Jenneh v Ngobeh ([node:field-casenumber])  SLHC 1 (16 January 2004);
HAJA ADIATU JENNEH - PLAINTIFF AND
MRS FATMATA NGOBEH - DEFENDANT
For this action, the Plaintiff Haja Adiatu Janneh's claim against the Defendant Fatmata Ngobeh is for firstly, recovery of possession of portion of land piece or parcel of land described in her conveyance dated 7th clay of January 1997, secondly for an faction restraining the Defendant, her servants or agents and/or agent or servant from further entering into and/or trespassing upon her land, thirdly damages for trespass and fourthly costs.
In support of her claim 5,(five) witnesses testified and tendered several exhibits. The first was Andrew Marke attached to the Probate Registry of the High Court, who tendered Letters of Administration under seal dated 7th May 1986, granted to one Issa Fullah Koroma, the eldest lawful son and next-of-kin of Amidu Koroma. The original was tendered and marked exhibit "A" and a certified true copy as exhibit "B" attached to the exhibit is the declaration estate which declares a "Nil" grant in respect of realty and is also stated in the letter itself.
On the 29th May 1996, another Letter of Administration Under Seal was granted to one Saidu Yayah Koroma, who swore that he is the eldest son and next-of-kin of the deceased. It was tendered as exhibit "C" and
the certified true copy as exhibit "D". In it realty sworn Le 500,000.00 and personality as Nil. But in the Declaration of Probate value sworn by the Administrator, Saidu Yayah Koroma, personal property declared and described as land at Allen Town Diversion, Calaba Town in the Western Area of Sierra Leone valued at Le500,000.00.00.
The second witness is Ekundayo Pratt, A Clerk attached to the Administrator & Registrar General's Office, whose duties include the custody of registrable instrument. He produced and tendered a conveyance dated 13th August, 1986 made between Issa Fullah Koroma and Honourable J.J. Ngobeh. It was tendered as exhibit "E" and a certified true copy as exhibit "F". The witness verifying Deed dated 30th September 1996 between Saidu Yayah Koroma and Saidu YayahKoroma in respect of all that piece or parcel of land situate lying and being at Allen Town Diversion and Calaba Town, Freetown in the Western Area of Sierra Leone and registered as No. 1313/88868/96 at page 11 in volume 501 in the book of conveyances. It is marked exhibit "G" and the certified true copy exhibit "H". He then produced and tendered a conveyance between Saidu Yayah Koroma and Haja Adiatu Janneh bearing date the 7th day of January 1997 and registered as number 44 at page 70 in volume 504 in the Book of Conveyances. The original and certified true copy tendered and marked "J & K" respectively.
The Plaintiff Haja Adiatu Janneh was the third witness, who said she knows a piece or parcel of land situated at Allen Town Diversion
Calaba Town and she is the owner and bought it from One Saidu Yayah Koroma, she bought it on the advice of her Solicitor Dr Joko Smart who centered with A.F. Serry-Kamal the Solicitor of the Vendor. She identified exhibit "C" as the Conveyance prepared by her Solicitor. She said she has not sold the land since she bought it in 1997 and it was in the care of a Caretaker by the name of Pa Musa who is now dead. She visits the land regularly and she was the owner of the the land she bought. She knows one Said Yayah Koroma and Issa Fullah Koroma. She does not know one Jusu Jaka Ngobeh. She knows one Pa Musa Jalloh in connection with this matter. She recalled she received a letter from one Miss Jusu-Sheriff and she showed it to her Lawyer Dr. Joko Smart.
She confirmed that Saidu Yayah Koroma sold the piece or parcel of land to her i.e. exhibit "K". She denied she bought it with knowledge that there are people on the land and there were 14 lots when she bought it. The present action was because Defendant built on her land. She does not know that two people are in occupation of her land. Her land is situated at Calaba Town and it was her Solicitor who told her (she is illiterate) in both English & Arabic. One Sowe is her neighbour and she could not recall any conversation with the Defendant in which she told her that Issa Fullah Koroma and Saidu Yayah Koroma were dealing fraudulently with her land. She is not aware of any case against the Defendant in the Magistrate Court. She recalled some time ago, she made a statement at Central Investigation Department, in respect of the sum of L10,000,000.00 (Ten Million Leones). She denied that the land in dispute belongs to Mr. M. Sao. She remembers that Messrs Swarray
and Anthony surveyed her land and denies that the former told her that her land is owned by someone else. She recalled in 1998 she visited the land and she found a house - two rooms on the land.
