Tamba v Parker Estate (CC 143/05 )  SLHC 9 (13 March 2009);
SIERRA LEONE No. CC 143/05 2005 T NO. 9
IN THE HIGH COURT OK SIERRA LEONE CIVIL JURISDICTION BETWEEN:-MEMUNATUTAMBA EDNA TAMBA
SUING BY THEIR ATTORNEY HAJA ISATU KOROMA - PLAINTIFFS
AS ADMINISTRATOR OF THE - DEFENDANT
ESTATE OF IBRAHIM PARKER
YADA HASHIM WILLIAMS
MOHAMED LAMIN TARAWALIE - For the Plaintiff
MYRETTA J TUCKER - For the Defendant
JUDGMENT DELIVERED MILS 13th DAY OF March 2009 By JUSTICE D. B. EDWARDS J.
I. In this case the plainliffs' claim against the defendant is for the following reliefs:
a. A declaration that the plainliffs are the fee simple owners of all that piece or parcel of land and hereditaments situate at Off Cemetery Road. Congo Town. Freetown as set out on Survey Plan LAS No 962/91 dated 6th May 1991.
b. Recovery of the sum of Le 1.999,000 as special damages c. Damages for trespass
d. An injunction to restrain the defendant whether by himself, his servants or agents howsoever otherwise from entering, using, remaining selling or disposing of any interest in the said piece or parcel e.Possession of any part of the said property occupied by the defendant.
THE PLAINTIFFS' CLAIM
2. A summary of the case of the plaintiffs as gleaned from their pleadings, and evidence before this court and submissions of the plaintiffs' solicitor is that they were at all times material to this action the fee simple owners of the land and hereditaments situate lying and being at Off Cemetery Road. Congo Town, Freetown in the Western Area of the Republic of Sierra Leone as set out in the Survey Plan dated 6th May 1991. This they claim was so because they bought it from one Ibrahim Parker, now deceased, by virtue of a Conveyance dated the 1st April 1991, expressed to be made between Ibrahim Parker, the father of the defendant herein, therein as Vendor and Memunatu Tamba & Edna Tamba the plaintiffs herein, therein as Purchasers. This Conveyance initially was unregistered. However because of the Registration of Instruments Act Cap 256, as amended, by Act No 6 of 1964. which provided that such instruments could be registered out of lime, this Conveyance was registered out of time as No 378 at page 123 in volume 571 of the Book of Conveyances kept in the Registrar General's Office in Freetown in March. 2004 with the registration to take effect from the 1st of April 1991. The plaintiffs further contend that despite this land being their own, they were prevented from enjoying it by the defendant who is claiming that the land forms part and parcel of his father's estate and in the process properties built by their mother on the land were destroyed by the defendant, all to the total value of Le 1,999,000.00. They contended that the defendant threatens to continue the above trespasses and damages unless restrained by this Honourable Court, hence they sought relief in an injunction to restrain the defendant from trespassing on their bonafide property.
THE DEFENDANT'S CLAIM
3. The Claim of the defendant as borne out from his pleadings is that the defendant owned the land situate lying and being at Off Cemetery Road Congo Town as it forms part and parcel of the Estate of IBRAHIM PARKER
(DECEASED) INTESTATE. He contended that his father never sold the land situate lying and being at Off Cemetery Road, Congo Town to the plaintiffs. In support of this, he claims the said Ibrahim Parker, his father, who it is alleged sold the said piece and parcel of land to the plaintiffs died on the 13th day of April 1995 at Bumpeh Town. Bo district but that during his lifetime before he died he gave a Power of Attorney to his wife Fatmata Parker registered as 72/94 in volume 62 at page 85 dated 23rd May 1994.That apart, the defendant contended that at no time did his father sign any conveyance conveying the land at Off Cemetery Road to the plaintiffs and that the Conveyance referred to was registered out of time in 2004. when the defendant herein brought an action against the plaintiffs Attorney for the same piece or parcel of land, an action for which Judgment was given in favour of the defendant herein. Because this land formed part and parcel of his father's Estate, he had power as the Administrator of his father's Estate to remove any person occupying it for in 1996 he had started a matter against J-IAJA ISATU KOROMA and in 2002 when the matter was concluded, he had Judgment in his favour and a writ of possession ensued which gave him power to take possession. It was because of this writ of possession that the properties the plaintiffs have claimed he destroyed were destroyed . The same were destroyed under lawful orders and thus he should not be held responsible for the loss and damages if at all that occured. As a matter of fact, the land forms part and parcel of the Estate of IBRAHIM PARKER (DECEASED) INTESTATE and he as the Administrator was entitled through his counterclaim for declaration to remove the plaintiffs from land which he had supposed to be the Estate of Ibrahim Parker (deceased ) Intestate .
