CIV . APP.15/96

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN

J0SEPHINE R. ELLIS

DESMOND C.O. ELLIS          - DEFENDANT/APPELLANTS

AND

CORAM: - HON .MRS. JUSTICE V.A.D.WRIGHT

                   HON .MR. JUSTICE N.D. ALHADI

                   HON. MR, JUSTICE M.E. TOLLA-THOMPSOM

J.B.JENKINS -JOHNSTON ESQ.,                FOR THE APPELLANTS

 E.E.C SHEARS-MOSES ESQ.,                     FOR THE RESPONDENT

JUDGEMENT DELIVERED THIS 10th DAY OF APRIL, 2000 ALHAJI -J.A.

This is an Appeal from the Judgement of Nylander J in an Action in which the Plaintiff/Respondent Claim is for:-

(1) Payment to the Plaintiff by the Defendants jointly and severally for the sum of Le 2,544,898 being an amout. spent to erect promises at No. 20" Boiling Street, Kingtom, Freetown by reason of the fraudulent misrepresentation lay the 1st and 2nd Defendants and each of them.

(2) Interest thereon at 30% per annum from the 1st day of January, 1987 until Judgement.

(3)  Any further or other relief as in the circumstances may be just.

(4) Costs.

The Learned Judge in his Judgement after reviewing the evidence before him said at Pages 99 of the Records:-

"I shall now introduce an equitable remedy in this matter. J order as follows:-

1 . The Plaintiff shall have the liberty to dispose of this flat he built by sale. But first option to sell this flat shall be given to the Defendants, jointly or severally.

2. The option is opened to the Defendants for 6 months from the date of this Judgment. The value of the property shall

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shall bo Le 26,452,542.                                         

3. Should the Defendant fail to take up the option within 6 months from the date of this judgment, then each side has the liberty to apply and the property can be sold by Private Treaty or Public Auction.

It is against this Judgement that the Defendants/Appellants have appealed to this Court on several Grounds with particulars of misdirections.

GROUPS OF APPEAL

(1)  That the Learned Trial Judge erred in Law when he granted the plains-tiff reliefs which he had not prayed for in his. Statement of Claim and which were of a substantially different nature, when there was nothing in the record to show that plaintiff had either abandoned or withdrawn the reliefs prayed for or had amended his Statement of Claim new reliefs; or that the court had refused the said reliefs prayed for.

(2) That the plaintiff having claimed the sum of Le2,544;898.00 as being the value of the flat, and he not having amended his Statement of Claim to change the value of Le 26,452,542.00 ( as in Exhibit "3") the learned Trial Judge was wrong in Law to have relied on Exhibit "B" for the value of the flat as the plaintiff was bound Toy his pleadings, and especially so in the light of Learned Trial Judge's observation in his judgment. "What Counsel for the plaintiff should have done before the proceedings, was to have asked for' leave to amend the Statement, of Claim would have reflected the fact evidence. 3ut this was never done..............."

(3) That the Learned Trial Judge was  wrong in law to have "The plaintiff shall have liberty to dispose of flat he built by sale.............." (i.e. dispose of the freehold)".

(4) That the Judgement is against the weight of evidence."

In arguing to Ground 1 Counsel for the defendants/appellants submitted that the Learned Trial Judge could not grant the relief he did grant because those reliefs were not prayed for. That the equitable remedy which the Learned Judge imported into the matter was uncalled for. For such a relief was out-side the purview of that court.

As regards Ground 2 Counsel argued that updating the estimate to Le 26,452.542 as in Exhibit "E" does not conform with the pleadings. That the Learned Trial Judge was wrong to have averted his mind to Exhibit "3" in arriving at the decision he arrived at which is contrary to all laid down

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principles as enumicated in oases such as Davies va. Dickers teth 1964-66 ALR. 403 Ven vs. Cole (1968-69) ALB. et. 355. That the whole purpose of pleadings is to define the issues which are the subject of the contest between the parties.

