Marcus-Jones and Another v Johnson and Others ([node:field-casenumber])  SLHC 11 (20 March 2009);
IN THE HIGH COURT OF SIERRA LEONE CIVIL JURISDICTION
DR. W.S. MARCUS-JONES - PLAINTIFFS
MRS. ANNE MARCUS-JONES
SAMUEL T. JOHNSON - DEFENDANTS
SYLVANUS Y. JOHNSON
SHEKU JOHNSON, MARY JOHNSON
JOE MACAULEY AND MARIE JOHNSON
(TOGETHER KNOWN AS "THE JOHNSON
FAMILY") 1 LAKKA FAKAI OFF PENINSULAR
Dr. W.S. Marcus-Jones (1st Plaintiff- in person)
A.Y. Brewah for Defendants
JUDGMENT DELIVERED ON THE 20th DAY OF MARCH 2009.
The Plaintiff's claim against the Defendants jointly and severally is for:-
(1) Damages for Trespass.
(2) Recovery of Possession of all the land and hereditaments situate lying and being at Lakka in the Western Area of Sierra Leone described in the Plaintiffs Deed of Conveyance dated the 12th day of February, 1973 registered at Vol. 265 at Page 130 of the Books of
Conveyances kept in the Office of the Registrar-General in Freetown.
(3) An interim injunction to restrain the defendants and each and every one of them by themselves, their servants. agents or privies from entering upon any portion of the land and premises belonging to the plaintiffs at Lakka Beach in Freetown in the Western Area of Sierra Leone or in any way interfering with or threatening the tenants in occupation of portions of the plaintiffs' premises on the said land, or in any way dealing with or attempting to sell portions of the plaintiffs thereof.
(4) A perpetual injunction to restrain the defendants and each and everyone of them by themselves their servants, agents or privies from entering upon any portion of the land and premises belonging to the plaintiffs at Lakka Beach in Freetown in the Western Area of Sierra Leone or in anyway interfering with or threatening the tenants in occupation of portions of the plaintiffs' premises on the said land, or in any way dealing with or attempting to sell portions thereof.
There was then filed a Defence and counterclaim which contained a general denial of all the paragraphs in the statement of claim. The counter claim was for a Declaration of title that they are the fee simple owners of the land that the plaintiffs were claiming on which they do reside and which said land devolved on them through their ancestors.
The plaintiffs filed a reply and Defence to the Counterclaim dated 6th July, 2005 denying the claim to ownership of the land or any part thereof or that any of the defendants resides or any part or portion of the plaintiffs' said land
It is clear from the above that the trespass action which is the plaintiffs' claim had now been converted to one of a Declaration of Title by the defence and Counterclaim.
The entire evidence led in this matter must be carefully reviewed both for the plaintiffs and the Defendants in order to arrive at a reasonable conclusion.
The first witness for the Plaintiffs Ekundayo Pratt of the Administrator and Registrar-General's Department narrated his duties and tendered in evidence a Deed of Conveyance dated 12th February, 1973 registered in Volume 265 at Page 130 No. 146/74 made between Blanche Sylvia St. Winifred Williams and Walter Sydney Marcus-Jones and Annie Marcus-Jones of the other part as Exh. A and a certified copy of it as Exh. A1,. He then produced and tender a copy of an Indenture of Lease made between Dr. Marcus-Jones and Kontiki Tours Limited dated 6th September 1985 registered in Volume 75 at Page 126 as No.167/85 as Exh. B and a certified copy of it as Exh. B1. He also produced and tendered an indenture of Conveyance dated 30th April, 1938 made between Daniel S. Shyllon and others and Zacheus Alexander Grant registered in Vol.129 Page
312 of the Books of Conveyances as Exh. C and a certified copy of it as Exh. d.
