COLE v ALABAELBA Estate and Another ([node:field-casenumber])  SLHC 14 (01 January 2008);
IN THE HIGH COURT OF SIERRA LEONE
BECOMEE A.T. COLE -PLAINTIFF
(AS TESTATRIX OF THE ESTATE
OF ARKIN JAMES ALEX ALABAELBA) -1st DEFENDANT
REV. CHRISTIAN COLE - DEFENDANT
Friday 25th of January ,2008 Before the Hon Mrs Justice Mr Justice M Sey J case called plaintiff present R. Johnson for the Plaintiff present defendant absent (but served )
M.A Beloku Sesay for Defendants absent.
By a Writ of Summons issued on the 25th day of February 2004, the Plaintiff claims against the 1st and 2nd Defendants jointly and / or severally:
" 1. Payment of the sum of Le4,500,000.00
2.Interest on the said sum of Le 4,5000,00 pursuant to the Law Reform (miscellaneous provisions ) Act Cap 19 of the Laws of Sierra Leone 1960
3.Any further or other relief
The Plaitiff's case is that he has been a Licensed Auctioneer and values for the past 12 years and that he was engaged by Defendant to value premises at no 4 Sami Drive , Juba Hill, Freetown. He testified that the Defendants visited him in March 2002 and that the instucted for the said property at 4 Sami Drive , Juba Hill . He said he agreed to carry out their instruction and the Defendant agreed to pay him five per cent of the value for the property. The property was valued for Le 130,000,000.00. The plaintiff further testified that he prepared a raluation report which he produced and tendered as Exhibit A. He stated that his fees amounted to Le 6,500.000.00 and that the 2nd Defendant paid part of the agreed fees in the sum of Le 2,000.00.00 leaving a balance of L4,500,000.00. By "exhibit B,C, D and A the Plaintiff either by himself on his solicitors had requested payment of the sum of Le 4,500,000.00 to be made. The Plaintiff fitter testified that apart from this valuation, which is the prevision transaction with the Defendant which was to value the same property for the purpose of probate . He stated that he concluded that transaction and he was paid for that transaction.
Under cross-examination the Plaintiff admitted that when he prepared the first valuation certificate he did no visit the premises and that he prepare if from a plan given to him by the 2nd Defendant. He maintained that the second valuation certificate which he prepared was foe Le130,000,000 .00. He started that the 2nd Defendant did not write to him telling him that there was no authority given to him to do that valuation . He said he did not recall receiving a letter dated 20th November, 2004 from the 2th Defendant demanding the refund on Le2,000,000.00 and that he did not have any discussed with the 2nd Defendant regarding the refund of Le2,000,000.00. He further stated that he visited the premises for the second valuation . He said it was agreed that the 2nd Defendant was to pay him 5% of the value of the premises and he agreed with Defence Counsel that the agreement was not in writing .Finally under cross -examination, the Plaintiff said it was one Mr Tholie who made an offer for the purchase of the property through a Ms Palmer and that he informed the 2nd Defendant about the offer in the sum of Le140million .
The Plaintiff denied the suggestion that it was on the basis of that offer that the 2nd Defendant gave him the Le 2 million
In his testimony the Plaintiff told the court that it was about four months after he had presented the valuation certificate for the Le130,000,000.00 that the 2nd Defendant gave him the Le 2million .He said the 2nd Defendant also told him that he had discovered that the said property had been mortgaged and that the bulk of the money had been used to pay of the mortgaged .The 2nd Defendant assured the Plaintiff that there was another property at Congo Cross which formed part of the will of Arkin James Alex Alaba Elba and that if that property was sold he would pay him the balance of Le4,500,000.00. PW2 Ekundayo Pratt is a clerk in the office of the Administration and Registrar General .He produced and tendered a Power Attorney between Emma Thonias and Rev.Christian cole dated 26th February 2003 and registered as no .84/2003 at page 97 in vol 74 of the Record Books of Powers of Attorney kept in the office on the Registrar General in Freetown . The document was admitted in evidence and marked as Exhibit "G"
The 1st and 2nd Defendants filed a Defendant denying the allegations in the statement by claim and they also counter claim as follows:
"1.Refund of Le2,000.000.00 being commission paid to Plaintiff
2.Interest on the said sum at the rate of 30% until judgement on payment.
3.Damage for breach of contract .
4.Costs of the Action."
