IN THE SUPREME COURT OF SIERRA LEONE

        S,C. CIV,APP 7/2004

BETWEEN: SORIE TARAWALLI            -      APPELLANT

                       AND

                    SORIE KOROMA                  -     RESPONDENT

                    (As Administrator of the Estate of Sorie Mansaray)

 

     CORAM:
 

HON. JUSTICE DR. ADE RENNER-THOMAS –  CHIEF JUSTICE

HON. MR. JUSTICE E.C. THOMPSON DAVIS –  J. S. C.

HON. MRS. JUSTICE V.A.D. WRIGHT              -   J. S. C.

HON. MR. JUSTICE MR. M.E.T. THOMPSON –     J. S. C.

HON. MS. JUSTICES. KOROMA                       -      J. A.

 

AMADU KOROMA ESQ. FOR THE APPELLANT

MRS. J. KING FOR THE RESPONDENT
 

 

JUDGMENT DELIVERED THE 16TH  DAY OF MARCH, 2007.

RENNER THOMAS, C.J. This is an appeal against the judgment of the Court

of Appeal  dated  the 21st   day of  April  2004  in favour of Sorie Mansaray, the Plaintiff  in the  High Court.  The said  Plaintiff  died  before  the determination of this Appeal and was ordered to be substituted by the Respondent herein. Thus all references  to  the  Respondent  herein  include,  where  the context so

permits one to  the Plaintiff  in  the HIGH COURT. By the said Judgment the

Court of Appeal set aside that of the trial judge  in  favour of  the  Defendant

 (hereinafter   referred   to   as   "the   Appellant")   dismissing    the   claim   of the

 Respondent and made the following orders:

 

           “1 .A  declaration  that  the  title  to all  that  piece  or parcel  of land and hereditaments situate  lying  and  being  at  43 Will   Street,  Freetown  in  the

Western  Area of Sierra Leone vests in the Plaintiff

2. Damages for trespassing onto the plaintiff's land at 43 Will Street, Freetown in the sum of Le69,000 00 be paid to the plaintiff by the defendant.

 

1. An injunction restraining the defendant, by himself, his servants, agents, or howsoever otherwise from continuing their trespass onto the said land by remaining thereon or in any way dealing with the said land.

 

1. Costs of the p1oceedings in the court below and this appeal be costs to the plaintiff/appellant to be taxed if not agreed."

 

The Respondent's claim was for the following reliefs contained on the statement of claim:-

(1) A declaration of title of all that piece of parcel of land and hereditaments situate lying and being  at 43  Will  Street, Freetown in the Western Area of the Republic of Sierra Leone.

 

1. Damages for wrongfully entering the plaintiffs land at 43 Will Street, Freetown, destroying property beacons and his fruit trees.

 

1. An injunction restraining the said defendant, by himself, his servants., agents or howsoever otherwise from continuing their trespass upon the said land, by remaining thereon or in any way dealing with the said property.

 

For reasons which will become more apparent later in this judgment it is

• important to set out in extenso the particulars of the Respondent's claim as indorsed in the Writ of Summons and the defence filed by  the  Appellant herein in answer to the Respondent's claim.

 

The particulars of claim are as follows:-

 

. .. The Plaintiff is and was at all material times the owner and entitled to possession of a piece or parcel of land and hereditaments situate  lying  and 'being at 43 Will Street-Freetown in the Western Area of the Republic of

• Sierra Leone a description whereof is as follows. -

"Starting from beacon marked FC591/80 on an bearing of 119°24' for a distance of 92.96 feet to beacon marked FC592/80 on a bearing of22l°0J 'for a distance of 147.0feet lo beacon marked FC593/80 on a bearing of 312° 15' for a distance of 49.0 feet to-beacon marked FC942/79 on a bearing of 22°43' for a distance of J 34.0 feet to beacon marked FC591/80 which is the point of commencement thus enclosing an area of v.1247 acre or thereabout as is delineated on the Survey Plan numbered L.S. 694/80 dated 30th  April 1980 ".