4. The evidence in this case consisted firstly in the oral testimonies of the following witnesses PW1 HAJA ISATU KOROMA, PW2 MUSTAPI-IA FOPONAH and PW3 ROLAND BRIMA SAMURA for the plaintiffs and DW1 ABDUL RAHMAN BANGURA. DW2 MR ANDREW MARKE. DW3 MRS FATMATA PARKER AND DW4 THE DEFENDANT HIMSELF SULA1MAN
PARKER; and secondly in the admission of the following exhibits viz: Conveyance dated the 1st April 1991 produced and tendered by PW3 and admitted as exhibit A and the certified copy thereof as Exhibit A1; the Power Of Attorney dated 20th December 2004 expressed to be made between Memunatu Tamba to Isata Koroma produced and tendered by PW3 and admitted as exhibit B and the certified Copy thereof as exhibit Bl; Conveyance dated 10th December 1973 expressed to be made between SARIAN FLYMN Housewife as vendor and IBRAHIM PARKER as Purchaser produced and tendered by DW1 and admitted as exhibit C and the certified copy thereof as exhibit C\ ; the Power of Attorney between IBRAHIM Parker to Fatmata Parker produced and tendered by DW1 and admitted as exhibit D and the certified copy thereof as exhibit D1; the Setter of Administration grained to SULAIMAN PARKER the defendant herein to administer the Estate of IBRAHIM PARKER (DECEASED INTESTATE) dated the 4" day of June 1996 produced and tendered by DW2 and admitted as exhibit E and the certified copy thereof as exhibit El; the original copy of the Conveyance dated the 10"' day of December 1973 produced and tendered by DW4 and admitted as exhibit G and finally the ease file of the matter intituled
CC546 96 P NO 11
IN THE MATTER OF THE ESTATE OF IBRAHIM PARKER (DECEASED) INTESTATE BETWEEN:
SULAIMAN PARKER (ADMINISTRATOR OF THE ESTATE OF IBRAHIM PARKER
(DECEASED)INTESTATE - PLAINTIFF
AND ISATU KOROMA - DEFENDANT
5. From the facts before me as gleaned from the pleadings and the oral testimonies and exhibits admitted together with the addresses from both counsels from which I have been able to discern or decipher their separate claims, the main issue which calls for this court's attention and determination is as follows :
"Whether land situate lying and being at Off Cemetery Road Congo Town belongs to the plaintiffs or forms part and parcel of the estate of Ibrahim Parker (deceased) intestate for whom the defendant herein has defended the action and Counterclaimed to be the fee simple owner."
6. Centra] to the determination of the above question are four subsidiary issues which must be considered. These are namely i) Whether the land situate lying and being at Off Cemetery Road Congo Town was ever sold to the plaintiffs'? ii) Whether a conveyance was prepared in respect of this sale; iii) Whether the conveyance was signed by the said Ibrahim Parker; and iv) Whether this conveyance was properly registered. If the answer to i)-iv) supra could be answered in the affirmative from the evidence before this court, the property certainly could not form part and parcel of the of the Estate of Ibrahim Parker Deceased Intestate. But if these questions could be answered in the negative then there would be a case for saying that indeed properly situate lying and being at Off Cemetery Road Congo Town forms part of the estate of Ibrahim Parker deceased Intestate . The issues as raised herein arc all interrelated and it would be better for them to be dealt together rather than seriatim
7. In the determination of the above issue it appears to me that one thing is certain and that is that the boundaries of land in question is not in dispute. It is a particular strip of land measuring 0.0823 acres, the boundaries of which are well demarcated and is represented in both Conveyances dated 10th December 1973 and that dated 1st April 1991 and the respective plans that go with each one . The deceased bought the said land and the same was conveyed to him by conveyance dated 10th December 1973 registered as number 1064/73 in volume 264 at page 66 in the Books of Conveyances kept in the Office of the Administrator and Registrar General's Office and on the 1st of April 1991 through conveyance
registered as No 378 at page 123 in volume 571 of the books of conveyances he purportedly conveyed to the plaintiffs. In the ease of ENGLAND, ENGLAND, SMART AND COSIER VS OFFICIAL ADMINISTRATOR, PRATT& BECKLEY 1964-66 ALRSL it was stated that in action for declaration the boundaries must he clearly defined or sufficiently proved. Suffice it to say that the boundaries are clearly defined and the issue is who owns it; whether the plaintiffs or the defendant. It came into the hands of one Ibrahim Parker the defendant's father by virtue of the conveyance to him dated 10th day of December 1973 expressed to made between one Sarah Flymn as Vendor and the said Ibrahim Parker as Purchaser. See exhibit C. But according to Exhibit A which the plaintiffs' rely, the said Ibrahim Parker was seized in possession of the said premises from the 10th day of December 1973 until in 1991 when virtue of a contract expressed to be made between himself as vendor and the plaintiffs herein as Purchasers for the sale to the plaintiffs of the said piece or parcel of land to the plaintiffs for a consideration in the sum of Le 70.000.00. the same was so conveyed. The defendant has however denied such sale claiming and submitting that the self same land was never sold to the plaintiffs as alleged and that the purported conveyance of the land to the plaintiff was not signed and even registered out of time, as a result of which the property forms part and parcel of his fathers estate.
