Agbaje v. Digba & Others (C.C. 781/88 1988 T NO.36)  SLHC 42 (01 January 2007);
C.C. 781/88 1988 T NO.36
IN THE HIGH COURT OF.SIERRA LEONE
HENRY E. AGBAJE - PLAINTIFF
MOHAMEDS. DIGBA - 1st. DEFENDANT
JOHN SMART - 2ND DEFENDANT
ISATU HALLOWELL - 3RD DEFENDANT
I believe i should at the onset of this judgment stale that this matter which commenced in September 1988 was initially heard by Mr. Justice E. K. Cowan until October 2000 when it was reassigned to be heard by Mr. Justice A. B. Raschid now deceased. The late Mr. Justice Raschid took over the hearing of the matter and reserved judgment in October 2006 but unfortunately was unable to deliver the judgment before his sad demise. Thereafter the matter was passed over to me and I obtained the consent of Counsel herein to proceed to write the judgment based on the available court records. I therefore have not had the privilege of hearing the evidence personally or seen and observed the witnesses.
The Plaintiff's claim against the Defendants is jointly and severally as follows: -
1. Recovery of possession of piece or parcel of land situate lying and being at Freetown-Waterloo Road. Wellington in the Western Area of Sierra Leone
2. A declaration that the said piece or parcel of land situate lying and being at Freetown- Waterloo Road, Wellington aforesaid is the property of the Plaintiff
3. Damages for trespass on to the Plaintiff's properly.
4. An injunction to restrain the Defendants, agents, workmen or otherwise from entering the Plaintiffs' property.
5. Rectification of the 1st, 2nd and 3rd Defendants documents of title to their properties aforesaid.
In his particulars of claim, the Plaintiff averred that he is the fee simple owner of all that piece or parcel of land situate lying and being at Old Freetown- Waterloo Road, Wellington as evidenced by a Deed of Gift dated 10th September 1954 expressed to be made between Clarissa Alaba John and Henry Ebun Abaje and duly registered as No. 57/55 in volume 39 at page 143 of the Books of Voluntary Conveyances kept in the office of the Registrar General Freetown. He stated that the said Mrs. Clarissa Alaba John died in 1960 and thereafter a Mrs. Marion Cole Lewis residing opposite the said piece of land at 124 City Road, Wellington undertook to keep an eye on the said piece of land as the Plaintiff was then out of the country. He further averred that sometime in September 1981 the said Mrs. Cole Lewis informed him that she had authorized certain persons to cultivate the land but had been prevented from doing so by someone who had placed some property beacons thereon without her knowledge and consent. The Plaintiff on inquiry learnt that the 1st Defendant had gone on to the land and claimed the same and replaced beacons on the land. The Plaintiff averred that he later on placed notices on the land warning off trespassers.
He further stated that the 1st Defendant by a Statutory Declaration dated 16th February 1981 and duly registered as No. 24/81 in volume 19 at page 52 of the Books of Statutory Declaration in the office of the Registrar General Freetown purported to establish possessory title to a piece of land situate lying and being at City Road Wellinton described in the said Statutory Declaration. He averred that by Deed of Conveyance dated 14th December 1981 the 1st Defendant purported to convey to the 2nd and 3rd Defendant a piece of his said land described in his said Deed of Gift The said Deed of Conveyance is registered as No. 1539/81 in volume 335 at page 61 in the Books of Conveyances kept in the office of the Registrar General Freetown. He claimed that by a survey plan BSC 754 the Defendants have encroached on his properly to the extent described in the said survey plan. He therefore prayed for the reliefs above mentioned.
The 1st Defendant filed a defence to the action as well as the 2nd and 3rd Defendants. In their defence they denied the allegations contained in the said particulars of claim. The 1st Defendant denied that the Plaintiff or his predecessor in title was in possession of or had any right to possession of the land situate lying and being at City Road. Wellington. He averred that his grandmother was in possession of the land for twenty years before her death in 1943 and that sometime in 1965 he was put in possession of the land by his late father. He claimed that the position dimension and boundaries of the said land are shown on the survey plan No. L.S. 3188/80. He admitted that he sold the said piece of land to the 2nd and 3rd Defendants but denied that the said piece of land is owned by the Plaintiff. He further denied that he has encroached on the plaintiff's land and averred that it was the Plaintiff who had encroached on his land. He claimed that he had caused a plan L.S. 1456/82 to be prepared and had instructed his Solicitor to write to the Director of Survey and Lands on 4th September 1988.