 

1.  The Plaintiff became seised of this said  piece of parcel of land  by means  of a S1a1utory Declaration dated 17'h December 1982 by the Plaintiff supported by Sorie Turay and Santigie Sesay registered  as  No.222  of  page  30 in volume 22 of the Books of Statutory  Declaration  kept  in the  office  of the Administrator and Registrar General Freetown.

 

1.  The predecessor in title of the plaintiff being his  father  Langima Mansaray (Deceased) had been in full, free  and  undisturbed  possession  of the said land for a considerable period of time preceding the date of the said Statutory Declaration as is evidenced therein

 

1. On or about May 1992 the defendant and his agents wrongfully  and without any proper or lawful right or title  entered  the  plaintiff's  land removed plaintiff's beacon and destroyed his fruit 1rees. Thereafter the defendant set himself up as owner of the said property to the detriment of the plaintiff and his heirs.

 

1. By reasons of the matters aforesaid the plaintiff has been subjected 10 humiliation and has suffered great mental anguish and  stress  and  he  has been deprived of the use and enjoyment of part of his said land and has suffered loss and damage.

 

                                      PARTICULARS OF SPECIAL DAMAGE

1. Two beacons destroyed at 2,500.00 each Le5000.00       = Le5000.00
2. Three pear trees at Le6,000.00 each                                    = Le18,000
3. Four Guinea Mango trees at LeJ0,000.00 each                  = Le40,000.00
4.  Banana Trees destroyed                                                        = Le6,000.00

                                                                                                Le69,000.00

 

1. Despite repeated requests  and  demands  by  the  plaintiff  and  his  Solicitor to the Defendant to vacate  the  plaintiffs  land  he  has  s1i!l  failed refused or neglected to do  so and  threatens  and  intends  unless  restrained  by an injunction from this  Honourable  Court  to  continue  in  occupation  of  the said land and to trespass thereon. "

 

The defence filed on behalf of the Appellant stated as follows:-.

        "The  Defendant   cannot   admit  or  deny  paragraphs   1,2,  and   3 of  the                       

particulars of claim but will aver that the Will Street to which the  same relate is not the same place or Street as "Off Morgan Street".

 

1. The Defendant as to paragraph 4 of the particulars of claim will aver that he is the owner of a piece of parcel of land, situate, lying and being OFF MORGAN STREET, Freetown, by virtue of a conveyance of sale dated 17th January, 1989, registered as No.71, at Page 99 in Volume 422 in the Book of Conveyances kept in the Office of the Registrar-General in Freetown, bounded
2. The Defendant will further aver as to paragraph 4 of the particulars of claim that neither the Defendant not his agents did the several acts complained of on the Plaintiff's land.
3. The Defendant as to paragraph 5 of the particulars of claim will aver that the Defendant by his Solicitor fixed appointments on at least 2 occasions with the Plaintiff through his Solicitor to visit both the Plaintiff's land and the Defendant's land to ascertain any encroachment if any with the assistance of Surveyor but that the plaintiff failed to turn

                                           up as arranged. Further the Defendant  will aver that if the                 plaintiff  suffered  as  alleged in paragraph 5 of the particulars of claim, he the  Defendant is not responsible or in anyway liable for same.

1. As to paragraph 6 of the particulars of claim. the Defendant repeats paragraph 4 of this defence.
2. Save as is hereinbefore specifically admitted, 1he Defendant denies each and every allegations of fact as if the same were set forth and denied seriatim ".

 

A reply was filed on behalf of the Respondent in the following terms:-

"(1) Save that the Plaintiff admits that "Will Street" is not the same as "Off Morgan Street", the Plaintiff denies paragraphs one (1) and two (2) of the Defence herein and repeats that he is the owner of the land and premises situate. lying and being at Will   Street   and   numbered 43 Will  Street  for  Municipal purposes ".

 
< >Paragraph three (3) and four (4) of the said Defence is categorically denied, the contents thereof being false, and the Plaintiff avers that locus was not visited by the Solicitors aforesaid because the Defendant failed to turn up on the appointed day as he had taken a Surveyor to the said land on the previous day Save as is hereinbefore specifically admitted, the Plaintiff joins issue with the Defendant on his defence".Based on the pleadings as set out above the Appellant, in my view, was not resisting the claim of the Respondent for a declaration that  he was the owner  of the piece or parcel of land described in paragraph (1) of the particulars of claim.