DW1 Bishop Christian Raymond Abayomi Cole testified that he was sent to the plaintiff by one Lawyers During in the year 2002 for the Plaintiff to prepare a valuation in respect of no 4 Samie Drive .He said the Plaintiff out a valuation of Le5,100 .000.00 on the Property and that after that exercise the paid him a fee of Le100,000 on the spot .He stated that several months later around June 2003, he saw the Plaintiff who told him that he had been trying to locate him for a month. He said the plaintiff told him in the presence of the 1st Defendant that " he got wind that the property he had valued was about to be sold " DW1, who
incidentally is the 2nd Defendant in the suit, told the Count that he disclose to the Plaintiff that one Permanent Secretary , Alhaji Kamara , had sympathised with the 1st Defendant plight and had offered Le100,000,000 if she would agree to sell the estate. DW1 went on the state that the Plaitiff said-
"I have good news for you " and then the plaintiff disdisclosed that one Mr Palmer had asked him to get a property like the one he had valued and that Mr Palmer was prepared to pay about Le140 million.DW1 went in to state that the Plaintiff further said that all he needed then was Le2 million commission to be paid to him up front and the sal would be completed for the sum of Le140 million .DW1 said that both the 1st Defendant and himself were pleased at the Plaintiff suggestion and that they thanked him and asked him to call back the next day so that they could look for the money he had requested .DW1 said they paid the Plaintiff the Le2million the next day. He said he demanded a receipt but the Plaintiff said he should trust him.
DW1 stated that the deal did not go through and that it was difficult to located the Plaintiff .He said that he subsequently saw the Plaintiff who told him he was working for the Law Firm of Renner & Co and that he had not expected the deal to back fire .DW1 said he told the Plaintiff that they were suffering DW1 fitter stated that while he was expecting the Plaintiff to pay back the Le2million ,to his surprise he received a letter from the Plaintiff alleging that he had prepared a second valuation for him and that the Le2million he had recieved was past payment for that valuation and said that he and the 1st Defendant never commissioned the Preparation of Exhibit "A":
Under cross - examination DW1 denied receipt of Exhibit "A" adding that he had no agreement with the Plaintiff to pay 5% commission of the Property the valued at L130,000,000, 00.DW1 maintained that the sum of Le2 million was paid to the Plaintiff up-front on
his assurance that he would got a buyer for no .4 Sami Drive, Juba Hill, Freetown who would be willing to pay the sum of Le 140 million . DW2 Andrew Marke is the officer who is presently in charge of the Probate Registry in the High could of Sierra Leone. He produced and tendered Probate dated 7th February 2003 in Eespect of the Last Will and Testament of Arkin James Alex Alaba Elba. This document was admitted in evidence and marked as Exhibit "H" DW3 Emma Juliet Thomas testified that the late Arkin James Alex Alaba Elba was her boyfriend and the father of her three children. She said that deceased had a property at no 4 Sami Drive . She said she took out Probate of the deceased's estate and that she conferred's a Power or Attorney on the 2nd Defendant . She told the Count the she met the Plaintiff in 2003 when the Plaintiff went to her house to ask for the 2nd Defendant .She said she was never at any time present when DW1 gave instructions to the Plaintiff to Prepare a valulation. She said she was present when DW1 paid the sum
of Le 2 million to the Plaintiff and that the money was paid because the Plaintiff had said he knew some one by the name of Ms Palmer who had offered to buy the property at 4 Sami Drive For the for Le 140million .She said the Plaintiff did not prepare any subsequent valuation in Aspect of 4 Sami Drive She said the money was paid in anticipation of the sale . She stated that the Plaintiff did not issued a receipt to the 2nd Defendant and that the 2nd Defendant did not ask the Plaintiff for a receipt Under cross-examination the 1st Defendant further denied seeing the second valuation certificate and said it was the first valuation certificate that she used to prepare the Probate document . The 1st Defendant also said she was in a car with both DW1 and DW4 Esther Korom who later testified that she had handed over a letter to the plaintiff in December 2003.
It is pertinent to note that the Court visited the locus .In Quo at no 4 Sami Drive ,Juba Hill, Freedom to view the property described in Exhibit "A" I now propose to examine some of the contentions points raised by the
parties . Was there a binding oral contract between the Plaintiff and the and the Defendant why would the Plaintiff take upon himself to prepare a second valuation report in the form of Exhibit "A" without authority from either the 1st and /or 2nd Defendant ? Why was the Plaintiff given Le 2nd million by the Defendant ?When was this payment made?
