Bahsoon v Sesay ([node:field-casenumber])  SLHC 1 (12 March 2002);
IN THE HIGH COURT OF SIERRA LEONE
BAHSOON - APPELLANTS
AND ALHAJI ABDUL SESAY - RESPONDENTS
BEFORE HON. MRS. JUSTICE U.H. TEJAN-JALLOH JUDGMENT DELIVERED THIS 12th DAYOF March 2002.
In this action which was commenced by a Writ of Summons dated the 21st day of December 1998, the Plaintiff's claim against the Defendant is for specific performance of a contract for the sale of land, damages for breach of contract and any further or other relief and Costs.
The particulars of claim alleged an Agreement in writing dated 15th day of December, 1998 wherein the Defendant agreed to sell and the Plaintiff agreed to buy certain freehold property situate known as No.4 Boiling Street, Kingtom, Freetown, together with the appurtenances and hereditaments there to attached at a piece of Le10,000,000/00 (Ten Million Leones). The said Agreement provided inter allia, that the said sale should be completed within three years from the date thereto.
Pursuant to the said Agreement, the Plaintiff duly paid to the Defendant the total sum of Le 4,148,000/00 (Four Million One Hundred and Forty-Eight Thousand Leones) as deposit of the purchase price and the Plaintiff has at all material times been and is now ready and willing to fulfill and perform all his obligations under the
Agreement. However, after the payment of the aforementioned sum, the Plaintiff proceeded to have the land surveyed by his Surveyor as agreed,, but the Department of Surveys refused to grant approval of the Plan on the grounds that the land intended to be sold was State Land. Consequently, the Plaintiff was unable to proceed with the transaction until in April 1995 when approval was finally granted by the Director of Surveys.
In breach of the said Agreement, the Defendant has since the approval of the Survey Plan aforesaid wrongfully failed and/or refused and continues to neglect and or refuse to complete the said sale or take any steps towards such completion notwithstanding the several requests so far made by the Plaintiff and his Solicitors on his behalf, including a letter forwarding the balance of Le5,852,000/00 (Five Million Eight Hundred and Fifty-Two Thousand Leones) due and a conveyance to be executed by the Defendant.
In his Defence and counter-claim, the Defendant admits paragraph 1 and 2 of the Statement of Claim, but denies ever receiving the sum of Le4,148,000/00 (Four Million One Hundred and Forty-Eight Thousand Leones) or any sum at all from the Plaintiff or his Agent. Furthermore, he gave no authority for anyone to receive . any sum or at all from the Plaintiff. The Defendant cannot admit or deny the allegations in paragraph 3 to 6 of the Statement of Claim and pleaded clause 4A of the Agreement between the Parties which reads:-
"(4A) That if the entire purchase price herein specified is not paid within 3 (three) years from commencement date of this Agreement, the Purchaser shall consider the sale cancelled and shall repossess the said land".
That the above term was not complied with by the Plaintiff as a result of which the Defendant cancelled the Agreement.
The Counter-claim sought the following:-
(1) Recovery of Possession.
(2) Mense Profits at the rate of U$1000 (One Thousand United States Dollars) per month until possession is yielded.
(3) Alternatively damages for trespass.
(4) A perpetual injunction to restrain the Plaintiff by himself his Servants or Agents however called from entering or remaining on the Defendants said property.
(5) Interest at such rate as the Court shall allow.
In support of the counter-claim the Defendant says he is the fee simple owner and is entitled to possession of the property known as No.4 Boiling Street, Kingtom, Freetown; that he the Defendant, after the completion of the said building allowed the Plaintiff who was his friend to reside in the ground floor of the said premises; that some time around 1990 the Plaintiff offered to purchase the said property, and he, the Plaintiff drew up the Agreement, and after the signature of the parties thereto, kept it to himself for over 3 years (three); the Plaintiff failed to pay the purchase price within the time stipulated in the said Agreement. As a result the sale was cancelled and by a letter dated 23rd October, 1998, the Defendant gave the Plaintiff notice to quit and to deliver up to him possession of the said premises on 31st October, 1998 and notwithstanding the said notice, the Plaintiff had wrongfully refused and has continued to refuse to yield up possession to the Defendant.
On the 23rd day of April, 1999 the Plaintiff filed a reply and a defence to the counterclaim of the Defendant. He joins issue with the Defendant and in his defence admits paragraph 6 of the counter-claim, but says in further answer that the property at No.4 Boiling Street, Kingtom, is the subject of a contract of Sale between the Parties in pursuance of which he (Plaintiff) was put in to possession of same by the Defendant.
The Plaintiff denies being put into possession of a building after its construction as alleged in paragraph 7 and will aver that he took possession of and unfinished building then being used as a store in 1990 in pursuance of the agreement of sale, and that he subsequently had to complete construction of the said building; that save that there was an Agreement for sale aforesaid between the Parties, the Plaintiff denies preparing the said Agreement or keeping same to himself after its execution as alleged in paragraph 8, that he (the Plaintiff) denies paragraph 9 and
will aver that there installments payment amounting to the sum of Le 4,148,000/00 (Four Million One Hundred and Forty-Eight Thousand Leones) were made to the Defendant within the first year of the Agreement and that any delay in completing payment after the said installments was due to the fact that the land was being contested by Department of Lands and Surveys, which refused to approve the Plaintiff's Survey Plan and finally, in paragraph 10, the Plaintiff will admit receiving notice to quit from the Defendant dated the 23rd October, 1998, but will deny that he wrongfully refused to quit the premises or that he is in wrongful possession of same i as tenant or otherwise.
When the case came up for hearing on the 18th day of October, 1999, Counsel for the Plaintiff sought leave to use and rely on the reply and defence to counter-claim. Miss. Tucker, Counsel for the defence said that she had no objection and accordingly, I granted the application.
In his opening speech, Dr. Renner-Thomas reiterated the several prayers and relief under the Statement of Claim. He said evidence would be led that pursuant to the said Agreement, the Plaintiff made part payment of the purchase price, to the Defendant, who put him in possession of the premises.