8. Because of this unequivocal assertion by the defendant in denial of the fact that the plaintiffs arc the fee simple owners, it behoves this court to determine whether the same were true. In support of this, it appears the defendant is relying on the fact that in 1994 the self same Ibrahim Parker ( now deceased) Intestate at a time when he was alive, in time and not yet in eternity on the 23rd of May 1994 did make a Power of Attorney to his wife in respect of this self same land. The defendant, it appears was saying, if this land had been sold in 1991. as alleged, then it couldn't have been possible for the said Ibrahim Parker to give this self same land to his wife in 1994 to look after through a Power of Attorney by reason of which it is true that he never sold. Never mind how preposterous this may
sound I am compelled to consider it. 1( comes out from the pleadings in this context:
3.That the said Ibrahim Parker who it is alleged sold the said piece and parcel of land to the plaintiffs died on the 13th day of April 1995 at Bumpch Town, Bo district. Before he died he gave a Power of Attorney to his wife Fatmata Parker registered as 72/94 in volume 62 at page 85 dated 23rd May 1994.
9. To such an assertion this court is of the view that the fact that the defendant's deceased father intestate, under which the defendant is claiming, during his lifetime purported to execute a Power of Attorney regarding the same land he had supposedly disposed off through sale to the plaintiffs, to his wife in May 1994 would not in law mean anything, except that such Power of Attorney was illegal or invalid destitute or lacking in the effect it proposes to have. This is so because at that time i.e. 23rd May 1994, the fact of the matter was that the defendant's father had received and continued to retain consideration in respect of the sale of land to the plaintiff see exhibit H. The amount was paid for by the lst Plaintiffs husband and father of the 2nd plaintiff, one Mr. Edward Tamba and the same was acknowledged for by the said Ibrahim Parker in the presence of one Adama Parker who was the sister of the defendant and daughter of the said Ibrahim Parker. The consideration in the sum of Le 70,000.00 was never refunded so that even though the sale of land to the plaintiffs was never as it were perfected men by the registration of the contract of sale and the conveyance pursuant to Section 4 of the Registration of Instruments Act CAP 256 of the Laws of Sierra Leone 1960, the deceased was deemed to be in contract or had agreed, so to speak, to sell his land for the consideration received and for which the only cancellation of the Agreement to sell would have been through return of money paid and received as consideration to the person who paid it . There is no evidence before this court that this amount was repaid to Edward Tamba or his wife the 1st plaintiff herein or at all and therefore it is a fact that the defendant's father never returned it. It is
therefore absurd that their priced acquisition of land situate lying and being at Off Cemetery Road Congo Town should have been the subject of a Power of Attorney dated 23rd May 1994 even noting that the conveyance had not yet been registered having due regard to the consideration of" Le 70,000.00 paid which had not yet been returned. While the contract of sale involving the above land and conveyance which effects the transfer were apparently void at this stage for want of registration they fell short of rescinding the transaction which had taken place by receipt of monies for that piece or parcel of land aforementioned as the said Ibrahim Parker never returned the consideration received and thus must be estopped from denying that he sold. Under such circumstances it becomes impossible for him during his life time to make a valid power of Attorney to Falmata Parker. For the Power of Attorney to have been valid, the contents of this Power of' Attorney must have been, if at all. for the wife to effect the sale to the plaintiffs after the registration requirements were fulfilled especially so as we would later see in this judgment he had signed the conveyance before effecting such a Power of Attorney. But this was not the case. Such a Power having been raised as a source of controversy regarding the sale docs not for reasons as outlined create anything to suggest that the property still forms part of the property of the the defendants father.
