Kamara v Kabba and Others (CIV. APR NO. 86/95)  SLCA 1 (10 January 2002);
CIV. APR NO. 86/95
IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN:
MADAM AMIE KAMARA—-------------- PLAINTIFF
ALHAJI A.R. KABBA
ALHAJI I.K. GILLEN—--------------- ESPONDENTS
ALHAJI A. R. MADHI
(SUING ON BEHALF OF THEMSELVES AND THE OTHER) (TRUSTEES OF THE SIERRA LEONE MUSLIM CONGRESS)
CORAM: HON. MR. JUSTICE A.N. BANKOLE STRONGE- J.A.
HON. JUSTICE PATRICIA MACAULEY----------- J.A.
HON. MR. JUSTICE J.E. MASALLAY--------------, -J.
A.F. SERRY-KAMAL, ESQ. FOR APPELLANT. D.J. THOMPSON,ESQ. FOR RESPONDENTS
JUDGMENT DELIVERED THE 10th DAY OF JANUARY 2002 A. N. BANKOLE STRONGE,ESQ.---J.A.
This is an Appeal from a Ruling delivered by the High Court dated the 22nd. day of November, 1995, AND from a Judgment of the High Court delivered on the 22nd. April, 1994. The Ruling can be found at Pages 87 to 91 inclusive of the Records And the. Judgment at Pages 69 to 77 inclusive of the Records. The notice of Appeal is dated the 23rd. November, 1995, and the Appellant complains of the entire Decision. The Grounds of Appeal are as follows:-
1. That the Learned Trial Judge acted on wrong principles of law in arriving at his decision.
2.The decision is against the weight of the evidence. 3.T. he Learned Trial Judge erred in law in refusing to consider the alternative grounds to set aside the Judgment in default of defence and all subsequent proceedings thereto as she has a defence on the merits.
At the hearing on the 12th. of February, 2001, the Appellant so tight and obtained leave to amend the grounds of Appeal by the addition of grounds (4),(5),(6),and (7) as contained notice of intention to seek leave to amend the notice of Appeal dated 19th. September,2000. The additional Grounds of Appeal are as follows:-4. That the Judgment dated the 22nd. April, 1994, and all proceedings subsequent thereto beset aside on the grounds of irregularity in that:
These proceedings were commenced by Mr. M.R.O.Gerber (deceased) on behalf of the plaintiffs on the 15th. day of July 1987 and was entered for Trial by Memorandum and Notice for Trial dated 23rd. October,1987. Judgment was signed on the 22nd. April, 1994 against the second defendant by Mr. M.K.Riby--Williams(deceaseu) without a notice of change of Solicitors being filed.The latter Solicitor had no LOCUS STANDI to act as Solicitor in this matter. S.Betts and Berewa who purports to take over from Mr. Riby— Williams(deceased) have no LOCUS STANDI in this matter. All actions taken by the latter in this matter ought to be irregular and void. 6.Execution levied against the first defendant is a nullity since no Judgment was signed against the first defendant. 7.The first defendant was never served with notice Of hearing leading up to the Judgment dated 22nd. April, 1994
Mr. Serry---Kamal for the Appellant started off with Grounds 4and 5 of the additional Grounds of Appeal, SUPRA. He submitted that Mr. Riby—Williams who drew up the Judgment dated the 22nd. April, 1994 was not competent to do so since the Solicitor then on Record had since died and no new Solicitor had entered his name on the record. He further submitted that in all proceedings subsequent to the Judgment dated 22nd. April, 1994 the Firm of Betts and Berewa purports to act as Solicitor for the Respondents having entered its name on the Record. These proceedings included applying for and obtaining leave to issue a writ of possession. Mr.Serry—Kamal adopted his arguments on GROUNDS 4 AND 5 FOR GROUNDS 2AND 6, and abandoned GROUND 3.
IN HIS Reply Mr. Thompson submitted that the failure notice of change of Solicitor is not sufficient to render the Judgment of the 22nd. April,1994 and all subsequent proceedings such an irregularity as to make them null and void. The litigant should not be made to suffer for the negligence of his Solicitor. He referred the Court to the cases of:-
GATTI VS. SHOESMITH 1937 1CH. PAGE 841 NORIS VS. BAILEY 62 L.J. PAGE 238.