That the Plaintiff delayed Contrary to the express provision of the Agreement to complete the said transaction within 3 (three) years of the date of the agreement. But he would contend that the delay was due to circumstances beyond the control of the Plaintiff. It was the Government of Sierra Leone which was claiming ownership of the said land and the Director of Surveys and Lands refused to sign the Survey Plan. Counsel continued that evidence would be led that Defendant was aware of the claim of the Government and that he (the Defendant) also sought to have the claim refuted. Subsequently, the claim was abandoned and the Plan signed. On the removal of this impediment the Plaintiff subsequently tendered the balance of the purchase price together with a conveyance in his favour for execution by the Defendant. The Defendant acting through his Solicitor returned his cheque, which was forwarded earlier together with the unsigned conveyance contending that the delay had abrogated the Agreement.
Dr. Renner-Thomas stated that evidence would further be led that since the Plaintiff entered into possession of the premises, he had made substantial improvements, completing part of the unfinished structure, where he now lives. Evidence would be led that no rent had ever been paid or demanded in respect of the Plaintiff's occupation of the said premises, but that for the first time after his refusal to sign the Plaintiff's Conveyance, the Defendant was now seeking to recover possession by his counter-claim with other relies therein including mense profits.
He concluded that he would contend that as a matter of law, the Defendant having acquiesced in the said delay or the Plaintiff being always ready willing and able to complete the transaction as agreed, the equity of the case demanded that the Defendant be compelled to execute the conveyance and that the Plaintiff be allowed to retain possession pursuant to his legal right.
Two witnesses testified on behalf of the Plaintiff. The first is Emad Bahsoon, the Plaintiff says he lives at No. 4 Boiling Street, Freetown and he is a Businessman. He knows the Defendant as far back as 1986 and that he has been residing at No.4 Boiling Street for 8½ years since 1991. He came to live at the premises when in 1990, the Defendant offered to sell to him the property, which offer he accepted. An Agreement was prepared and both of them signed it. He recognizes the Agreement dated 15th December, 1990, which was tendered as Exhibit "A", which was drawn up by one Ibrahim B. Kamara, Secretary of the Defendant at the Defendant's Office at No.13B Lightfoot Boston Street, Freetown Exhibit "A" is his copy of the said Agreement, which is witnessed by one Baba Toronka, Defendant's Office Clerk and that the signature of the Defendant was witnessed by one Alie Mansaray, Defendants Brother-in-law
Mr. Bahsoon told the Court that according to Exhibit "A", he was to make three payments in all. He made the first payment by cheque and the two subsequent payments by cash. The first two payments he made directly to the Defendant who instructed him to collect the receipt from his Manager, Mr. Ibrahim Kamara. The first payment was the sum of Le 948,600/00 (Nine Hundred and Forty Eight
Thousand Six Hundred Leones). When the receipt was about to be tendered, Miss. Tucker raised an objection and after hearing the argument it was admitted as Exhibit "B".
Plaintiff said he made further payments and he was given receipts. Miss. Tucker adopted her objection on Exhibit "B" and Dr. Renner-Thomas also adopted his former argument. I overruled the objection and admitted Exhibit "C" which was a payment made in cash for the sum of Le700,000/00 (Seven Hundred Thousand Leones) Mr. Bahsoon said he made a further payment in cash for which he was issued with a receipt for Le2,500,000/00 (Two Million Five Hundred Thousand Leones) it was tendered as Exhibit "D" and the Defendant was present, when the first and second payments were made, but the third was made to Mr. Ibrahim Kamara because he showed him a letter from the Defendant requesting him, the Plaintiff, to make the payment to Mr. Ibrahim Kamara. He was about to tender it when Miss. Tucker objected that the letter was a photo copy and there was no evidence that the original was addressed to Mr. Ibrahim Kamara. I heard arguments from both Counsel and ruled that the contents are relevant. It was accordingly tendered as Exhibit "E" and is dated 24th April, 1991.
After the payments, Plaintiff said he secured the services of a Surveyor to survey the property. He came back after two weeks to say that he could not continue with the surveying, as it was State Land. He went and told the Defendant who said it was his bona fide property and showed him his Conveyance. He told him not to worry and he was instructing his Manager Mr. Ibrahim Kamara to settle the matter with the Department of Surveys and Lands.
He gave him a copy of his Conveyance and kept the original. In his presence he instructed Mr. Ibrahim Kamara, his Manager, to settle the matter with Lands Department. This incident occurred in Freetown; but the Defendant resided in Kono in the Eastern Region. Mr. Ibrahim Kamara wrote a letter to the Ministry of Lands and gave him a copy, which has been in his custody. The original letter was addressed to Honourable Dominique Musa. The copy of the letter was tendered as Exhibit "F" and notwithstanding its contents, the Ministry insisted that the property
was State Land. However, in 1994 Mr. Ibrahim Kamara came up with a Conveyance and a Plan showing that only a portion of the Defendant's Land has been sold to Government. The Plaintiff averred that he was familiar with the Defendants land, because he has a Plan for the whole property and has lived there for 8½ years. The Plan is in the Conveyance of Alhaji Abdulai Sesay and it was put in for identification as "Z" and dated 9th April, 1974. After this Plan was shown to him Mr. Ibrahim Kamara showed him a Conveyance dated 7th March, 1975, which showed that only a portion of the land was sold to the Government and it was put in for identification and marked "Y". On its receipt, he went to the Ministry of Lands with Mr. Ibrahim Kamara, where a member of staff of that Ministry informed them that the claim of Government is in respect of the piece or parcel of land in Exhibit "A" had been dropped and abandoned. Consequently he instructed his Surveyor to proceed with the surveying of the land which was then submitted and approved of on the 21st April 1995 by the Director of Surveys and Lands. He produced the Plan, which was tendered and marked Exhibit "G". He showed it to the Defendant and told him that the Ministry of Lands had abandoned their claim on the land. The Defendant promised that the transaction would be completed. It remained without being concluded for about three years and the Defendant explained it away that he had some problems with his Manager, Mr. Ibrahim Kamara, and until it is resolved he will not be able to finalize the transaction with him. The Plaintiff informed the Court that during the period he was residing in the property Defendant did not ask him to leave the land or to pay rent. In 1998 the Plaintiff said he consulted his Solicitor and instructed him to write to the Defendant regarding the in conclusion of the sale of the property. His Solicitor writes to the Defendant with a copy to him which is tendered as Exhibit "H" and dated 14th October, 1998. His Solicitor was sent a reply to which he gave him a copy dated 23rd October, 1998 together with a cheque and unsigned Conveyance. These were tendered and marked Exhibit "J1-3". Plaintiff refuted that he prepared Exhibit "A" as alleged in Exhibit "J1" and Exhibit "J2" is the cheque for Le5,852,200/00 (Five Million Eight Hundred and Fifty-Two Thousand Two Hundred Leones) payable to the Defendant as balance payment for the property. He said he failed to complete the payment because Government was claiming the property and when this obstacle was overcome the Defendant did not ask him for the payment. He offered payment on several
occasions to the Defendant only to be told to await the resolution of the problem with Mr. Ibrahim Kamara. Exhibit "J3", is a Conveyance prepared by his Solicitor and it is between the two Parties and it was for the signature of the Defendant for the conclusion of the sale.