10. Worse still this court notes that under cross examination FATMATA PARKER;DW3 said:
" I took the draft Power of Attorney from Mr. Nylander and went alone with the document to my husband who signed it. I see exhibit DL That was the Power of Attorney my late husband signed. I do not know any Elizabeth Oniel. Exhibit D1 is witnessed by Elizabeth Oniel. She did not go with me when I took the document to my husband in Bumpeh "
Having spent some time to consider the above testimony and having in the process taken a careful look at the said Power of Attorney exhibit D1, while it is not an undenying fact that the said Ibrahim Parker had been ill since 3 991. I find that his signature in the said Power of Attorney dated 23rd May 1994 concluded much later did not align with those done in 1991 i.e. the receipt as evinced in exhibit H and exhibit A1 as vendor and worse still this signature in exhibit D1 was totally different and do not carry the strain showed in those earlier documents. The impression this court is able to form from such a finding is that exhibit D1 must have been signed by somebody else and not Ibrahim Parker. To note that this signature was supposedly witnessed by Elizabeth Oniel whom DW3 did not know and was not present when the purported signing in her presence took place only compounds one's belief in the incredulity of the Power of Attorney.
11. On the other hand, however, for the plaintiffs, it could not be doubted that, the land situate lying and being at Off Cemetery Road Congo Town was sold and sold to the plaintiffs for a consideration in the sum of Le70.000. The evidence of PW1 is clear on this and this is buttressed by the evidence of PW2. It is pertinent to note that these witnesses were not the plaintiffs but knew that the money was actually paid for by the lst and 2nd plaintiffs husband and wife respectively for the plaintiffs and that a conveyance was prepared and signed in this respect. Their testimonies with respect to the actual sale are unimpeached. But what is more, is that we have a receipt for the sale as gleaned from exhibit H and the same was witnessed by the defendant's. Sister ADAMA PARKER a police officer. The signature of the receipt aligns with that in the conveyance and is completely different from that which is in the Power of Attorney exhibit D1. Also the conveyance signed by said Ibrahim Parker and witnessed by Adama Parker exhibit A1 did acknowledge in the recital as evidence of the sale, the receipt of the sum of Le70.000.00. How then could the defendant claim that a sale never took place?
12. It being clear that the Properly was indeed sold to the plaintiffs my next enquiry is whether a conveyance was prepared. PW1 in the course of her evidence stated as follows:
'7 took the plan and the receipt and Ibrahim Parkers' conveyance to Dr Rentier Thomas to prepare a conveyance .....................The conveyance was prepared and signed by Ibrahim Parker"
PW2 in the course of his evidence stated that "/ did see an unsigned document from the firm of Solicitors." Exhibit A1 was prepared by Ade Renner Thomas & Co Solicitors and this court is left with no alternative but to affirm that indeed a conveyance was prepared after the sale. Like the preparation of the conveyance it has never been in doubt that the conveyance was signed even though the defendant has categorically stated that it was not signed. 1 am able to prove this from exhibit A1 which is signed and dated and which signature aligns with that in the receipt but further more the evidence of PW2 to wit:
'7 did see an unsigned document from the firm of Solicitors. Later Adama Parker and I went to see Ibrahim Parker in his village Off Bumpeh where he signed the conveyance witnessed by Adama Parker . I see the document which I tendered for identification. In my presence Adama Parker asked Ibrahim Parker why it was necessary for her to sign and Ibrahim Parker said it is was because Sulaiman Parker (the defendant herein ) had gone to see him and asked him to say he did not sell."
Under cross examination PW2 stated thus:
"The transaction commenced in 1991. The conveyance was prepared by Ade Rentier Thomas in 1991. It was also in 1991 that Ibrahim Parker left for Bumpeh. I went with Adama Parker to Bumpeh in 1991. Ibrahim Parker told me before he left that he was very ill and
going to his village. It was only the three of us present when Ibrahim Parker signed."