He further tendered in evidence a Conveyance dated 30th April, 1938 made between Benoni Gouch Davies and Zacheus Alexander Grant registered in Vol.129 at Page 311 as Exh. D and a certified copy as Exh. D1 He went on that the northern side is written the property of Z.A. Grant and in Exh. B1 there is a plan with the name Z.A. Grant.
Eric Christian Forster (PW2) who is a Licensed Surveyor and Civil Engineer stated that he knows property at Lakka belonging to Dr. & Mrs. Marcus-Jones. He was instructed to carry out a survey on this said land. He looked at the Survey Plan in Exh.A1 and said that he is familiar with it. He did carry out a survey and prepared a report on 28th November 2002 which he produced and tendered as Exh. E. From his findings there is a great encroachment by the Johnsons (the defendants) on the property of Dr. Marcus-Jones as well as the property of the Jobbie Williams. He did attach a plan to his report. The first plan is a compilation plan done by Mr. Oluwole comprising the properties leased by Kontiki Tours. The late Mr. Oluwole's plan is 23rd February, 1995. The site has been developed as St. Michael's Lodge and the Johnson's family is at the tail end known as Sandana Fakai. The properties leased by Kontiki Tours were that of late C.A. Decker, the Johnson family, John Michael, Mrs. Nuhad Dimantopoulos, Dr. W.S. Marcus-Jones, Mrs. CM. Shoronkeh Betts, Mr. Arnold Bishop Gooding, S.C.V. Wright, Wright family and Mr. Boston. These are all shown as very distinct properties on the land.
He has another plan prepared in August which he signed on 15th August 2002 after visitation with the first plan to in which he was able to confirm the full encroachment. The plan showed the property originally leased by the Johnson family as No.1 and then another plot of land acquired as Plot 1A with L.S. No.1260/88. The area marked Red is that of Dr. Marcus-Jones and the L.S. Number is 691/71. in the east of Dr. Marcus-Jones' property is that of Mrs. Blanche Williams which leads right on to Peninsula Circular Road. From his investigation as shown on the encroachment plan from the Peninsular Circular Road on the eastern side going west to Lakka beach the area had been acquired by the Johnsons. They have taken the land of Dr. Marcus-Jones and that of the Williams. The plan is No.2 and signed by him on 15th August 2002. The owner of the largest area is Dr. W.S. Marcus-Jones. The Johnsons from his investigation are claiming the plaintiffs land and that of the Blanche Williams. He drew the area claimed by the Johnsons and shaded it light green. The area is described as St. Michaels Lodge.
At this stage David Davies (P.W.3) was indisposed and he stated that he is a Civil Servant attached to the High Court Registry and is custodian of High Court files and judgments. He then produced and tendered file No CC 502/79 Lamin Bangura and Rex Cowan v John Michael as Exh. F. It contains the judgment of Justice Ademosu delivered on 25th November 2005. He also produced and tendered file No. 869/92 Dr. W.S. Marcus-Jones v. Kontiki Tours as Exh. G and it contains a judgment of Hon. Justice Tolla Thompson.
Walter Sydney Marcus-Jones (P.W.4) stated that he owns property at Lakka which he bought from Blanche Sylvia Williams on 12th February 1973 which is Exh. A. He then teased his property to Kontiki Tours by Exh. B and they developed a tourist project which they ran for 4 years. As the tourist project grew they then leased adjacent properties to extend their tourist project. Sometime in 1992 Kontiki Tours had difficulties and had to close down. He then took proceedings in the High Court to repossess his property and by an order of the High Court dated 4th January, 1993 he was granted repossession of his land and premises at Lakka. On 29th January 1993 he obtained possession of the complex on an action CC 869/92 which judgment is now Exh. G. Among the property he recovered and did possess were 25 Chalets, Office blocks, a large store containing two containers, a tennis lawn, a helicopter pad and a laundry room. The caretaker was Rev. Marrah who is now dead.