 

 

I must hasten to state however that notwithstanding the fact that the Appellant did not resist the Respondent's claim for such a declaration the Respondent must satisfy the Court that he is entitled to such a declaration before it could be properly made.

 

In giving judgment in favour of the Appellant the learned trial judge found as a fact that the Respondent had failed to establish with any degree of certainty that the land the subject-matter of the Statutory Declaration relied on by the Respondent as proof of his title was indeed the same land that was allegedly being trespassed on by the Appellant. He went to state that this view was buttressed by the evidence of PW3, DW2, and DW3 to the effect that the two pieces of land were separate and distinct.

 

The learned trial judge concluded as follows:-

 

"It seems clear to me from the evidence of the aforementioned witnesses that two completely different parcels of land are involved. I am inclined to believe the evidence of these three witnesses. They impressed me as witnesses of truth. Moreover, DW3 is a Staff Surveyor attached to the Ministry of Lands and Housing. I would regard him as an independent witness. I  find as a fact that the defendant is and was at all  material  rimes  of this act the fee simple owner [sic} and in possession of the entire  land  he occupies". [emphasis mine}.

 

When the matter came before the Court of Appeal that Court did not expressly upset the findings of the learned trial judge referred to above as to the location of the Respondent's land relative to that of the Appellant.

 

Indeed, Muria J.A. (as he then was) in delivering  the  reasons  for  the Judgment of the Court of Appeal on the 21st day of April 2004 had  this  to say:-

 

"The plaintiff claims title to his land, and which is not disputed by the defendant. in his defence the defendant neither admitted nor denied the plaintiff's claim. He simply relies on his claim of title 10 his land. The plaintiff's land is at 43 Will Street while the defendant's land is off Morgan Street. They are two separate Lands, and are about 150 feet apart".

 

He continued:-

"As to plaintiff's claim for declaration of title, the Court finds that the trial Judge erred in failing to make the declaration as claimed. The evidence puts it abundantly clear that the plaintiff's title to his land is incontrovertible. Exhibit A, the certified copy of which is Exhibit B, (Statutory Declaration) has never been challenged at all".

 

With the greatest respect to the learned Justice of Appeal it is not sufficient for a plaintiffs claim for a declaration of title to a piece of land to be supported by uncontroverted evidence simpliciter to entitle that plaintiff Lo such a declaration.

 

In a long line of cases reviewed by this Court in l'v1acauley v. Stafford and  Ors (S.C Civ App No. l/73, judgment delivered the  13/7/76,  unreported) and  in the leading authority of Seymour Wilson v.  Musa  Abbess  (Sup  Ct  Civ App 5179, judgment delivered 17/6/81, unreported) it  has  been  established that in action for a declaration of title the plaintiff must  succeed  on  the strength of his title and not on the weakness of the defendant's title.

 

In other words, as stated by Webber C.J. in delivering the Judgment  of the West African Court of Appeal in Kodolinye v. Odu ([ 1935] 5 WACA  336 at p. 337-338)

 

"The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant's case. If this onus is not discharged, the

weakness of the defendant's case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration".

 

This passage was cited with approval by Livesey Luke C.J. in the Seymour Wilson case (supra).

 

What then  must a plaintiff  who claims or a defendant  who counterclaims  for a declaration of title prove to be entitled to same?

 

In this regard, a distinction should  be  made  between  a documentary  or  paper title and a possessory  title.  In  the  Western  Area  of  Sierra  Leone,  which  used to  be  a  Crown  Colony  before  combining  with  the  Protectorate  of  Sierra Leone to become the  unitary  State  of  Sierra  Leone  at  independence  in  1961, in theory at least, the absolute or paramount  title  to  all  land  was  originally vested in the Crown (in the  same  way  as  in  England,  the· largest  estate  a person deriving title from the Crown can hold being the fee simple). After independence such absolute title was deemed  vested  in  the  State  as  the successor in title  of  the  Crown.  According  to  the  State  (formerly  Crown) Lands Act, No. 19 of 1960, all  grants  of  such  title  made  by  the  Crown  and later the State were said to be made in fee simple (see section  2  of  the  State Lands Act, No. 19 of  1960).  Thus,  a  declaration  of  title  in  favour  of  a  plaintiff without more is a shorthand for  saying  that  plaintiff  is  seised  of  the said land in fee simple.