Mr. Bahsoon told the Court that he was ready, able and willing to pay the balance of the Purchase Price. He confirmed that on the 28th October 1998, he received a letter from the Defendant's Solicitor requesting him to quit the premises. It was tendered and marked Exhibit "K". He reiterated that prior to the receipt of this letter the Defendant had not asked him to quit the premises nor did he ask him to pay . rent. As of today that he was testifying he was not paying rent unlike City Rates . which he was paying for the part occupied by him since 1991. He tendered Exhibit "L1-2" dated 8th April, 1998 and the letter exhibit is a City Council rate demand note for 1997/1998 and Exhibit "L3" is the receipt for such a rate dated 16th October, 1998. He recalled that he had told the Court that when he entered the building, it was unfinished. He had now finished the ground floor and spent approximately the sum of Le20,000,000/00 (Twenty Million Leones). During the first six months he occupied the building he completed the sitting room, bed room, toilet and the kitchen and since then he had made additions totaling Le20,000,000/00 (Twenty Million Leones). And that through the period 1991-1997 the Defendant had made regular visits to the premises. He is asking the Court to decree specific performance of Exhibit "A" and to order that Defendant does execute the Conveyance Exhibit "J3" and that the counter-claim be dismissed.
Under Cross-examination the Plaintiff admitted that before this transaction he had business relationship with the Defendant. He met the Defendant for the first time in 1986 and he worked for him. He did construction work for the Defendant at No.24 Siaka Stevens Street, Freetown, foundation for his present structure at 13 Lightfoot Boston Street, Freetown. They were on contract basis. Before the present action he had never transferred money to the Defendant through his Manager. He agreed that the Defendant is not literate in English. Exhibit "A" was negotiated by the Defendant, Mr. Ibrahim Kamara, Defendant's Manager and himself. He was shown Exhibit "A" and admitted he did not pay the initial sum stipulated in clause one, nor did he
comply with clause 4, which states that if the purchase price is not paid within the prescribed period of 3 years the Defendant would forfeit the property. He agreed that Exhibit "B" "C" and "D" - the receipts - are not dated and the heading on each of them is "Leone Trial Enterprises Ltd". These three exhibits do not contain Defendants signature. When shown Exhibit "E" (Second to last paragraph) he answered that the letter was written to Mr. Ibrahim Kamara and not himself. He told the Court that he hired a Surveyor in 1991 and he came back and reported to him that the land was State land. It was in 1994 that he presented the Plan to Surveys and Lands and this was 4 years after the existence of Exhibit "A". He was shown a Plan attached to Exhibit "J3" and it was the Plan he presented and it is in the name of Alhaji Abdulai Sesay.
He agreed with Defence Counsel that there are three structures on the plot of land, but he denied that they are numbered 4A, 4B and 4C. He occupies the bottom floor and the relatives of the Defendants occupy the first floor the Plaintiff admitted that there is nothing concerning him in Exhibit "F" though he was given a copy. He first went to Surveys and Lands about the subject matter of this action in June 1991 and the last time in 1995, when his plan was signed and that it was after 5 years of Exhibit "A" that the Plan was signed. He confirmed he has been living in the property since 1991 and he has never paid rent and this is so after the expiry of the three years. In 1998, when his Solicitor wrote on his behalf for the Defendant to execute the Conveyance was five years after the three years, when he should have completed paying the purchase price.
Mr. Bahsoon denied holding meetings with the Defendant and some people in his compound. He could not recall meetings at No.13A Lightfoot Boston Street, Freetown with a group of people including the Defendant. He accepted that the property is in the name of the Defendant and that in Examination-in-chief had tendered Exhibit "L1" and "L3" and that he commenced paying of City rates when he completed the first floor and the part of the property he was staying in was given a new number in 1992. The City Bill came first in the name of the Defendant and was first addressed in his (Plaintiff's) name between 1992 and 1993. He recalled that at
the house and that he has kept the current bills and the earlier ones he had destroyed.
He admitted that he was in the building trade, but was not in a position to assess the rent of the building. He agreed that he had earlier told the Court that he received several documents from Mr. Ibrahim Kamara and knows that Mr. Kamara worked for the Defendant and left his employment in 1997. He denied that he received Exhibits "E" and "F" after Mr. Ibrahim Kamara had left the employment of the Defendant. He received Exhibit "K" dated 28th October, 1998 from the firm of Solicitors - Kamal and Co to give up possession but he did not quit and he is still in occupation.
Under Re-examination by his Counsel, Plaintiff acknowledged that he told the Court that relatives of the Defendant are occupying the top floor of the house and they have been there since 1992, after the rebel incursion in Kono. The relatives came down to Freetown with the Defendant and the latter asked him to allow the relatives to stay at the top floor, until he has found alternative accommodation for his relations. When shown Exhibit "J3" the witness said that it contains LS No.625/95 in the name of the Defendant. Exhibit "G" is Plan LS No.625/95 and the name of it is Emad Bahsoon, the witness told the Court. He concluded in his testimony saying that apart from the Plan in Exhibit "J3", he submitted other Plans to Surveys and Lands Department.
The 2nd witness is Ibrahim Bakarr Kamara, who gave his occupation as Businessman. Around 1990 he was in the employment of the Defendant, whom he identified in Court. He recognized Exhibit "A" which is an Agreement between the Parties in the instant action whose signature he also saw and recognized. He admitted that he prepared Exhibits "B", "C" and "D", which he prepared on behalf of the Defendant in respect of part-payment made by the Plaintiff for the property at No.4 Boiling Street, Kingtom, Freetown, when shown Exhibit "E", he recognized it as a letter the Defendant wrote to him. He received the original but on the request of the Plaintiff he gave him a copy which is Exhibit "E".