When he took over thieves broke into a number of chalets and took out the plumbering materials. He then let out the store which had four apartments to different tenants. The largest section was let out to Rev. Daniel A. Morty who held religious services there until he left in December, 2005. In the year 2002 his Surveyor Mr. Forster reported to him that he had observed the plan in which the defendants were' claiming the whole of his property. On his instruction he then prepared a plan showing his land and the relative positions of other adjacent owners which was contained in his report Exh. E.
He stated that the Johnsons started to interfere with his property and on Sunday 4th May, 2003 he went to visit the adjacent land owned by Jobbie Williams family of which he has been the caretaker for over 30 years. His messenger Patrick Magao was assaulted. The 1st, 2nd, 3rd and 4th defendants trespassed on his land and insulted him. They told his tenant in the laundry room Cornelius Macfoy not to pay his rent and judgment, Exh. F was obtained against him. His land is bounded on the North by the property of Zacheus Alexander Grant which was sold to Lamin Bangura and Rex Cowan. He went on to state that the defendants have been claiming titles to land in the area by various statutory declarations out of which the defendants sold Mr. Grant's property to John Michael. By a Judgment of the High Court dated 25th November 2005 delivered by Hon. Justice S.A. Ademosu which is Exh. F it was concluded that the defendants are not the owners of the property they purported to sell. Exhs C and D are the Conveyance of Mr. Z.A. Grant. The defendants still continue to trespass on his land the 4th defendant has even put a tenant in the store with the approval of the 1st defendant He now has plans to develop his property and seeks the reliefs contained in his Writ of Summons.
In cross examination, from Mr. Brewah he stated that he recognises the fact that the late Mr. Daniel Johnson used to occupy a house at Lakka between the 70's and 80's. He does not recognise that Johnsons had land in that area. After leasing his land the Johnsons came to him and asked him to do the same for them. He asked for their title des but they produced none however the Manager of Kontiki
Tours took a lease from them. He is claiming trespass against Paul Alton Kargbo, Marie Johnson and two others in that they broke the padlock in his store which resulted in this action for trespass. He tendered Exh.A to show that he owns the land where the store is. Marie Johnson did give evidence that Paul Alton Kargbo was her tenant. He bought his land from Blanche Williams.
Rev. Daniel Nantty (P.W.5) was then interposed at this stage and he stated that he knows the plaintiff and Pastor Marrah now deceased. In 1995 he met Pastor Marrah in relation to a place of worship who gave him a place at St. Michael's Lodge for worship and owned by Dr. Marcus-Jones and he got in touch with him who then allowed him to the store. Later Pastor Marrah wanted him to pay rent as such they went to Dr. Marcus-Jones who settled it. He was there for ten (10) years and later left handing the place over to Pastor Marrah and his wife.
In cross examination of P.W.4 he said he was aware that Kontiki Tours also leased from the Johnsons. He wrote a letter to one of the defendants which he now tendered as Exh. F. Kontiki now tendered as Exh. F. Kontiki Tours did develop the Johnsons land. He does not know that Kontiki Tours closed business the land reverted to the Johnson family again.
In cross examination of P.W. 5 he stated that he occupied the store from 1995 to 2005 and there were other people there. He cannot remember whether 1995 was at the height of the rebel war. He knew
the Johnsons as neighbours when he was in the store. He came into the store through Late Rev. Marrah. He paid no rent to Rev. Marrah nor to anybody. He cannot tell how many people were there since he was in his own apartment. He had a Church there and was dwelling there. He heard arguments about ownership between the Johnsons and Dr. Marcus-Jones.
In cross-examination of P.W.2 he stated he prepared Exh. E, and did the composite plan attached to Exh. E1. He did work for the Johnson family and prepared a site plan for them at Lakka. He produced and tendered a plan as Exh G and another tendered a plan as Exh. H. Exh. G is another plan as Exh. H. Exh. G is dated 8th July. 1988. He was Licensed Surveyor for both plans. He was hired by the Johnson family. It is not shown whether Plot 1 or Plot 2 strayed into another persons land. In Exh. H plot 1A and Plot 1 are the properties of the Johnsons. In Exh. H Plot 1 is property leased to Kontiki Tours, In re-examination he stated that when the Johnsons asked him to prepare Exhs G and H they never showed him any title deeds. He stated that it is not usual when in preparing a plan to show that he did move into other person's property. It was the Johnsons who showed him and told him that it was their property. During his surveys he got to know that Exhibits G and H were properties of Dr. Marcus-Jones.