The 2nd and 3rd Defendants in their defence denied the plaintiff's allegation and maintained that they are bona fide purchasers for value without notice of any incumbrance and are therefore the owners of the said piece of land described in their said conveyance.
The action was entered for trial on the 2nd day of March. 1989.
The first witness for the Plaintiff was Obededum Ojumeri Cole a Private Licensed Surveyor who was hired by the Plaintiff sometime in July 1987 to carry out a resurvey of his land/ property at Old Road, Wellington. He said that he carried out the survey after the Plaintiff had handed to him the plan of the said property. He told the Court that when he entered the land to carry out the survey, the 1st Defendant informed him that he was surveying someone else's property. The 1st Defendant told the witness to get of the land as the land was his property. He said that he left the said land and reported to the Plaintiff. He told the Court that he went to the land a second time armed with the plans of the Plaintiff and the 1st Defendant. He took measurements and found that the 1st Defendant's plan overlapped into the Plaintiffs'. He said that he prepared a Report of his findings He said that he had cause to investigate the plaintiff's land and that of the defendant further. He found out that the 1st. defendant had sold part of his land to the 2nd and 3rd defendants. He produced and tendered the Report as ' Exhibit "A". He identified Exhibits B.C.D. E, and F.
He said that he used those documents for his investigation and arrived at exhibit "A"'. He produced and tendered exhibit "G". Under cross-examination by Mr. Akar, the witness said that he prepared exhibit "A". The Encroachment plan. He said that he used the same beacon numbers in exhibit "A" as in exhibit "13". The 2nd and 3rd Defendants' lands in the main road. Beacon 1-2 is sixty-four feet. The distance between beacon 4 F.C. 3852/80 is approximately 1/3 of the distance between beacons 1 and 2.
Under cross-examination by Mr. Nylander. the witness said he could see exhibit "B" and the site plan contained therein. The site plan was done by prismatic Compass and Steel Band Survey. He said that it was not drawn by him. He identified exhibit "D" it was done by Theodolite and steel Band Survey in 1981. He said that it was directed by the Director of Surveys that all surveys done by prismatic Compass and steel band as the owner of the property required. The change to Theodolite was not as a result of the prismatic Compass being in accurate. He identified exhibit "G" as the encroachment plan he prepared. He told the Court that he arrived at the encroachment plan by interpreting both plans for their central points and coordinates approved by the Director of Surveys and Lands. The Plaintiff in 1954 and the 1st Defendant in 1981. He said that he carried out a physical site survey at the site. The beacons were all not there. That is the beacons of the plaintiff were not there but found two beacons of the 1st Defendant. He said that the controlled points starting from City Road and Main Road Wellington junction by a given distance and compass bearing. The control is marked in the survey as point "P". He said that the bearings were based on the site plan of the Plaintiff. He said that there is an encroachment by the 1st Defendant on the Plaintiffs' land;
The second witness for the Plaintiff was Alie Bangura, a clerk at the Administrator and Registrar General's Office. His duties include being custodian-of regislrable instruments. .He produced and tendered a Deed of Gift dated 10th September 1954 registered at Page 143 No 57/55 made between Clarissa Alaba John as Donor and Henry Ebun Agbaje. He also tendered as exhibit "C" a Statutory Declaration by Claude Benjie Davies registered in Volume 39 at Page 46 in the Books of Statutory Declaration dated 5th July 1954. He tendered a Statutory Declaration in respect of Mohamed Saidu Digba and others registered as No 24 at Page 52 in the Book of Statutory Declaration dated 16th February 1981 as exhibit "D".
