Kamara v. Kamara (CC: 270/07 2007 K. NO.24)  SLHC 38 (01 January 2007);
CC: 270/07 2007 K. NO.24
ISSA M. KAMAR.A - PLAINTIFF/APPLICANT
MUSTAPHA KAMARA -DEFENDAN'T
(AKA SCORPIO) S.M. SESAY Solicitor for the Plaintiff/Applicant
MR JUSTICE E.E ROBERTS ,J,A,
By Notice of Motion dated 24th May 2007 the Plaintiff is seeking leave to enter final Judgement lor the reliefs contained in the Writ of Summons In ibis action which included a claim for declaration of title to land, recovery of possession, injunction and damages for trespass.
The application is supported by two Affidavits of Sahid Mohamed Sesay sworn to on the 24th May 2007 and the 26th June 2007 respectively.
I note that the Defendant was not present nor does he appear to have been served with the summons herein. In this regard my first duty is to consider whether the present application is properly before this court and whether the court can hear this application when the Defendant does not appear to have beer; served, nor is there an affidavit of service upon him.
This application is sought to be made pursuant to Order 22 Rules 5 and 7 of the High Court Rules 2007. This is because in the plaintiff's view the claim is for recovery of land, injunction and damages and would thus require leave of the court for Judgement to be entered where the Defendant has defaulted in entering or filing a defence. In this case however the Defendant has not even entered an appearance.
I observe that Order 22 Rule 7 of the High Court Rules 2007 pursuant to which this application is made is identical with Order 19 Rule 7 of the Annual Practice 1999 and so i found the notes thereunder to be very useful and relevant. Paragraphs 19/7/8, 19/7/9 and 19/7/11 page 366 of the Annual Practice 1999 recognise that this kind of application may be made by summons or motion, which must be served on the Defendant. Paragraph 19/7/2 thereof also recognises that Order 22 Rule 7 pursuant to which the application is made contemplates a situation , as the instant case, where the Defendant has not only failed to a file a defence but has not even entered an appearance. However though it appears that the Plaintiff herein ought to have served the Defendant with the Motion herein this requirement has apparently been rendered unnecessary by Order 58 Rule 7 of the High Court Rules 2007. The provision of Order 22 Rule 7 for Order 19 Rule of the white Book 1999) docs not require that the motion to be served personally and so by virtue of the Order 58 Rule 7 the Motion is deemed to have been served by filing same with the Master & Registrar.
In the light of the above, 1 believe that the application can properly be heard and determined by the court even in the absence of the defendant.
In dealing with the application proper I note that counsel for the Plaintiff submitted that the application is for inter alia liberty to enter final judgement for declaration of title to 2 pieces of land, the recovery of possession of the lands the dimension and descriptions of which are contained in the writ of Summons herein exhibited as A 1-3 in the affidavit of Sahid Mohamed Sesay sworn to on 24th May 2007 and filed in support of this application. I also note that the Writ is specially indorsed and included a claim for perpetual injunction, damages for malicious damage and damages for trespass.
Upon perusal of the motion and affidavit as well as the exhibits attached to the affidavits in support of this application the Defendant appeared to have been served with the said Writ in this action as deposed in the Affidavit of Service which is Exhibit B.
The Defendant having been served with the said writ on the 20th April 2006 did not enter an Appearance nor did he file a defence till date. On the 24th May 2007 when the Plaintiff filed this application, a period of about 33 days has elapsed.
Exhibits G (1.-3) and SMS 2 (1.-3) respectively are the conveyances upon which the Plaintiff relies in support of his claim for the reliefs in the writ of summons in respect of the two pieces of land. Exhibit G (1-3) is a conveyance dated 31st July 1979 registered as no 83/79 at page 96 in volume 311 of the Book of Conveyances, which instrument recorded the Vendors as Jonas Cyril Harris, Olive Keturah Harris and Abioseh Cummings and the Plaintiff as Purchaser, whilst exhibit SMS 2 (1-3) is a conveyance dated 16th January 1980 registered as No. 61/80 in Volume 315 at page 49 in the Book of conveyances which instrument recorded the same persons (i.e. Jonas Cyril Harris, Olive Keturah Harris and Abioseh Cummings ) as Vendors and the Plaintiff as Purchaser. Thus the two plots were apparently bought by the Plaintiff from the same Vendors.
I have read the two affidavits in support of this application. It is deposed among other things that despite the Plaintiff being owner of the two piece of land, he had been prevented from entering same by the Defendant.
That the Defendant had by exhibit E been warned to desist from his acts of trespass but had continued trespassing on the lands.
In the light of the above and have read the affidavits and all the exhibits attached thereto I am satisfied that is a proper case for me to grant the application and therefore make the following orders
1. That the Plaintiff herein is the fee simple owner and person entitled to possession of all those pieces and parcels of land both situate lying and being at Off Lumely Road, Lumley Freetown in the Western area of the Republic of Sierra Leone delineated and demarcate on survey plans numbered LS690/79 dated 5th day of March 1979 and LS 2144/79 dated 30th October 1979 which said survey plans are referred and attached to conveyance dated 31st July 1979 and registered as No. 835/79 in volume 31 1 at page 96 and conveyance dated 16th January 1980 and registered as No. 61/80 at page 49 in volume 315 of the Book of conveyances respectively.
2. The Plaintiff shall recover immediate possession of all those pieces or parcels of and aforementioned both being and situate at Off Lumely Road, Lumely Freetown in the Western Area of the Republic of Sierra Leone as demarcated on Survey Plans marked LS 960/79 dated 5th May 1979 and I.S2 144/79 dated 30th October 1979 respectively.
3. Damages for malicious damage to be assessed
4. Damages for trespass to be assessed
5. A perpetual injunction restraining the Defendant whether by himself his servants agents privies or howsoever otherwise called from entering or remaining the said pieces or parcel of land described in 1 and 2 above or any part thereof or from disposing of the said lands or any portion thereof and from interfering with the plaintiff's use and enjoyment of the said lands or any part thereof
6. Cost of this application assessed at Le500, 000.00 to be borne by the Defendant
HONOURABLE MR.JUSTICE E.E ROBERTS, J.A