DR CJ SEYMOUR-WILSON v MUSA ABESS (001) [1981] SLSC 1 (17 June 1981);

Held, per Livesey Luke CJ, allowing the appeal: 1. In in an action for a declaration of title the plaintiff’s case must be based on the strength of his title and not on the weakness of the defendant’s title. The onus is on the plaintiff to prove that he is the fee simple owner of the land in dispute. Dunford v McAnulty (1883) 8 AC 456, Kodilinye v Odu (1935) 2 WACA 336, Mansaray v Williams(1968-69) ALR (SL) 326 and John & Anor v Stafford & Ors (Supreme Court Civil Appeal No 1/75, 13 July 1976) applied. 2. In order to succeed, the plaintiff had to prove that the previous owners had a fee simple title in the land when it was conveyed in 1951, prior to the conveyance to him in 1952. The only evidence produced in support of this were his title deeds and a statutory declaration as to ownership by the previous owner. There was no attempt by the plaintiff to fulfil the requirements of s 3 of the Evidence (Documentary) Act (Cap 26) which deals with the admissibility of evidence of a statement made by a person in document tending to establish a fact. Therefore the statutory declaration and the statements made therein were inadmissible. Bright v Roberts (1964-66) ALR (SL) 156 applied. 3. There is a fundamental and important difference between registration of instrument and registration of title. The Registration of Instruments Act (Cap 256) deals with registration of instruments but makes no reference to, and makes no provision for, registration of title. Registration of title is dealt with in the land registry legislative framework. 4. Registration of an instrument under s 4 of Registration of Instruments Act (Cap 256) confers priority over other instruments affecting the same land which are registered later. Registration of an instrument under the Act does not confer title on the purchaser, lessee or mortgagee, nor does it render the title of the purchaser indefeasible. What confers title (if at all) in such a situation is the instrument itself and not the registration thereof. So the fact that a conveyance is registered does not ipso facto mean that the purchaser thereby has a good title to the land conveyed. In fact the conveyance may confer no title at all for example, where the vendor had no title to pass. If two deeds are registered in respect of the same land, one may take effect before the other under s 4, but that does not mean that the prior registered deed confers a better title. The prior registered deed may confer an imperfect title or no title at all. But its prior registration would not ipso facto perfect an imperfect or invalid title. 5. Prior to 1964, registration of instruments was not compulsory in Sierra Leone. It was the Registration of Instruments (Amendment) Act 1964 that made registration of instruments compulsory. There are possibly hundreds of unregistered pre-1964 conveyances. If the construction put upon s 4 by the Court of Appeal in Davies v Bickersteth, was upheld, it would mean that any person taking a conveyance of a piece of land after 1964 from a person having no title to the land and duly registering the conveyance would automatically have title to the land as against the true owner holding an unregistered pre-1964 conveyance. The legislature could not have intended such absurd consequences. Davies v Bickersteth (1964-66) ALR (SL) 403 overruled. 6. In a case of trespass, the plaintiff has to prove a better right of possession than the defendant. One of the ways that he may do this is to prove that he has a better title to the land than the defendant. But “better” title in the context of an action for trespass is not necessarily a “valid” title. In a case of trespass the court is concerned only with the relative strengths of the titles or possession proved by the rival claimants. The party who proves a better title or a better right to possession, succeeds, even though there may be another person, not a party, who has a better title than him. But in a case for a declaration of title, the plaintiff must succeed by the strength of his title. He must prove a valid title to the land. So if he claims a fee simple title, he must prove it, to entitle him to a declaration of title. The mere production in evidence of a conveyance in fee simple is not proof of a fee simple title. The document may be worthless. As a general rule the plaintiff must go further and prove that his predecessor in title had title to pass to him. If there is evidence that the title to the same land vests in some person other than the vendor or the plaintiff, the plaintiff would have failed to discharge the burden upon him. As there was no evidence that the vendor in the 1951 conveyance was the fee simple owner of the land, the plaintiff’s claim for a declaration of a fee simple title failed. Ocean Estates Ltd v Pinder [1969] 2 AC 19 distinguished. 7. Mere possession is sufficient to maintain trespass against anyone who cannot show a better title. The plaintiff had proved possession from about 1964 or 1965 and defendant had proved possession from January 1967. Therefore, the plaintiff had proved better possession and the defendant was liable to the plaintiff in trespass and was entitled to Le500 in general damages. Bristow v Cormican (1878) 3 AC 641 applied. 8. The fact that the Court of Appeal could not determine whether the dispute related to the same parcel of land meant that the plaintiff had failed to discharge the onus on him. In these circumstances, the court should have dismissed the appeal and not ordered a re-hearing and, in effect, given the plaintiff a second opportunity to discharge the onus which he had failed to discharge in the first place. Furthermore, the Court of Appeal ought not to expressed its opinion that the plaintiffseek evidence from the Director of Surveys and Lands. It is not the business of the court, especially in a civil case, to give the parties gratuitous advice as to how they should conduct their cases or what witnesses to call. Otherwise the impression might be created that the court is taking sides in the dispute instead of holding the scales evenly which is its proper role. There was sufficient material before the Court of Appeal to determine the issues one way or another and the order for a re-trial was wrong. Kodilinye v Odu (1935) 2 WACA 336 applied.

Search Summary: 

Land – Declaration of title – Onus on plaintiff to prove ownership of land – Documentary evidence – Registration of conveyances and statutory declaration insufficient to prove title – Requirement to prove that predecessor in title had passed good title – Evidence (Documentary) Act (Cap 26) s 3

[2] Land – Title – Registration – Fundamental difference between registration of title and registration of instrument – Registration of conveyancing instrument does not confer or prove title – Title is conferred by the instrument itself – Davies v Bickersteth overruled – Registration of Instruments Act (Cap 256) s 4

[3] Land – Trespass – Requirement to prove better right of possession – Better title may prove better right of possession but not necessarily a valid title – Mere possession sufficient to maintain trespass against a person who cannot show better title

[4] Courts – Re-trial – Court of Appeal should have dismissed appeal and not ordered a retrial where plaintiff failed to discharge onus of proof as to ownership of land – Equivalent to giving plaintiff a second chance – Court ought not advise party on how to conduct its case