Reynold Edwin-Jones an Internal Auditor of World Vision stated that he knows the Plaintiffs and Pastor Nantty and that he did speak to the plaintiffs regarding their store at Lakka on behalf of Pastor Nantty who became an affiliate of his Church at Lakka since 1998. In the
year 2000 there was Rev. Marrah and Pastor Nantty regarding rent for the premises which resulted in arguments. He went to Dr. Marcus Jones where he then explained. They were asked to see Dr. Marcus-Jones. The result was that no rent was to be paid. This ended the plaintiff's case.
According to the defence Samuel Johnson who is the head of the Johnson family and speaks for the whole family stated that he knows Sylvanus Johnson who is one of the defendants and also his younger brother. The other defendants are his relation of which Joe Macauley is a relation but now dead and died before this matter. He went on that the Johnson family has a piece of land off Peninsular Road, Lakka and the Johnson family has never trespassed on the plaintiff's land. He sees Exhs G and H which are the Survey Plans of the Johnson's land off Peninsula Road, Lakka and both -plans were drawn by Mr. Forster a witness in this matter. Mr. Forster never told him that their land encroached on the. plaintiffs land. Exh. F was addressed to his younger brother by Dr. Marcus-Jones which letter recognises that the Johnsons' have a piece of land in that area.
This piece of land according to this witness was rented out to Kontiki Tours a tourist organisation who built 23 bungalows, two swimming pools, a tennis court, a helicopter landing pad and a large store. In Exh. H the bungalows were in plot 1 and the store on plot 1A. Kontiki Tours stopped operations but cannot remember the date and the properties Kontiki Tours built were handed over to them and the Johnsons took them and the Johnsons' took possession of them.
During the war some refugees occupied the bungalows rent free and the store occupied by some refugees as well. They occupied with his permission. He then produced a letter dated 13th February, 1995 addressed to the Johnsons' as Exh.K and also produced and tendered another letter dated 10th May, 1996 also addressed to the Johnsons' as Exh. L. He finally denied that his family ever trespassed on the plaintiffs' land. In cross examination he stated that his father bought this land and he is Mr. Thomas Johnson who died in 1975. He had many children but not of the same mother. He does not know how many wives he had. His own mother's name is Mrs. Yeanor Johnson 90 years old. He has never taken out Letters of Administration to his father's estate. It has the name of David B. Johnson on it who is his uncle who is now dead. He has a daughter called Elizabeth who is an illegitimate child since the mother was never married to his uncle who is now dead. He listed bis relations thus - Larina Johnson, Marie and Sheku and none of these have a Conveyance. Exh. H was prepared by Mr. Forster on the instructions of his uncle the late David Johnson. Himself his uncle and other members of the family showed Mr. Forster the land who did the work based on his experience as a Surveyor in is preparation of Exh. H. Exh. A1 has a plan in which the North West is bounded by property of Mr. Grant. He does not know whether this is the plan in this Conveyance and does not know that he has property at Lakka. On 3rd February 1993 himself and Sylvanus visited him at his invitation but never discussed with him that James and Thomas were dead and even never told him they were dead. He never told him he wanted investors. On 21st July 1996 he denied that himself, Sylvanus, Josiah
