Jalloh v. Minister of Lands, Country Planning and the Environment and Another (CC186/2004 2004 J.NO.16)  SLHC 34 (12 July 2007);
CC186/2004 2004 J.NO.16
IN THE HIGH COURT OF SIERRA LEONE CIVIL-JURISDICTION
ALHAJI AMADU WURIE JALLOH - PLAINTIFF/APPLICANT
THE MINISTER OF LANDS, COUNTRY -1st DEFENDANT/RESPONDENT
PLANNING AND THE ENVIRONMENT
THE DIRECTOR OF SURVEYS AND LANDS - 2ND DEFENDANT/RESPONDENT
MINISTRY OF LANDS, COUNTRY PLANNING AND THE ENVIRONMENT, YOUYI BUILDING FREETOWN.
PLAINTIFF: J.B. JENKINS-JOHNSTON ESQ.
DEFENDANTS: EKU ROBERTS ESQ. AND L.M. FARMAH ESQ.
Judgment delivered on 12 thday of July 2007.
This matter did cornmence by the issue of a generally indorsed Writ of Summons dated 16th February, 2004 in which the Plaintiff seeks the following:
1. A Declaration that the Deed of Conveyance dated 25th November, 1988 expressed to be made between Samuel Olatilewa John of the one part and Aihaji Amadu Wurie Jalloh of the other part registered as No. 529/88 in Volume 420 at Page 120 of the Books of Conveyances is VALID and did convey to the Plaintiff the freehold title to 84.7265 acres of land at Regent Road Off Hill Station. Regent Village.
2. A Declaration that the Deed of Conveyance dated 10th July, 1991 expressed to be made between Samuel Olatilewa John of the one part, and Alhaji Amadu Wurie Jalloh of the other part which is duly registered as No. 156/91 at Page 67 in Volume 446 of the Books of Conveyances is VALID and did convey to the plaintiff the freehold title to 20.4723 acres of land at Regent Road, off Hill Station Regent Village.
3. A Declaration that the Deed of Conveyance dated 21st day of April, 1999 expressed to be made between Samuel Olatilewa John and Marcus Macauley of the one part, and Alhaji Amadu Wurie Jalloh of the other part which is duly registered as No. 151/99 at Page 523 in Volume 519 of the Books of Conveyances is VALID and did convey to the plaintiff the freehold title to 409.14 acres of land at Regent Road off Hill Station, Regent Village.
4. A perpetual injunction restraining the Defendants and each of them from signing any Survey Plans or leasing or in any way alienating and land contained in any of the three (3) Conveyances hereinabove mentioned.
5 An order granting to the plaintiff immediate possession of any portion of the said three (3) pieces of land hereinabove referred to that may have been already purportedly leased or sold by the Defendants herein.
6. An order canceling and revoking any Deed of Conveyance or lease made by the Defendants or either of them in respect of any part of the three (3) pieces of land owned! by the plaintiff and hereinbefore set out.
7. Damages for trespass
8. Any further or other order as of Court may deem fit.
There was entered on 24th March, 2004 Appearance for both Defendants by L.M. Farmah Esq., Senior State Counsel. On 13th April, 2004 a Statement of Claim was delivered and filed by Solicitors for the plaintiff and on 28th April, 2005 a Defence was filed.
At this stage, it must be noted that by a motion for Judgment dated 14th July, 2004 there was entered a Judgment against the defendants by this court on the 10th August 2004. By a Notice of Motion dated 3rd September 2004 the defendants sought to set aside the Judgment dated 10th August 2004 entered against the defendants herein. On 20th April, 2005 an order was made granting the Orders and the matter was adjourned for trial which trial proceeded.
