Case information
Court: High Court of Sierra Leone (Land and Property Division)
Coram: Hon Dr Justice A B M Binneh‑Kamara J.
Date of judgment: 3 March 2020
Citation: Muru Brima Dumbuya v Salie Mahoi (CC 301 of 2015) [2020] SLHC 7
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Parties
| Party | Role | Counsel |
|---|---|---|
| Muru Brima Dumbuya | Plaintiff/Applicant | Mayimuna Kallon and P. K. Marm Jones (for Conway & Rich Lawyers) |
| Salie Mahoi | Defendant/Respondent | Augustine Marrah (for Basma & Basma) |
Facts
The plaintiff claimed ownership of properties at Nos 32 and 32A Pyke Street, Brookfields, Freetown, described in survey plan L.S 267/03 dated 18 July 2003 and recorded under statutory declaration MBD1. He alleged that the defendant wrongfully occupied the properties and sought summary judgment under Order 16 of the High Court Rules 2007 for:
Declaration of title that the plaintiff is the lawful owner and entitled to possession.
Immediate recovery of possession of the properties and a perpetual injunction restraining the defendant from entering or interfering with them.
Costs and other reliefs.
The plaintiff relied on a statutory declaration (Exhibit MBD1) made in September 2003 and registered in the Record Books of Conveyances, asserting that it conferred fee‑simple title. Counsel argued that the defendant’s pleadings contained bare assertions of ownership without documentary proof, and that paragraphs 4–5 of the affidavit in opposition alleging familial ties and ownership were unsupported. They relied on the decision in Seymour Wilson v Musa Abbess to contend that registration of a statutory declaration was evidence of ownership.
The defendant filed a defence and counter‑claim supported by an affidavit. She contended that:
The land numbered 32A Pyke Street belonged to the estate of the plaintiff’s father Brima Dumbuya and any appropriation by the plaintiff was illegal.
The property numbered 32 Pyke Street belonged exclusively to the defendant’s mother, Mary Mahoi.
A statutory declaration does not confer title; Exhibit MBD1 was executed in 2003 and the property is in Freetown, which is “Settled Colony Land” the registration of instruments regime (Cap 256) deals with registration of instruments rather than title.
The defence and counter‑claim challenged the validity of MBD1 and sought a declaration of ownership for both properties. The defendant argued there were serious triable issues (e.g., whether the properties formed part of Brima Dumbuya’s estate or whether the defendant held a possessory title) and that summary judgment should not be granted.
Issues
Does registration of a statutory declaration under the Registration of Instruments Act (Cap 256) confer title to land in Freetown?
Is a possessory title a valid defence against a claim based on a registered instrument?
Are there triable issues requiring a full trial, or is summary judgment appropriate?
Decision
The court dismissed the application for summary judgment. Justice Binneh‑Kamara held that Exhibit MBD1 (the statutory declaration) did not conclusively prove title. There were genuine issues requiring a trial, so unconditional summary judgment could not be granted. However, the defendant was given conditional leave to defend, requiring her to deposit Le 50 million as security for costs within 21 days. The court set timelines for exchanging pleadings, documents and witness statements, and fixed the trial for 31 March 2020.
Reasoning
1. Registration under Cap 256 does not confer title
The judge reviewed the purpose of Order 16 and the law on registration of instruments. He cited Livesey Luke CJ’s analysis in Seymour Wilson v Musa Abbess, which held that registration of an instrument does not, by itself, confer title. The statutory regime (Cap 256) is an “Act to amend and consolidate the law relating to the registration of instruments” it does not provide for registration of title. Registration simply gives priority in time; the underlying transaction confers title, not registration. Thus, the plaintiff’s reliance on MBD1 could not automatically displace the defendant’s claim; the instrument might convey no title at all.
This approach aligns with commentary outside the case: a talk on land tenure delivered by Justice N. C. Browne‑Marke notes that Sierra Leonean courts have repeatedly decided in favour of owners of possessory titles without documents of title against holders of registered conveyances, citing Cole v Cummings (No 2). In the same talk, Livesey Luke CJ is quoted as emphasising that mere registration of an instrument does not confer title unless the vendor had title or authority to convey. These observations echo the court’s reliance on Seymour Wilson and support the conclusion that a statutory declaration is not conclusive proof of title.
2. Possessory title can defeat a registered conveyance
The court noted prior decisions where possessory titles prevailed over registered documents, including Cole v Cummings (No 2), Mansaray v Williams, and John and Macauley v Stafford. In those cases, the courts entered judgment for long‑term possessors even against holders of registered conveyances. Commentary on land law in Sierra Leone echoes this trend, observing that courts often decide in favour of possessory title holders without documents against holders of registered conveyances. Here, the defendant alleged a possessory title based on more than 45 years’ occupation consistent with the threshold established in Swill v Caramba‑Coker. Although the defendant had not yet proven continuous possession, the court held that the claim raised a serious issue requiring evidence at trial.