She told the occupants that she will bring a bulldozer to remove the house. She went with the Defendant to the Police and made a report on the encroachment. The Police asked them to produce their documents which she did but the Defendant failed to do so. She is not aware that the Defendant and her husband bought the land as far back as 1986.
She recalled that after the death of the said Caretaker, she received a letter from Mrs. Fatmata Ngobeh the Defendant and also one from the Lawyer Gabriel Bion. The witness caused her Lawyer Dr. Joko Smart to reply to the letter and it was marked exhibit "L". It would appear that there is a mix-up as the letter did not emanate from Mr. Bion, but from the firm of Wright & Jusu-Sheriff, Dr. Joko Smart explained how the Plaintiff came to buy the property and attempted to shed light on the two Letter of Administration.
Haja Janneh said she bought the property on the 7th January 1997. She has been there for (4) Four years and she is seeking the assistance of the Court to recover possession of her land. She is also asking the Court to concede Letters of Administration dated 7th May 1986 - exhibit "B", Deed of conveyance between Issa Fullah Kamara and the Defendant Fatmata Ngobeh - Exhibit "F", and to grant the prepared injunction sought in the relief. She complained that the Defendant has built all sorts of structures on her land and installed containers, which are used
as rooms, parlours, shops and garages. Consequently, she has been denied access to the land and has not been able to develop it and carry on her business. She averred that whenever she attempts to visit her land, the Defendant and the squatters on this land insults and convective on her. The Defendant has erected cement pillars on her land and dug holes to make blocks. She is asking the court to award her costs occasioned in this action.
Under Cross Examination, the witness states that she knows one Amadu Koroma and he is speaking the truth. She repeated that she does not know that the land is the property of Mr. & Mrs. Ngobeh and denied that she has brought this action because Mr. Ngobeh has denied.
Saidu Yayah Koroma was the fourth witness and says he recognizes the Plaintiff. He does so because she bought a piece or parcel of land from him. The land in question was owned by his late father, Amidu Koroma. He took Letter of Administration in respect of the land and he inherited the property in his name. He recognized exhibit "D", which is the letters of Administration and amongst the relevant documents was his birth certificate. He later vested the property in himself by a vesting Deed - Exhibit "H" after which he sold the land to the Plaintiff, Haja Adaitu Janneh. Before the sale, he went to see the Plaintiff and showed her the letters of Administration - Exhibit "D" and the Vesting Deed Exhibit "E" and both of them went to see Dr. Joko Smart, the Solicitor of the Plaintiff. He told the Lawyer that if he is not satisfied with the documents, he would advise him to contact A.F. Serray-Kamal, who was his fathers Solicitor. He said Serry-Kamal confirmed that the land
belonged to the witness's late father. The negotiation for the sale of the land took place in Dr. Joko Smarts Chambers and the consideration of Le10,000,000.00 (Ten Million Leones) was paid. Thereafter he went with the Plaintiff and showed her the land at Calaba Town. Saidu Yayah Koroma said that there were six (6) apartments (adjoining of Cements, unroofed before the death of his father but noticed that all of them had been demolished. He knows the Defendant and did so when he was that she demolished the six (6) apartments. These apartments consisted of a room and a parlour, but they had not been roofed. He said he instituted action for malicious damage, but they fled when the rebels invaded Freetown. The matter is still pending in Freetown. Magistrate Court No. 3.
She also gave him photocopies of Plan of property of Issa Koroma LS 1033/86 and those of J.J. Ngobeh and M.M. Sao LS1034/86 and LS1035/84 respectively and Plaintiff told him that these people had encroached on her land. Mr. Anthony said he put these Plans together using co-ordinates i.e. the starting point of a Survey whose mathematics position have been calculated and plotted. By means of these he drew up a Plan to show four Plans i.e. Plan of Haja Adiatu Janneh, Issa Fullah Koroma and M.M. Sao.
Under Cross Examination, the witness said that exhibit "M" is a combination of Plans and consists of 7 (seven) Plans and these site Plans are not of the same age. Plan LS 1011/86 is the property of Abu Bakarr Sidik Koroma is the first in time. And that Allen Town Diversion Road is not different from Freetown, Waterloo Road and is
the same thing they i.e. Plans are signed by the Director of Lands and Surveys.
At this stage Counsel, for the Plaintiff applied that the Court move to the Locus in quo and as Counsel for the Defendant has no objections, the court did so on the 2nd May 2002. When the hearing resumed on 12th June 2007, Mr. Bion continued the Cross Examination of Plaintiff s fifth witness, Mr. Anthony. He said from his map Freetown/Waterloo Road is different from Allen Town. From the Plan he could not tell the acreage in LS 1011/68 as represented in exhibit "M" nor is he in position to tell the acreage in exhibit "M". The Plaintiff then closed her case.