The penultimate paragraph of that exhibit refers to the Plaintiff. At the date of the exhibit the Plaintiff was not owing him any money. He said when he could not get the money from the bank, he approached the Plaintiff as the letter instructed and the Plaintiff paid him the sum of Le2,500,000/00 (Two Million Five Hundred Thousand Leones) he then issued him Exhibit "D". He acknowledges that he wrote Exhibit "F" to the Ministry of Lands on behalf of the Defendant. It was addressed to the Honourable Dominique Musa, the Minister of Lands, Housing and pertained to a problem regarding the land, the subject matter of this action. He sent the Le2,500,000/00 (Two Million Five Hundred Thousand Leones) to the Defendant according to his instructions; and as regards Exhibits "B" and "C" he did not receive them directly, but was present when the Plaintiff paid the Defendant. He is in Court as a result of a subpoena.
Under Cross-examination, he told the Court that Exhibit "A" was typed by his Secretary but he prepared it. He did not register it and was not present when the Plaintiff and Defendant signed it. However, he was present when it was being distributed. His attention was drawn to clause 4 of the Agreement and he agreed that the amount in clause 1 of Exhibit "A" is that amount that should be paid in quarter-yearly installment of a period of 3 years (three). He admitted that the amount was not paid initially. The witness agreed that Exhibits "B", "C" and "D" were from the same Receipt Book and ran serially and were not dated. He, however, said that the Receipt Books are from "Leone Trial Enterprises Ltd.", who is the owners of the property at No.4 Boiling Street, Kingtom, Freetown. He admitted that he wrote all the three exhibits, he crossed out "Leone Trials Enterprises Ltd.". In Exhibits "B" and "C" and inserted the name of Alhaji Abdulai Sesay, but he did not cancel the name of the Company in Exhibit "D" and all the three receipts did not contain stamps. He agreed that the Defendant is illiterate and he resides in Safadu, where he does his diamond business. Mr. Ibrahim Kamara said that the Plaintiff did some construction work for the Defendant in respect of 24 Siaka Stevens Street, Freetown, and after the completion he moved into No.4 Boiling Street, Freetown, with the consent of the Defendant. The witness added that the Defendant's property at No.4 Boiling Street, Kingtom, Freetown, is over 5 Acres (five) and that Exhibit "A"
does not have a Plan to show the area to be sold to the Plaintiff. He averred that in 1975 part of the 5 Acres was sold to the Government of Sierra Leone.
He agreed with Counsel that the Defendant built No.4 Boiling Street, Kingtom, Freetown and also a big store. Originally, it was a two storey house, which is still in existence. He was responsible for collecting the rents in respect of Defendants property but he has never collected rent in respect of the property where the Plaintiff resides. He would have known if the Plaintiff was paying rent. He informed the Court that the Receipt Book from which receipts Exhibits "B", "C" and "D" were issued was not with him. He left it when he gave up the employment of the Defendant in 1997. He did not tell the Defendant when he was leaving and he left the house on 20th December, 1998. He has nothing against the Defendant and he was in Court because of a subpoena.
He was Cross-examined on Exhibit "E" and once more confirmed that it was addressed to him by the Defendant. He had during his employment with the Defendant used his letter heads and sometimes also to write letter on his behalf. Exhibit "E" was brought by one Bai Kamara, now deceased.
On Re-examination, he told the Court that the date on Exhibit "E" is 24th April, 1991 and two payments had been made before the execution of Exhibit "A" and the receipt of Exhibit "E" the sum of Le2,500,000/00 (Two Million Five Hundred Thousand Leones) was paid. He once more confirmed that the first two payments were made directly to the Defendant and he (PW 2) received the other payment after execution of Exhibit "A" by virtue of Exhibit "E". At this stage Counsel for the Plaintiff closed the case for the Plaintiff.
The Defendant called six (6) witnesses. The first was Allie Mansaray, who lives at No.4 Boiling Street, Kingtom, Freetown. He is a miner. He knows the Plaintiff and the Defendant and the later is his Boss. He moved in to his present address in 1998 and later to be resided at No.25 Lightfoot Boston Street, Freetown and also at Sefadu with the Defendant. He recognized his signature in Exhibit "A", which he appended at No. 13 Lightfoot Boston Street, Freetown, the office of the Defendant.
The Plaintiff, defendant, PW 2 and one Baba were present when the parties signed the said exhibit. He said that when he entered the office and had sat down for a. few minutes, Baba came into the office with papers which he gave to PW 2, who read the contents of the Papers. Few minutes later, the Defendant went up to PW 2 who told him that the man had typed the papers and the Defendant then signed the papers. The Defendant called the Plaintiff, who also signed the papers after which PW 2 called him and explained to him that the papers are an Agreement between the Plaintiff and the Defendant in respect of property No.4 Boiling Street, Kingtom, Freetown. He asked PW 2 the Purchase Price and he told him Le10,000,000/00 (Ten Million Leones) but that the amount was not readily available, but arrangements have been made for payment to be made within 3 years (three) after the explanation, he signed Exhibit "A" followed by the signature of Baba, Clerk Typist. The witness told the Court that PW 2 was a former employee of the Defendant but was no longer in his employment.
The witness said that he stayed at No.4A Boiling Street, which had no fence and there are No.4A, B and C Boiling Street, the Defendant permitted him to live at No.4A. The Plaintiff lives at No.4B and No.4c in a big store. Under Cross-examination the witness told the Court that there is no fence in the compound. However, there is a gate. The witness retracted his statement and said that there is a fence by the entrance where the gate is situated; there is a fence with the neighbours.
The 2nd Witness is Momodu T. Koroma, who lives at No.41 Filler Street, Wellington Village. He is a Rural Sociologist; he knows the Defendant, who is his relative, the Plaintiff PW 1 one Pa Murray, a builder and PW 2 popularly know as Osoyah. The latter was formerly employed by the Defendant, but could not remember when he ceased working for Defendant. The witness said that before 1992, the Defendant resided in Kono, Sefadu and was a diamond miner. The Plaintiff used to be employed by the Defendant to do construction work and Plaintiff resides at Boiling Street occupying the biggest building in the compound. There are 2 smaller buildings; one is made of board and the other is used as a store. The witness said
that the premises occupied by the Plaintiff is made of concrete block, a two storey and is on the ground floor. The Defendant occupies the top floor.