What evidence was led in this matter both for the Plaintiff and the Defendants? This can be reviewed thus - P.W1 Ekundayo Pratt a Clerk in the office of the Administrator and Registrar-General's Department tendered in evidenoe the following documents: - Conveyance dated 25th November, 1998 between Samuel Olatilewa John and Alhaji Wurie Jalloh registered at Page 120 in Volume 420, of the Books of Conveyances as Exh. A and a certified true copy of it as Exh. A. A Conyenace dated 23rd Januaryu, 1991 between Samuel Olatilewa John and Alhaji Amadu Wurie Jalloh registered in Volume 446 at Page 67 in the Books of Conveyances as Exh.B and a certified true copy as Exh. B1. A Conveyance dated 21" April 1999 between Samuel Olatilewa John and Marcus John of the one part and Alhaji Amadu Wurie Jalloh of the other part and registered in Volume 591 at Page 52 in the Books of Conveyances as Exh. C and a certified true copy as Exh C1 Exh. A has a Survey Plan with US, Number 597/85 dated 14th June, 1985 and signed by the Director of Surveys and Lands. Exh. B has a Survey Plan with L.S. Number 2872/90 dated 14th December, 1990 signed by the Director of Surveys and Lands Exh. C has a Survey Plan with L.S. Number 2974/94 dated 12th February, 1995 signed by the Director of Surveys and Lands.
P.W.2 Alhaji Amadu Wurie Jalloh a Businessman who stated that he owns real properties in the Western Area and own properties at Hill Station which he bought from Samuel Olatilewa John. There are three (3) pieces of land of which he bought the second from Samuel Olatilewa John and Marcus Macauley and the third from Samuel Olatilewa John. The first he bought between 1984 and 1985, the second he bought in 1990 and the third is the one that he could not remember the date but later said it could be in 1999. He then identified three conveyances -Exhs. A1, B1 and d. Exh. A1 is a conveyance in respect of his land at Hill Station made in 1988. Exh.B1was made in 1991 and Exh.C1in 1999. The three Conveyances have Survey Plans in them signed by the Director of Surveys and Lands and each has L.S. numbers. He took possession of these lands but between 1999 and the present date he did complain of encroachments on his lands by the Minister of Lands who gave various portions of his land to
various persons such as American Embassy, S.M. Daklallah, one Mr. Sowe who is an importer of Boss cigarettes. There is also one Mr. Neff who told him that the Minister gave him the land to sell and he would definitely sell them. The land was also given to "IMATT". All these persons he named are now actually on his land.
According to the witness he said when he discovered this he went to the Minister of Lands who told him that he has too many lands and he would give his land to anyone. He then consulted his lawyer who wrote to the Minister. He then tendered a copy of the letter to the Minister as Exh..D dated 12th March, 2001. He produced and tendered a reply to this letter from the Minister dated 16th March, 2001 as Exh. E. His solicitor wrote again to the Minister another letter dated 30th March ,2001 which he tendered as Exh. F. Subsequent to this letter his solicitor wrote to the Permanent Secretary on 4th April 2002 which letter was tendered as Exh. G. His solicitor wrote again to the Minister a letter dated 10th November, 2003 which copy he tendered as Exh. H. He does recalled receiving a letter from one Mr. E.M. Kargbo, Acting Permanent Secretary, Ministry of Lands dated 13th March, 2002 as Exh. J. He went on to say that he did make complaints that the Minister had given away his land. The Minister did not stop even after all the letters sent to him. He said he bought the land for business purposes which was to sell and then construct houses for his children. He cannot tell how much has been taken away except through a Surveyor. As at today he said a town lot is about Le.11 million to Le.12 million. So far he has had trouble with the Minister of Lands and B.M. Daklallah. He went on that sometime in February 2005 he gave instructions to his solicitor to write to the U.S. Embassy and tendered a copy of the letter dated 14th February 2005. He then asked the Court to grant him all the prayers contained in his Writ of Summons.