The Defendants case is that they never commissioned the preparation of a Exhibit "A" The Plaintiff denies this .The Defendant maintian that the sum of Le 2million was paid to the Plaintiff on his assurance that he would secure a buyer for the property at 4 Sami Drive , Juba Hill who would be willing to pay the sum of Le140 million .In they counclaim the Defendant have claim for refund of Le 2,000.000.00 being commission paid to the Plaintiff . On the other hand ,the Plaintiff has averred that he was engaged by the Defendants to value premises at 4 Sami Drive , Juba Hill and that his agreed fees were 5% of the appraised value of the property .The Property was valued for L130,000,000.00 and that the 2nd Defendant paid part of the agree fees in the sum of Le2,000,000.00 leaving a balance of Le4,500,000.00
It is settled law that civil cases are fought on the balance of probabilities which means that ,on any matter in difference ,the count must look at the the rival stories and ask itself which of the two in all the circumstances is likely to be true . Moreover, on the Principle enunciated in Arase v. Arase (1981) 5 SC @ page 33, where there is a claim by two parties in Litigation there is a need to resolve it on the relative strength of the claim of the two parties .
This case before this count turns out on who to be believe. I have carefully considered all the evidence adduced by the parties and their witnesses and I certainly prefer the Plaintiff case and I believe and accept his story . I must say throughout the trail the Defendant and their only witness of fact DW4 Esther Koroma did not present any credibility in their testimonies .I find on the balance of probabilities that the Plaintiff was paid the sum of Le2,000,000.00 was commission paid upfront to the Plaintiff on his assurance he would secure a buyer who would be willing to pay
the sum of Le140,000,00.00. In the Address submitted by the Defendant counsel, he referred the Court to the case of Balfour v. Balfour (1919) 2.K.B 571 and Counsel submitted that the words by the Plaintiff that " it was an oral agreement" are vague because there is no evidence of the terms of the said agreement that the 2nd Defendant should pay the said commission after the presentation of the valuation certificate to him. Counsel further submitted that the Plaintiff said he prepared the valuation certificate on the basis of cordail relations which implied that there was no common intention to give Eise to legal consequences. It is also defence counsel further submission that " It is setted law that a friendly or social agreement is not intended to create legations and such alleged agreement does not impose contractual lability on either parties unless the inference that can be drawn by the court from the language of the parties and the circumstances of the case"In my considered opinion , the object of the court is to do justice between the
parties and the Court will do its best to give effect to any escertainable and determinate intention to Contract. As I said earlier on , I believe the Plaintiff 's testimony and I believe there was a binding oral agreement between the parties. In he result I find for the Plaintiff and enter judgment in his favour as follows:
1.The 1st and 2nd Defendants shall jointly and severally pay to the Plaintiff the sum of Le 4,500,000,
2. Interest on the said sum of Le4,500,000.00 pursuant to the Law Reform( Miscellaneous Provision Act Cap 19 of the Laws of Sierra Leone 1960.
3. Costs to be paid by the Defendant assessed at Le 1,000,000.00 In respect of the Counterclaim , I hereby make the following order
1.The Counterclaim filed by the 1st and 2nd Defendant is hereby dismissed .
2. Costs to be paid by the Defendant.
assessed at Le25,000/00 25/1/08 Court .I have been shown copies of the affidavits of service on the Defendant and their Counsel Mr M.A.Beloku Sesay .The said affidavit are sworn to by one Abass Mohammed Sesay of the Under Sheriff's office and the affidavit were xxxxx before Leonard Harding Commisioner for oaths. I am satisfied that service was effected. 25/1/08
IN THE HIGH COURT OF SIERRA LEONE BETWEEN
SALLIEU BAH -PLAINTIFF
MR JARRETTE -1st DEFENDANT
MRS JARRETTE -2nd DEFENDANT
Thursday 31st January ,2008 Justice M Say J. case called Plaintiff Present 1st Defendant Present Mr Mansaray for Plaintiff Present Mr O Nylander for Defendant Present
The Plaintiff's claim against the defendant is for the following reliefs:
1. Damages for trespass.
2.An injunction restraining the defendant by themselves thier workers servants on agents for entering upon the plaintiff land situated at Macauley street , Murry Town, freetown.
3.Recovery of possession.
