AIAH MOMOH v.

SAHR SAMUEL NYANDEMOH

[SC.CIV. APP. 6/2006] [p.1-16]

DIVISION: SUPREME COURT, SIERRA LEONE

DATE: 9 JUNE 2008

CORAM: MR.JUSTICE G.B. SEMEGA-JANNEH

MR. JUSTICE BODE RHODES-VIVOUR

MRS. JUSTICE S. BASH-TAQI

MS. JUSTICE S. KOROMA

MR. JUSTICE S.A ADEMOSU

BETWEEN:

AIAH MOMOH — APPELLANT

AND

SAHR SAMUEL NYANDEMOH — RESPONDENT

SOLICITORS/COUNSEL

S.M. SESAY ESQ. FOR THE APPELLANT

N.D. TEJAN-COLE ESQ. FOR THE RESPONDENT

JUDGMENT

BODE RHODES-VIVOUR, J.S.C

The facts in this case are fortunately refreshingly clear, but only a few of the facts
thereof are germane to the points in this appeal. I will not set out all the facts but will be
content with such facts as are relevant for the purpose of highlighting the points in this
appeal which are material to the issues in the judgment. The respondent as plaintiff, on
the 3rd day of June 1998 took out an Originating Summons against the Appellant, as
Defendant asking the High Court of Sierra Leone to determine the following:

1. That the Deed of Conveyance dated the 25th day of August, 1992 and expressed to
be made between Alhaji Tejan Sowe therein referred to as the Vendor of the one part
and Sahr Samuel Nyandemoh and Aiah Momoh therein referred [p.2] to as Purchasers
of the other part conveying ALL THAT PIECE OR PARCEL OF LAND together with the
Building(s) situate lying and being at No.37 Malama Thomas Street, Freetown in the
Western Area of the Republic of Sierra Leone and registered as number 909/92 at Page
139 in Volume 463 in the Record Books of Conveyances kept in the Office of the
Administrator-General, Roxy building, Walpole Street, Freetown aforesaid jointly owned
by the Plaintiff and the Defendant may be partitioned between them.

2. That the Deed of Partition be settled in accordance with draft to be prepared by an

Independent Surveyor jointly appointed and approved by both parties.

3. Alternatively, that the aforementioned property be sold by public Auction or by

Private treaty to the highest bidder at a price not below the reserve price to be set by an
independent Valuer such price to be sanctioned by the Court.

4. The sale and distribution between the Plaintiff and the Defendant would be more
beneficial to the parties than a division of the property between them.

5. That the Plaintiff do have the conduct of the sale and the Plaintiff and the Defendant
execute the Deed of Conveyance. In default of either party signing the said Deed, that
the Master and Registrar do execute the same on behalf of the default party.

6. That either party be at liberty to bid at the said sale and in the event of the Plaintiff
being Purchaser thereof the Deed of Conveyance to be executed by the Defendant or
the Master and Registrar.

7. That an account of the rents and profits of 37, Malama Thomas Street, Freetown in
the Western Area of the Republic of Sierra Leone, collected or received by the
Defendant as the Plaintiffs Agent and payment of what shall be found due on taking
such account.

[p.3]

8. That the costs of this application be borne by the Defendant, such costs be taxed.

The following affidavits were filed in support of the Originating Summons:—

(a) Affidavit of Nasiru Deen Tejan-Cole sworn on 30/9/98

(b) Affidavit of Sahr S. Nyandemoh sworn on 6/10/98

(c) Affidavit of Fawaz Ayoub sworn on 15/10/98

(d) Affidavit of Ola Thomas sworn on 6/11/98

(e) Affidavit of Raymond Awoonor-Renner sworn on 22/9/99

In opposing the Originating Summons the defendant relied on the following affidavits:—
(a) Affidavit of Aiah Momoh sworn on 3/7/98

(b) Affidavit of Man so Dumbuya sworn on 11/7/98

(c) Affidavit of C.F. Edwards Esq. sworn on 20/10/98

(d) Affidavit of Sallieu Kamara sworn on 22/10/99.