The above evidence by PW2 is uncontroverted. PW1 had stated categorically that it was some months before she received or collected exhibit A1. Taking into consideration PW2'S evidence under cross examination that Ibrahim Parker was ill when he went to the provinces in 1991 and that they had to go to Bumpeh to sign 1 would accept that it was some months before PW1 received exhibit A1. She however noted that she failed to register the conveyance as she did not know that it should be registered. If the conveyance had been received directly from the solicitors this would seem an outrageous lie but the evidence is silent from whom it was received and it might be safe for me to conclude that it must have been received from Adama Parker or PW2 who were the 2 people around when he signed. It is interesting to note that self same Rentier Thomas &Co solicitors wrote exhibit F dated 24th June 1994 to PW1 .This court could only deduce that Oliver O NYLANDER who prepared the Power of Attorney to Fatmata Parker was part of the Renner Thomas & co solicitors.
13. While it is clear from the evidence that the plaintiffs did not register exhibit A1 within the time stipulated by law, it is also not in dispute that it was registered out of lime, only in 2004 to take effect from the 1st of April 1991. The defendant has raised an issue with this registration claiming that the conveyance referred to was registered out of time in 2004. when the defendant herein brought an action against the Attorney herein then defending as 1SATU KOROMA for the same piece or parcel of land and for which Judgment was given in favour of the defendant herein. The action the defendant is talking about took place from 1996 and ended in 2002 without the then defendant taking part in the proceedings when through a default Judgment dated 1st July 2002 judgment was given in favour of the plaintiff therein the defendant in this action in respect of this same piece or parcel of land situate lying and being at Off Cemetery Road Congo Town Freetown . Later, however, the plaintiffs were able to apply to a Judge through an originating summons and secure the registration of exhibit A1 out of time
effective 1st April 1991. The effect of such a registration is that it cures the voidance of that conveyance which has arisen as a result of the failure of the plaintiff's purchasers to register the conveyance in respect of land situate lying and being at Off Cemetery Road Congo Town within the statutory stipulated time and this is perfectly within the law as section 4(2)of the Registration of Instruments Act Cap 256, as amended, by Act No 6 of 1964 provides :
Every deed, contract or conveyance executed after the 1st day of June 1964, shall be void, so far as regards any land to he thereby affected, unless it is registered within the appropriate period limited for such registration under the proviso to subsection (1):
Provided that any person prejudiced by the avoidance of any transaction under the provisions of this subsection may apply by originating summons to a judge of the High Court for permission to register after the expiration of the period limited for registration , and if the judge is satisfied that either -
i) the failure to register was not due to any fault of the applicant ,or
ii) the applicant's failure to secure registration in time was, in all the circumstances of the case, excusable, he may permit the applicant to register out of time and the transaction in question shall he deemed never to have been avoided and shall take effect as against other transactions affecting the same land from such date as shall seem to the judge to be just.
So while the transaction may have been void for lack of registration it does not matter what may have happened between that failure to register and so deemed void for want or avoidance of registration and an eventual registration, so long as a Judge for reasons as outlined orders the registration out of time, that
registration is perfectly valid . This is what has transpired leading up to the registration out of time as there is an order 10 that effect forming part of exhibit Al dated 12 February 2004 in which the learned Judge Hon Mr. Justice Lynton B. O Nylander Ordered pursuant to the above provisions
"1 .That the deed of conveyance made between Ibrahim Parker as vendor of one part and Memunatu Tamba as Trustee and Edna Tamba as Beneficiary of the other part dated the 1st April 1991 be registered out of time .
2. That the said transaction shall take effect from the lst of April 1991"
The above order providing a cure to an otherwise hopeless predicament that the plaintiffs had previously found themselves.
This court holds that for reason aforesaid the land situate lying and being at Off Cemetery Road Congo Town, Freetown is property of the plaintiffs and do not form part of the estate of IBRAHIM PARKER (Deceased) intestate as claimed by the defendant .