3. Triable issues under Order 16 Rule 3
Order 16 Rule 3 allows summary judgment only if the defendant has no real defence. The judge considered three questions: (1) whether registration under Cap 256 confers title; (2) whether the statute deals with registration of title; and (3) whether possessory title constitutes a defence. He answered the first two in the negative and noted that the third required factual determination. Since the defendant disputed ownership and claimed possessory title, the court found that there were triable issues. Accordingly, unconditional summary judgment would be inappropriate.
4. Conditional leave to defend
Although the application for summary judgment failed, the court found that the plaintiff’s application was not frivolous and complied with the procedural requirements of Order 16. It therefore exercised discretion under Rule 4(3) and Rule 6 of Order 16 to grant the defendant leave to defend subject to terms. The defendant was ordered to deposit Le 50 million as security for costs within 21 days and to file her reply to the counter‑claim within 7 days.
The parties were directed to exchange documents, witness statements and bundles in accordance with Order 40, and the trial date was set.
Significance
This decision reinforces the principle that registration of instruments under Cap 256 does not confer title. Land disputes in Freetown where the title system is largely unregistered often involve conflicting claims based on statutory declarations, conveyances and long‑term possession. Justice Binneh‑Kamara’s ruling underscores that a statutory declaration, by itself, cannot displace an adverse possessory claim, and that summary judgment should be granted only where the defence is hopeless. Similar commentary on land tenure points out that Sierra Leonean courts have repeatedly favoured possessory titles over registered conveyances. The case also illustrates the High Court’s power to grant conditional leave to defend by imposing security for costs, ensuring that parties raising triable issues can still defend while protecting the applicant from unnecessary expense.
Objective questions (multiple choice)
Each of the following questions has four options. Select the best answer. The correct options are listed at the end of this section.
Which rule of the High Court Rules 2007 did the plaintiff invoke when seeking summary judgment?
A. Order 14
B. Order 16
C. Order 18
D. Order 31
What documentary instrument did the plaintiff rely on to prove ownership of the properties at 32 and 32A Pyke Street?
A. A conveyance deed from 1970
B. A statutory declaration (Exhibit MBD1) registered under the Registration of Instruments Act
C. A lease agreement executed in 2004
D. A court judgment from 1958
What was the defendant’s primary argument regarding the properties numbered 32 and 32A Pyke Street?
A. Both properties belonged solely to the plaintiff
B. The properties were public land held by the government
C. Property 32A belonged to the estate of Brima Dumbuya and property 32 belonged to the defendant’s mother
D. The properties had been sold to a third party years earlier
Why did Justice Binneh‑Kamara hold that registration under Cap 256 does not automatically confer title?
A. Because Cap 256 had been repealed
B. Because registration of instruments under Cap 256 constitutes registration of title
C. Because registration only records instruments and does not confer title if the underlying transaction is defective
D. Because the plaintiff was not a Sierra Leonean national
Which case did Livesey Luke CJ emphasise to show that registration of instruments does not confer title?
A. Swill v Caramba‑Coker
B. Cole v Cummings (No 2)
C. Seymour Wilson v Musa Abbess
D. Mansaray v Williams
According to the decision, can a possessory title defeat a claim based on a registered conveyance?
A. Yes; long‑term possessory titles have been upheld against registered conveyances
B. No; registration always prevails over possession
C. Only if the registered conveyance is more than 50 years old
D. Only if both parties are related by blood
What security did the court require the defendant to provide as a condition for leave to defend?
A. One hundred thousand Leones (Le 100 000)
B. Fifty million Leones (Le 50 000 000)
C. One million US dollars (USD 1 000 000)
D. Ten million Leones (Le 10 000 000)
How many days did the court allow for the parties to exchange witness statements after the date of the order?
A. Seven (7) days
B. Fourteen (14) days
C. Twenty‑one (21) days
D. Thirty (30) days
On what date did the court fix the trial of the action?
A. 31 March 2020
B. 30 April 2020
C. 31 December 2019
D. 15 January 2020
What was the court’s ultimate disposition of the plaintiff’s application for summary judgment?
A. It granted unconditional summary judgment for the plaintiff
B. It dismissed the action and struck out the pleadings
C. It refused summary judgment and granted the defendant conditional leave to defend with a security for costs
D. It referred the matter to the Supreme Court for a preliminary ruling
Answers to objective questions
B – Order 16 of the High Court Rules 2007.
B – A statutory declaration (Exhibit MBD1) registered under the Registration of Instruments Act.
C – Property 32A belonged to the estate of Brima Dumbuya and property 32 belonged to the defendant’s mother; a statutory declaration could not confer title and there were triable issues.
C – Cap 256 regulates registration of instruments, not registration of title; registration does not make the instrument good if the underlying transaction is defective.
C – Seymour Wilson v Musa Abbess.
A – Yes; prior cases such as Cole v Cummings and Mansaray v Williams show that a long‑term possessory title can defeat a registered conveyance.