In 1998 the Defendant invited him to a meeting at No.13 Lightfoot Boston Street and also present were the Defendant, the Plaintiff, one Mr. Alimamy, one Mr. Nanah and one Pa Murray. At the meeting Defendant told us that he allowed the Plaintiff to stay at his house and that he has been receiving complaints that Defendant's son was insulting the Plaintiff and that if the Plaintiff had the purchase money for the house, it might end the insults. He said as a result, he made an Agreement with the Plaintiff to purchase the property and that the matter was in Court. The witness said the meeting tried to effect a reconciliation with him as Chairman. Three further meetings were held at the Plaintiff's place at Bathurst Street, in which the Defendant was present. He acknowledges that the Defendant had shown him Exhibit "E". He was also shown Exhibit "A" but Defendant said he has not received any money in respect of it. The Plaintiff in reply said he had made payment through PW 2. Further meetings to reconcile the Parties proved fruitless.
Under Cross-examination the witness was not aware of the date the Plaintiff moved into No.4 Boiling Street, nor was he told by the Defendant. He did not know when Exhibit "A" was signed. He was appointed Chairman of the Reconciliation Committee. He confirmed that before the trouble in Kono, the Defendant spent most of his time there and that PW 2 was the Defendant's Managing Director in charge of his office at Lightfoot Boston Street, Freetown. PW 2 was like a son to the Defendant and that the Defendant is illiterate in English unlike PW 2, who is literate. He got to know during the meeting that there was some problem with the Government in respect of the land and learned that as a result of the problem there was delay in signing the Plaintiff's Plan. It came to his knowledge that representation were made to the Ministry of Lands and Housing on behalf of the Defendant and eventually the in passe was resolved.
The 3rd Witness is Abdulai Fofana alias Bob Marley, who lives at No.14 Race Course Road, Freetown, a Motor Driver. He knows Plaintiff, Defendant and PW 2. He got to know PW 2 while he was working for the Defendant. He has since ceased
to work for Defendant. The witness said he fled with the Defendant in 1992 from Kono to Freetown. He has left the employment of the Defendant since 1996. He knows the Plaintiff, who used to do some work for the Defendant.
He did three buildings for him - the old Community Centre, where Ritcorp is, Roxy Building, known as Liberty Hall and a store at Shell Company. The witness knows the compound at. No.4 Boiling Street, and it is owned by the Defendant. The Plaintiff was living at the house of the Defendant in front of the entrance before he left the Defendant's employment.
The Defendant, the witness continued is a Miner and at no time did he send him to collect money from PW 2. He denied that the Defendant has any driver called Bob Marley. Under Cross-examination, the witness knows one Bai Kamara who used to work for the Defendant at the same time he was working for him. He was a Motor Apprentice. He was aware that the Defendant has other drivers and that Bai Kamara was also in Kono. There was no Re-examination.
The 4th Witness for the Defence is the Defendant himself, who gave his name as Alhaji Abdulai Sesay - and lives at 13 Lightfoot Boston Street. He is a gold and diamond miner. He knows Plaintiff, PW 2, who is his relative and he brought him up; lived in his property and used to work for him; wrote letters on his behalf, did errand for him and left his employment at the end of 1995. The witness complained that PW 2 did not tell him when he was packing up his job nor did he hand over to him. He knows Plaintiff, who was introduced to him by PE 2 in 1984 as a builder. He constructed the Ritcorp Building and store at No.4c Boiling Street, Kingtom, was living at Bathurst Street before he move into No.4c Boiling Street, which is his (Defendant's) property. It is a two storey house, and the Plaintiff lives on the ground floor.
The Defendant told the Court that he has a son by the name of Samuel, who is out of the country.
Plaintiff complained to him that the son was making noise in the compound because he told him to buy the said premises. Plaintiff agreed but said he. did not have the ready cash to which the Defendant told him that as long as he was working for him, they would prepare a Conveyance, which he would sign at the completion of the payment of the purchase price. Eventually a Conveyance was prepared at a consideration of Le10,000,000/00 (Ten Million Leones) to be paid in 1990-1992 and completed at the end of 1993. It was prepared by PW 2. He (the Defendant), the Plaintiff, PW 2 and two others, who included his office boy, Baba Toronka, who was working with PW 2 and Alie Mansaray, DW 1, signed the document. The witness said he is not literate in the English language, but could sign his name. He did not receive any money in respect of the sale of the property. After the signing of Exhibit "A", the witness continued, PW 2 handed over all the documents to the Plaintiff; he saw only one and was not given a copy. At the date of the execution of Exhibit "A", the Defendant was living at No.13 Lightfoot Boston Street, and also at Makeni and Kono. He did his mining at Mendi Line and Kono. He knows Bai, who was one of his Apprentice Drivers; he also knows DW 3, who was his ward and after his apprenticeship he became his driver. He has never sent him to PW 2 to collect money. He denied writing Exhibit "E" to PW 2 and he acknowledges that he signed Exhibit "A". He has been residing in Freetown since the invasion of Kono in 1992, occasionally he went to Makeni and went on two occasions since 1992. He repeated that when PW 2 left his employment in early, 1996, he did not hand over to him the keys, receipt books etc., and he has never entered his (PW 2's) office since he left him.
He recalled the company known as Leone Trial Enterprises Ltd. He is a share holder together with his workers, the miners. It is a Mining Company and PW 2 kept all the documents of the Company. He never sent PW 2 to collect money from the Plaintiff. When shown Exhibits "B", "C" and "D", he said he first saw them in 1998 and they were with a Clerk and were in side a Conveyance prepared for the Plaintiff with a Commercial Bank cheque. They were meant for him to sign the Conveyance which he refused to do and they were accordingly returned in 1998.
The witness averred that one day, he received a document from the Post Office indicating a parcel for him. He sent Mr. Quee to fetch it and when the parcel was opened, it contained one Conveyance, Cheque, three Receipts and a Letter. He photo copied the documents and sent a copy to his Lawyer and kept the other set.