Answering questions in cross examination from Eku Roberts Esq. he said that he cannot now recall off head the total amount of land he bought but agreed it is over 500 acres. He could not remember what is left of the land after all what the defendants have taken away. There are portions he has sold long ago and even sold to N.I.C. in 1992 which is about 73 acres. He even sold to Medical and General Insurance Co. (MAGIC) about 15 to 16 acres on or before 1992 and did sign the Conveyances. He sold about one acre to one Aruna Gbondo but can't remember the exact time but it was after he sold to MAGIC. He sold to Hon. Justice Thompson Davies one acre and shares boundary with Aruna Gbondo. He sold four town lots to Alhaji Baba Alie and never leased any portion to anybody. He bought the land from Marcus Macauley who sold to him all what he had but he is now dead At the time of the sale he took him round the property. The land
Marcus Macauley sold to him was heavily forested at the time. Since he bought it no Forestry Official or anybody has ever approached him about the land. He had no dealings with forestry in relation to the land and he never knew the property was under the control of the Forestry nor was the ever told about it. At the time he bought the property he took his documents to the Director of Surveys and Lands. There was Alim Turay and later Mr. Luseni. He gave his documents to Mr. Luserti and nobody, ever told him that the land was being supervised by Forestry Department. It was his Surveyor Mr. F.T. Anthony and himself that took his documents to the Director of Surveys and Lands. Nobody queried him as to the quantity of land he was buying at the time and nobody ever told him that the land was "STATE PROPERTY". That it was the Minister Hon. Bobson Sesay who told him the land was "STATE LAND". When he got the letter he never went to the minister. He did remember meeting the present Minister Bobson Sesay in which Mr. Luseni was present. At no time did Mr. Luseni told him that the land was STATE LAND. At no time did Mr. Luseni told the Minister that the land was state land. At no time did Mr. Luseni told the Minister that he was not the owner of the land. He made no move to show that the land was not state land since the ministry signed his documents. At the time he was taken round the land he was sure of the boundaries. All his own beacons were broken on the land and state land beacons put on the land. The entire land was claimed. He is in court with some people for trespassing on the land. He has never approached the Ministry to give him portions of the land since the land is his property. He did not go to Marcus Macauley's house but they did meet in his brother's house by the; name of Mr. Peter Square. Peter Square works in another Ministry and is a Surveyor. He was living at Kissy but is now dead. He did go to the house of Samuel Olatilewa John at No.1 Clarence Street, Regent. He never met his wife at home at the time. He does not agree that the and property is State Land. Hon. Bobson Seisay is claiming the property since he wants to sell it. He is the real owner of the property and wants all the reliefs he claiming in his Writ of Summons.
Foday Gibba Anthony (P.W.3) who is a Licensed Surveyor. Since 1962 he has been a Surveyor and got his license since 1971. He did some survey work for the plaintiff. He then looked at Exhibit A1 and the Survey Plan in it which bears his signature and was signed by the Director of Surveys and Lands with an L.S. Number. The boundaries were shown to him by one S.O. John and one Mr. Marcus. He looked at Exh. d which bears his signature and signed by the Director of Surveys and Lands (the 2nd defendant herein). The boundaries were shown to him by S.O. John and Mr. Marcus. At the time he submitted the plans to the Director of Surveys and Lands for signature he never told him the land was State Land. The signature of the Director of Surveys and Lands means that the plotting and mathematical calculations are correct. If it is State Land
the plan will be returned to the Licensed Surveyor unsigned and marked "STATE LAND". He surveyed the corner beacons of the plaintiffs land on the ground and put it on a plan. He identified Exh. C1 which has a Survey Plan prepared and signed by him. He also prepared and signed the plan in Exh. A1 In answer to cross examination from Eku Roberts'Esq., he said that the Plaintiff told him that he wants to buy the land before he prepared the Survey Plans.
He did give him certain documents to use, before he prepared the plans but he cannot now recollect the documents. Exh. A, reads as follows - 84,7265 Acres and it was prepared from a number of plans put together. It was by looking at the plans before him that he came to know that it was from a number of plans. Most of the sources he had were given to him by different surveyors. He cannot recollect that the area in question was a Forest Reserve Land and that his memory cannot go as far as to realizing that the area was a forest reserve. That he did send the plans for scrutiny by the Surveys and Lands Department. His answer in relation to Exh.C1 is the same as he took it from several survey plans. He cannot tell whether Exh C1 was ever a forest reserve.
James Morlai Bangura (P.W.5) who is a Licensed Surveyor for 13 years stated that he knows the Plaintiff and has done work for him in relation to his properties at Regent Road Hill Station. He was required to prepare a composite plan incorporating all his properties at Regent Road, Hill Station which he prepared and signed. He tendered it as Exh. L. This shows the properties of the Plaintiff (Alhaji Amadu Wurie Jalloh) and the present encroachment or occupiers of it such as IMATT, a bushy area already fenced, African Muslim Agency, American Embassy, one Mr. Daklallah and the greater area occupied by other Government leases. The whole area including the encroachment is over 400 acres.