In his opening address Counsel for the Defendant, Mr. Baion said that the Defence intends to prove that the Plaintiff is a 'bonafide' purchaser of the land in question. That there is an element of fraud in the process of obtaining the land and the acreage of land claimed is at variance with the size of land of the Vendor. That they would not rely on the statute of limitation Act No. 57 of 1961 and that they had been in possession of this land for over 12 years.
The defence called its first witness in the person of Fatmata Ngobeh, the Defendant. She is a widow and their marriage was according to Islam. She knows the Plaintiff and has known her since 1994. She has been in occupation of the land in dispute since 1994. She has lived on that piece of land situate at the address No.366B Bai Bureh Road, Kissy. The first house in which she lived was built by her husband in
1995, but the late husband bought the land in 1986. She recognized exhibit "F" as the property her husband owned during his life time and she had been living there to the knowledge of the Plaintiff. She recalls an occasion when the Plaintiff talked to her about buying a land, but she advised against the purchase. She informed the Plaintiff that the property abutting hers is the property of Mr, M.M. Sao. At this stage, I adjourned this case to the 26th June 2001 for DW1 to continue her testimony. At the adjourned date, Mr. Bion left the court whilst I was hearing another case on the pretext that he had an appointment at midday. I warned the client that that would be the last adjournment and fixed the case for the 3rd July 2001.
As Mr. Bion ismaking it a habit of being absent without any excuse, I had no alternative but to proceed with the matter. I allowed Counsel for the Plaintiff to commence his Cross examination of the witness Mrs. Ngobeh reiterated that she said that the land was acquired in 1986 and exhibit "F" is the conveyance between Issa Fullah Koroma and Hon. J.J. Ngobeh. She was not in a position to produce Issa Fullah Koroma to the Court and the Purchaser is J.J. Ngobeh who had since died. After his death she did something to the property. She went to report to the Administrator and Registrar General about her husband's death and that he died seized of property. She was told that according to Mohammedan marriage, she could not by law take out letters of Administration. The Administrator and Registrar General further said that they had to process the necessary letters of Administration documents in their Office and accordingly the Deputy, Mr. Kono Yima introduced her to one Mr. Thomas of the Office and be asked her to pay
the sum of Le20,Q00.00 (Twenty Thousand Leones). She did not get the letters of Administration and was told by Mr. Thomas that publication should be made and one has already been made in the New Citizen Newspaper. Mr. Thomas said that after the Publication, an application would have to be made to the court; Mrs. Ngobeh said her husband died in 1998 and up to December 1998 she had not had it.
Mr. Vincent, Counsel for the Plaintiff showed the witness exhibit "F" which was once more confirmed is a conveyance between one Issa Fullah Koroma and the witnesses late husband J.J. Ngobeh. She recognized the vicinity but she was unable to decipher the acreage of land. However, she is ua fait with the boundaries or her land; but cannot tell "how many tow tots it is made up of. She knows someone by the name of Pa Musa Jalloh and that her late husband told her that he was the care taker of the Land she was" occupying and Pa Musa was instrumental in buying the land. She admitted that Pa Musa Jalloh told her that one portion of the land belonged to her late husband and that the other belonged to one Mr. Sao, whom she had not seen for 10 years. Pa Musa Jalloh said to her that the land formerly belonging to Mr. Sao now belongs to him because he had not seen the latter for the past 10 years and consequently by implication of the land it is his property. She is unaware of financial transaction between her late husband and Pa Musa Jalloh. She does not know whether her late husband gave a loan of Le44,000.00 (Forty-four thousand Leones) to Pa Musa Jalloh nor did Pa Musa Jalloh tell her that he pledged the land to her husband instead Issa Fullah Koroma told her that he is the son of Amidu Koroma. She is aware that Issa Fullah Koroma took out Letter of
Administration of his late father's property, but does not know whether the land in dispute in Pa Musa Jalloh included in the letters of Administration.
On re-examination by GAS Bion, the witness said that Issa Fullah Koroma told her that his father was Amidu Koroma and he (Issa) is the eldest son of his father, the witness told the court. The witness was shown exhibit "N" and recognizes at page 3 the property of Abu Bakarr Koroma i.e. survey plan LS1011/86 marked green. The four beacons are IC971/68. IC972/68, K973/68 and K970/68. At this stage, Bion Esq. sought an adjournment on the grounds that the documents of the Deed need to be corrected, so that the correct view of the matter be presented to the court. I granted the adjournment in the interest of Justice but I do not think that a god reflection on the standing of Counsel with so many years of experience. Surprisingly, Counsel did not turn up on the next adjourned date and I had to grant a further adjournment to the 21st 2002.