 

For a person relying on a paper title he must be able to trace his tide to some grant by the Crown or the State. This is how Livesey Luke puts it in the

Seymour Wilson case (supra).

 

"But in a case for a declaration of title the plaintiff  must  succeed  by the strength of his title. fie must prove a valid title to the land. So if he claims a fee simple title he must prove if  to entitle him to a declaration of title. The mere production in  evidence  of  a  conveyance  in  fee simple  is   not   proof  of   a  fee  simple   title.    The document   may be

worthless. As a general rule the plaintiff must go fi1rther and prove that his predecessor  in  title had tide to pass 10  him. And of course if there is evidence that the title to the same fund vest in some  person  other than the vendor or the plaintiff, the plaintiff would have failed to discharge the burden upon him. "

 

In the instant case, there is no question of making such an enqui1y as all that the plaintiff relies on to establish his title is a Statutory Declaration, Exhibit "A". It is trite law that a Statutory Declaration is not a document of title. At best is might said to be an attempt to record evidence of how a person came to claim possessory title to a piece of land. It does not by itself establish the fact of a possessory title to entitle a person basing his claim thereon to a declaration of title. (See Bright v. Roberts (I 964-66) ALR (S.L) 156).

 

A plaintiff who relies on the fact of possession by himself  or his predecessor  in title must prove more than just mere possession. It is true that proof that a claimant was in possession before the defendant is  prima  facie  evidence  of his having a better title than the defendant and that  such  prior  possession raises a presumption that the claimant is  seised  in  fee.  As it  is some  times put colloquially "possession is nine-tenths of the law". However, if I may continue in that vein, to be entitled  to  a declaration  of  title  he must  prove that he has a better title not only as against the defendant but that there is no other person  having a  better title than himself.                                                                           ·

 

How then can he prove this? He can do this by showing that  the title of the  true owner has been extinguished in his favour by the combined effect of adverse possession and the limitation statute. The nature of the root of possessory title is thus explained by Megarry and Wade:

 

"Limitation is thus not per se a mode of transferring prope1ty  from one person to another. But it may operate as such when  combined  with the principle that adverse possession gives a title. ff S (squatter) wrongfully  takes   possession  of land  belonging to O (owner), O immediately  acquires  a right of action  against S for recovery of the land. If O takes no action in twelve years (normally) his right of action becomes barred and his 1itle extinguished by limitation. Scan no longer he disturbed by 0, and as against the rest of the world Sis protected by the fact of his possession. Possession by itself gives a good title against all the world except someone having a better legal right to possession".

(The Law of Real Property 4th ed page 1004).

 

 

I  In the instant case, apart from the Statutory Declaration admitted in evidence the Respondent did not adduce any independent evidence to show that he and those through whom he claims have extinguished the title of the true owner or that they have possessed the land for a time sufficient to exclude any reasonable probability of a superior adverse claim. In my opinion, tor this reason alone, the Respondent cannot be said to be entitled to the declaration of title as claimed in the Writ of summons and I so hold. As a result, I would set aside the first order made by the Court of Appeal and to that extent the present appeal succeeds.

I   I now turn to the next claim which is for damages for trespass. It would appear that the learned trial judge did not direct his mind to the fact  that  though damages for trespass are frequently claimed  together  with  a declaration of title to the land allegedly trespassed on the two claims must be considered as separate and distinct issues. For one thing, as has  been established earlier in this judgment, a claim  for  a  declaration  of  title  demands a much higher degree of proof (see Dunstant E. John & Reuben L. Macauley vs. William Stafford & ors, (supra.)