On 22/11/99, the learned Trial Judge, The Honourable Mr. Justice A.M. Stronge heard
Counsel and read all the affidavits. Thereafter this is what His Lordship had to say:—

"……………… It is considered that there is a dispute as to fact and that the best
expeditious and economical disposal of the proceedings will accordingly best be
secured by hearing the Summons partly on oral evidence with or without cross-
examination of any of the deponents as the Court may direct".

[p.4]

His Lordship then ordered as follows:—

1. That the deponents to the affidavits filed in this action do attend before the Court at a
date and hour to be fixed for cross-examination thereon but the parties to be at liberty to
supplement their evidence by oral evidence and adduce further evidence;

2. The cost of and occasioned by this application shall be costs in the cause.

Counsel complied with His Lordships orders above and on the 9th of February 2001
judgment was entered in favour of the Plaintiff as follows:—

1. That property No.37, Malama Thomas Street, Freetown in the Western Area of the
Republic of Sierra Leone be sold by Public Auction or by Private Treaty to the highest
bidder at a price not below $250,000 (Two Hundred and Fifty Thousand United States
Dollars) or its equivalent in Leones at the current Bank rate of exchange at the time of
such sale, such price to be approved by the Court.

2. That Solicitors for both parties do have conduct of the said sale and the Plaintiff and
Defendant execute the Deed of Conveyance to the purchaser and in default of either
party signing the said Deed of Conveyance the Master and Registrar of the High Court
do the same on behalf of the defaulting party.

3. That either party be at liberty to bid at the said sale and in the event that either party
being the purchaser thereof the Deed of Conveyance be executed by the other party or
in default by the Master and Registrar, High Court.
4. That an account of all rents and profits received by either party from the said property
since the purchaser thereof be submitted by each party with liberty to [p.5] either party
to surcharge and falsify such accounts to be sanctioned by the Court.

5. That the proceeds of the said sale be distributed as between the parties having
regard to the account as sanctioned by the Court.

6. That the costs of the Action be borne by the Defendant, Aiah Momoh such costs to
be taxed.

Dissatisfied with the judgment of the trial Court, the Defendant/Appellant brought an
appeal before the Court of Appeal, (hereinafter referred to as the Court below).

In its judgment delivered on the 11th day of July 2006 the Court below, Coram Justice's
M.E.T. Thompson, P. Macaulay, dismissed the appeal relying heavily on the provisions
of Order 41 Rule 13, and Order 42 Rule 8 of the Supreme Court Rules Cap 7. There is
nothing on the printed Record to show whether the third Judge on the panel, Justice G.
Gelaga King concurred or dissented.

The Defendant/Appellant was dissatisfied with the judgment of the Court below. He has
come before this Court on a further and final appeal.

In the Notice of appeal filed on the 25th day of July 2006, six grounds of appeal were
filed on behalf of the Appellant. They are:—

1. The decision of the Court of Appeal is against the weight of the evidence.

2. There was no Originating Summons issued in these proceedings to

commence the same.

3. These proceedings from their nature ought to have been commenced by the issue of
a Writ of Summons since there was a dispute about the ownership of this property.

[p.6]

4. The normal method of commencing a civil action is by Writ of Summons. The

procedure adopted was wrong. There were no pleadings filed, the action was never
entered for trial and therefore the whole proceedings were a nullity.

5. The Court of Appeal failed to consider whether the procedure adopted ensured that
there was a fair trial of the issues in dispute between the parties in dispute.

6. The Court was not properly constituted when it delivered its judgment and the
judgment itself is that of only two of the Justice's of Appeal. The judgment of the third
Justice is yet to be delivered.
At the hearing of the appeal on the 24th of April 2008 both Counsel relied on their
argument contained in the statements. Judgment was thereafter reserved.

I have examined the six grounds of appeal and I consider grounds 3, 4 and 5 to be
fundamental and crucial, in that if they succeed the entire proceedings at the trial Court
would be declared a nullity and it would be an academic exercise to consider any of the
other issues. Courts are to determine live issues and not waste precious judicial time
engaging or indulging in academic exercise.

I shall take grounds 3 and 4 together since they are allied. The issue easily distilled from
grounds 3 and 4 is:—

"Whether the trial judge was right to continue the proceedings by Originating Summons
after he found that the affidavits before him revealed dispute on facts".