PW2 Reginald Ayodele Abivseh Stanley . The Plaintiff testified that he paid the sum of Le2,700,000,(two million seven hundred thousand Leones) for the land and that after he had paid a Conveyance was prepared by the vendom . The said deed of Conveyance is dated 22nd May 2000 and registered as no 489/2000 at page 43 in vol 530 of the Record Book in Conveyance. This Conveyance was later produced and tendered by PW3 Samuel Sawyer, a clerk in the official of the Administrators and Registrars General, and the Conveyance was admitted in evidence as Exhibit "A" The Plaintiff further testified that the first time the vender Ayo Stanley showed him the land he was challenged by the defendant . He said he was prevented from working on the land and that it was the defendant who had stopped him from working .The Plaintiff said he had mixed two bags of cement which had cost him Le150,000 and that he had paid the Labourens Le70,000 to start the work. The Plaintiff also stated that on a subsequent date the vendor Ayo Stanley had taken him to the 2nd Defendant to confirm that he owned the land and that he had sold it to him. The Plaintiff said the 2nd
Defendant was asked to allow him to continue hi work but she said "No" and that they would end up in Court. PW2 testified on oath and told the Court that he had sold the lad to the Plaintiff Sallieu Jalloh. He went on to State inter alia:-
"I know the Defendants Mr & Mrs Janett I know land situated at Macauley Street ,Murray Town. It belonged to my late father Mr Erasmus Oliver Stanley .I know how my father came to own that land .The land was given to my late grand Mother Mrs Marian Williams. Adjacent to my father's land is the property of the Defendant Mr &Mrs Jarrett and Mrs Jarrett in my ant"
It is clear PW2 had made the connection between his late father and the 2nd Defendant .PW2 than went on to state that his father died in 1994 and that before the death of his father the letter had no informed him that he had sold the land . The Plaintiff took out Letter of Adminisrtation on the 8th day of February 2000 to administer his late father's estate . The said Letter of
Adminisration was admitted in evidence as Exhibit "B" .Inside Exhibit "B" there is a valuation certificate for Probate prepared by a licensed Auctioneer valuer and Appraiser " and dated 25th November 1999. There is a survey plan attached to the valuation certificate showing a demarcation of two separate plots each measuring 0.0566 land area. Pausing here for a moment ,let us examine the case for the defendants DW2 Claudius Oluyoni Jarrett testified that he know the property situated at Macauley street Mumay Town and that the property is owned by himself and his wife. He stated this -
"We owned the property through the grand mother of my wife. She was Mrs Marian Williams deceased . She had shown me a document as to the ownership of that property. Subsequently Mrs Marian Williams transferred to both of us i.e my wife and I by Deed of Gift"
DW2 went on to identify Exhibit D1 which is a Certified Copy of the registered Deed of Gift from Mrs Marian Williams to the 1st and 2nd Defendants.
The 2nd Defendant Mrs Catherine Omoleye
Janett also testify and Confirmed that the late Mrs Marian Williams had executed a Deed of Gift dated the 4th day of June 1984,expressed to be made between Mrs Maria Williams therein describe as the Donon of the one part and Catherine Omoleye Jarrett and Cladius Oluyoni Jarrett therein describe as the beneficiaries of the other past. She identified Exhibit D1 which is a certified copy of the Deed of Crip registered as no 122 at page 15 in volume 65 in the book of voluntary Conveyances Kept in the office of the Administration and Registrar General in Freetown. In Examining the Legal issuse raised by the parties ,Let one begin by saying that it is a well- established principle of Law the in an action for a declaration of title , the onus is on the party who alleges to prove hi own title to the land in despite and not to rely on the weakness of the defendant's tittle. In other words ,a party who seeks to change the possession should first show a legal title in himself. See the the West African Court of Appeal decision in Kodilinye v Odi (1935) 2 .Which 336 and also Venn Thompson & Mason V Cole (1968/69) AL R (SL) 331 @page 333 C/A
The case before this, Court is for inten alia,Damages for trespass and " Recovery of possession " The question now arise : Has the Plaintiff Led evidence as to the root of his predecessor's title? What has the Plaintiff to prove? The Plaintiff must prove a documentary title to the land and if he does so then he ought to succeed and recover possession . In support of this statement .I refer to the case of Ocean Estates Ltd V Pindes (1969) 2 A.c. 19 at24. In delivering the Opinon of of the Privy Council Lord Diplock said:
" At common law as applied in the Bahamas which have not adopted the English Land Registration Act ,1925, there is no , such concept as an absolute title .Where question of title .Where question of title arise in litigation , the court is concerned only with the relative strengths of the title proved by the oval claimants , If pasty A can prove a better title the party B he is entitle to succeed not withstanding that C may have a better title than party A, if C is neither a party to the action nor is in possession or occupation of the land . It follows
that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove a documentary title to the land is entitle to recover under the Real Property Limitation Act". The Plaintiff both in his statement of claim and in his evidence has alleged he is the fee simple owner of the land and that the defendants unlawfully took possession of his land claiming to be owners therefore and had thereby trespass on it .
On the other hand , the defendant in paragraph 3 of their defence dated 23rd day of July 2004 have averred that at the time of the alleged trespass the said land was not the plaintiff's property and that it was thier property by virtue of a Deed of Gift dated the 4th day of June 1984 "whereby the Defendants become seised in fee simple and otherwise well and sufficiently entitled to all that piece of land".