In a case· for trespass all the plaintiff has to prove is a better right to possession than the defendant. One way to do this is to show that he has a better title to the land. According to Livesey Luke in Seymour Wilson case (supra):

 

"But better title in the context of an action for trespass is not necessarily "valid" title. In a case for trespass the court is concerned only with the relative strengths of the titles or possession proved by the rival claimants. The party who proves a better title or a better right to possession succeeds, even though there may be another person, not a party, who has a better title than he".

 

Thus, in the instant case, though the evidence adduced by. the Respondent may not be sufficient to entitle him to a declaration of title there was some evidence before the learned trial judge that he was in possession of a piece or parcel of land that he alleges that the Appellant was trespassing on. The Plaintiff in the Court below himself gave evidence that as far back as 1945 he had been in possession of the land in question. Apart from using the land for the purpose of growing fruit trees he also built  a structure made of zinc and started to pay City Rates for the same. He then had this to say in support this claim:

 

"The defendant first challenged my title in 1985. He started working in my land. I protested. Both of us reported at the Criminal Investigation Department (C.l.D.). At the C.l.D. they looked at our respective documents and conclude that mine is numbered 43 Will Street and the defendant property is situate at Morgan Street. Later

C.I.D. personnel visited the same ..........

 

We made indications to the C.I.D. personnel. When the defendant was asked about his claim to the land he said that some one sold to him. Therefore the defendant ceased to go to the land. Subsequently the defendant re-entered the said land. As a result I went  to  one  Mr. Barber a Law Officer. An invitation was then  sent  to  the  defendant. Both of us appeared before the said Mr.  Barber.  It was revealed that my land was registered. He gave both of us his advice. Thereafter the defendant ceased going to the land. After a period of three years he re-entered the said land".

 

This  evidence   was   never   challenged  or  controverted                                                            in any way. The defendant never gave evidence at the  trial.  It  is true that  acts of  possession on the part of the Appellant in respect of the land that the Respondent also claims could be inferred from the fact that he started to build a house thereon some time in 1985. Apparently, subsequent to 1985, a survey plan dated 6th December 1988 was produced in his name and a Conveyance, Exhibit "B" executed in his favour in January 1988.

 

Based on the above evidence alone one might be tempted to conclude that

the Respondent had a prior and therefore better right to possession.

 

But  unfortunately,  that  was  not  all  the  evidence   led   at  the   trial. Further

evidence  led  by  both  sides  tended  to  raise  some  doubt  as  to  the exact location of the Appellant's and the Respondent's  land respectively.

  Before going further to deal with this issue of the identity of the land the subject-matter of the alleged trespass it must be emphasized that it was agreed all round that both parties were claiming possession to some land or the other in the area of Will Street and Morgan Street respectively.

 

In answer to a question put to him under cross-examination the Plaintiff,

 P.W.2, stated thus:

 

"It is true that Will Street is not Morgan Street. The Defendant lives at Morg Street.  it  is  true  that  the  Defendant  has   land   at  Morgan Street .

 

The licensed Surveyor, F.D. During, who gave evidence on behalf of the Pia1ntiff as P. WJ prepared an encroachment plan which he tendered as Exhibit ''H." Referring to Exhibit "H" he had this to say:

 

"On exhibit "ff" 1 can see the properties of the Plaintiff and the Defendant. The property of the Plaintiff is situate off Will Street and that of the Defendant is situate off Morgan Street".

 

Another licensed Surveyor, J.M. Samura, testified on behalf  of  the Defendant as D.W.2. He tendered what  he  described  as  an  encroachment plan as Exhibit "M". I fail to see  how  this  witness  could  describe  Exhibit ".M" as an encroachment plan when it clearly depicts the two properties in question at a distance from each other. He confirmed this in his oral testimony as follows:

 

"The property of the Defendant is situated off Morgan Street. Th.! property of the Plaintiff is situated off Will Street. Will Street is not the same as Morgan Street. "

 

Under cross-examination D.W.2 went on further to testify as follows:

"It is true that the Plaintiff's land is not where it should be. [emphasis mine} it is true that from the documents  shown  to  me  the two lands  are apart".

