GOMEZ v SIERRA LEONE NATIONAL SHIPPING CO ([node:field-casenumber])  SLHC 12 (10 November 2008);
In CAMARAH VS MACAULEY 1920-1936 ALR SL THE LEARNED ACTING CHIEF JUSTICE BUTLER LLOYD in the course of his Judgement quoting the Judgment of JAMES L. J. in CORSER VS CARTWRIGHT L. R 8 CH AT 976 stated
"Where a person advances money by way of purchase or charge on an estate so vested in the hands of a trustee . unless that person is absolutely a party to a breach of trust he cannot be deprived of the estate he has acquired"
With similar tenor in the case of TURAY VS KAMARA AND JARRET 1968/69 ALRSL AT PAGE 94 the Learned TAMBIAH JA delivering the Judgment of the Court of Appeal stated as follows:
"The Deed executed by the exercise of fraud is only voidable and if the grantee of such a Deed sells the legal estate to a purchaser for value who has no notice of the fraud, the purchaser gets good title (Kerr on Fraud & Mistake 6th Edition at 429and 451; Bailey v Barnes (1894) 1CH. 25). Counsel for the appellant conceded that there is no proof that the second respondent had any notice of the alleged fraud. Therefore even if fraud was proved the deed exhibit D cannot be set aside."
While the aforementioned cases may be different in the facts relating to them, it is the protection which resonates with a bonafide purchaser for value without notice as to the interest he may have acquired that is the central theme or massive thread that runs through them and these provide ample authority that the 3 rd defendant herein who is a bonafide purchaser for value without notice ought to and must be protected and the interest acquired through sale of the Plaintiff's properties to him in the absence of Fraud ought not be reversed .But what is more, is the fact that, notwithstanding this protection, Section 8 of the EXECUTION AGAINST REAL PROPERTY ACT CAP 22 Laws of
Sierra Leone 1960 gives statutory protection to a bonafide purchaser without notice in these terms:
"If any judgment or process by virtue of which such sale shall be made as aforesaid shall happen to be reversed for error , yet the said reversal shall not be given in evidence or be of force against any bonafide purchaser under the said judgment or process, but the said purchaser , his executors, administrators or assigns shall hold the land or other thing so bona fide purchased, notwithstanding a reversal of the judgment or process after his purchase, and such reversals shall only operate against the plaintiff, his executors and administrators to compel him or them to return the value to the defendant of what he lost."
Thus even if the Judgment or writ may be set aside for error, the sale and conveyance to the bonafide purchaser which happens to be to the 3rd defendant is irreversible and gives him title which he obtained by the said Conveyance. Thus the 3rd defendant's Conveyance cannot be cancelled and or annulled and be expunged from the Record Books of Conveyances kept in the Office of the Administrator and Registrar General. It has its source from the Orders of a competent court and the proceedings as detailed in Sections 9&10 of the Act aforementioned whether they were observed by the Sheriff or not are irrelevant and cannot affect his title.
Since the Judgment, the writ of fi.fa and all subsequent proceedings have not been set aside there is no reason to compel the 1st defendant to return the value to the Plaintiff of what it had lost.
5.An Injunction Restraining the 3rd Defendant by himself and by his servants or agents, or howsoever otherwise from disposing of the said property or possession thereof in any way whatsoever until judgment or further Order.
On the 5th Order prayed, I could only state that against what has been said in favour of the the 3 defendant as a bonafide purchaser for value without notice there is no need to fetter the 3rd defendant's right with an injunction.
6. Damages for "Unconscionable Conduct" or otherwise
On the 6 order prayed for the plaintiff had sought damages for unconscionable conduct In BLACK"S LEGAL DICTIONARY 7th EDITION "unconscionable" is defined as:
1. Having no conscience ; unscrupulous;
2.(Of an act or transaction)showing no regard for conscience; affronting the sense of justice , decency ,or reasonableness
Throughout its pleading, the plaintiff had alledged that the defendants were guilty of "unconscionable conduct" imputing that the defendants had no conscience and were unscrupulous, and affronted the sense of justice decency or reasonableness; and for this they claimed damages.
While the Plaintiff's claim on this front does not disclose any or any proper cause of action against the defendants, the plaintiff was not in fact able to prove that the action of the defendants constituted unconscionable conduct. The evidence before this court starting from the day when Judgment was pronounced on the 24th of November 2003 and noting the persistent and constant delays to make payments, right up to execution through the aforesaid sale, speaks otherwise, that if any thing, it is the plaintiff that affronted the sense of Justice decency and reasonableness in the way they went about finally completing payment of 1st defendant's of end of service benefits.
Against the foregoing and all things considered, this court gives Judgment in favour of the 1st 2nd and 3rd defendants against the plaintiff and orders as follows:
1. Declaration that the Writ of Fieri Facias and all subsequent proceedings in the action intituled C.C. 503/03 2003 G No.10 - ALBERT FOMEZ, PLAINTIFF AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED, Defendant be null void and/or of no effect is refused.
2. An Order setting aside the sale of properties situate at and known as 2A and 4A Off Spur Road, Wilberforce, Freetown to the 3 rd Defendant is refused.
3. A Declaration that the Plaintiff is still the owner of properties situate at and known as 2A and 4A Off Spur Road, Wilberforce, Freetown is also refused.
4. An Order that the Deed of Conveyance executed in respect of the said sale, to wit, Deed dated 7th January, 2005 and duly registered as No.4/04 at Page 14 in Volume 582 of the Record Books of Conveyances kept in the Office of the Registrar-General, Freetown be cancelled and/or annulled and that the same be expunged from the said Record Books for Non-Compliance with Sections 7, 9 & 10 of the Execution Against Real Property Act Chapter 22 of the Law of Sierra Leone 1960; and on the ground that the Defendants were guilty of "unconscionable conduct is also refused.
5. The 3rd Defendant by himself and by his servants or agents, or howsoever otherwise is free to dispose of the said property or possession thereof in any way whatsoever if he so desires.
6. Claim for damages for damages for unconscionable conduct or otherwise is refused.
7. Costs to be taxed.
Hon Mr. Justice Desmond.B.Edwards J.