In support of Ground 3 Counsel forcefully argued and I must say at once; rightly so, that the plaintiff/respondent cannot in law dispose of the freehold title of 20A Bolling Street, not having the legal title to enable him so to do, as The Latin Maxims puts it quicquid plantatur solo solo cedit and memo flat quod non habet.                                                                                     

Counsel of E.E.C Shears-Moses in the course of his reply argued that the whole tenor of the Learned Trial Judges Judgement was to see that substantial justice is done between the parties . He pointed out that the Learned Trial Judge did find fraudulent misrepresentation established. He submitted that the Learned Trial Judge remarked at Page 96 of the Record Lines 2-3 the following:-

"On the whole I do believe on the facts before me that 1st defendant did make plaintiff believe that the property belonged to she and plaintiff. Also I do believe the evidence of Mrs. Fanny the cousin of both plaintiff and 1st defendant. As it turned out I hold that 1st defendant did misrepresent the facts to plaintiff that caused plaintiff to build at 20A Boiling-Street. Even if the plaintiff had "build on the rear compound of 20A Boiling Street I do believe that plaintiff did not know of the true ownership of this property until he was tipped off by a Lawyer in the Office of the Administrator General.....

"Having established that the 1st defendant misrepresented material facts to the plaintiff that caused the latter to build on the existing flat That the Learned Trial Judge so found was right to rely on Exhibit "E" (the new estimate of the building) which was evidence before the court, which 4 was entitled to use as a yardstick in determining the compensation to be paid to the respondent for the fraudulent representation.

The facts as found by the Learned Trial Judge were that whilst the respondent was residing in the United Kingdom the 1st appellant notified him that their grandmother had died leaving the property 20A Boiling Street Freetown to them as co-owners. That when the respondent returned to this country, he expressed his desire to get a residence of his own as he was about to retire from his job in the U.K. in a few years and more particularly as he wanted a storeage for his belongings which were in a container. That the 1st appellant suggested to him to build a house at the rear of the compound at 20A Boiling-Street as they are joint owners, as she had already erected a concrete flat with a concrete roofing at the frontage of the compound. That the 1st appellant

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arranged with a Mr. Brown a contractor who constructed her own flat to construct the flat of the respondent. That the 1st appellant sought and obtained building permit on his behalf .That before the actual construe otion commenced the contractor, Mr. Brown did tell the respondent that the 1st appellant had said she was not mindful if the respondent were to supperstructured his building on her existing building already in the compound as the respondent me pressed for time to return to U.K. That it was when the building had progressed to roof height the respondent was informed by a friend that a Deed of Gift of the property had been executed by the 1st appellant in favour of her son the 2nd appellant. That on investigation the respondent discovered this to be true. That their relationship became strained and relatives intervened and tried to. bring an amicable settlement of the dispute but when the respondents solicitor prepared a conveyance of joint-tenancy of the property 20A Boiling Street, the 1st appellant refused to execute it, and later served the respondent notice to cease the construction. The respondent ignored it and proceeded with the construction until completion and moved into occupation. That it was while he was in occupation of the top flat, that one night in returning home in his car, the 2nd appellant who was residing in the bottom flat objected to the respondent driving his car into the compound. That since then the respondent had been subjected to noise and molestations by the 2nd appellant and made life become uncomfortable for him to continue residing in the property, and had to move out and let it and found accomodation else where.

I must confess that I find much merit in the arguments advanced by Counsel for the appellant, On the various Grounds of Appeal herein relevant to the main claim in the Writ of Summons in this case. What in my view is surprising is that Counsel for the plaintiff did not avail himself of his undoubted right to have the claim of Le2,544,898 in the Writ of Summons amended in conformity with the evidence before the court in Exhibit "E".. There is a mandatory provisions by Order 24 Rule 11 in which the court or a judge nay at anytime and on such terras as to costs or otherwise as he may think just amend any defect or error in any proceedings, all necessary amendments shall be made for the purpose of determine the real question or issues raised by or depending on the proceedings, The Learned Trial Judge could have made the necessary amendment, Proprio Motu in view of the evidence before him in Exhibit "3" . He is deemed to know the law.

Granted that this is an oversight on the part of the Judge. I cannot in the light of the evidence of fraudulent misrepresentation and expenses incurred by the respondent drive him away from the judgement seat without any • remedy in law or in equity. I am of the view that this is a proper case in which equity can properly came in aid to a disadvantaged ligigant. I believe that this is what the Learned Trial Judge had in mind when he stated at

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Page 99 "I shall now introduce the equitable principle in this natter." He did not adumbrate on the principle of equity he was invoking into the issues as disclosed by the evidence before him. I believe the Learned trial judge was aware that since the. Supreme Court of Judicature Act 1873 the High Court has been able to give .to the parties in one action all the reliefs to which they are entitled. The plaintiff may set up equitable claims and the defendant may raise equitable defence and that whenever the rule. of law and equity are at variance on some particular point the rule of equity shall prevail

The principle of equity applicable in such cases as this is not hard to find where one party knowingly encouraged another to act or acquiesed in the other action to his detriment and in the ingringement of the first party's right. In CLAIN-CROSS V. LORDMER (1860) 2 LT. 130 it is stated.