 

third surveyor  gave  evidence  at the trial. This  witness,  R.A. Sandy,  was  a licensed  Surveyor  but  "a  staff  Surveyor  who  claimed  that  he  was  a ii Servant attached to the Ministry of Lands and Housing". He gave evidence that the plans in  Exhibit  "B"  and Exhibit ''D"  depicting  the  lands claimed  by  the  Respondent  and  Appellant  respectively  were  charted  in Cadastral Sheet and that they did not overlap.

 

However, under cross-examination by Counsel for the  Plaintiff  he stated referring to Exhibit "'H" the encroachment plan tendered by P. W.3;

 

"it appears correct to me"

 

He gave this answer despite the fact that like most of the other witnesses  he had maintained that Morgan Street and Will Street are  two different  Streets and are about one hundred feet apart.

In my opinion, the apparent doubt about the exact location of the n:spective properties claimed by the Plaintiff and the Defendant, which seemingly was the basis for the trial judge's dismissal of the Plaintiffs claim, could have been cleared if P.W.3, D.W.2 and D.W.3, the three surveyors who testified at the trial, had accompanied the Court on the visit to the locus in quo.

 

Unfortunately, the only   Surveyor    present   at the  locus  and who took

 measurements of the land in dispute was a certain Mr. Coker who never testified at the trial before or after the visit to the locus.

 In the light of the above analysis of the available evidence what conclusion can this Court, as a Court of rehearing, reach as to the location and identity of the subject-matter of the trespass by the Appellant as alleged by the Respondent?

 

In this regard, it is my considered opinion that I can safely rely on the oral and documentary evidence adduced by P.W.3, Mr. During, and the short answer of D.W.3 relating to the correctness of Exhibit "H" given under cross-examination. Mr. During visited the land in dispute armed with both Exhibit "C" and Exhibit "D" copies of the Statutory Declaration and Conveyance of the Plaintiff and Defendant respectively. Armed with these documents he was able to produce Exhibit "H," an encroachment plan clearly showing the land claimed by the Defendant delineated on Survey Plan No. LS 2658/88 virtually overlapping that claimed by the Plaintiff delineated on Survey Plan No. LS 694/80. I say virtually overlapping because the extent of the encroachment is 0.0798 acre out of the total area of 0.0846 acre claimed by the Defendant in Exhibit "D". This is in contrast with a total of0.2247 acre claimed by the Plaintiff in Exhibit "B".

 

P.W.3 also testified that the said properties are described as being off Will Street and off Morgan Street respectively as opposed to actually being un Will Street and Morgan Street respectively.

 

 As stated earlier, neither the oral nor the documentary evidence adduced by

P.W.3   relating to the alleged encroachment by the Appellant on the

Respondent's land to the extent of0.0798 acre as shown on Exhibit "H" was challenged   or controverted  in  any  significant way   by   the  Defendant's

witnesses  or  his  Counsel.  Indeed, in the excerpt  from  his  evidence  quoted above D. W.3 acknowledged that Exhibit "H" the  encroachment  plan produced by P.W.3 appeared "correct" to him".

Indeed,  if  the  learned   trial  judge  had  properly  evaluated   the  evidence of

P.W.3 and D.W.3 the only conclusion he could have arrived at was that there was an encroachment, if not an overlapping, in  respect  of the  land  claimed  by the Appellant vis-a-vis that claimed by the Respondent. As a result I hold that the Appellant  is indeed  liable to the  Respondent  for trespass  as  claimed in the Writ of Summons.

 

The Court of Appeal having found the Appellant so liable went on to order

damages in the sum of Le69.000/00 without more. This award has not been challenged in any way. Suffice it  to say I see no  reason  for  interfering  with it. I would therefore uphold the second order made  by  the Court  of Appeal and to that extent the present appeal fails.