14. But if the above is not enough to convince anybody that land situate lying and being at Off Cemetery Road Congo Town Freetown in the Western Area of the Republic of Sierra Leone does not form part of Estate of Ibrahim Parker Deceased intestate as claimed by the defendant, let me observe, that the single most important and conclusive evidence that it does not form part of defendant's father's estate is the Letters of Administration, exhibit El which is a Nil GRANT extracted on the 4th of June 1996 stating that the said Ibrahim Parker having died intestate bad NO REAL PROPERTY and NO PERSONALTY at the lime of his
death or which had since come to the hands possession and knowledge of the administrator, the defendant herein which could or should be administered . The letters of Administration was granted to the defendant herein and he must have known that his father did not own property situate lying and being at Off cemetery Road Congo Town as in the declaration of Probable value he made no declaration of REALTY and certainly No declaration of Land situate lying and being at Off Cemetery Road Congo Town, the subject of this action, which his father was seized of at the lime of his death. This is so because at the time of his father's death, he was no longer seized of property situate lying and being at Off" Cemetery Road Congo Town Freetown. In the Letters of Administration, exhibit EL in the declaration of probable value, which is one of the several affidavits for granting Letters of administration to any of the deceased Personal representatives it is pertinent to note that the defendant declared as follows:
"A True declaration of all and singular of the real and personal estate and effects which by law vests in the personal representative of Ibrahim Parker .................which have come to the knowledge of Sulaiman Parker the eldest son and next of kin of the deceased made and exhibited upon and by virtue of the corporal oath of the said intended administrator as follows
REALTY - NIL
PERSONLTY - NIL
Then it goes on further to declare:-
"This declaration further declares that no other real or personal estate or effects devolve to or vesting in the personal representative as aforesaid of the said deceased has at any time since his death come to the hands possession and knowledge of this declarant save as is hereinbefore set forth"
As I said in the case of CC591/06 NO 9 WILLIAM JONATHAN - WYSE AND SYLVANIAS JAMES NEWSTEAD (EXECUTORS OK THE WILL OF LEO THOMAS LANGLEY (DECEASED) AND CC554/2006 J. NO 41 DR W S MARCUS -JONES AND REV CANON. DR. J. E. M. TAYLOR PEARCE (EXECUTORS OF THE WILL OF KATHERINE LOIS ROBERTS (DECEASED) VS ROKEL COMMERCIAL BANK LTD UNREPORTED, a consolidated action, this last portion is a confirmation that the declarant is doubly sure that the assets of the deceased do not surpass that which he is declaring.
15. In that case. I had cause to say "this declaration, as a whole, to my mind serves more than one purpose. Firstly, it is the means by which estate duly is made payable. In Mellows On The Law Of Succession 2nd Ed page 272 "This DOCUMENT is prepared solely to determine whether and if so how much, estate duty is payable .It specifies each asset owned by the deceased, and shows its gross value, and any debts which are charged on it" Secondly. "It also gives details of general debts and liabilities , and funeral expenses .SEE MELLOWS ON THE LAW OF SUCCESSION 2ND EDITION PAGE 272. Thirdly, I would here add that without this affidavit there cannot be any grant of Letters of Administration as the grant is always with reference to the declaration made on the declaration of Probable value after the necessary estate duty has been paid. It is a precondition
for the Grant. Thus a Grant of Letters of Administration covers what has been declared in the declaration of probable value and nothing more. It is never the case that what is declared is above or less the Grant. They are both the same and the declaration of probable value a precondition to the Grant. The Grant itself takes effect as an Order of the Court and it confirms the assets of the deceased person. A passage from MELLOWS' ''THE LAW OF SUCCESSION" 2NID ED AT PAGE 235 is instructive on this;
"A grant of representation is an Order of the Court which confirms or confers authourify of the personal representatives to administer the estate of the deceased and which indicates the terms on which the estate is to be administered. In every case the grant issues under the Court Seal and so takes effect as a Court Order, even though in most cases grants are obtainable by quasi administrative process of lodging certain documents described later, at the offices of the principal registry of the Family division of the High court at Somerset House or at the offices of the district registries of the High court or at the probate sub registries"
16. Against the foregoing, how then can the defendant in view of such a gram, which lakes effect as an Order of Court, which confirms the assets Realty and Personally alike of the deceased Ibrahim Parker at the time of his death as Nil, say that the land situate lying and being at Off Cemetery Road Congo Town Freetown forms part of the Estate of Ibrahim Parker?. This obviously, against the preponderance of evidence, cannot be true, and I am constrained to uphold that Land situaie lying and being at Off Cemetery Road Congo Town does not form part of the estate of Ibrahim Parker. Where the Court Order or Grant stales really-
NIL. even if the administrator were to discover further assets /realty, he would be unable to recover same and cannot recover same unless and until there is a Supplemental Grant or Order obtained through the preparation of a Corrective/ Supplemental Affidavit/Grant. There is none such Corrective/Supplemental Affidavit/Supplemental Grant/Order before this court and this court could conclusively hold that property situate lying and being at Off Cemetery Road Congo Town docs not form part of the Estate of the Ibrahim Parker as claimed by Sulaiman Parker, the defendant and son of the Ibrahim Parker (deceased) Intestate. This court notes that from exhibit 11. Sulaiman Parker surprisingly sued as Administrator of the estate of Ibrahim Parker against Isalu Koroma for the said property and judgment was given in his favour; but 1 would want to observe that the fruits of such victory were courtesy of a Judgment in default and more so not against the plaintiffs herein but against some body else one Isatu Koroma who clearly at that time was not clothed as an attorney of the plaintiffs therefore lacking the locus standi to defend the action making that action separate and distinct from the one presently at hand.