When the copy was about to be tendered, an objection was raised and Counsel for the Defendant conceded. There after the Defendant said he gave the original to his Lawyer to return them to the Plaintiff's Lawyer. They were tendered and marked Exhibit "M1-V11". Alhaji Sesay said he instructed his Lawyer to serve the Plaintiff a Notice to Quit, which he did with a copy to him. It was tendered as Exhibit "K" and the Plaintiff has not vacated the premises and he is not paying rent, stop
The witness said he wanted the Court to give him possession of the part of the premises occupied by the Plaintiff and for the latter to pay the sum of U$ 1000/00 (One Thousand United States Dollars) from 1st November 1998 until he gave up possession. Alternatively, damages for trespass and all the prayers set out in the prayers in the Counter-claim. I then adjourned the matter to 30th November, 2000. At the resumed hearing PW 4 continued his evidence. He said that the property at No.4 Boiling Street, Kingtom, Freetown, is his and he bought it from Elder Demster Lines. In 1975 he sold part of it to the Government of Sierra Leone and there has not been any conflict since he sold it to the Government. He denied that the Plaintiff paid him Le 4,148,000/00 (Four Million One Hundred and Forty-Eight Thousand Leones), that the Plaintiff came to demarcate the land he was selling to him not did he tell him that he was having difficulties surveying the land. He confirmed that the Plaintiff occupies No.4B Boiling Street, Kingdom, and at the time of the contract, the house had been completed.
He denied it was under construction. He told the Court that Albert Metzger Esq., was his Solicitor and that PW 2 used to collect the rent for him from Rictcorp until he instructed them to stop paying to PW 2. He was friendly with the Plaintiff in 1992, when he (Defendant) came back from Kono and at times they would be together from dawn to 11:00 p.m. In that year 1992, the Plaintiff was operating Roxy Cinema for him.
Under Cross-examination he admitted giving Power of Attorney to PW 2, but could not recall the date. He recognized his signature on it, but would not know whether it is a certified true copy from the Administrator-General's Office. As far as he could remember, he had revoked the Power of Attorney he gave to PW 2. He repeated the close relationship with the Plaintiff and explained all that the Plaintiff did for him. He said that he (Defendant) volunteered to sell the land to him and both of them agreed on the purchase price. He was satisfied with the price and it was his idea for them to draw up the Agreement. He trusted the Plaintiff and he willingly signed the Agreement. It was the Plaintiff and himself (the Defendant) who told PW 2 what was to be in the document.
Defendant repeated that the Plaintiff should complete payment in 3 years (three) time and it was also agreed that he should pay a certain amount before he signed the document. He admitted he signed Exhibit "A" but would like the Court to believe that he signed the document, but the Plaintiff did not pay him any money. He said he demanded payment when he wanted to return to Kono, but the Plaintiff said he has no money. He has never cancelled the Agreement and he admitted at the time of the execution of Exhibit "A", the Plaintiff was already living at No.4 Boiling Street. As he could not read or write, he would not know the contents of the Agreement.
Under Cross-examination, the Defendant said he was selling only part of the land to the Plaintiff. He was only going to sell the Cement store, which occupies part of the land. The store has a demarcation of the Plan. The Defendant told the Court that in 1995, he called some one to prepare a Plan and it was made in his name and it has always been with him. It is the Plan given to him by Surveys. It was signed by the Director of Lands and Surveys. He does not know whether Plaintiff's Plan was signed. He started that he saw the Conveyance the Plaintiff's Solicitor sent to him in 1998 for his signature and he did not sign it; because he was no right to sign it. He knows Dominique Musa of Surveys and Lands and he did not have cause to write to him. He said he willingly sold part of the land at No.4 Boiling Street, Kingtom, to Government. He was approached by the late Francis Minah. The sale took place in 1974.
The Plan signed by the Directory of Lands and Surveys is a certified photo copy and it was tendered and marked Exhibit "N". The witness said someone explained the Exhibit to him. The witness wanted the Court to believe that he was offering the Plaintiff the cement store instead of the house and he wanted the Plaintiff to move in to the store for peace sake if he paid the money. The Leone Trial Company Limited had been formed long ago and is not one of the Companies PW 2 was Managing Director for. PW 2 was managing the Freetown office and he did not receive money for this Company. He received money for house rents, and he does not know whether PW 2 issued receipts thus he would not know which receipt books were used or receipts issued.
The next witness was John Kassa Sesay, a Civil Servant attached to the office of the Administrator and Registrar-General's office. He works at the handling Company matters, Registration of Companies etc. He was in Court on a subpoena to produce documents relating to Leone Trial Enterprises Limited and he has searched for the file and has not been able to find it. He required more time to search for the file and requested a period of five weeks to search for it.
On the 5th July 2001, when DW 5 took the witness stand he informed the Court that he had not been able to find the file. He told the Court that there is an Index of Companies, but the name of this particular Company does not feature in the Index. He concluded that whether the file was lost or found the name should subsist in the Index.
The last and sixth witness is Gustavus Fowler an Auctioneer and Valuer of Properties and Estate Agent. He knows the Defendant and property at No. 4B Boiling Street, Kingtom, Freetown. He did valuation of the property for rental purposes on the instruction of the Defence. It involved taking of measurements of the interior of the building after which, he recorded his findings. Based on the measurements, he assessed the property for rental purposes. He tendered his report, Exhibit "O".
Under Cross-examination, the witness said that the building is a Two Story Cement Block and his assessment was based on measurements, location and the type of material used. He has been a valuer since 1992. It was the Defendant who told him that the building he inspected was No.4B Boiling Street. He agreed that he did not ascertain the number of the building from the occupants of the building. It was Defendant's Solicitor, who told him that the matter was in Court, the Defendant did not. It was the same Solicitor, who instructed him to go to No.4 Boiling Street. The Defendant's Counsel then closed his case.
I consider it useful to set out in full the pleadings on both sides and I have tried to summaries the salient aspects of the evidence. I believe that the state of the present law is that decree of specific performance is an equitable relief, an order of the Court directed at a particular person or persons to compel the discharge of an obligation lawfully undertaken. There are certain prerequisites for the exercise of the jurisdiction; there must be lawful contract to be so enforced. Lawful contract involves other necessary requirements, namely, there must be proved to exist all the ingredients of a valid contract, including offer and acceptance, consensus ad idem, consideration and an intention to enter into legal relations. The contract must be lawful in the sense that in its entirety conformable to the laws of Sierra Leone and in particular the contract must not be trained with illegality or invariability if to be specifically enforced at the suit of the other party. In addition, in an action for specific performance of a contract, the Court will not make an order which cannot be carried out, and the time at which such impossibility is to be judged is the proper time of performance and not the date of the contract.