In his written address learned Counsel of the appellant Mr. Serry-Kamal observed that
the Originating Summons procedure is limited to special cases where there is no
disputed fact contending that the proper direction was for the trial judge to order that the
action should commence by Writ of Summons. Finally he submitted that Order 41 Rule
13 and Order 42 Rule 8 of the 1960 High Court Rules were not applicable.

[p.7]

In reply, learned Counsel for the respondent Mr. N.D. Tejan-Cole observed that in a suit
commenced by Originating Summons the affidavits are the pleadings and so the need
to order for pleadings to be filed does not arise.

He submitted that since the objection was not made or taken at the trial Court it cannot
constitute a ground of appeal.

Concluding his submissions he finally submitted that specific provisions of Originating

Summons is permissible under Order 42 and 45 of the 1960 High Court Rules.

He urged us to dismiss the appeal with costs.

The Law/Rules applicable to an action is the Law/Rules existing when the cause of
action arose. After a diligent examination of the affidavits in support of the Originating
Summons, I am satisfied that the cause of action arose sometime in 1996. The Rules
existing and in force at the time and so applicable to this case are the Supreme Court
Rules Cap 7 of 1960. The Rules supra were applicable to trials in the High Court. The
rules applicable now are the High Court Rules of 2007, the Court of Appeal Rules 1985,
and the Supreme Court Rules 1982, but they are all not material to this case.

The Respondent as Plaintiff brought an action against the Defendant/Appellant on an

Originating Summons seeking reliefs earlier alluded to.
The learned trial judge heard Counsel, examined the affidavits and observed that there
are dispute of fact and that the best expeditions and economical disposal of the
proceedings will accordingly best be secured by hearing the Summons properly on oral
evidence with or without cross-examination of any of the deponents as the Court may
direct. Now, can it be said that the learned trial Judge's order is correct. What are the
disputes of fact in the affidavits. In the affidavits in support of the Originating Summons
the Respondent/Plaintiff deposed that the House at No.37 Malama Thomas Street,
Freetown in the West Area in the Republic of Sierra Leone is owned jointly by the
Appellant and himself. He seeks an order by his Originating Summons for the Court to
Order the partition of the property or outright sale and the proceeds therefrom to be
divided by both of them.

[p.8]

In the 27 paragraph affidavit deposed to by the appellant on page 40 of the printed

Record and in opposition to the affidavits in support of the Originating Summons the
deponent states that he is the sole owner of the property, and there is a deposition of
fraud, to the effect that fraud was perpetrated by one Fawaz Ayoub to include the
Respondents named in the Conveyance. The deponent claims to be an illiterate. See
paragraphs 4, 26 of the said affidavit.

A Plaintiff seeking partition of property which the adversary claims that he is the sole
owner, and at the same time asserts that there was fraud in the preparation of the
Conveyance, are indeed substantial dispute of fact. The main dispute of fact is who as
between the Litigants is the owner of No.37 Malama Thomas Street, Freetown in the
Western Area of the Republic of Sierra Leone.

On being served with these affidavits the proper thing for Counsel for the Plaintiff Mr.
N.D. Tejan-cole to have done was to discontinue the suit and issue a Writ of Summons
and Statement of Claim for the Court to determine who in fact is the owner of No.37
Malama Thomas Street, Freetown in the Western Area of the Republic of Sierra Leone.

The Trial Judge also fell into a grave error by ordering trial to continue on an Originating
Summons, oblivious of the provisions of Order 2 Rule 1 of the Supreme Court Rules
Cap 7 of 1960 which states that:

"Every action in the Supreme Court unless otherwise expressly provided for shall be
commenced by a Writ of Summons which shall be indorsed with a statement of the
nature of the claim made, or of the relief or remedy required in the action."

On the state of the affidavits the correct order to have been made by the learned Trial
Judge was to order Counsel to file pleadings. Furthermore pleadings in this case are
mandatory in that, how may I ask would the Appellant prove fraud which he deposed to
in his affidavit. It is very well settled that fraud must be pleaded and particularized and
where fraud is not pleaded the Court would not entertain any evidence on it (fraud). See
Tamakloe v Basel Trading Co. 6.W.A.C. p231. The learned Trial Judge's order denied
the Appellant of his inalienable right to prove his case.