17. Having made it abundantly clear that the property was at least sold to the plaintiffs: that a conveyance was prepared and signed by the defendant's lather conveying the said piece or parcel of land to the plaintiffs and that the same was registered out of time effective the 1st April 1991 and that the same land could not by reason of exhibit El by any stretch of imagination be part of the estate of Ibrahim Parker (deceased) Intestate it is but clear this land situate lying and being at Off Cemetery Road Congo Town Freetown is the property of the plaintiffs and a declaration that they are the fee simple owners of this piece or parcel of land would be most appropriate.
18. Having concluded that the land situate lying and being at Off Cemetery Road Congo Town does not form part of the estate of Ibrahim Parker (deceased) intestate and has always been the property of the plaintiffs, did the defendant
commit trespass and special damage by destroying properties built to the total
value of Le 1,999,000.00? The full text of the plaintiffs claim is contained in paragraphs 4-11 of the statement of claim. They claim that since the acquisition of the freehold to the said land, the plaintiffs and/or their agents have been in possession thereof enjoying the fruits there from; but that the defendant commenced trespassing on the said land owned by them by erecting and destroying structures thereon; destroying and damaging beacons and plants thereon and that he unlawfully entered and remained upon the said land and that on or about 2002 the defendant illegally destroyed a building erected on the said properly. In his defence, the defendant denied ever trespassing on the said land or damaging or destroying structures thereon. He contended he only entered the land after a court granting possession to him. After the judgment in his favour he was able to secure a writ of possession after complying with all legal requirements to securing such a Writ of Possession and the attorney of the now plaintiffs was removed from the premises by bailiffs. In consequence of which the plaintiffs or their agent did not suffer loss and damages from him as claimed and for which they had claimed special damages. The evidence in support of these claims by the plaintiffs is that PW1 said as follows:
"I built a structure on the land which was tenanted in 1993. I also built a room and parlour. My tenants were forcibly removed from the land and Sulaiman Parker installed his own tenants on my land. Nobody made adverse claims to the land in the life time of Ibrahim Parker. It was only the defendant who challenged my rights to the land which the defendant and her sister demolished. I spent almost 2,000,000.00 on the structure. I bought 5 dozen sticks, 4 bundles pan to build the structure and also paid carpenter to build the structure "
Under cross examination PW1 said it was after 1991 that 1 started erecting "Pan body" on the land.
19. Noting the principle that he who asserts must prove, the above testimony hardly proves the claims for damages for trespass and special damages . Under cross examination PW1 staled that she erected a "Pan body" on the land and not a concrete structure as was implied from the pleadings. The plaintiffs' attorney herself as PW 1 noted that there were no problems during the life time of Ibrahim Parker who died in 1995 such that any destruction would have been after his life time. For reasons as aforesaid and more, this court is convinced that the destruction if at all was after the court action from 1996 -2002 after the court has given Judgement in favour of the defendant, then Plaintiff and it would seem to me that those properties were damaged not by the defendant himself following court order issued after Judgment in the case CC546 96 PNO 11. exhibit H. where the defendant herein was the Plaintiff against one Isatu Koroma. The plaintiffs' witness PW1 also stated that she bought only 5 dozen slicks and 4 bundles of pan and paid carpenter. Apart from confirming that it was Pan body built, it does not support the particulars of special damages made which amounted to Le1.999,000.00. In short the plaintiff has pleaded special damages to the tune of Le 1.999,000.00 but there is no evidence to support the unit items that were bought and the prices of the unit items. The law is that for the award of special damage it must in the first instance be specially or particularly be pleaded see ILKIW VS SAMUELS 1963 1WLR 991; 1963 2ALL ER 879 where lord Diplock said Special damage in the sense of monetary loss which the plaintiff has sustained up to date of trial must be pleaded and particularized otherwise it cannot be recovered. The plaintiffs while particularizing what damage was suffered has not been able to prove same. Worse still even the damage resulting from trespass has not been proved. In such circumstances the out come is that the plaintiffs cannot recover under this relief prayed for despite it is clear that the land situate lying and being at Off Cemetery Road Congo Town has been declared to be the property of the plaintiffs
20. The defendant has counterclaimed for
1. For a Declaration that the deceased was the fee simple owner and the person entitled to possession of the said land and that on his death it formed part of his estate.