On that date, the witness recalled that during his testimony he tendered exhibit "M", a composite Plan which turned out to consist of errors and Counsel amended exhibit "N" the witness produce and tendered exhibit "O".
Under Cross - Examination, the witness agreed that he had no right to express a view as to who first occupied the property and that it is a matter for the solicitor. He averred that (7) seven documents were made available to him and exhibit "O" attached to his report, he
admitted that only (4) four documents are reflected in exhibit "O". His reason is that the (4) four document have the same measurement, same bearings, same distances etc. However, they are not carrying out the same LS Numbers. When showed page (2) two of exhibit "O", he said a-pait from beacon, number 972/68 he was unable to find any beacons. Further due to page (2) two he observed on the site there are Pan Body houses. There were people selling cooked food and small wares fir eating. There Pan Bodies are erected on the properties of the defendant and they are represented by "C" and "D" on his composite exhibit "0". He said by reference to the Corker beacons he was able to identify the property of the Plaintiff- beacon No. A1/95, beacon No, A2/95, beacon No. A248/98, beacon No. A249/96 and it is shaded yellow in the composite Plan. On page 3 the original Master Plan was for Abu Bakarr Koroma and that was LS 1011/68. He sees exhibit "F" conveyance of Issa Fullah Koroma to Honourable Justice Ngobeh and Plan LS 1034/86 in Plan fo Justice J. Ngobeh. The Master Plan for Abubakarr Koroma i.e. LS1011/68 was changed to Issa Fullah Koroma and he subdivided it into plots I and II. He sees exhibit "K" and the parties are Saidu Yayah Koroma to Haja Adiatu Janneh. The latter has a survey plan. He sees plan LS 2404/96 and it was a resurvey of plan No. LS 1140/96. It was barred on survey Plan LS 404/95. According to his composite plan "O", the witness said all the two plans are under Haja Adiatu Janneh's Plan. The Freetown Waterloo Road is almost parallel with the following beacon -
Beacon M5 401/08, beacon M5 102/86 and beacon No. K 927/68 equally too according to his composite Plan exhibit
aO". beacon No. A2/95 and A248/98 are also parallel to new Freetown Waterloo Road.
He said in the Southern site is a private property, on the Western end of exhibit "0" is indicated Allen Town Diversion Road.
On re-examination, the witness identified the other beacon points. The 3rd defence witness is John Nathaniel Aristobolus Coker a Civil Servant attached to the Ministry of Lands, Housing and Country Planning, and the Environment, previously Surveys and Land Office. He is in Court as a result of a subpoena served on his department. It tendered as exhibit "P" and is to produce the following documents, namely, LS 839/96 and LS 408/95. At this stage Mr. Baion sought an adjournment to serve the above plans. The hearing was adjourned to the 25th April, 2002 and Counsel indicated to the Court that Mr. Coker was his last witness.
Hearing resumed on the 8th June, 2002 and the witness DW3 told the Court that by virtue of the fact that he is a senior lands Officer, he is also a surveyor. He has served the department for (22) years in charge of training. He is an expert and knows the Plaintiff and Defendant. He is aware of the cadastral map of the Wellington Area and defines Cadastral as a map which diversion topography and control of area. He reaffirmed that he is in Court and a result of a subpoena to give evidence relative to Plan LS839/96 and LS 908/95. Commencing with LS 408/95 he said it has been in custody and tendered it as exhibit "Q". That exhibit is the property of Fehona witnesses situate at Freetown
Waterloo Road, Calaba Town. He sees exhibit "M" and exhibit "P". the former is the composite plan drawn on the instructions of Plaintiff. The latter exhibit "D" overlaps exhibit 'M' and all of exhibit "M". He could not trace LS 839/96 and so was unable to produce it in Court. Nevertheless, it is part of exhibit "M" and the information is recorded relative to its exhibit "D: LS 839/96 is registered under the name of Ibrahim Bangura.
The land is situated Off Black Hall Road and this Road runs on to Calaba Town. Under Cross-examination, the witness was shown exhibit "M" and "Q". In the former, he does a plan marked A1/95 and A2/95. He does these same points in exhibit "Q". In addition there are also points A3/95 and A4/95. The two latter points are not in exhibit 'A'. He reiterated that exhibit 'Q' overlaps exhibit "M".