"It is a rule of universal law that if a man either by word or by conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces to do that from which they otherwise might have abstained he cannot question the legality of that act he has sanctioned to the prejudice to those who have giving faith to his words, or to the fair inference to be drawn from his conduct."

This doctrine of proprietary estoppel has been applied in several other cases. In DILLWYN V. LEWALYN (1862) 6 LT. 878 the doctrine operated in providing a valuable consideration where there was none. This was a case where a father encouraged his son to build a house on his father's land and signed a memorandum not under seal. The son spent £14.00 in building the house on the land. The father's will left all his real estate upon certain trust in favour of others. It was held that the son eas entitled to a conveyance of the free fee simple of the land. In PLIMER V. MAYOR OP WELLIGTON(1884) 9 APP. CAS 699 the doctrine took the colour of making a revokable licence irroviodable). In HOUSE OF LORDS CAS3 OF RAMSDEM V. OYSON (1865) LR. 1. H .L. 129 L. TD CANWORTH e plained the principle thus-:-

"If a stranger begins to build on my land supposing it to be his own, land I perceiving in mistaken abstain from getting his right and leave to persevere in the error, a court of law will not allow me afterwards to assert my title to the land on which ha had expended on the supposition that the land was his own. It considers, that when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to

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remain wilfully passive on such an occassion in order afterwards to profit by the mistake which I 'might have prevented." .

The. learned Authors of Snell's Principles of Equity 27th Edition (1973) at Page 566 put the colour based on " unconciousabio behaviour or fraud" he added.

"knowledge of the mistake makes it dishonest for him to remain passive in order afterwards to profit by the mistake he might have prevented. That knowledge must accordingly be proved by strong and cogent, evidence."

FRY J. IN WILLMOT VS. BARLUR (1880) 15 CH -D). 96 at Pages 105-106 laid down the principle in more specific detail as to what must be proved to establish this dootrine

"Firstly the plaintiff must have made a mistake as to his legal rights. Secondly the plaintiff must have expended some money or must have done some act on the faith of his mistaken belief. Thirdly, the defendants, the possessor of the legal right, must know of the. existence of his own right which inconsistent with right claimed by the plaintiff, Fourthly, the defendants, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. Lastly, the defendant the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money 01; the mistaken belief of his rights. The Learned Judge, FRY J concluded by saying. "Where all these elements exist there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but in my judgment, nothing short of this will do".

There is evidence in this case in support of these elements necessary to establish the doctrine detailed above.

(1) The Plaintiff now respondent did make a mistake as to his legal right, (that is he has a legal interest in the property)

(2) The respondent did expended money on the faith of his mistaken belief.

(3)    The defendants now appellants, the possessors of the legal right knew of the existence of their own right which is inconsistent with the right claimed by the plaintiff.

(4)    The appellants knew of the respondent mistaken belief of his rights. Lastly the defendants/appellants did encourage the respondent in his expenditure of money on the mistaken belief of his rights. It is therefore my view that to allow

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the appellants to succeed in this appeal is to make them to profit from the fraud they have perpetrated on the innocent respondent.

The application of the equitable principle by the judge can also be looked at from the point of view that the Learned Trial Judge was deciding the issues before him under the omnibus relief claimed in the 3rd prayer "any further or other relief as in the circumstances nay be just."He is therefore in my view justified to invoke an equitable principle in the matter.

However by Rule 31 of the Court of Appeal Rules P.N. 29 of 1985 this court can exercise full jurisdiction over all proceedings as if the proceedings' had been instituted or prosecuted in this court as the court of first instant; by which this court similarly can invoke and apply an equitable principle in the adjudication of any matter before it.

It is my considered view that it will be just in the circumstanced if the equitable doctrine proprietary estoppel is applied to the facts of this case.

Prom the law and the facts as explained above I am of the view that there is an equity created in favour of the respondent to entitle him to a relief in this action.

Having found that there is equity in favour of the respondent, how can this equity be satisfied: There are several ways in which the courts have hold that the equity can be satisfied.

IN DILLWYN V. LLEWELYN (1862) 4 DE F.F. & J.S. 17 a Conveyance was ordered without compensation.