He further tendered as exhibit "E" a Deed of Conveyance from Mohamed Saidu Digba to John Smart Hallowell and Isatu Hallowell dated 14th December 1981 registered as 1539/81. at Page 61 in the Book of Conveyance as exhibit "E". The witness tendered as exhibit "F" a Power of Attorney from Henry Ebun Agbaje to Samuel Ebun Agbaje dated 20th November 1981 registered as 99/81 in Volume 48 at Page 94 in the Book of Power of Attorney. There was no Cross examination. The third witness was the Plaintiffs' father, Samuel Ebun Agbaje. He knows the Plaintiff who is his son and owns land at the Wellington Area. He told the Court that sometime in 1954 his late grand aunt Mrs. Clarissa Alaba John donated a piece of land at City Road, Wellington to the Plaintiff. He said that a Mrs. Remie Cole Lewis was taking care of the land as she lived at No. 124 City Road, Wellington opposite the said land. The said Remie Core Lewis engaged . farmers who cultivated vegetables on the said land: He told the Court that
sometime in August, 1980 he received information that some people were surveying and affixing beacons on the said land. He said that the following day he and one Mr.' Cole Lewis went to inspect the said land and found beacons on the land. He said that the 1st Defendant approached him and told him that the land belonged to his sop and that he had documentary evidence to substantiate that. He suggested to the 1st Defendant that they meet thereafter to exchange documents. On the appointed day they met at the land. The 1st defendant did not produce any document as he had none in respect of his ownership of the said land. Consequently, the witness made two metal posts, one of which he placed at the City Road. Wellington side and the other at the Freetown -Waterloo Road. He said that a week later he received information that the sign post had been removed. He thereupon made a report at the C. I. D and hired P. W I to resurvey his land.
Under cross-examination by E. J. Akar Esq. the witness said that he did not know whether the 1st Defendants" land is adjacent to the Plaintiffs' land, but that the Plaintiffs1 land had been encroached upon.
In re-examination, he said that he subsequently went on the land after getting information of the encroachment. (The fourth witness for the Plaintiff is Solomon A. .1. Cole Lewis who lives at No. 121 City Road. Wellington. He is a Civil Engineer and he knows that the plaintiff owns land' around City Road, Wellington. He stated that there is a plot of land between the Plaintiffs' land and ' his. The witness said that he used to live" at No. 124 City Road with his grandmother. He told the Court that the Abgaje's property is situate opposite No. 124 City Road, Wellington, and it used to be in the care of his grandmother Mirian Cole Lewis. He said that his grandmother made someone pick fruits from the compound to give to the Abgaje's when they visited the said property as it was theirs. He staled that knows P.W.1 the Surveyor and that he went to the \ said land to resurvey the land.
Under cross examination by Mr. Nylander for lst Defendant, the witness said that he knows the limitation of the property as he has seen the site plan and of which he has a copy. He said that the Abgaje's own the whole of the property. He told the Court that he has lived at City Road. Wellington since his birth. He said that recently he heard about the 1st Defendant whom he had seen on the said properly which belongs to the Abgaje's. He said that he did not know that the 1st Defendant had acquired a plot of land adjoining the Plaintiffs' and that he does not know of any properly belonging to the 1st defendant. The property of the Plaintiff is situate between the Old and New Road. Under cross examination by Mr. Akar, the 2nd defendant the witness said that the frontage of the Plaintiffs' property is on the Old Road which is known as City Road, Wellington. He said that he could see the Plan to exhibit "B" and it is headed "Plan of land at Freetown - Waterloo Road. Property Ebun Agbaje"' He saw the name of Mrs. Cole Lewis on Exhibit "B". He said that there is no road between Cole Lewis and Agbaje property. There is a road called Freetown - Waterloo Road to Wellington. It is not marked City Road Wellington. No Cole Lewis property is shown in the plan. He identified Exhibit "G". -Her property is nearer the Freetown-Waterloo Road property is not shown as being on the old Road which is called City Road. On the plan, that is. exhibit "G", it is called Main Road. Exhibit "Bl" is dated 1954 and it was the Main Road. On re-examination the witness said that his answers related to what he had before him on exhibit "B" and exhibit "G". He said that apart from 124 City Road ' there is another Cole Lewis properly. (The fourth witness for the Plaintiff was Mr. Tarawally a Clerk attached to the High Court No. 2. His duties include safe keeping custody of Court Exhibits of Civil Cases. He recalled 20/6/95. He was among the party that visited the locus in quo at Congo Water. Wellington. He said that those present were Cowan J, R. Awoonor-Rennei\ Plaintiffs' Solicitor.
E.J. Akar Solicitor for 1st and 2nd defendants. The parlies of the Plaintiff and the 1st and 2nd defendants indicated their different points to the Court and he reduced their .statements into writing which he signed. He produced and tendered it as exhibit. "H".. There was no cross examination. (The fifth witness for the Plaintiff was Santigie Kargbo a Gardener who lived at No 132 City Road, Wellington. He said that he has been gardening on the land opposite Mrs. Cole Lewis' house which is situate at No." 124 City Road Wellington. He said that the late Mrs. Cole Lewis gave him permission to work on the land. He told the court that his late wife had worked on the land for twenty years before him and had told him that one Pa. Agbaje owned the land. He did not know the 1st defendant. He said that he was once disturbed by an I. S. U man who claimed the land to be his but did not know his name. The witness told the Court that he is still working oh the land and that there is no house on it.