ad a man called P. Tucker went to see him. He denied that on 23rd July, 1996 he went to tell him that David was dead since he was never in Sierra Leone by then. He was out of the country when David died. He denied that the visits were made in order for him to get investors for their property. He is not aware of a tourist complex there in 1985. He sees Exh B, which is an Indenture of Lease from Dr. Marcus-Jones to Kontiki Tours. The plan in Exh. B1 is the same as Exh. A1 He could not remember whether a complex was built on this land in 1985. It could be it ran for four years before a lease was taken from the Johnsons'. When the complex was built there was no tennis lawn there and there was a helicopter pad on their own land. There was a store constructed on their land and a laundry house built on their land. The lease from the Johnsons' to Kontiki Tours was in 1989. He denied the facilities were there before the lease was taken. He does not know whether they took a lease from Mrs. Narman Diamantopulous but does not know her. He does not agree that the two swimming pools wee built on the land of Mrs. Diamantopulous. He did not show Plot 1 to Mr. Forster in order to enable them get a lease from Kontiki Tours and Plot 1A is not the land of Zacheus Grant. He did let bungalows to Family Homes Movement. He denied that his family used the plaintiffs' land as an Access Road and the main road from main Lakka Road is not the plaintiffs' property. He does not know the Fyles and Jobbie Williams share a common boundary. He does not know whether part of Jobbie Williams' land was cut to make a road. He cannot go through the plaintiffs' land to get on to Family Homes Movement. He denied that the Family Homes people ever told him that he wrote a letter to them about using his road.
Sheku Johnson is his younger brother but never told him that the plaintiff went to his land with Col. Nelson-Williams, but told him he went to his store on another occasion. His brother never told him he insulted and threatened the plaintiff. On 27th October 2004 he was told of his presence there and also on 6th July 2004 he was told of his presence there but not that his family trespassed on his land. He agreed that on 26th June 2004 he did put Robert Koroma, Fatmata Koroma and Moses Bockarie in the store. He denied sending Mohamed Kargbo alias Obama, Mohamed Reffell, Alfred Bendu and Umaru Sesay to dig up petrol tanks from his land. Three are facing prosecutions. He knows Paul Alton Kargbo the husband of Ruth Kargbo who is the daughter of Mary Johnson. He allowed Paul Alton Kargbo into the store but he cannot tell whether it was before or after Rev. Nanghty had left. They were in possession of the store. He .knows Hannah Bailor the daughter of Eva Johnson. He does not know whether Justice Tejan-Jalloh has land in that area. He cannot tell whether his lawyer wrote to him. He does not know whether his brother Sheku went to the plaintiffs land. He does not know whether the defendants entered his land. He denied entering the plaintiffs' land without his permission. He denied laying claim to plaintiffs' land after 2003.
Sheriff Abass Kargbo (DW1) who is a Licensed Surveyor stated that he knows DW1 and the Johnson family. His services were engaged by DW1 and the family to technically investigate a matter relating to a piece of land situated off Peninsular Road Lakka and to prepare a composite plan. He was to give a report. In the process he received
the following documents- a Survey Plan of David Johnson and 9 others marked LS 1262/88 a Lease Agreement No. 17/89 and registered in Vol.81 Page 5 expressing the possessory title of the Johnson Family, a certified copy of conveyance No.992/06 registered in Vol.162 Page 112 expressing the possessory title of Henry Ladajobie Williams enclosing a Survey Plan No. LS 1260/88 and a Conveyance No.146/74 registered in Volume 265 at Page 130 expressing the title of Dr. W.S. Marcus-Jones and Mrs. Annie Marcus-Jones enclosing a Survey Plan No. LS 619/71. He went to the site with DW1 did all his observations and prepared a report of his findings including a composite plan which he tendered as Exh. M and the report as Exh. N dated 20th February, 2004.