Further more, it is the law that specific performance cannot be granted unless the remedy is mutual, that is to say, that either party should be able to obtain the remedy. Where the remedy may be enforced against one party but cannot be enforced against the other, there is said to be want of mutuality and the remedy is not available. Therefore, whether from personal incapacity to contract or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is generally incapable of enforcing it against the other. This being so, it is important to mention the relevant time to consider the defence of
mutuality. I discern from the authorities that it is the date of the trial and not the date of the contract. Indeed, if at that date the Court could not ensure that any unperformed obligations of the Plaintiff would be specifically performed, it would not, as a general rule, compel the Defendant to perform his obligations. However, it was open to the Court to order the specific performance of a contract which was not initially mutual in point of remedy, if at the date of the trial any obligations on the part of the Plaintiff, which could not be their nature, be specifically enforced had been performed.
In the instant case, the Writ of Summons was issued on the 21st day of December, 1998 and in it claimed certain reliefs and so did the Defendant in his counter-claim. It is clear from the evidence of both sides, the dispute arose out of an Agreement between the Parties dated 15th day of December, 1990. It was Exhibit "A" which was executed by the Plaintiff and the Defendant. There is consensus that it is a concluded contract, that the consideration is Le10,000,000/00 (Ten Million Leones), which should be paid in quarterly installments, or a period of three Years certain commencing from 1st day of January, 1991, an advance payment of Le1,666,667/00 (One Million Six Hundred and Sixty-Six Thousand Six Hundred and Sixty-Seven Leones) to be paid on or before the execution of the Agreement. There is consensus that the consideration of Le10,000,000/00 (Ten Million Leones), is correct and full payment was not made within the three years period -provided for in the Agreement. For the Plaintiff he said he did not perform his part of this Agreement as regards the consideration because when in June, 1991, after he has engaged' the service of a licensed Surveyor, who prepared the Surveyed Plan of the property the Department of Surveys and Lands claimed that the property belonged to the State. The Defendant feigned not to be aware of the claim of Government. In contrast to this there is Exhibit "F" which was written by PW 2 to the Department of Surveys and Lands and it was at the instance of the Defendant. I had the opportunity to watch the demeanor at the witness box of the Plaintiff, PW 2 and the Defendant and I am satisfied that the Defendant was aware of the statement. As it turned out the Surveys and Lands Department waived its claim and signed the Plan oh the 21st April 1995. Thus apart, there.was some dispute also about the part payment of the consideration. The Defendant denied receiving any such payments.
The Plaintiff was frank with the Court and said that he did not pay the sum of Le1,666,667/00 (One Million Six Hundred and Sixty-Six Thousand Six Hundred and Sixty-Seven Leones) on or before the execution of Exhibit "A". He produced Exhibits "B", "C" and "D", which he made towards the Agreement. The Defendant denied receiving the amounts on those exhibits and said he did not authorize any one to receive them on his behalf. PW 2 who was an employee of the Defendant testified that he prepared those three receipts i.e. Exhibits "B", "C" and "D". The payment of the first two receipts were, indeed, received directly - by the Defendant in his presence - and were made before the execution of Exhibit "A". The third payment Exhibit "D" was received by him on behalf of the Defendant and was sent to the Defendant. The payment was made after the execution of Exhibit "A". PW 2 admitted that the receipts were not dated and that he issued the Receipt Books of "Leone Trial Enterprises Ltd." because property No.4 Boiling Street, is owned by the Company. He left the partly used receipt book, when he left the employment of the Defendant.
Another area of contention is the identity of the property in Exhibit "A". This document is described as an agreement for sale though its terms do not appear to satisfy and Agreement for sale of land. Such a document ought to contain a promise to sell and buy at a later date of the Agreement and the payment of deposit and a completion date. It is in my view a hybrid of an Agreement of sale and a Conveyance. Nevertheless, it is a document which the Plaintiff and the Defendant signed and there seals affixed thereon. As I understand the state of the law, when a transaction is recorded in a document, it is generally not permissible to adduce other evidence of its term or other terms not in the document and it writers intended meaning.
There are three distinct rules which exclude what is know as Extrinsic Evidence, being evidence outside or extrinsic to the document. The evidence excluded is usually oral, but it may be other documentary evidence, despite the fact that Extrinsic Evidence is also called Oral Evidence. The three rules either separately or together are sometimes known as Parol Evidence Rules. The first rule includes a particular means of proof, namely, Secondary Evidence of a document, but this rule
also excludes proof of facts which should be but are not mentioned in the Statutory Memorandum. The second and third rule exclude proof of facts, and are thus primarily concerned with admissibility. The first rule prohibits rules of facts recorded in a document by a means except the document itself. This rule thus excludes extrinsic evidence of the same facts as those recorded in writing. Hence Oral Evidence is not admissible as a substitute for a document or to super cede it. This rules deals with exclusiveness of documentary evidence in contrast to the two rules which relate to the circumstances of such proof.
I shall apply the above principles of the law in this case. In my view Exhibit "A" is in clear and simple and more particular, to the identity of the property. The first recital in it reads:-
"Where as the Vendor herein is seised of or otherwise well entitled to the Land and hereditaments situate lying at No. 4 Boiling Street, Kingtom, Freetown", for the
Plaintiff it is simpliciter No.4 Boiling Street, where as the Defendant and some of. his witnesses testified that the property consists of 3 (three) structures, that is 4A, 4B and 4C. According to their testimony, the Plaintiff resides at No.4B Boiling Street, and it is the property that is referred to in Exhibit "A". I must take cognizance of the fact that Exhibit "A" was prepared by PW 2, who is not a Conveyancer and it is not surprising that it was not elegantly done and is deficient in certain Conveyancing features, I have in mind description of the piece and parcel of the land and an accompanying of plan; indeed, as in Exhibit "G" and "J3", I have considered the issue and applying the principle of extrinsic evidence vis-a-vis a document I hold therefore that in Exhibit "A", the Parties at the time of the execution of the Agreement had in mind property at No.4 Boiling Street, and not No. 4B as the Defendant and his witnesses would have me believe. It was canvassed that the Defendant is illiterate in English. I accept that this might be so, but illiteracy is not a ground for the use of a document in a Court Action. Illiteracy is merely a misfortune and nothing else.
