Court: Supreme Court of Sierra Leone
Coram: Livesey Luke C.J. (delivering the judgment), C.A. Harding J.S.C., O.B.R. Tejan J.S.C., A.V.A. Awunor‑Renner J.S.C., S.M.F. Kutubu J.A.
Date: 17 June 1981
Citations: (1981) SLSC 1, (1981) SLR (advance copy)
Land law; declaration of title; fee simple; registration of conveyance; registration of title; Evidence (Documentary) Act; trespass; better right of possession; re‑trial; Courts advising on conduct of cases; Sierra Leone.
Original Judgment below:
Headnote
Onus of proving title. In an action for declaration of title the plaintiff’s case must be based on the strength of his own title, not on the weakness of the defendant’s title. The plaintiff must prove that he holds the fee simple in the land and that his predecessors had good title to pass.
Evidence of title. Registration of conveyances and a statutory declaration are insufficient of themselves to prove title. Unless the maker of a statutory declaration is called or conditions in s 3 of the Evidence (Documentary) Act (Cap 26) are met, the declaration is inadmissible.
Registration of instruments v. registration of title. There is a fundamental difference between registering an instrument and registering title. The Registration of Instruments Act (Cap 256) governs registration of deeds but makes no provision for the registration of title; registration gives priority over later instruments but does not confer or prove title. Davies v Bickersteth (1964–66) ALR (SL) 403, which held that prior registration conferred better title, was overruled.
Priority under s 4 of the Registration of Instruments Act. Section 4(1) means that registered conveyances take effect in order of registration. Registration does not cure an imperfect title; a conveyance registered earlier may still be invalid if the vendor had no title to pass.
Trespass and possession. In actions for trespass, the court is concerned with relative rights of possession. Mere possession is sufficient to maintain trespass against anyone who cannot show a better title. “Better” title in trespass need not be a valid title; what matters is a better right to possession.
Re‑trial. Where the plaintiff fails to discharge the onus of proving title, the proper course is to dismiss the claim. Ordering a re‑trial gives the plaintiff a second chance and is inappropriate. Courts should not advise parties on what evidence to call.
Facts
Dr CJ Seymour‑Wilson (“the plaintiff/respondent”) claimed ownership and possession of a plot at Signal Hill, Wilberforce in the Western Area of Sierra Leone. By deed dated 28 June 1951 Gershon Theophilus Cole purported to convey the land to Assad Joseph Yazbeck, and on 12 March 1952 Yazbeck purported to convey it to the plaintiff. The plaintiff registered both deeds and claimed to have been in undisturbed possession since 1952.
In March 1974 Musa Abess (“the defendant/appellant”) began building on the land. The defendant claimed a fee‑simple title through a conveyance dated 23 March 1968 from Ellis Leslie England, who had acquired the land under a conveyance from Vivian Thomas dated 6 January 1967. The defendant also relied on the Limitation Act 1961, alleging possession and obstruction by the plaintiff.
High Court
Short J held that the parcels described in the 1951/1952 conveyances and the land occupied by the defendant were completely different; the plaintiff had failed to identify the land with certainty and had failed to prove that Gershon Cole had good title to pass to Yazbeck. He therefore dismissed the plaintiff’s claim for declaration of title and awarded the defendant Le 1,000 damages for trespass.
Court of Appeal
The Court of Appeal (S.B. Davies J.A., Ken During J.A. and C.S. Davies J.A.) allowed the plaintiff’s appeal, set aside Short J’s decision and ordered a re‑trial. The court said it could not determine whether the parties were contesting the same piece of land and thought evidence from the Director of Surveys and Lands would be desirable.
Supreme Court Appeal
The defendant appealed to the Supreme Court. The plaintiff cross‑appealed on the issue of trespass and damages. The Supreme Court delivered a single judgment per Livesey Luke C.J., with all their Lordships concurring.
Issues
Identification of the land: Did the plaintiff’s deeds relate to the land in dispute?
Proof of title: Did the plaintiff prove a fee‑simple title to the land so as to entitle him to a declaration of title?
Relative rights to possession: Who proved a better right to possession and was thus entitled to succeed in trespass?
Re‑trial: Was the Court of Appeal correct in ordering a re‑trial and advising on evidence?
Decision
The Supreme Court allowed the defendant’s appeal and dismissed the plaintiff’s claim for declaration of title. It restored Short J’s order dismissing the claim for declaration of title. The Court also allowed the plaintiff’s cross‑appeal in part by awarding Le 500 general damages against the defendant for trespass.