Order 42 Rule 10 supra states that:

"(10) the determination of any question of construction arising under a Deed, Will or
other written instrument and declarations of the rights of persons interested: Provided
that a Judge shall not be bound to determine any such question of construction if in his
opinion, it ought not to be determined on Originating Summons."

All that the above says is that questions of construction are to be determined on
Originating Summons but a Judge in his wisdom may decide such an issue on any
other Originating process he finds convenient. Nowhere in the 1960 Rules is there such
a procedure as the Trial Judge ordered, particularly where there is a deposition on
fraud. The orders/directives of the Trial Judge were wrong.

The Court of Appeal was of the view that the proceedings by Originating Summons was
Correct, relying heavily on the provisions of Order 41 Rule 13 and Order 42 Rule 8 of
the 1960 Rules to affirm the Judgment of the Trial Court in these words:

"It seems to me that the learned Trial Judge had these two High Court Orders in mind
when he adjourned the Summons from Chambers to open Court and also when he
ordered the sale of the property situate at No.37 Malama Thomas Street, Freetown in
the Western Area of the Republic of Sierra Leone. Again this ground of appeal lacks
merit and therefore fails ".

It is very necessary now to examine Orders 41 Rule 13 and 42 Rule 8 Supra. Order 41
is Titled Applications and proceedings at Chambers I shall set out its provisions (Rule
13) verbatim et literatem. It says:—

"In every cause or matter where any party thereto makes any application at chambers,
either by way of summons or otherwise, he shall be at liberty to include in one and the
same application all matters upon which he then desires the order directions of a judge
and upon the hearing of such application it shall [p.10] be lawful for the Court to make
any order and give any directions relative to, or consequential on the matter of such
application as may be just; any such application may, if the judge thinks fit, be
adjourned from Chambers into Court or from Court into Chambers".

It is a fundamental rule of interpretation of legislation that where the words of the

legislation are clear and unambiguous the words should be given their simple and
ordinary meaning. It is only then that the intention of the Law Maker/Legislators can be
known; After all the object of all interpretations is to find out the intention of the
Legislature. And in interpreting Legislation it is not the duty of the Judge to fill in the
gaps as wrongly suggested by Lord Denning LJ (as he then was) in Seaford Count
Estate Ltd, v Asher 1949 2 K.B. Page 498-499.

Where Judges fill in the gaps they would be delving into uncharted territory. It would
amount to a naked usurpation of legislative function under the disguise of interpretation.
See Mayor and ST Mellons Rural District Council v New Port Corp 1952 ACP 189,
Fisher v Bell 1960 3 ALL E.R. Page 731.

Now, to the interpretation of Order 41 Rule 13 of the Supreme Court Rules 1960. Order
1 supra defines Originating Summons thus:—

"Originating Summons" means every summons other than a summons in a pending

cause or matter",

With the above definition it becomes clear that "Summons" in Rule 13 of Order 41 supra
is not Originating Summons. It is Summons. What then is the difference between
"Originating Summons" and Summons. "Originating Summons" is one of the ways civil
proceedings are commenced in Sierra Leone. The other ways are by Writ of Summons,
Originating Motion and Petition. That is to say Originating Summons is one of the ways
an action or proceedings is launched.

"Summons" on the other hand are for interlocutory applications. Quite a number of
interlocutory applications are made by Summons e.g. Summons for directions, to renew
a Writ, [p.11] to amend a Writ or Originating Summons. I shall now delve into a brief
history of Originating Summons. A Judges Summons is an Originating process. Trial in
a Judges Summons is conducted by affidavit evidence, i.e. you prove your case by
affidavit evidence.

The main advantage of Originating Summons is simplicity resulting from the elimination
of pleadings. It is applicable where there is no substantial dispute on questions of fact,
and suitable for the determination of questions of construction. Where the issue
between the parties is in controversy pleadings must be ordered. An Originating
Summons would no longer be appropriate. A Writ of Summons and statement of
claim/pleadings would best present the plaintiff case while a statement of defence
(Pleadings) would be the best answer to the plaintiff's case.