Answering questions in cross-examination he said his services were engaged and not instructed and the first defendant did tell him that the land was in controversy. He did receive a copy of Exh. A1 and the first plan in it. He walked round Exh. A1 and the first defendant did accompany him. He observed houses under construction at the site and saw a major road. He then identified Exh. M which he drew. The sketch of the plaintiffs' property is the same as in Exh. A. On the North West edge there is a green line space between the plaintiffs' boundary and the green line which is the property of DW1 He stated that the owner of the space between the plaintiffs' property and that of the green line is based on co-ordinates but on the ground the space does not exist. He cannot charge the co-ordinates on the plan and he co-ordinates are the beacon values. He did walk around the Johnson's property and noticed a fence. On the right hand side of
the fence he noticed buildings under construction. He noticed a store but not in the fence. He knows Mr. Forster who is a Licensed Surveyor for many years and is his senior. He also disagrees that the store is in the plaintiff's property. He can remember lands in Lakka but not all. The owner on the plot in the North West of Exh. A is the property of Mr. Grant but did not investigate whether the property of Mr. Grant exist. It was the document of the Johnsons that he checked and according to the Judgment of Justice Ademosu what he read is the property is bounded by Grant but the property according to him is bounded by Johnsons' not Grant. In Exh, E12 the boundary on it is GRANT with a big space of about 300 feet. In Exh. M it is not up to 300 feet but about 20 to 30 feet. He denied that his plan is inaccurate. In answer to question in re-examination he said that at the time he prepared Exh. M he never had the plan of Mr. Grant with him.
The above is a review of the total evidence for both the plaintiff and the defendants. Having reviewed the entire evidence it is now for me to consider the issues raised in relation to the evidence led in this matter.
Firstly it must be noted that the plaintiffs did not seek a Declaration of Title but the Defendants in the Counterclaim did seek a Declaration that heir family is the fee simple owners of the piece or parcel of land situated at Lakka Fakai which is being claimed by the Plaintiff in their particulars of claim. Therefore in an action of this nature which involves a Declaration of title to land the party asserting it must prove it in order to succeed on the strength of his title and in this case it is
the defendants not the plaintiffs that now seeks a Declaration (see: Seymoour Wilson v Musa Abess 1981 and Kodilinge V Odu (1935) 2 waca 336). Has the defendants lead evidence to prove the Declaration of Title contained in their Counter Claim? They relied on their possessory title of the Johnson Family recited in a Lease Agreement No. 18/89 registered in. Volume 81 at Page 5 which has a Survey Plan of David Johnson LS 1262/88. Exh. M which is a letter from the 1st Plaintiff to Mr. Sylvanus Johnson (2nd defendant) and it is very important in this action as 1st defendant did give evidence on it. The letter reads:
"Dear Mr. Johnson 'Re: St. Michaels Lodge, Lakka', I confirm my verbal request to you regarding the leasing or your property at Lakka to new investors who have shown an interest in reviving the Complex.
Your brother Mr. Samuel Johnson who is acting for the family had authorised me to negotiate on your behalf as the investors want to deal with only one person on behalf of all the land owners.
Unfortunately when I went to his house last week i was told he was out of the country.
The proposal is that all the five owner that is your family, Mr. Michael, Mr. Gooding, Mrs. Dimantopoulos and myself will continue the leases we had with Kontiki Tours, with a very slight variation.........
I will need you and one other member of your family to give me the necessary instructions. This is important and very urgent. Please let me hear from you without delay."
In my humble opinion it is dear that the first plaintiff recognises the fact that the first defendant and second defendant plus the Johnson family owns land at Lakka by even agreeing to act on their behalf in negotiating with investors. The defendant gave evidence that this said negotiation did not proceed any plans of the Johnsons showing plots/and lease is no more as their properties built there were handed over to them. What beats me now is how can the plaintiffs now lay claim against the defendants when he has by a letter acknowledge them as owner of land in the area. Exh. H on which the defendants rely for their claim to title based on the Statutory Declaration of 12th August 1975. The first plaintiff in this matter is blowing both hot and cold in relation to the land in question. I therefore hold that the first defendant has led enough evidence to establish his title and is entitled to a Declaration of Title.