The witness is shown the site plan attached to exhibit "K" based on LS 408/95 means survey plan LS 2404/98 originates or is tied to LS 408/95. It means it is liked to LS 408/95 LS 2404/98 is tied to LS 408/95 but it is also within LS 408/95. He sees exhibits "Q" and "M" and said that exhibit "Q" overlaps exhibit "M" and the extent of the overlapping is from A2/95, which runs on a bearing of 162°.43" and on a distance of 85.75' to A3/95. Half of LS 408/95 is inside LS 2404/98 shown exhibit "Q", "the witness gave the acreage 0.5145 and that of exhibit "K" is 1.1238 acres.
Under-re-examination, the witness said that one are a belong to Fehona's witness and one to Haja Adiatu Janneh. He sees the site plan
in exhibits "K" and "H". The former is the conveyance to the Plaintiff. Exhibit "H" is a Vesting Deed made in favour of Siadu Yayah Koroma and the property of Saidu Yayay Koroma is 1.23502 acres. He concluded his testimony that exhibit "H" is larger than in exhibit "K". Counsel then indicated of the close of the case for the defence.
In his address, counsel for the Defendant said that the plaintiff is claiming possession of a piece of land as contained in her conveyance dated 7th January, 1997 and damages for trespass. In answer, the Defendant is alleging that she obtained the land with notice of occupied of the Defendant. The Defendant had notice of her occupation and that the size of the land of the Plaintiff is at variance with the size of the land she purports to have bought and is also at variance with the land occupancies by the Defendant. The Defendant cannot therefore be a trespasser to the land in dispute. The Defendant has enjoyed possession of the land (10) years before the plaintiff's negotiation started and out of abundance of caution, he would add that the Plaintiff bought or obtained the land with knowledge of their possession and without fraud.
Counsel argued that the original owner of the land was the late Amidu Koroma, who at the time of his death had many children a free hand of Muslim and under chapter (96) of the laws of Sierra. Leone it is either the eldest son of full age who is entitled to take Letters of Administration and if there is none the eldest brother of the deceased and in his absence the Administrator General. Counsel said there is no viva voce evidence before the Court by Saidu Yayay Koroma that lssa Fullah Koroma is his brother and that the latter had administered the
estate of Amidu Koroma on the 7th May 1986. Albeit the grant was only in respect of personality and in the circumstances what should have been done according to law was to take out additional grant and not a fresh grant in respect of the estate. The alternative of an additional grant would have been to set aside the Letter of Administration of 1986 before taking out the grant of 1996. Mr. Bion said the court is faced with the dilemma of having two competing Letters of Administration in respect of one deceased person. He argued in the prayer of the Plaintiff that the first letter of Administration be set aside has come late to be of any legal efficacy. Also the Plaintiff on 3ld July 2000 filed a reply and tried to amend that reply on the 27th October 2000. Such an exercise he opined has no legal efficacy and ought to be expunged. Counsel averred that the declaration of probate value in the declaration in the letters of administration of 1996 reads "personal property - land at Allen Town Diversion". He averred that if the asset is personal property then it cannot be real property. The contradiction is so fundamental that the particular Letter of Administration ought to be expunged from the records. Counsel drew the attention of the Court again to the fact that the'size of the land Saidu Yayah Koroma sold to the Plaintiff is at variance with what the Vendor had. As regards to exhibit 'H' the Vesting Deed, the Vendor intended to transfer to the Plaintiff is at Freetown Waterloo Road. The acreage of Saidu Yaya Koroma's land is 1.2352 acres in here as the acreage of the Plaintiff's is 1.1238 acres, which shows that the Defendant has not trespassed or occupied the land of the Plaintiff.
As regards exhibit "M" and "O" the plans of the plaintiff and defendant respectively. In his report of exhibit "M", the surveyor of the plaintiff said "my client Haja Janneh lived my service to check her survey plan LS 2404/98 which she bought from property owners LS 839/96 and LS 1140/96. The surveyor in both cases is one Mr. Anthony (DW3). The owner if LS 839/96 is Ibrahim Bangura and the land is located Off Black Hall Road, Freetown. Mr. Bion went on to point out that the Plaintiff said to 'DW'3 that the land in LS 1033/86 is that of Issa Fullah Koroma, that of JJ. Ngobeh is LS 1034/86 and LS 1034/86 is M.M. Sao based on these plans Counsel concluded that there has not been any encroachment of the plaintiff's land. He posed the question that if Ibrahim Kamara from whom the plaintiff bought owned the land in LS 839/96, which is located at Black Hall Road how can a person living in Allen Town Diversion Road encroach on land at Kissy.