In PLIMER V. WELLNTGTON CORPORATlON (1884) 9 APP. CAS 699. the plaintiff had obtained permission of the CR.WN TO MOOR an old brulk on the foreshore of Wellington Bay and to use it as a Wharf and store. He added a jetty and later extended it with permission of the Provincial Government. When the Government took over the jetty the plaintiff, Plimmer claimed compensation as one with an estate or interest in the jetty. The Privy Council applied Lord Kingstown's Principle and awarded comepnsation.

IN PASCOE V. TURNER (1976) CH. 179 . The plaintiff and defendant lived together in the plaintiff's house. Later the plaintiff bought another house and they moved in. The plaintiff told the defendant the house was hers. In reliance of this gratitious promise she spent her money in the maintainance and repairs of the house to the knowledge of the plaintiff. When the relationship ended, he gave her two months notice to quit determine the licence. The Court of Appeal held that she occupied the house as a licensee. Curraiing-Bruce L.J. sought to find the way the equity could be satisfied. The court felt that if she only had a licence to live in the house for her lifetime this would be insecured and awarded a conveyance of the house.

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In Dodsworth v. Dodsworth (1973) 228 E.C. 1115, the plaintiff's brother and his wife the defendants, were persuaded by the plaintiff to live with her in her bungaloo. The defendants spent £7000 in improvements in the expectation induced by the plaintiff that they would be able to live in the bungaloo for as long as they wished. It was held that the defendants should be allowed to stay-until they were compensated for their outlay.

These cases show the variety of ways in which the equity found to exist had been satisfied. In this case I am of the view that since there is evidence of animosity between the parties, and since the court will avoid snaking an order which is unworkable in view of the family discord as. they cannot amicably lived together, that the equity can be satisfied by the respondent been compensated for his outlay in the enchancement and improvement of the property in the amount found in evidence as the value of his outlay in the sum of Le 26,452, 000.00.

Another aspect which is pertinent to consider in this appeal is the consideration by the Learned Judge of the fraudulent misrepresentation by the 1st Appellant and its effect on the issues before him. He said at Page 97.

"Thus talcing the case for defendants first and let us assume that the statute of frauds had been satisfied or the said agreement was in writing, there is the question of the misrepresentation which had clearly come to light. On the facts before me I hold that defendants case by way of counterclaim cannot stand up to the disclosure plaintiff witnesses have made by way of evidence."

The Learned Judge having found that if there was a contract oral or in writing would have been vitiated by the fraudulent misrepresentation of the 1st appellant is entitled to award damages to the respondent for the loss suffered by the fraudulent misrepresentation, and since it is a ortious liability the damages is the restoration of the respondent to the position he would have been in if the representation had not been made.

In Doyle v. Clby (ironmongers) 1969 2QB 158 (1969 2 AM 19 the Court of Appeal in England held that the defendant is bound to make reparation for all the actual damages, directly flowing from the fraudulent inducement. That it does not lie. in the month of the fraudulent person to say that the damages resulting could not reasonably have been foreseen. In the present case the appellants cannot bo heard to say that the loss of the respondent is limited to Le2,544,898 and not for the actual loss of Le26,452,542.

The Learned Judge would legitimately have been entitled to award the amount of Le 26,452, 542. as reparation for the loss sufferred by the respondent. This court by virtue of Rule 32 of the Court of Appeal Rules 1985 is empowered to make any order and give my judgment that ought to have been made by the Lower Court.

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Since the Learned Judge did not specifically awarded damages for this tort. I will in the light of the finding of the Learned Judge on fraudulent misrepresentation award Le 26,452,542.00 as damages.

This award is only applicable, if it turns out that the equatable Principle applied supra is inapplicble on the facts before the court I now make the following Orders:

(1) I order that the defendant/appellant do compensate the respondent in the sum of Le 26,452,542.00 Such compensation to be made within six weeks of this Order.

(2) That should the appellants fail to comply with Order (1) Supra that the Master and Registrar with the assistance of the solicitor for the respondent conduct a sale of the property by private treaty or public auction with first option to either of the parties in this action.(3) It is hereby ordered that the Master and Registrar execute the necessary conveyance. (4) That the respondent be compensated the said amount of Le26,452,542,00 from the proceeds

of sale The respondent shall have the xxxx in this court xxxxx

is it taxed Liberty to apply

Sgd) Hon. Mr. Justice H.D.Alhadi-JA.

 I agree-... . ..........Hon. Mrs. Justice V.A.D. Wright - J.A.