Emerson N. Ndoku & Another v. Fofanah (CC. 1129/04 2004 . N.No.23)  SLHC 10 (23 February 2007);
CC. 1129/04 2004 . N.No.23
IN THE HIGH COURT OF SIERRA LEONE
EMERSON N.NDOKO & ANOR - PLAINTIFF
ABDUL HARDY FOFANAH - DEFENDANT
A.M.KAMARA FOR THE PLAINTIFF UNDEFENDED
JUDGMENT DELIVERED THE 23rd DAY OF FEBRUARY,2007
In this Action the 1st Plaintiff who resides outside the Jurisdiction is suing through his Attorney, Samuel John Ndoko, the 2nd Plaintiff. The Claim against the Defendant is for:
1. A Declaration that the 1st Plaintiff is the fee simple owner absolute of all that Piece or Parcel of land situate lying and being at Off Main Motor Road, Juba, Freetown Western Area of the Republic of Sierra Leone.
2. The immediate recovery of possession of the said piece or parcel of land.
3. An injunction restraining the defendant by himself his servants and or agents or howsoever otherwise from entering or continue to enter and trespass on the piece or parcel of land of the 1st Plaintiff or doing any act inconsistent with the right and ownership of the 1st Plaintiff.
4. Damages for trespass by the Defendant on the 1st plaintiff's lands referred to in 1,
5. Further or other relief
The Writ of Summons was issued on the 27th November, 2004, at 30 Syke Street, Freetown in the Western Area of Sierra Leone, personally served on the Defendant Abdul H. Fofanah by Moses Kamara Solicitors Clerk of Kargbo and Co. and his sworn Affidavit of Service of 8th December, 2004 was filed. When the said Moses Kamara searched the records kept at the Master's Office in Freetown to ascertain whether an appearance had been filed, the search disclosed no such appearance had been entered. Moses Kamara's Affidavit in Freetown on the 4th March, 2005 to the effect was also filed. The matter was
entered for trial and directions on summons for directions were given by Muria J.A.( as he then was).
After compliance with those directions by the Plaintiffs' date of trial was set and due notice sent to the Defendant informing him of that date.
First to testify on behalf of the Plaintiff was Ekundayo Pratt, a Clerk in the Office of the Administrator and Registrar-General where registered instruments are kept. The witness produced original of registered conveyance made between Hannah Elfrida Davies as Vendor and Thomas Carew Luke as purchaser and registered as 226 on Page 115 in Volume 199 in the Book of Conveyances kept at the office' of the Registrar-General in Freetown. This exhibit was marked" A".
He produced and tendered as Exhibit B an original conveyance dated 11th February 1980 made between Thomas Carew Luke as Vendor and Gertrude Florence Dickson as Purchaser. This document was registered as 165 at Page 2 in Volume 316 in the Books of Conveyance. The witness also produced a certified true of this document and it was received in evidences as Exhibit B1. The third document produced and tendered by the witness was the original of a conveyance dated 29th August 2002 between Gertrude Florence Dixon as Vendor and Samuel Ndoko as Purchaser. The document was registered as 115/2002 at Page 142 in Volume 556 in the Record Book of Conveyances kept at the Office of the Registrar-General it was marked Exhibit C, and the certified true copy marked C1. The witness also produced a conveyance dated 31st December,2003 between Samuel Ndoko as Vendor and Emerson Ndapi Ndoko as Purchaser, and registered as No.2 on Page 43 in Volume 569 in the Books of Conveyance here before referred to it was tendered and marked D, with the certified true copy marked D1 Exhibit E was Power of Attorney dated 28th October,2004 made by Emerson Ndapi Ndoko appointing Samuel John Ndoko as his Attorney., There was no cross examination of this witness since Defendant or his Solicitor were not in court.
Samuel Ndoko testified next for the Plaintiffs. He said he knew Emerson Ndapi Ndoko who resides in London and who had appointed him his Attorney. He said he knew a piece of land at off Main Motor Road Juba as the property of lst Plaintiff. He said he visited the lands about 2 years ago and got pounced upon by persons who openly boasted
that they were acting on behalf of the Defendant who they claimed owned the land. He said he had never met or known the Defendant. He made a report of this attack to the Police at Lumley. When he paid a visit to the land six month's ago, he said he found it enclosed by a fence of barbed wires. There were also some blocks on the site. He said he saw one of his attackers who now live on the land as caretaker. He reported his observations to 1st Plaintiff who immediately sought the services of a solicitor and the matter was brought to court. He identified the Solicitor's letter to the Defendant as Exhibit F. He also identified all the Exhibits tendered by P.W.1. Again there was no cross-examination of this witness.
A Licensed Survey, Sheriff Abass Kargbo testified next for the Plaintiffs. He said, acting on the instructions of one Alhaji Foday Kallon, representative of 1st Plaintiff, he surveyed the land in dispute and drew a composite plan to determine the extent of overlap between the land of the 1st Plaintiff and the Defendant. The witness tendered Exhibit G!-3 the said composite plan. He said the red line represents the Survey Plan of 1st Plaintiff, and the blue line represents the wall fence constructed by the Defendant. His conclusion was that all the land owned by lst Plaintiff had been encroached upon by Defendant.
The court granted an adjournment for cross-examination of this witness. Again the Defendant was not in court, and Mr. Kamara applied to dispense with the cross-examination. The court, on being satisfied that the Defendant had been duly notified of the proceedings, granted the application. The plaintiff's closed their case.
The court set two subsequent dated to allow the Defendant to show up in court to open this case. He did not appear. When on the third adjournment he still failed to appear, the court was left with no option but to grant Mr. Kamara's application that Judgment be given on the evidence so far before the Court. This application was granted on the authority of Order XXV Rule 10 of the High Court Rules 1960 .
"If, when a trial is called on, the Plaintiff appears and the Defendant does not appear, then the Plaintiff may prove his claim, so far as the burden of proof lies upon him".
Mr. Kamara waived his right of address.
The evidence on behalf of the Plaintiff in this action remain uncontroverted. Since it is nonetheless the law that the Plaintiff must succeed on the strength of his own case and not the weakness of the Defendant (See Kodilinve v. Odu (1935) 2WACA 336). I have closely examined the exhibits, especially tracing the plaintiff's claim to a good root of title, and also analyzed the testimony of all the witnesses. At the end of this exercise 1 find on a balance of probability that the Plaintiff has proved his claim. I consequently hold in his favour and declare that the 1st Plaintiff, Emerson Ndapi Ndoko, is the fee simple owner absolute of all that piece or parcel of land situate lying and being at Motor Road Juba, Freetown in the Western Area of Sierra Leone and more particularly delineated on Survey Plan LS 647/03 measuring 0.1860 Acres and annexed to conveyance made between Samuel Ndoko and the said Emerson Ndapi Ndoko and dated 31st day of December,2003 and Registered as No.2/2004 at Page 47 of Volume 569 of the Record Books of Conveyances kept at the Office of the Registrar-General in Freetown, Sierra Leone. Consequent upon this declaration, I order as follows:-
1. That the Plaintiff be at liberty to recover possession of the said piece or parcel of land.
2. That the Defendant by himself his servants, and or agents or howsoever described is restrained from entering on the said piece or parcel of land or doing any act inconsistent with the right and ownership of the 1st Plaintiff.
3. That damages for trespass in the sum of Le5, 000, 000.00 is awarded to the 1st Plaintiff.
4. Costs to the 1st Plaintiff. Such costs to be taxed.