Answering questions from Eku Roberts Esq. he said he has been a Surveyor for the past 13 years and did work for the Ministry of Lands. He knows about State Land and has knowledge about Forest Reserve Areas. When he prepared Exh. L he did give consideration to State Lands and Forest Reserves. He cannot tell whether the area in dispute is a Forest Reserve Area. In his preparation of Exh. L he had documents earlier signed by the Ministry of Lands. He had no document to suggest that the area was a Forest Reserve Area. He would be surprised to learn that the Plaintiff did say the area was a Forest Reserve Area. He signed Exh. L in August 2003
and he was given instructions to prepare Exh. L at the beginning of 2003. He did cover the entire area of his work physically. He did inspect the entire property. When he was asked to prepare Exh. L he never asked the Plaintiff whether he has commenced any action and he never told him. During his preparation of Exhibit L he never discussed with the Director of Surveys and Lands and never knew that the area was being claimed as State Land. The area shaded red is described as "other Government Leases." These are areas leased by Government and claimed by Government. For there to be a Government lease the area must have been claimed by Government as State Land. He did not cross-check with the Director of Surveys and Lands because the documents he had were signed by someone in that capacity. In his opinion you cannot sign as a Private Property and later claim the same area to be Government Property or date Land. Finally he does not think he should contact the Ministry of Lands again as there is no reason for doing so. This ends the case for the Plaintiff.
According to the defence - DW1 Abdul Abib Frederick Conteh an Assistant Director of Forestry in the former Ministry of Agriculture, Forestry and Food Security now a proposed Commission of Environment and Forestry stated that he has been in the forestry for 24 years. He sees Exh. B1 and the Survey Plan in it which is Land at Hill Station which is land he is familiar with. He sees Exh. C1and the Survey Plan in it which relates to land at Hill Station. As far as he knows the area is part of the Freetown Waterworks Forest Reserve established by Public Notice No.75 of 1943. The services of a Professional Surveyor from the Ministry of Lands whose name he could not now recollect was asked to do the job by helping them. He then identified one Tamba Dauda as the one who interposed the plan and did deduce the beacons. In cross examination from Jenkins-Johnston Esq. he stated that he prepared identification Z.
Tamba Sahr Dauda (D.W.2) Ministry of Lands stated that he sees Exh. A1 and the Survey Plan in it which is within the Hill Station Area. He sees Exh. C1 and the Survey Plan in it which is within the Hill Station area. He knows DW1 of the Forestry Department. He was asked by his boss to Iook at Exhs A1, B1 and C1 especially the Survey Plans in them. He was to impose them on the Cadastral Sheet and then super impose them. He has to compare their locations against the
Forest Reserve Boundaries. He then looked at identification Z a large paper and said it is a result of his work headed composite plan showing boundaries LS 2974/94, the Forest Reserve Boundaries and Freetown City Boundaries and tender it as Exh. M. After plotting it against the Cadastral Sheet he then discovered that Exhs A1 B1 and C1 falls within the Forest Reserve Boundaries;
In his answers in cross examination from Jenkins-Johnston Esq. he stated that he sees Exh. A, signed by licensed Surveyor dated 26th May, 1985 and signed by the Director of Surveys and Lands. There is a plan in Exh. B1 signed by a licensed Surveyor and the Director of Surveys and Lands with an LS Number dated 14th December 1990. In Exh C1 is a Survey Plan signed by Licensed Surveyor but the date is not clear and it is signed by the Director of Surveys and Lands dated 12th February, 1995 with LS Number 2974/94. This is what he referred to in his Composite plan John Nathaniel Aristbulous Coker (DW3) said that he is a Civil Servant attached to the Ministry of Lands, Country Planning and the Environment. He narrated his duties and said he knows the land in dispute. He has some correspondence relating to this property in dispute from the Director of Surveys and Lands to the Permanent Secretary, Ministry of Agriculture, Natural Resources and Forestry dated 14th December 1989 which he tendered as Exh. N. Another correspondence relating to the same land dated 30th March, 1990 addressed to the Senior Permanent Secretary, Ministry of Agriculture, Natural Resources and Forestry to the Director of Surveys and Lands in respect of Exh. N as Exh. O. He tendered another correspondence dated 10th, April 1990 from the Director of Surveys and Lands to the Senior Permanent Secretary Ministry of Agriculture and Forestry as Exh. P. He also rendered another correspondence relating, to the same piece of land dated 10th May, 1990 from the Senior Permanent Secretary, Ministry of Agriculture, Natural Resources and Forestry to the Permanent Secretary, Ministry of Lands, Housing and the Environment as Exh. Q. According to him, to his knowledge the Ministry of Lands has taken Obsession of this land and various plots have been leased to Embassies, Companies, individuals etc. That each lessee has taken possession of their respective portions.