Counsel next touched on exhibit 'K' especially the survey plan, the Titled Deed if the plan is resurvey of plan LS 1140/96 based on LS 408/95, but this plan is in respect of a piece of belonging to Wellington Congregate of Fehona witnesses. As regard exhibit "O" which is the survey plan of Defendant. The possessory title of JJ. Ngobeh and M.M. Sao are already-under lived and attributed LS 1-33/86, which is the property of Issa Fullah Koroma and the surveyor said he has put a structure on that land where they now live. He caution that on these plans alone there cannot be a trespasser of must fail. He concluded that the plans claim of legal possession should be against JJ. Ngobeh, as his estate has yet to be administered and it was wrong to institute action against the wife.
Counsel said his client relied on section 15 (6) of the Public order Act 1965.
Exhibit "F" is prepared by the solution on behalf of JJ. Ngobeh based as it is on the Letters of administration declaring personality. In his view counsel said that the Court of Sierra Leone certifies as a matter of law and^procedure that a person is qualified to use the title of Barrister and Solicitor. In the instant case, the Solicitor made a mistake when she made letters of Administration pertaining to personality. Counsel submitted that not withstanding the error, JJ. Ngobeh believed that the land on which the defendant is living at the moment is not part of the land acquired by the Plaintiff. It follows, he further submitted that the court should so hold and to further decree that there cannot be a Letter of Administration in one estate especially in the case if a Mohammedan law vide chapter (96) of the laws of Sierra Leone. He asked of the court that the second letter of Administration i.e. land and personality is an additional grant taken in addition to letter granted in 1986.
Counsel for the Plaintiff stated that he wished to contradict some of the statements in the address to the court by counsel for the Defendant. He pointed out that on the basis of exhibit "L", Saidu Yaya Koroma is not a brother of Issa Fullah Koroma, the latter was brought up in the house hold of Amidu Koroma (deceased). Secondly the Plaintiff filed a reply on the 3rd day of July, 2000 and an amended reply on the 27th day of October, 2000. Counsel for the Defendant was wrong to ask that it be expunged from the record, because he has taken a fresh step and has waived any irregularity. That according to Order (50) rule (1) of the
High Court rules, the effect of non - compliance does not render the proceedings void, unless it is so ordered by the court. Counsel for the Defendant cross-examined witness on the amended reply and proceeded to call three defence witnesses. He consequently waived whatever right he might have to expunge the amended reply. Thirdly, counsel compared Letter of Administration exhibits taken out on the 7th May, 1986 with the Letters of Administration taken out on the 29th May, 1996. In the declaration of the first it talks entirely of personality in the value of Le.354.79 being an amount standing to the said deceased at Standard Bank, Freetown. The other letters of Administration taken out the 29th May, 1996 on the very first page is realty sworn at Le.500,000.00 and personality as Nil. On a careful examination of the valuation court, it clearly states that the property is located at Allen Town Diversion, Calaba Town, Freetown and the other side has proceeded to give the acreage as 1.2352acre. Counsel argued that when that document is read in its entirety it talks wholly and solely admit realty though on the face of the declaration probate value personal property is stated and the description of the personal property is land at Allen Town Diversion, Calaba Town, in the Western Area of Sierra Leone valued at Le.500,000.00 Counsel then submitted that exhibit "D" is cautioned to realty. Mr. Vincent drew attention of the court to the submission of counsel for the Defendant that exhibit "D" the second Letters of Administration dated 29th May, 1996 should be disallowed. He preferred the following reasons against such disallowance. Firstly, it is clearly stated in the said letters of Administration that Saidu Yaya Koroma is the eldest son of the late Amidu Koroma and this fact is suggested by the Birth Certificate of the said Saidu Yaya Koroma
attached to exhibit "D". Secondly, in exhibit "B" i.e. Letters of Administration dated 7th May, 1986 granted to Issa Fullah Koroma there is no evidence that he is the eldest son of the late Amidu Koroma. Furthermore in exhibit "L" it is stated therein that he was brought up in the household of Amidu Koroma and he is not a relative. He submitted that if the court was thinking of disallowing any of the Letters of Administration, it should be exhibit "0" dated 7th day of May, 1996.