Mr. Thompson urged the Court to exercise is discretion and hold that notwithstanding the Judgment was drawn up and filed by Mr. Riby-- M.K.Riby-Williams, Siaka Stevens Street, Freetown.
It is clear from what is reproduced above that the Firm of Betts and Berewa notified all concerned of their appointment as Solicitors as on the 24th. February, 1995. Thereafter this Firm acted as such in all proceedings subsequent to the said Judgment. Such conduct by the Firm of Betts and Berewa cannot be impugned in anyway. GROUND 6 OF THE NOTICE OF APPEAL READS:-
"EEXECUTION LEVIEDAGAINST THE FIRST DEFENDANT IS A NULLITY SINCE NO JUDGMENT WAS SIGNED AGAINST THE FIRST DEFENDANT."
PARAGRAPH 3 OF THE STATEMENT OF CLAIM READS:-"THE FIRST DEFENDANT AMIE KAMARA BY HERSELF OR HER SERVANTS OR AGENTS HAS ENCROACHED ON THE PLAINTIFFS' LAND TO THE EXTENT OF O.1108 ACRE ALONG THE FREETOWN/WATERLOO ROAD AND HAS CONSTRUCTED A BUILDING THEREON."
BY THE JUDGMENT OF THE HIGH COURTDATED THE 22ND.APRIL1994,IT WAS ORDERED AND ADJUDGED,INTER ALIA:-
"THAT THE PLAINTIFF IS ENTITLED TO A DECLARATION OF TITLE IN RESPECT OF TWO STRIPS OF LAND AS CONTAINED IN PRAGRAPH 3 AND 4 OF THE STATEMENT OF CLAIM."
Clearly therefore Judgment was signed against the First Defendant. I consider Ground 7 of the Appeal as without merit Judgment in default of Defence was entered against the First Defendant on the 22nd. April, 1994.The said First Defendant applied through her Solicitor to have the said Judgment set aside and failed. Thereafter she took no part in the proceedings. In the premises this Appeal.Cots to the Respondent.
A.N. BANKOLE STRONGE -J.A.
I Agree PATRICIA MACAULEY -J.A,
I Agree J.E MASSALLAY--- - J.A
Williams who was not Solicitor on record, that irregularity should be considered a mistake which could be dealt with as the Court thinks right Mr.Serry----Kamal in reply submitted when a Solicitor is appointed his retainer continue until the close of the case. He referred to:-HALSBURY'S LAWS OF ENGLAND 3RD. ED. VOL.36 PAGE67 PARA. 1021.
KRAKAUER VS.KATZ 1954 A.E.R. VOL.1 AT PAGE 244.
It is the Appellant's case that after the death of Mr.M.R.O.Gerber, Respondent's then Solicitor,Mr. Riby-Williams, without entering his name on the record proceeded to draw up and file the Judgment of the Court dated 22nd. April, 1994.That was however all that Mr.Riby—Williams did that he should not have done. The Firm of Betts and Berewa acted as Solicitors in all proceedings subsequent to Judgment.
Clearly there was lapse or as Mr. Thompson would prefer to call it, a mistake on the part of the Solicitor who drew up and filed the Judgment of the 22nd. April, 1994.Clearly also there is a judgment delivered by the High Court in the matter. The lapse or mistake could therefore be rectified without harm or injury to any of the parties. It is my considered decision that must exercise its discretion and allow the Judgment dated 22nd. April,1994 to stand.
Subsequent to the said Judgment, the Firm of Betts and Berewa acted as Solicitors throughout.
It also the Appellant's case that the Firm of Betts and Berewa wrongly assumed the role of Solicitor in place of Mr. M.K. Riby---Williams (deceased) who was in fact not the Solicitor in the matter.
With respect to Mr. Serry---Kamal his submission in this regard is not a correct representation of the facts. At Page 53 of the Records, the Firm of Betts and Berewa filed a "NOTICE OF CHANGE OF SOLICITORS". It reads:-
Take notice that the undersigned, Betts and Berewa (Solicitors) 36,Goderich Street,Freetown, have been appointed to act as Solicitors of the above-named plaintiffs.
The address for service of the above-named Betts and Berewa is 36,Goderich Street,Freetown.
DATED 24TH. FEBRUARY, 1991 Sgd.Betts and Berewa
Solicitors for the plaintiffs TO: The above-named defendants and/or Their Solicitor