In cross examination Jenkins-Johnston Esq. he said that in Exh. A Survey Plan is signed for the Director of Surveys and Lands on 14th July 1985 which is 21 years ago. That it has an LS number on it. That it is LS Number is different from that on Government Survey Plans. This L.S. Number is for Private Property as Government Survey Plans are marked differently. The office receiving the plan gives the LS Number which is done by someone in the Ministry. This signifies that the angles and distances on the plan are correct. This does not tell that the land is private or state land. If the land in question is state land it will have that LS Number at that time. The LS Number in Exh. A1 does not indicate that the land is not Private Land. The plan reads; "Property of Alhaji Amadu Wurie Jalloh" and when it was allocated the US Number it reads. "Property of
Alhaji Amadu Wurie Jalloh". He does believe it had the same captioned when it was delivered. He does hot know whether or hot the advice of the Law Office was sought or whether the land was State Lane or not.
Sheku Kamara (DW4) a Detective Assistant Superintendent of Police attached to the C.I.D. Headquarters recalls 2nd May 2005 when he had cause to deal with the Minister of Lands etc. on property belonging to Alhaji Amadu Wurie Jalloh. The Minister of Lands, Hon. Dr. Bobson Sesay made a report of fraudulent claim to land at Hill Station, Regent. He handed over to him two conveyances to do an investigation on them. He did an investigation with three personnel under his supervision. He later wrote a report which he signed. He tendered it as Exh. R after Subjections raised and replies made thereto. He came about this report following routine investigation and a report prepared. (I shall deal with the law on this aspect in the course of the judgment in civil trials and the effects of pleadings on fraud);
In cross examination from J.B. Jenkins-Johnston Esq. he said he tendered Exh. R and that he was instructed by the Minister of Lands to do an investigation. He did receive two conveyances from the Minister of Lands and Exh. R is the result of his investigation. When he received the two conveyances he was never told of any pending court action in relation to them. He was never told of any Writ of Summons against the Minister of Lands issued since February 2004. He never obtained any statement from the Minister, of Lands Dr. Bobson Sesay in relation to this matter. He never obtained any statement from the Director of Surveys and Lands in relation to this matter. He has never studied Land law nor surveying as part of his police duties. This is the defence case.
Before proceeding to deal with the law in relation to the entire evidence led, let me consider some salient issues raised by the pleadings. In paragraph 6 and 6 the defendants alleged in their defence that the land is state land without stating how and when it became state land. The defendants did not challenge Exhibits A1B1 and C1 beyond a mere denial nor did they plead "fraud" on the part of the Plaintiff nor made any counter claim asking the Court to set aside Exhibits A1 B1 and C1 Order 16 Rule 13 of the High Court Rules, 1960 provides: "It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim.......But each party must deal specifically with each allegation of fact of which he does not admit the truth........" The effect of this rule together with Rules 13 and 19 is to compel the defendant to deal specifically with each allegation of fact which he does not admit He
must deal with each substance of each allegation and either deny or state definitely that he does not, admit it.
The defence in their statement of defence did not deal with the series of allegations contained in paragraphs 2, 3 and 4 of the statement of claim. An example is that of paragraph 3 that there is in existence a conveyance registered as No.529/88 in Vol. 420 at Page 120 in the Books of Conveyances which gave the plaintiff 84.7 acres of land at Regent Road Hill Station. All what the defendants stated, is that the land is state land without in any way detailing how it became state land. The big question arises - is there evidence that the three pieces of land bought by the plaintiff is state land? This question will be answered as the judgment proceeds.