I intend to deal now with paragraph 4 of the defence in which the Defendant is relying on clause 4 of Exhibit "A" in paragraph 4 and 5 of defence and counter-claim dated 5th January, 1999. At paragraph 5 the defence pleaded as follows:-
"The above term i.e. clause 4 was not complied with as a result the Defendant cancelled the Agreement, Exhibit "A". I have not been able to find any evidence of disagreement as to the non-payment of the purchase price of the property. Indeed, the Plaintiff himself admitted that he did not fulfill that part of the Agreement. He did try to explain the reasons. The issue is what did the Defendant do in the circumstance? I find no evidence, parol or in writing or the testimony of any witness that the Defendant cancelled the agreement in Exhibit "A". Instead what one have is Exhibit "K", which is dated 23rd October 1998 giving the Plaintiff Notice to Quit and give up possession. This Exhibit is subsequent to Exhibit 77" which is a letter from the Plaintiff's Solicitor dated 14th October, 1998 requesting the Defendant inter alias, to sign the requisite conveyance. It is trite law that a notice to quit generally presupposes a Land Lord and Tenant relationship. There is overwhelming and un contradicted evidence that the Plaintiff did not pay rent or was asked by the Defendant to pay rent. Furthermore, there is evidence that the Plaintiff went into possession and occupied the premises as a result of Exhibit "A". It is essential, if not mandatory, that a tenant's tenancy must be terminated before such a tenant can be a tenant-at-will. This, the Defendant purposed to do in October 1998 after the notice for the Plaintiff had requested him to sign his conveyance. I have dealt with this matter earlier on and a recapitulation is unnecessary".
I propose to tackle the issue of the doctrine of repudiation of a contract of sale of land. The doctrine of repudiation applies, where a contract is to be performed on a future date, or the performance is dependent on a contingency and one of the parties rejects the contract by showing he does not intend to perform it, the other party is entitled to sue him for breach of contract without waiting further time fixed for performance and is absolved from further performance of his part of the contract, and if he elects to do the party in default is not entitled to an opportunity of changing
his mind. In such a cash the contract is completely determined. In the instant case either party could have made use of the doctrine before the expiry time of performance. None of them did. On the other hand if one party to a contract repudiates it in the sense of making it clear to the other Party that he refuse or will refuse to carry out his part of the contract, the other party, the innocent party has an option. He may accept the repudiation and sue for damages for breach of contract whether or not the time for performance has come or he may, if he chooses to disregard or refuse to accept it and then the contract remains in full effect. There is no evidence before me on any of the scenarios stated above and the stark fact is that both parties up to the 23rd October, 1998 regarded the contract as in existence. It takes Exhibit "H" dated the 14th October, 1998- that appeared to spur the Defendant to serve a notice to quit dated 23rd October, 1998 - Exhibit "1C "and I hold that this is insufficient for the purpose of the doctrine of repudiation.
One other.matter that needs to be disposed of is the defence of want of mutuality. The relevant time for considering this doctrine was not the date of the contract, but the date of the trial. It appears that if at the date of the trial the Court could not ensure that any unperformed obligations of the Plaintiff would be specifically performed, it would not, as a general role, compel the Defendant to perform his obligations specifically. I remind myself that it was open to the Court to order specific performance of a contract which was not initially mutual in point of remedy if, at the date of the trial any obligations on the part of the Plaintiff which could not, by their nature, be specifically enforced had been performed.
The Plaintiff testified that he had finished the ground floor of the premises and spent approximately Le20,000,000/00 (Twenty Million Leones) and that between 1991-1997, the Defendant had made regular visits to the premises. These pieces of evidence have not been contradicted. It meant that Defendant was aware of the improvements made by the Plaintiff and he waived his rights to exercise his right to repudiate the contract. The authorities shown that a decree of specific performance would be granted not withstanding that the Plaintiff had not carried out all his obligations in the contract. Equally too, an order for specific performance is not impossible in the present case. I am satisfied that there is a concluded contract,
infact, that the contract is not incomplete by reason that the parties have failed to agree, expressly or by implication, on some essential matter and that the contract is so precise and certain that exact performance can be ordered. I do find for the Plaintiff and I order the Defendant to sign the conveyance prepared by the Solicitor of the Plaintiff on payment of the outstanding balance of Le5,852,000/00 (Five Million Eight Hundred and Fifty Two Leones) to be paid by the Plaintiff. I ordered no Costs.
In dealing with the main case, I have dealt with most of the points raised in the counter-claim as well as those in the defence. I do not think therefore that it is necessary to go over the whole evidence. I find that at some point of time that the Defendant was the Free Simple owner of property No.4 Boiling Street, Kingtom. And sometime later, he disposed of part of it to the government of Sierra Leone and by Exhibit "A" he agreed to sell the remaining portion to the Plaintiff. I have considered the evidence led by the defence in support of the relief of recovery of possession. I am satisfied that the Plaintiff had led evidence for me to grant the decree of specific performance.
It follows that I cannot and therefore reject the claim for recovery of possession. As to the mense profits at the rate of $1000/00 (One Thousand United States Dollars), I mean no disrespect to Counsel for the Defendant that the claim is unmeritorious. In any event there was no evidence led for such a relief and whatever evidence in the main trial that touched and concerns mense profits is not in the favour of the Defendant. I dismiss the claim.
The third relief sought in the counter-claim is damages for trespass. It is agreed that the Plaintiff took possession and occupation on a concluded Agreement evidenced by Exhibit "A", and it is not understood when the trespass occurred. Assuming I am wrong and it took place after the service of Exhibit "K", that is to say, notice to quit, I have already ruled that a valid and concluded contract of sale existed between the Plaintiff and the Defendant. In the circumstance I find evidence of trespass and consequently the issue of damages does not arise. The claim is dismissed.
The Defendant also sought a perpetual injunction, it is trite law that having held the existence of Exhibit "A" and the grant of specific performance, it will be perverse to order a perpetual or other shade of injunctions. I dismiss the claim for perpetual injunction. As far as interest is concerned, I find no evidence led under this head and I will accordingly dismiss it.
Cost for the counter-claim to be taxed by Master and Registrar. Libertyto apply.
HON. MRS. JUSTICE U H. TEJAN-JALLOH J. 19th MARCH, 2002