Having responded to the points raised by counsel for the Defendant counsel averted his mind to the address proper. He mentioned exhibit "F" which is a Conveyance dated the 13th day of August, 1986 made between Issa Fullah -Koroma of the one part and Honourable J.J. Ngobeh. He said that, that Conveyance had its origins from exhibit "B" made by Issa Fullah Koroma. That Letters of Administration was .based on personality and on the particular case money to the value of Le. 354.77. He stressed that a person who has not real property cannot give a transfer of real property to another person. Counsel referred to exhibit "K", which is a Deed of Conveyance between Saidu Yaya lcoroma of the one part and Haja Adiatu Janneh of the other part derived its origin from exhibit "D" Letters of Administration granted to Saidu Yaya Koroma on the 29th day of May, 1996. That document deals with landed property at Allen Town Diversion, Calaba Town in the Western Area of Sierra Leone valued at Le. 500,000.00. Counsel pointed out that exhibit "D", the said Letters of Administration, there is also exhibit "H" dealing with the same property which is a Vesting Deed made on the 30th day of September, 1996 from Saidu Yaya Koroma to Saidu Yaya
Koroma and then he sold finally to Haja Adistu Janneh as argued in exhibit "K".
As regards to the several references to the lands at Black Hall Road, counsel referred to exhibit "K", which is the Conveyance between Saidu Yaya Koroma of the one part and Haja Adiatu Janneh of the other part. He said that the survey plan attached to that document is LS 2404/96 dated 12th day of November, 1996 and that one said is Allen Town Road and on the other side there is Freetown Waterloo Road. He referred to exhibit "F", the purported Conveyance between Issa Fullah Koroma of the one part and Honourable J.J. N'gobeh of the other part and on the assumption that, that document refers to real property as shown in the Survey Plan attached to it the Survey Plan is LS 1034/86 dated 7th day of May, 1986 and that will be shown as Allen Town Diversion and on the other side the new Freetown Waterloo Road. He contended that from exhibit "M", the Encroachment Plan prepared by Mr. F.J..Anthony for the Plaintiff, it clearly states that there has been an encroachment on Haja Adiatu Janneh's land'. Counsel for the Defendant had submitted that his client is not a trespasser and therefore the claim for trespasser ought to fail by virtue of Section 15(6) of the Public Order Act. Act No. 46 of 1965. Mr. Vincent urged that from the facts adduced the Defendant is clearly a trespasser. He relied on the appropriate portion in words and phrases legally defined in 2nd Edition by John B. Sanders. Volume (5) S-Z. He stressed that the Defendant had no right to be on the land because no land was conveyed to the Defendant. He opined at a person who is a trespasser on a land if he wrongfully treads on it.
He concluded that .the prayers of the Plaintiff be granted and that Letters of Administration granted on the 7th day of May, 1986 to Issa Fullah Koroma and the Deed of Conveyance dated 13th day of August, 1986 and registered at page (13) in Volume (39) of the Book of Conveyances be cancelled.
I have taken the trouble to review the evidence and addresses of counsel in detail because an epitome might omit certain important matters more importantly the role of counsel is not sufficiently assisting the court on the salient features and relevant points of law in the case. It is clear from the Writ of Summons that the plaintiff's claim against the Defendant is recovery of portion of her piece or parcel of land described in her Conveyance dated 7th January, 1997. Thus the case is simpler for one of recovery of possession as opposed to an action for declaration of title. Admittedly, title to land may in certain situations become relevant and a deterring factor in an action for recovery of possession, but its use and application assumes a different character in such an action. I mean that for a Plaintiff to succeed in an action for declaration of title he, has to prove he has a fee simple estate in the land and has acquired a fee simple title from his predecessor is in title. He must in addition rely and win or loose on the strength of his title and not on the weakness of the title of other party. It is perhaps necessary, to mention in passing that Sierra Leone, what is registered in the office of Administration and Registrar General's office is instrument as opposed to title. I say no more on declaration of title and will now proceed with the subject matter in the action to wit trespass.
I begin with the case of Dan ford and McAnully (1883) (8) App. Case 456, 52 L.J.Q.B 652 which lord Black burn in the course of his speech used the following words and because of the age of the case I propose to refer to it very briefly.
"For a long time an action for the recovery of land was brought by ejectment and it was so established as to be trite law - a common expression of law — that in ejectment where a person was in possession those who sought to turn him out were to recover upon the strength of their own. Title and consequently possession was at law a good defence against any one and those who sought to turn out the man in possession must show a superior legal title to his. If however, they did show that - still if the person who was in possession could show that although they had shown a superior legal title to the possession, yet he had an equitable ground for saying that they should not turn him out, he as the law stood was obliged to go to court of equity use a evil law expression to make out that there was a sufficient reason for a court of equity to write fee, and to prevent his being turn out of possession, on the equitable ground."
The next situation which needs consideration is the position as between an owner and another in possession of the land of the owner, it came for consideration in the case of Delaney and T.P. Smith Ltd 1946ZAER, 1946 KB 393, a decision of the English Court of appeall do not again think that it is necessary to refer to the facts of the case but to quote two passages from the Judgement which indicate the law.