Applying the principles in Ocean Estates sure to this case, it follows that if the plaintiff can prove documentary title to the land he ought to recover possession, What does he have ? The
plaintiff has a conveyance in fee simple as evidence that he bought the land from Ayodele Stanley . The conveyance was made between the plaintiff and Ayodele Stanley therein referred to as "the Administrator " of the estate of Erasmus Stanley deceased. The said conveyance was admitted in evidence as Exhibit" A1 and part of the recital states as follows:
"WHERE AS on the 8th day of February 2000 Letter of Administration of all and singular the real and personal estate and effects which by law desolves to and rest in the personal representative of Erasmus Oseh Stanley (deceased) late of no14 Macanley Street Murry Town aforesaid who died on the 17th day of July 1994 in Freetown aforesaid was granted by the High Court of Sierra Leone (Probate jurisdiction) to Reginald Ayodele Abioseh Erasmus Stanley Oseh Stanley according to the personal Law of the said deceased .......".
The contention raised by defence counsel is that the Plaintiff has fainted to lead evidence as to the title of his predecessor and that this was not disclosed in the entals in the said Deed of Conveyance I have carefully perused the said Deed of Conveyance (Exhibit "A1") and what it discloses , inter alia , is that on the 8th day of February 2000 Letters of Administration where granted by the High Court of Sierra Leone to Reginald Ayodele Abinsel Erasmus Stanley , to administer his late father's estate . The Suitland is listed in the document describe therein as " Declaration of Estate Value" and this declaration was duly sworn to on the 29th day of December 1999 before one Mrs Musu D. Kamara A Commissioner for Oaths. Attached to the said declaration are two documents , namely ,a valuation certificate describing the suitland and a survey plan. A close perusal of the survey plan reveal that it is a simpler plan reveals that it is a similar plan to the survey plan showing the demarcation of the Defendant 's Deed of Gift, the Exhibit "D1" The validity of the said Letters of Administration has not in any way
been challenged by the Defendants. The evidence led by the Plaintiff and PW2 has established that PW2 was the Administrator of the estate of his late father and therefore by constraction of the Law he had Legal title therefore to in trust for the beneficiaries of the estate of Erasmus Oseh Stanley. In my considered opinion , Letters of Administration under the Seal of the Court of Probate have been produced before this Court and I am bound to perfume "omnia rite esse Acta",and to give Full credit to the judicial act of a competent junsdiction . As I mentioned earlier, the validity of the Letter of Administration has not been challenged and I am not to look beyond the Letters of Administration Pursuant to those Letters of Administration a conveyance was made between the Administrator and the Plaintiff. For the Foregoing reason .I hold that the plaintiff's proof of his mere the plaintiff's of his mere possession of land is sufficient for him to maintain trespass against anyone who cannot show a better title, See the case of R.B Wuta-Ofei V Mabel Danquah (1961) 3 All ER 596, P.C decision.
From the facts before this court it si clear that only an area of land comprising 0.0566 acre was given to the defendant by Mrs Marian Williams (deceaced) . This is shown and delineated by a boundary in Red on Survey plan his 1704/76. The property of late Mrs Marian Williams was a large property written area of 0.1121 area as delineated on survey plan L5826/76 attached to the stationery Declaration of Marian Williams Josephine Hanciles and Beatrice Coker. In My Considered judgment, the Defendant are only entitled to that area of land given to them by the Dones Marian Williams . The others portion of land does not form part of the said Deed of gift. the Plaintiff has proved his case on the balance of probabilities. Be that as it may, an others issue arises.. The Defendant's Counsel has submitted that the Plaintiff's right to bring an action against the Defendant for recovery of the land which they have occupied for more that 12 continuous years is Statute barred by virtue of the provisions of the Limitation Act 1961 i.e.Act no 51 of 1961. I agree that this case falls under the Adverse
prossession rule of law which states that if a person takes over a piece of land and remains in possession and control of it ,excluding the real owner and other from it for 12 years , he acquires a right to the land the rule stemmed from the principle that the real owner's right to take legal action to remove someone trespassing on their land does not last indefinitely but runs out after 12 years .After that , the Law will protect not the real owner but the person in control of the land. To my mind, wrongful possession by the Defendants Mr &Mrs Jarrett of the second portion of Marian Williams ' land , has over the years , matured into rightful possession this defeating the claim of the plaintiff.
In the result this Court is Left with no alternative but to dismiss the defendants. There would be no order as to cost.