h day of January. 2016 on that point undisturbed: save that aspect regarding the sale of property at Off  Main  Motor  Road. Juba Hill Freetown.

1. ln  the  circumstance, I hold as follows:-

1.  

h

The  aspect  of  the  Judgment  of  this  court  dated   the 151      day

January, 2015 regarding the sale of property lying situate and being at Off Main Motor Road. Juba Hill Freetown registered as 12/2007 in volume 616 at page 26 of the Book of Con veyances otherwise known as No. 1 Cheryl Drive, Juba Hill Freetown) is hereby set aside.

1. That the other aspects of Judgment dated the 15th  day  of January. 2015 regarding the liability of the l51 Defendant to the Plaintiff  shall remain in for ce.
2. Costs in the caus e.