I now turn to consider the issue of Trespass since there is a Claim for Damages for Trespass. The plaintiff it must be pointed out did not claim for a declaration of title but rather it was the defendants who claimed it in their counterclaim. What the plaintiff must prove is a better right to possession than the defendants. One of the ways to do this is to show that the plaintiff has a better title to the land than the defendant. However a better title does not amount to a valid title. In an action for trespass as in this case all what the court needs to
consider is the relative strength of the titles or possession proved by the rest to possession succeeds whereas in a Declaration of title the plaintiff succeeds on the strength of his title.
In an action for trespass therefore the main thrust is possession since a mere possession is sufficient to ground an action for trespass against anyone who cannot show a better title. In Portland Management Limited v Harte (1976) 2 WLR 174 at 180 Scarmon LJ, said;
"Possession is, of course, a very important matter to be considered in an action of ejectment, of the action for trespass." in Bristow v Carmican (1878) 3 App. Case.641 at 652 Lord Hethery said:
"There can be no doubt whatever that mere possession is sufficient against a person invading that possession without himself having any title whatever, as a mere stranger; that is to say, it is sufficient as against a wrong doer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser."
The above cases were fully quoted in Seymour Wilson v Musa Abess (1981). What should now be determined is whether the plaintiffs or the defendants have proved a better possession of the disputed land. Looking at the plaintiffs evidence in which by Exh M. he recognises the fact that the defendants own land in the area and even
volunteered to act for and on their behalf. Thee is evidence even that the defendants are in possession and did exercised various acts of possession after Kontiki Tours folded up and handed over the land to the defendants who allowed refugees on the land. The defendants relied on Exh. J which leased plots 1 and 1A to the composite plan clearly shows that both pieces of land were Report of DW2 Sheriff Kargbo is very clear. It states:
The Survey Plan in the document of Henry V.L. Williams is considered to be the master plan of Dr. W.S. Marcus-Jones as quoted on Dr. Jones document. However the acreage of the entire land is three acres whilst the acreage of Dr. Jones' survey plan is 8.55 Acres. Survey Plan of the Johnson family actually depicts that the family is the original inhabitant of Lakka Fakia as indicated on plot one (1) of the Survey Plan of the Johnson family LS.1262/88.
From my investigation I can therefore conclude that the Survey Plan of the Johnson family only form a common boundary with that of Dr. W.S. Marcus-Jones survey plan and there is no overlap or encroachment", (emphasis mine).
In all these circumstances it need be noted that P.W.2 Eric Christian Forster prepared Exh. J in 1988 the property of the Johnsons and in the year 2002 prepared a composite plan in which he now claims an
extension of the Johnson's property. I do not believe his evidence and attach no weight to Exh. E1.
Therefore in my concluded view the plaintiff in my judgment has failed to prove a better possession than the defendants nor has he proved that the defendant have invaded his right to possession. In my judgment therefore the defendants are not liable to the plaintiffs in trespass.
I shall now deal with the claim for an injunction though the plaintiff never claimed a recovery of possession. However the granting of an injunction can take care of this. However it must be noted that an injunction can only be granted to restrain an unlawful act and in this case the act of trespass. Since the claim for trespass has failed an injunction therefore becomes unnecessary as there is no trespass that must be brought to an end. Therefore the claim for an injunction fails and is dismissed.
On the counterclaim of the defendants there is evidence led that the land belongs to the Johnson family which devolved on them through their generations and that they even reside on part of the said land. In my humble judgment I do give judgment for the defendants in their counter claim and make the following orders:
1. A declaration that the Johnson family (the defendants) are the fee simple owners of the piece or parcel of land situate at Lakka Fakai being claimed by the plaintiffs in their particulars of claim.
2. An injunction is granted restraining the plaintiffs by themselves, agents or whatsoever from dealing with the land in whatever manner.
3. The plaintiffs claim is therefore dismissed with cost, such cost to be taxed.
Hon. Justice P.O. Hamilton'J.A.