B – Fifty million Leones (Le 50 000 000) to be paid into the Judicial Sub‑treasury.
C – Twenty‑one (21) days.
A – Tuesday, 31 March 2020.
C – The application for summary judgment was refused; the defendant was granted conditional leave to defend with a security for costs and the matter was ordered to proceed to trial.
Essay questions and model answers
1. Discuss the legal effect of registering a statutory declaration under the Registration of Instruments Act (Cap 256) in Sierra Leone. Does registration confer title to land? Support your answer with authorities.
Answer: The Registration of Instruments Act (Cap 256) was enacted to provide a system for registering conveyances, mortgages and other instruments affecting land in the Colony. Livesey Luke CJ explained in Seymour Wilson v Musa Abbess that the Act’s long title shows it is an ordinance “to amend and consolidate the law relating to the registration of instruments” rather than an ordinance for registration of title. Registration does not in itself confer title; it merely records the instrument and gives it priority against later unregistered instruments. The instrument itself (the underlying sale, lease or mortgage) confers title if the vendor had title to pass; registration cannot cure defects in the vendor’s title. In Muru Brima Dumbuya v Salie Mahoi, the court applied this principle, holding that the plaintiff’s statutory declaration (Exhibit MBD1) did not automatically make him the owner. Consequently, the defendant’s adverse claim and possessory title raised genuine issues that had to be tried.
2. What factors did Justice Binneh‑Kamara consider in deciding whether to grant summary judgment? Explain the threshold under Order 16 of the High Court Rules.
Answer: Order 16 allows a plaintiff to apply for summary judgment where the defendant has no real defence to a claim. The judge considered whether the plaintiff’s application complied with the procedural requirements of Order 16—notice of intention to defend, service of the statement of claim and compliance of the supporting affidavit with Rule 2. These conditions were satisfied. He then examined Sub rule (1) of Rule 3, which places the onus on the defendant to show that there is an issue or question in dispute or some other reason for a trial. Because the defendant disputed ownership and claimed a possessory title, the court found there were serious triable issues. It also considered prior cases where possessory titles prevailed over registered conveyances. Thus, the application failed to meet the high threshold for summary judgment and unconditional judgment was refused.
3. How did the court balance the interests of both parties when dismissing the summary‑judgment application? What orders did it make to ensure the case proceeded efficiently?
Answer: The court recognised that the plaintiff had complied procedurally and that the application was not ill‑founded, yet the defendant raised a plausible defence. It therefore exercised discretion under Rule 4(3) and Rule 6 of Order 16 to grant the defendant conditional leave to defend. The defendant had to deposit Le 50 million as security for costs within 21 days. The court ordered the parties to exchange pleadings, documents and witness statements within specified timeframes, and directed that the plaintiff prepare two trial bundles containing pleadings, agreed facts, evidence, witness lists and law authorities seven days before trial. The trial was fixed for 31 March 2020. By imposing security for costs and a strict timetable, the court sought to protect the plaintiff from delay while safeguarding the defendant’s right to defend.
4. Explain the role of possessory title in Sierra Leonean property law. What threshold must be met, and how does it interact with registered instruments?
Answer: Possessory title arises through long, uninterrupted and exclusive possession of land; it is akin to adverse possession in common‑law jurisdictions. In Swill v Caramba‑Coker, the Court of Appeal recognised a 45‑year threshold for establishing possessory title to property in Freetown. Once the threshold is met, the possessor may acquire ownership even without a registered conveyance. Possessory title can defeat a claim based on a registered instrument if the possessor proves continuous occupation for the requisite period, as seen in Cole v Cummings (No 2) and Mansaray v Williams. Registration under Cap 256 does not render the registered title indefeasible. Accordingly, when a plaintiff holding a registered instrument sues a possessor, the court must determine whether the possessor meets the 45‑year threshold before granting judgment. This interplay ensures that both formal documents and long‑standing occupation are considered in determining property rights.
5. Assess the significance of Muru Brima Dumbuya v Salie Mahoi for land‑litigation practice in Sierra Leone. What lessons does it offer for lawyers preparing or defending summary‑judgment applications?
Answer: The case underscores the cautious approach required in summary‑judgment applications. Lawyers must appreciate that a registered instrument or statutory declaration is not conclusive evidence of title; opposing parties can defeat such claims by raising genuine disputes of fact or law, particularly allegations of possessory title. Practitioners should therefore gather corroborating evidence of title—such as deeds, historical documents and proof of chain of title—rather than rely solely on statutory declarations. For defendants, raising credible facts that show a triable issue (e.g., long‑term possession, competing conveyances, familial ownership) can secure leave to defend. The case also illustrates the court’s power to impose conditions (security for costs) and strict procedural timetables. Lawyers should be prepared to meet these obligations promptly to avoid adverse consequences. Overall, Muru Brima Dumbuya v Salie Mahoi reinforces the balance between expeditious resolution of claims and protection of parties’ rights to a fair trial.
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