Tusker L J. said at page 397 -"it is clear that the Plaintiff was in feet founding his claim on the Tenancy Agreement pleaded try him. It is no doubt true that a Plaintiff in the action for trespass to land need only in the first instance alleged possession. This is sufficient to support his action against a wrong doer, but is not sufficient as against' the lawful owner and in an action against the freeholder. The Plaintiff must at same stage of the pleadings set up a title derived from the Defendant. It is sufficient; I think to refer to the judgement of Paterson J. in Ryan and Clark (1849) 14 QB 65, 71 where he explained the nature of the plea as follow:
It admits such a possession as would maintain an action against a wrongdoer, but asserts a freehold in the defendant with a right to immediate possession.
Ryan Parry J. took the same view at page 400 of the report:-"so where a Plaintiff in his reply admits the title of the Defendant but pleads a document from him, these are a true confession and avoidance the Plaintiff is concluded in his confession and must fail in his action, unless the proves the case set up by his reply, Defendant."
In a case from Sierra Leone the then West African Court of Appeal on the 7th February, 1955, held in James England V.J. Mope Palmer 14 WACA 659, that in a trespass action on averment of ownership is consistent with and amounts to averment of possession, for ownership may be proved by proof of possession, and the allegation, in such an
action, that the Plaintiff over puts possession and not ownership in issue as possession is all that he need proved.
In Portland managements. Ltd V. Horte 1976 1 AER 225 197 62 WLR 174, it was once move reaffirmed that possession is a very important matter to be considered in an action for ejectment, or an action for trespass. It is an English Court of appeal decision. And finally, the issue of a reference should be made the possession decision of Bristow Carmican (18 3 App. Cases 641, House of Lords when was cited with approval in the Supreme Court of Sierra Leone in the case of DC,7 Seymour Wilson vs. Musa Abass delivered on the 17th day of June, 1981 (unreported). It is inter alia states that mere possession is sufficient against a person invading that possession without himself having title whatever. In other words, it is sufficient as against a wrongdoer. It goes on to establish that the slightest amount possession, would be sufficient to entitle the person who is so in possession or claims under those Who have been or are in such possession to recover as against a mere trespasser."
Now that I have cited the above legal authorities, my task is to apply the law to the salient facts of the case. Both parties seem to suggest or accept that they have been and in fact are in possession and have some documentary evidence to support their claim. For the Plaintiff it is Conveyance dated 7th January, 1997 and the Defendant her husband's Conveyance and she has been in occupation of the said land since 1994. I think that I ought to deal with the question of possession and determine which of the parties has a better possession. There is
evidence in support of the plaintiff's claim that after the purchase of the land and in 1998 she visited the land and found a house - two rooms on the land and she told the occupants that she would bring bull doers to remove the house. She also went with the Defendant to the police station and made report regarding the encroachment of the said land. On the occasion the Defendant and herself were required to produce their Deed of Title. The Plaintiff said she did, but the Defendant did not. This piece of evidence is relevant not in respect of good title but is relevant as far is the exercise of the plaintiff's right to exclude trespassers and squatters from the land. Further the Plaintiff told court that on other attempt when she visited the site she was the subject of insult and invectives by the Defendant and other squatters.
In the case of the defendant her evidence is that the land was brought by her late husband and that she has not been able to cause Letters of Administration to be taken. The evidence shows that the administrator is not entitle in law to take Letters of Administration. On the bases of possession and without delivering into the legal titles of both parties, I find that the Plaintiff has a better possession to the land.
In land cases, the evidence of Surveyors is important and to my mine their role is to assist the Court in arriving at a just decision. It is, therefore, necessary that their testimony must be simple & rid off technicalities. I had the opportunity to see, watch and study the demeanour of the three Surveyors. One for the Plaintiff and two for the Defendant. The evidence of her of Mr. Anthony, Surveyor of Plaintiff is as elegantly intelligent whilst that of the two in respect of Defendant
leaves much to be desired. I have perused the evidence of both sides and I am of the strong conviction that the land in dispute is that of the Plaintiff. Sheriff Abass Kargbp and John Nathaniel Coker, witnesses of the Defendant do not impress me and I do not believe them.
In the premises, I find for the Plaintiff and she is entitled to possession of the land described in her statement of claim. As no evidence was led by the prosecution regarding damages for trespass, I award no damages. However I grant a perpetual injunction restraining Defendant her servants and or agents from further entering into and/or trespassing upon the plaintiff's land cost in favour of the Plaintiff to be taxed.
Mr. Vincent for Plaintiff
Mr. A. Siclique for Defendant