Reasoning
1. Identification of the land
Livesey Luke C.J. noted that although the trial judge found that the 1951/1952 conveyances related to a different parcel of land, the Supreme Court did not find it necessary to resolve that question. For the purposes of the appeal, his Lordship assumed (without deciding) that the land claimed by the plaintiff was the same land in dispute.
2. Proof of title
Onus lies on the plaintiff. In an action for declaration of title, the plaintiff must prove his own title; he cannot rely on the weakness of the defendant’s title. This rule was reaffirmed in Kodilinye v Odu and Dunford v McAnulty.
Need to prove predecessor’s title. The plaintiff relied solely on his deeds and a statutory declaration. None of the declarants testified, and no attempt was made to satisfy the requirements of s 3 of the Evidence (Documentary) Act. The Supreme Court held that the statutory declaration was inadmissible; therefore the plaintiff had no evidence of Gershon Cole’s title.
No title through registration. The court explained that the Registration of Instruments Act (Cap 256) governs registration of deeds, not registration of title. Registration gives priority against later deeds but does not confer title or render it indefeasible. Because Gershon Cole’s title had not been proved, Yazbeck could not pass a fee‑simple title to the plaintiff; his claim for declaration of title failed.
Overruling Davies v Bickersteth. To the extent that the Court of Appeal in Davies v Bickersteth had held that earlier registration conferred better title, that case was overruled.
3. Relative rights to possession and trespass
The Supreme Court reaffirmed that in trespass, the focus is on possession; a plaintiff need only show a better right to possession than the defendant. Mere possession is sufficient against a wrongdoer.
Evidence showed that the plaintiff had exercised acts of possession from 1964/1965; the defendant’s possession dated only from January 1967. The plaintiff therefore had a better right to possession. The defendant’s conveyance chain was undermined by evidence that Vivian Thomas had previously conveyed the same land to Vidal Bickersteth in 1963. The plaintiff was awarded Le 500 general damages for trespass.
4. Re‑trial and conduct of litigation
The Supreme Court held that the Court of Appeal ought to have dismissed the plaintiff’s appeal rather than ordering a re‑trial. Failure to determine whether the deeds related to the same land meant the plaintiff had not discharged his burden. Granting a re‑trial would improperly give the plaintiff a second chance.
It was inappropriate for the Court of Appeal to advise the plaintiff on obtaining evidence from the Director of Surveys and Lands. Courts should not give parties gratuitous advice on how to conduct their cases.
Orders
Appeal allowed: The trial judge’s dismissal of the claim for declaration of title was restored.
Cross‑appeal allowed in part: The award of damages against the plaintiff was set aside and Le 500 was awarded to the plaintiff as general damages for trespass.
Davies v Bickersteth overruled as to the effect of prior registration.
Significance
This decision is a leading authority on land law in Sierra Leone. It makes clear that:
Possession and title are distinct concepts; proof of title requires evidence that the transferor had a valid estate to pass.
Registration of a deed under the Registration of Instruments Act provides priority but does not perfect title; registration of title is a different statutory regime altogether. Persons acquiring land must investigate the vendor’s title and cannot rely solely on registration.
In cases of trespass, a plaintiff may succeed by proving better possession even if his title is imperfect. The case therefore distinguishes between actions for declaration of title and actions for trespass.
Appellate courts should not order re‑trials to cure deficiencies in a plaintiff’s proof nor advise litigants on evidence to call.
The overruling of Davies v Bickersteth removes any misconception that prior registration automatically confers superior title, thereby safeguarding longstanding unregistered possessory titles predating compulsory registration.
Statutes and Authorities Cited
| Statute / Authority | Key point |
|---|---|
| Evidence (Documentary) Act (Cap 26) s 3 | Conditions for admitting documentary statements into evidence; failure to call declarants rendered statutory declaration inadmissible. |
| Registration of Instruments Act (Cap 256) s 4 | Registers conveyances; registration confers priority but not title. |
| Registration of Instruments (Amendment) Act 1964 | Made registration of instruments compulsory; explains why many pre‑1964 conveyances are unregistered. |
| High Court Rules O XII r 11, O XVIII r 20 | Effect of pleading possession; defendant’s plea of possession requires plaintiff to prove his title. |
| Kodilinye v Odu (1935) 2 WACA 336 | Onus of proof in title suits; strength of one’s own case not weakness of opponent’s. |
| Ocean Estates Ltd v Pinder [1969] 2 AC 19 | Distinction between trespass and declaration of title; trespass concerns relative possession. |
Commentary
The Supreme Court’s decision underscores the need for careful due diligence in land transactions in Sierra Leone. It cautions that reliance on registered conveyances alone is unsafe without verifying the vendor’s title. In jurisdictions where land tenure is often based on possessory rights and unregistered deeds, this case reassures holders of possessory titles that their rights will not be trumped simply by later registered conveyances. It also serves as a warning to litigants: the courts will not provide second chances to establish title through re‑trials, nor will they act as advisors on evidentiary strategy.