Under cross-examination by Mr. Nylander. the witness said that he had not been shown documents to say that the land is owned by Mr. Agbaje nor did Mr. Agbaje tell him that the land belonged to him.
Under cross examination by Mr. Akar, the witness denied that he was in Court to help the Plaintiff. The Plaintiff closed his case. (The first witness for the 1st defendant was Foday Jigbao Anthony a licensed Surveyor. He said that his services were retained by the 1st defendant to resurvey the points of his land at Wellington. The 1st defendant also gave him photocopies of two plans. One belonging to him and the other to the Plaintiff. He identified exhibit "B" which is the plan of the Plaintiff and exhibit "D" which is the plan of the Ist Defendant situate at City Road, Wellington with L. S. 3188/80. He said that he made a composite plan of exhibit "B" and exhibit "D" respectively: He said that he was able to plot plan
L.S 3188/80. property of the 1st Defendant on the Freetown and Districts plan sheet No. 28 by means of coordinates and grids. He said that he was not able to plol property of the Plaintiff because it is on a compass survey which is not reliable because of the surveying needle of a compass. This has no grid. He said that this is why our survey ordinance Cap 128 has modified it to a Theodolite and steel band which makes it reliable to plot it accurately.
He said that he could not accurately plot plan B.S.C 7/54 with any amount of accuracy on the Freetown district and District plan. But a close look at the compass North South. East and West and features around the vicinity came to a conclusion that there was no encroachment delected. He said that if he had the length he would be able with features surrounding the area to ascertain the compass points of the Plaintiffs' land using the magnetic North which varies yearly. His conclusion is that there is no encrouchmeni looking at the plans. He said that he produced a Report.
On the 9th November 1998 it was reported that the 1st Defendant died.
On the 19th October 2004 the lst Defendant (deceased) was substituted by one Sembu Conteh pursuant to Order 13 of the High Court Rules 1960.
On the 22nd February 2005 Sembu Conteh gave evidence on behalf of the 1st . Defendant. He told the Court that he knew the late Saidu Digba who died during the Rebel war. He said that he took out Letters of administration in respect of his properly. He told the Court that he is acquainted with the 1st Defendants' property. He reidentified exhibit "D," as the Statutory Declaration of the said Saidu Digba. He said that during his life time no one challenged his right except the Plaintiff herein. He said that the 1st Defendant inherited this properly from his late mother called Ya Digba.
ORIGINAL VERY FAINT
The 1st Defendant case was closed.
The third witness for the defence was the 2nd Defendant, John Smart Hallewell. He said that he knew the land at the Old Freetown-Waterloo Road. He told the Court that he bought the said piece of land from the 1st Defendant. He said that before he acquired the land the 1st Defendant surrendered exhibit "B" his Title Deed. Thereafter he prepared his own Conveyance as evidenced in exhibit "E" in 1981. He said that he has been in possession ever since when in 1982 there was a fracas between himself and the Plaintiff. He told the Plaintiff that he was a bona fide purchaser for value. He said that before purchase he made enquiries from the Ministry of Lands and Registrar-Generals' Office who confirmed that the lst Defendant owned the said land.
ORIGINAL VERY FAINT
The 2nd Defendant closed his case.