The term "State Land: carries a specific meaning in law. Section 2 of the Crown or State Lands Act 1960 "(Act No. 10 of 1960) provides: "Crown Lands" (State Lands) means all lands which belong to the Crown (State) by virtue of any treaty, cession, convention or agreement, and all lands which have been or may hereafter be acquired by or on behalf of the Crown, for any public purpose or otherwise howsoever and land required under the provisions of the Public Lands Ordinance and includes all shares, beaches, lagoons, creeks, rivers, estuaries and other places and waters whatsoever belonging to, acquired by, or which may be lawfully disposed of by or on behalf of the Crown "(State)".
In paragraph 6 of the Statement of Defence the defendants pleaded that the lands in question were State Lands and no more. State Land has already been defined above as in contained in tne State Lands Act 19)30 (Act No. 19 of 19.60) already fully quoted above.
Counsel for the defendants Eku Roberts Esq. did submit in his written address that Section 19 of the State Lands Act 1960 (Act No. 19 of 1960) that it is for the Plaintiff to adduce evidence establishing that the lands in question are not State Lands which burden the plaintiff have failed to discharge as the plaintiff erroneously believed that it is for the defendants to show evidence that the said lands in dispute are State Lands,Section 19 of the said State Lands Act 1960 has been repealed by the Crown Lands (Amendment) Act 1961 (Act No.37 of 1961) by Section 5 of this attending Act. Section; 1.9 relied on by Eku Roberts Esq is therefore of no moment in this matter.
In my humble opinion Exhibits A1, B1 and C1 which were tendered in evidence contained Survey Plans signed t)y the Director of Surveys and Lands (the 2nd defendant herein) indicating that the
lands in question were not State Lands but Private Lands. The defence did not raise any objections when these documents were tendered in evidence. The Survey Plans in Exhibits A1 B1 and C1 were all signed by the 2nd defendant (Director of Surveys and Lands) bearing dates 14th June 1985 for Exh. A1. 14th December 1990 for Exh. B, and 12th February, 1995 for Exh. C1 (which is a period of 19 years, 14 years and 9 years respectively before the commencement of this action. Let me ask a simple question - How did all these Survey Plans came to be signed as Private Lands by the 2nd defendant (Director of Surveys and Lands) and he now claims it is State Lands? Where was Exhibits N, O. P and Q dated 14th December 1989, 30th March 1990, 10th April, 1990 and 10th May 1990 when Exhibits A1 B1 and C1 were signed by the 2nd defendant? After all these, how can 2nd defendant now claim the lands were State Lands after clearing them as Private Lands? In my humble opinion there is no evidence that at the time these Survey Plans were submitted for verification and signature by the 2nd defendant, the plaintiff or his Surveyor was drawn to the fact that those lands were State Lands and therefore could not be signed. The defence did not clarify these issues especially considering the fact that Exhs. N. O. P and Q as Claimed by DW3 were with the Ministry of Lands.
Exh. R which was tendered after objections raised by J.B. Jenkins-Johnston Esq. alleges "Fraud" which in law is the making of a false document of false declarations and the connivance of the ' solicitor in the preparation and enhancing of the fraudulent claim of the land by the plaintiff. At this point let me note that Exh. R was admitted in evidence but this court attaches no weight to it. Secondly Exh. C, which has the largest area - 409.14 Acres was prepared by L.M. Farmah Esq. Solicitor for the defendants. Does this make any sense when one looks at the entire issues aised? The answer to this is definitely in the negative. On the question of "fraud" raised by the defence only in their evidence but not in their pleadlngs:-
Order XVI Rule 6 of the High Court Rules, 1960 provides: "In all cases in which the party pleading relies oh any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in other eases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings......."
The defence of fraud or misrepresentation must be specifically pleaded and the necessary particulars of the alleged fraud, or misrepresentation must be stated in the pleadings and particulars relied on in support of an allegation of fraud must also be contained in the pleadings. In U.A.C.V. Taylor (1936) W.A.C.A. 70 at 71 the Judicial Committee of the Privy Council stated
that where there is an allegation of fraud or any act of illegality is alleged the party so alleging it must specially plead the facts on which he relies for such allegation. Their Lordships said: "In the opinion of Their Lordships there is a rule which Is less subject to exception than the rule that charges of fraud, and a fortiori charges of criminal malversation or felony, against a defendant ought not to made at the hearing of an action unless, in a case where there are pleadings, those • charges have been definitely and clearly alleged so that the defendant comes into Court prepared to meet them."