Objective Questions on Dr CJ Seymour‑Wilson v Musa Abess
Choose the correct answer for each question. Do not highlight the correct answers in your responses; the answers are listed after the questions.
Which court delivered the decision in Dr CJ Seymour‑Wilson v Musa Abess?
A. Court of Appeal of Sierra Leone
B. High Court of Sierra Leone
C. Supreme Court of Sierra Leone
D. Privy Council
What was the primary claim of the plaintiff in the case?
A. Damages for trespass only
B. Declaration of title to land and damages for trespass
C. An injunction against trespass only
D. Possession order for land
What key piece of evidence did the plaintiff rely on to prove title?
A. Possessory title from his ancestors
B. Registered conveyances of 1951 and 1952
C. Oral testimony of former owners
D. Lease agreement with the defendant
What did the Supreme Court say about the effect of registering a conveyance under the Registration of Instruments Act (Cap 256)?
A. Registration confers an indefeasible title
B. Registration has no legal effect
C. Registration confers priority but does not confer title
D. Registration invalidates prior unregistered conveyances
Which earlier Court of Appeal case was overruled by the Supreme Court in this decision?
A. Mansaray v Williams
B. Davies v Bickersteth
C. Bristow v Cormican
D. John v Stafford
According to Livesey Luke CJ, what must a plaintiff do to succeed in a declaration of title?
A. Show that the defendant’s title is weak
B. Prove better possession than the defendant
C. Prove fee‑simple ownership and predecessor’s good title
D. Show that the land was registered before 1964
In relation to the tort of trespass, what was the court’s position regarding possession?
A. Only the holder of an indefeasible title can sue in trespass
B. The longest possessor always wins
C. Mere possession is sufficient against a wrongdoer
D. Trespass can be maintained only when both parties have title deeds
What did the Supreme Court determine regarding the Court of Appeal’s decision to order a re‑trial?
A. It was correct because new evidence was needed
B. It was unnecessary and improper
C. It was required by statute
D. It should have been an appeal to the Privy Council
Which statute’s section 3 was crucial to the court’s determination on the admissibility of the plaintiff’s statutory declaration?
A. High Court Rules
B. Registration of Instruments Act
C. Evidence (Documentary) Act
D. Law of Property Act
What damages were ultimately awarded by the Supreme Court and to whom?
A. Le1,000 to the defendant for trespass
B. Le500 to the plaintiff for trespass
C. No damages were awarded
D. Le1,500 shared between the parties
Answers to Objective Questions
C
B
B
C
B
C
C
B
C
B
Essay Questions on Dr CJ Seymour‑Wilson v Musa Abess
1. Discuss the distinction between registration of instruments and registration of title as articulated in Dr CJ Seymour‑Wilson v Musa Abess, and explain why the Supreme Court overruled Davies v Bickersteth.
Answer
In Dr CJ Seymour‑Wilson v Musa Abess the Supreme Court stressed that the Registration of Instruments Act (Cap 256) only provides for the registration of deeds and conveyancing instruments; it does not provide for registration of title. Registration under the Act serves to publicise transactions and to determine priority among competing conveyances, but it does not confer or prove title: the conveyance itself must be valid and the vendor must have a title to pass. The court contrasted registration of instruments with registration of title found in English legislation such as the Land Registry Act 1862 which confers an indefeasible title after formal examination and mapping of boundaries.
The Supreme Court overruled Davies v Bickersteth because that case had held that the first registered conveyance automatically conferred better title. Livesey Luke C.J. pointed out that such a view ignores the possibility that an earlier registered deed may be void if the vendor lacked title; registration does not perfect an imperfect title. Upholding Davies v Bickersteth would mean that a purchaser who registered a conveyance from someone who had no title would obtain ownership over the true owner who held an unregistered pre 1964 conveyance an absurd result that Parliament could not have intended. Consequently, Davies v Bickersteth was overruled to clarify that priority of registration does not equal priority of title.