In an action for declaration of title the Plaintiff must succeed on the strength of his title and not on the weakness of the Defendants title. Thus principle has been established in a number of cases and I shall refer to the celebrated case of Seymour Wilson vs. Musa Abess an unreported 1981 Supreme Court case where the learned Mr. Justice Livesey Luke C. J. quoted from the case Kedilinye v. Odu (1935) WACA 336 at pp 337-338 as follows: -
"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. 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"
In this case the Plaintiff having averred that he is the fee simple owner of the land in dispute the onus is on him to prove that averment. The Plaintiff has based his claim to a declaration of a fee simple title on a Statutory Declaration declared on the 5th day of July 1954 and a deed of Gift dated 10th September 1954. In his evidence before the Court the plaintiff's father testified that he has been in possession of the land since 1954 when it was conveyed to him and it was looked after by a Mrs. Cole Lewis who lived opposite the land and arranged for certain
persons to cultivate the land. He further testified that he had no problem with the He said that before
ORIGINAL VERY FAINT 13
land until 1980 when he was informed that the lst Defendant had entered the land and was laying claim to it. This evidence was also confirmed by two of his witnesses namely, P.W 4 Solomon A. B. Cole Lewis who lives at 121 City Road Wellington and who had lived at the said City Road, Wellington since birth. The . gardener Santigie Kargbo, the Plaintiff's fifth witness who also lives at City Road Wellington testified that lie has been planting on the land since 1980 and that it was the late Mrs. Cole Lewis who gave him permission to do so. He further slated that the land was being cultivated by his wife before he worked on it and that she had done so for twenty years before him and that he was still working on the land. He slated that he knew that the land was owned by Mr. Abaje and that he did not know the 1st Defendant.
In addition to this evidence there is the evidence of P.W 1, the Plaintiff's surveyor who was requested to resurvey the land. He testified that after his investigation and physical survey of the Plaintiffs land he prepared a report of his findings."Exh. "A" and drew a plan showing the differences of the position of the properties. Exh "G". In the course of his investigation he found out that 1st Defendant had sold part of the land to the 2nd and 3rd Defendants. His findings were that there is an encroachment by the 1st Defendant on the Plaintiffs land.
Let me now turn to the case for the 1st Defendant. His claim to entitlement to the land is based on a statutory declaration dated the 16th day of February 1981. The 1st Defendant however died before the completion of the matter and was substituted by Sembu Conteh, the administrator of his estate. He testified that he was acquainted with the 1st Defendants' properly. He confirmed that the 1st Defendant had inherited the land from his mother and suited that he was aware that the Plaintiff
ORIRINAL VERY FAINT
had made a claim of the land and that the 1st Defendant had reported the matter to the Director of Surveys. The 1st Defendant's Surveyor Foday Jibao Anthony evidence is also crucial here. His conclusion is that there is no encroachment delected.
The 2nd and 3rd Defendants' have derived title from the1st Defendant. They claim that they investigated the 1st Defendant's title before acquiring the land and referred to their Deed of Conveyance and maintained that they are bona fide purchasers for value without notice of any incumbrance in respect of their said land.
The question now is whether the Plaintiff has discharged the burden cast on him to prove that he is the fee simple owners of the land in dispute to entitle him to a declaration of title. He must prove a valid title to the land. It is my view that the Plaintiff has succeeded in this regard.
There is sufficient evidence from the Plaintiff's witnesses of his entitlement to the land as against the 1st Defendant. Let me quote once again from the case of Seymour Wilson vs; Musa Abess where Mr: Justice Livcsey Luke CJ. stated as follows; -
"hi a case of trespass the Court is concerned only with the relative strengths of the titles or possession proved by rival claimants. The party who proves a better title or a belter right to possession succeeds......... But in a case for a declaration of title, the Plaintiff must succeed by the strength of his title. He must prove a valid title to the land. So if he claims a fee simple title he must prove it to entitle him to a declaration of title".
I believe that the Plaintiff has succeeded in proving title to the piece of land in dispute. There is sufficient evidence to establish that the lst Defendant encroached upon his land.
The 2nd and 3rd Defendants have derived title from the 1st Defendant. It is therefore clear that the 1st Defendant did not have title to the piece of land in dispute to pass on to them. Nemo dat quod non habet. They have failed to establish that the 1st Defendant had title to the said piece of land to pass on to them. In the circumstance judgment is hereby given in the plaintiff's favour and 1 make me following Orders:
1. That the Plaintiff do recover from,the Defendants possession of the piece of land situate at Old Freetown Waterloo Road Wellington encroached upon by them as delineated on encroachment plan, Exhibit "A"
2. A declaration of that the said piece of land situate lying and being at Old
Freetown Waterloo Road. Wellington aforesaid is the property of the Plaintiff.
3. An injunction restraining the Defendants by themselves, their servants, agents, workmen or otherwise from entering the Plaintiffs' said property.
4. Rectification of the 1st 2nd and 3rd Defendants documents of title to reflect the correct dimensions and boundaries;
5. Damages for trespass assessed at Le.1 Million
6. Costs of the action 10 be taxed if not agreed upon.
Sgd .Hon .Just A.Showers
16th October ,2007