In my humble opinion, a party who intends to prove fraud must plead it expressly and if, he does not do so he will not be allowed to produce evidence which points unequivocally to the said fraud and nothing else. Exh. R was admitted for what it was worth but this Court attaches absolutely no weight to it. There was absolutely no averment in the pleadings of the defendants of fraud on the part of the plaintiff. It is clear in civil proceedings that fraud must be specifically pleaded - Lyoubi Bros. V. Tunis 1962 ALR S.L. 44 and the object of such pleadings is to prepare the opposite party for the case he is to meet - Keister v Mustapha 1964 - 66 ALR S.L. 47. It is an accepted principle in Civil Proceedings that reliance cannot be placed on matters not specifically pleaded -Courban v S.L.P.A. 1968 - 69 A.L.R. S.L. 236. Therefore Exh. R has no place in these propeedings. Exh: R not only usurped the powers of this Court but also passed judgment on Exhs, A1, B1 and C1 whilst these documents were pending in Court. The witness Sheku Kamara ( (D.W.4) reached a conclusion which was the duty of the Court - See: Haynes v Doman (1899) ch. 13 at 19.
The Plaintiff in his evidence and as in Exhibits A1 B1 and C1 stated that he purchased the said pieces of land from Samuel Olatilewa John and Marcus Macauley whose title is being derived from Akie John (Deceased) their family as is contained in the recitals. In Seymour Wilson v. Musa Abess (unreported) Civ. App. 5/79 Livesley Luke C.J. said;
"....... Quite apart from this, it is a matter of common knowledge that most of the lands in the Western Area outside the City of Freetown are based on possessory title and most of them are not covered by title deeds...... .........That situation is the result of land holding established in the Western Area about two centuries ago. The system which has been in operation in the Western Area since the founding of the Colony (now the Western Area) is that land passes within the same family from one generation to another in many cases without the existence of any document of title............"
On the authority of Turay v. Kamara 1967 - 68 ALR S.L. 89 the plaintiff herein was therefore a bona fide purchaser for value of the legal estate without notice and in law obtained a good title to each of the three pieces of land and as such takes the legal estate even if it was conveyed by fraud and in this case it has been noted above in this judgment that fraud was even never pleaded.
Before concluding It must be noted that not all lands in the Western Area are State Lands. Such lands became state lands by virtue of what is contained in the State Lands Act, 1960 (Act No. 19 of 1960). Apart from this Act there is also the Public Lands Act, Cap. 116, the unoccupied Lands Act, Cap 117 are two legislations in which State Lands can come into existence. In my humble opinion therefore State Lands exist through certain legal processes as is contained in Cap. 116 and 117 already mentioned above including the State Lands Act 1960 (Act No. 19 of 1960).
Having considered the Survey Plans in Exhs. A1 B1 and C1 which were all signed and dated by the 2nd defendant (Director of Surveys and Lands) as Private Lands not as State Lands prior to the dates on the said exhibits, it is hard and difficult for the 2nd defendant to now declare the said lands in the Survey Plans to be state land as he is estopped in law from doing so.
From the exhibits tendered - Exhs. A1 B1 and C1 these lands were the properties of Samuel Olatilewa John and Marcus Macauley families prior to the dates contained in the said exhibits. Considering the entire evidence led by the plaintiff herein is a bona fide purchaser for value of the legal estate without notice nor was it obtained by fraud (having held that fraud was never pleaded) and therefore acquired a good title in law.
I shall give judgment fo the plaintiff and make the following orders:-
1. The three declarations in prayers 1, 2 and 3 of the Statement of Claim are hereby granted
2. The orders contained in prayers 4, 5 and 6 are hereby granted. 3. Damages for Trespass assessed in the sum of Le. 15,000,000.00.
4. In case part of the land has been acquired by any person or persons through the defendants, that the plaintiff do reclaim such lands.
5.Costs to be taxed if riot agreed.
P.O.. HAMILTON J.A.