2. For a perpetual Injunction restraining the defendant whether by himself his servants or agents from entering or remaining on all that piece or parcel of and situate at Off Cemetery Road. Congo Town. Freetown aforesaid more particularly delineated in survey plan numbered L.S 436/73 dated the 30th March 1973.
3. For any further order this Honourable Court may deem fit and just.
21. Turning to the issue of the defendant's counterclaim this court notes that the defendant has counterclaimed as Administrator of the Estate of Ibrahim Parker (Deceased) intestate for a declaration that the deceased was the fee simple owner and the person entitled to possession of the said land and that on his death it formed pan of his estate. I note too that on the 4th of June 1996 a grant of letters of Administration was granted by the High Court of Sierra Leone to Sulaiman Parker, the defendant, eldest Son and next of Kin of Ibrahim Parker (deceased ) Intestate . What this Letters of Administration as evinced by exhibit 1:1 does for the defendant is vest him with authourity to sue or defend the action . He has Locus Standi and consequently is sufficiently equipped to bring a counter claim or defend the action. But this notwithstanding, he is destitute of the ability or capacity to maintain the action as he only secured a NIL Grant. Thus for reasons as outlined dismissing his defence that the property forms part of his father's estate, it ab initio becomes impossible for the defendant to succeed on this counterclaim. The counter claim must therefore fail. I take support for this from the following cases TARN AND ANOTHER VS COMMERCIAL BANKING CO OK SYDNEY (1884) 12 QBD 294. the facts of which were a testatrix .
having indorsed and delivered a bill of exchange to her hankers for collection at maturity, died before the bill became due , and her executors , before probale of the will was grunted ,sued the bankers tor a return of the bill or its value. The court gave judgment for the defendant holding that the bank was right in withholding payment until probate was taken. These principle were applied in the case of CC591/06 NO 9 WILLIAM JONATHAN - WYSE AND SYLVANIAS JAMES NEWSTEAD (EXECUTORS OK THE WILL OF LEO THOMAS LANGLEY (DECEASED) AND CC554/2006 J. NO 41 DR WS MARCUS -JONES AND REV CANON. DR. J. E. M. TAYLOR PEARCE (EXECUTORS OF THE WILL OF KATHERINE LOIS ROBERTS (DECEASED)VS ROKEL COMMERCIAL BANK LTD UNREPORTED, where for the same reasons it was held an action is not maintainable for the recovery or delivery of assets not declared by the executors in their declaration of probable value in the respective actions"
22. Finally, from the totality of evidence presented, this court is under the firm impression that this is a case where the defendant realizing that his father had sold to the plaintiffs decided to adopt unwholesome means to try and retrieve it. The deal was done and unfortunately for him he prepared a Nil Grant and the judge thought it fit to register the property out of time effective 1st April 1991. There is nothing he can do about it except accept it as done. His testimony as contained in the records comprises inconsistencies and lies. I therefore have no compunction in giving judgment for and on behalf of the plaintiffs and hereby order as follows:
a. That the plaintiffs are the fee simple owners of all that piece or parcel of land and hereditaments situate at Off Cemetery Road. Congo Town . Freetown as set out in the conveyance dated 1st April 1991 and the Survey Plan L/S No 962/91 dated 6th May 1991 forming part and parcel of those presents.
b. Recovery of immediate Possession of the whole property including any part of the said properly occupied by the defendant .
c. A perpetual injunction restraining the defendant whether by himself, his servants or agents howsoever otherwise from entering, using ,remaining selling or disposing of any interest in the said piece or parcel of land.
d) Costs to be taxed.
Hon Mr. Desmond Bubatundc Edwards J