 

I shall now  deal  with  the  claim  for  an  injunction.  Before  I  do  so,  I must observe that  the  Plaintiff  did  not,  as  he  could  well  have  done,  claim   for recovery of  possession   of   the   land   encroached    upon  by  the  Defendant. instead  the   Plaintiff  sought   to  obtain   as  it  were   the  same  objective by seeking a perpetual injunction in the following terms:

"restraining the said Defendant by himself, his servants, agents or howsoever otherwise from continuing their trespass upon the said land, by remaining thereon or in any way dealing with the said property. ".

 

say this because I read in the Case for the Appellant that the Appellant had evicted  from  the  property  in dispute. This  was not made an issue in this

. But  for  what  it  is worth  I can  only say  in  passing  that  none  of the

made by the Court without more could be the basis of such eviction.

It trite law that an injunction, unlike a claim for recovery of possession

• is a remedy at law, is an equitable remedy and therefore could be and rejected at the discretion of the court.

 

 As to the principles governing the grant or refusal of an injunction in a case such as the  instant  one  the  following  passage  to  be  found  in  Clerk  and  II on Ton is quite instructive:

·'The grant of an injunction, being an equitable remedy is always discretionary  and  this  discretion   belongs "to  the  trial  Judge:  an

appellate  court  may  not  substitute  its own views  on  the merits of the

case bur may interfere only ''if the Judge misdirected himself in law, took into account irrelevant matters or failed to take into account relevant matters". The principles governing the exercise of the discretion differ according to the nature of the injunction sought. Where an injunction is sought to restrain the continuation of a wrongful   act  which   interferes  with  the  claimant's   rights   and is

prohibiting in  substance  as  well  as  in  form,  then  in the  absence of

special circumstances, the claimant is entitled to his injunction "as of course". The most that a defendant can hope/or is a suspension of the operation of the injunction to enable him to rake steps to bring the nuisance {as it usually is) roan end". (18th  ed; page 1639)

 

In this case, though the injunction was granted by the Court of Appeal  it  was in effect exercising the powers vested in the  trial  judge.  Applying  the principle stated in the passage just quoted from Clerk and Lindsell I see no grounds for interfering with the exercise of the said discretion by that Court. The injunction sought was a prohibitory one to restrain the continuation of a wrongful act, trespass by the Appellant on the Respondent's land. Having analysed the totality of the evidence I hold that there is evidence that unless restrained therefrom the Appellant by himself his agents or howsoever wise intend to continue the said trespass upon the  said  land  by  remaining thereon. In the absence of any special circumstances in the instant case I hold that the injunction was properly granted as of course.

 

Having said that in order to aid the Appellant/Defendant comply which the terms of the injunction the same should be worded more precisely and unambiguously. The finding relating to the trespass by the Defendant relates only to 0.0798 acre of the Plaintiffs land not the whole land which is imprecisely  described  simply  as  being at 43 Will  Street  Freetown.  A more precise  description of  the land   to  which  the   injunction relates   is  as  is contained in Exhibit "H" the encroachment plan produced and tendered by P.W.3. I shall vary the third order made by the Court of Appeal accordingly.

 

ln the circumstances the appeal partly succeeds and I make the following

orders:

(1) The first order of the Court of Appeal granting a declaration of title in favour of the Respondent herein  is  hereby  set aside. 

(2) The Order of the Court of Appeal awarding damages for trespass to the Respondent is hereby upheld.

 

(3) In lieu of the injunction granted by the Court of Appeal an injunction is hereby decreed restraining the Defendant, the Appellant herein, by himself, his servants, agents or howsoever otherwise from continuing to trespass on that portion of the Respondent's land measuring 0.0798 acre and delineated in the encroachment plan tendered herein and marked Exhibit "H".

---

(4)  Each party to bear its own costs of the proceedings in this Court and in the Courts below.

 ………………………………………………………….

Hon. Justice Dr. A. Renner-Thomas -Chief Justice

...........:....:...,.........

Hon.  Mr. Justice E.C. Thompson Davis -                                                     J.S.C.

···················································,············

Hon. Mrs. Justice V.A.D. Wright                                                     J.S.C.

.......... ;-..:-:-:-.........................

Hon. Mr. Justice M.E.T. Thompson -                                                  J.S.C.

Hon. Ms. Justice S. Koroma                                                      J.A.