2. Evaluate the onus of proof in land‑title cases according to Livesey Luke CJ, referring to Kodilinye v Odu and its application in this case.
Answer
Livesey Luke C.J. affirmed that in an action for a declaration of title, the plaintiff must succeed on the strength of his own title rather than on the weakness of the defendant’s. This principle, reiterated from Kodilinye v Odu and Dunford v McAnulty, places the burden firmly on the claimant. The defendant’s plea of possession operates as a denial of the plaintiff’s allegations and compels the plaintiff to prove his title.
In the present case, the plaintiff failed to discharge this burden. He relied on a series of conveyances from Gershon Cole to Assad Yazbeck and from Yazbeck to himself, accompanied by a statutory declaration attesting to Cole’s ownership. The court held that the statutory declaration was inadmissible because the declarants were not called and the conditions of s 3 of the Evidence (Documentary) Act were not satisfied. As there was no evidence that Cole had title to pass, the plaintiff failed to prove that he acquired a fee‑simple estate. Livesey Luke C.J. emphasised that the mere production of conveyances is insufficient; the plaintiff must prove that each predecessor in title had a valid estate to pass. Accordingly, the onus of proof was not met, and the claim for declaration of title was dismissed.
3. Analyze the Supreme Court’s approach to actions of trespass versus actions for declaration of title and how this affected the outcome of the case.
Answer
The Supreme Court distinguished sharply between the requirements for a declaration of title and those for trespass. In a declaration of title, the plaintiff must prove a valid and complete title; in an action for trespass, the court is concerned with the relative strength of the parties’ possession. It is sufficient for the plaintiff to show a better right to possession; a “better” title in this context need not be perfect, and mere possession can prevail against a wrongdoer.
Because the plaintiff did not prove a valid fee‑simple title, his claim for declaration of title failed. However, the evidence showed that he had been in possession from 1964 or 1965, whereas the defendant’s possession only began in January 1967. The defendant’s conveyance was also questionable due to an earlier conveyance from Vivian Thomas to Vidal Bickersteth in 1963. Consequently, the court held that the plaintiff had a better right to possession and awarded him Le 500 in general damages for trespass. This dual outcome illustrates how a plaintiff may fail on title yet succeed on trespass when possession is superior.
4. Explain why the Court of Appeal’s order of a re‑trial was criticized by the Supreme Court and the principles concerning appellate intervention in fact‑finding.
Answer
The Court of Appeal ordered a re‑trial because it found difficulty in determining whether the land described in the plaintiff’s conveyances was the same as the land in dispute. It suggested that evidence from the Director of Surveys and Lands would be desirable. The Supreme Court criticized this approach on two grounds.
First, ordering a re‑trial gave the plaintiff a second opportunity to make a case he had already failed to prove. Livesey Luke C.J. stated that when a plaintiff fails to discharge the onus of proof, the proper course is to dismiss the claim, not to order a re‑trial. Second, the Court of Appeal was not neutral; by advising that the plaintiff should seek certain evidence, it appeared to be assisting one party in how to conduct its case, which could compromise the perception of impartiality. Appellate courts will intervene in findings of fact only when the trial judge misdirects himself, ignores significant evidence, or arrives at plainly unsound conclusions. Otherwise, they must respect the trial judge’s findings. In this case, there was sufficient material to decide the issues, and a re‑trial was unwarranted.
5. Assess the broader implications of this case for land transactions and conveyancing practices in Sierra Leone, especially concerning pre‑1964 conveyances and possessory titles.
Answer
The case has significant implications for conveyancing in Sierra Leone. By clarifying that registration of a conveyance does not confer title, the decision cautions purchasers to investigate the vendor’s title thoroughly rather than relying on registration. The overruling of Davies v Bickersteth protects holders of unregistered pre‑1964 conveyances; had the Court of Appeal’s view stood, any post‑1964 purchaser who registered a deed even from someone with no title could have displaced the true owner holding an older unregistered deed.
The court acknowledged that many lands in the Western Area are held on possessory title without documentary evidence and that a registration‑based system should not extinguish those rights. Accordingly, the decision preserves long‑standing possessory rights and confirms that mere registration cannot legitimise a fraudulent or defective conveyance. The judgment also suggests that adopting a comprehensive system of compulsory title registration could provide certainty and reduce fraudulent dealings in land. Thus, the case underscores the need for statutory reform while protecting existing possessory title holders.
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