"By way of summons or otherwise" means by way of Summons or any other process
e.g. motion etc. best suited for interlocutory applications. The Court below fell into a
serious error in interpreting "Summons" in Order 41 Rule 13 to mean Originating
Summons. The Summons therein means Summons. Or otherwise means any other
process for interlocutory applications and clearly not an Originating Summons which is
used to commence non contentions suits to do with interpretation of Instruments etc."

Rule (8) of Order 42 reads as follows:—

"(8) applications for or relating to the sale of property by auction or private contract, and
as to the manner in which the sale is to be conducted and for payment into Court and
investment of the purchase money."

The above becomes relevant only after the issue of ownership is resolved. The issue of
ownership of the said property has not been resolved, so the above is irrelevant for
now.

It is irrelevant if the learned Justices of the Court of Appeal were of the view that the
Originating process was an Originating Summons or a Summons whichever. Their
Lordships [p.12] are wrong because none of these processes allow pleadings, and
pleadings are mandatory on the state of the affidavits.

Affirming the Judgment of the trial Court is unsupportable in the light of what I have
been saying.

This is a case where the trial judge exercised his discretion which he did not have; to
give orders that were clearly wrong. Indeed this Court is always loath to interfere with
the discretion of a Judge, but here we are compelled to do so. This is so because the
discretion was wrongly exercised and tainted with illegality and substantial irregularity.
The procedure adopted by the learned trial Judge after he found that there were
disputes on facts in the affidavits departed from decided authorities and settled practice.
The learned Trial Judge ought to have struck out the Originating Summons. His
Lordship did not do that. Instead he exercised his discretion and gave orders unknown
to contemporary practice. The exercise of discretion by the learned Trial Judge in clear
breach of what the Law requires is/was perverse in the circumstances. Where a Court
disregards clear provisions of its Rules after full knowledge and adopts a strange
procedure to hear claims, the entire procedure amounts to a mockery in judicial
administration and a clear violation of the plainest principle of reason and justice.

I now turn to the points raised in the submission of the learned Senior Counsel for the
Respondent, Mr. N.D. Tejan-Cole and in the process I shall deal with Ground 5, the
substance therein being whether the Appellant had a fair trial. Mr. N.D. Tejan-Cole's
points are:—

1. That objection not made or taken at the trial cannot constitute a ground of appeal;

2. An Appellant could not set up in the Appeal Court (Objection) which was not put
forward and was not in issue at the trial Court;
3. Once it becomes apparent that a point has not been raised in the Court below it is
properly to be regarded as an abuse of the process of the Court to seek and to raise it
on appeal for the first time on appeal.

The substance of all that I have been saying has to do with the correct originating
process to be used where plaintiff files in Court an Originating Summons seeking in the
main Partition of property and the Defendant claims ownership of the same property.

Nowhere in the 1960 Rules is there such a procedure as the Trial Judge ordered.
Apparently the order was made by the learned Trial Judge in exercise of his discretion,
which he did not have in this case, in the light of the clear provision of Order 2 Rule 1 of
the 1960 Rules. The well settled position of the law is that Originating summons cannot
be used to commence suits where there are substantial disputes of fact, as in this case.

It must be noted that Legislation on Partition, the Partition Acts 1868 and 1876 relates to
situations where the ownership of the property to be partitioned is not in dispute. In this
case the property to be partitioned, No.37 Malama Thomas Street, Freetown in the
Western Area of the Republic of Sierra Leone is in dispute. The Appellant/Defendant
claims to be the sole owner of the property. See paragraph 26 of his affidavit on pages
40-42 of the Printed Record.

Partition can never be ordered, when ownership of the property is left unresolved. The
correct course would be to resolve the issue of ownership of No.37 Malama Thomas
Street, Freetown in the Western Area of the Republic of Sierra Leone before Partition of
the said property can be considered, and the only way to resolve ownership of property
is by Writ of Summons and statement of claim/defence, i.e. pleadings. Now it is well
settled that Jurisdiction of the Courts can only be ousted in the following instances:—

(a) Where the Court is not properly constituted as regards the numbers and
qualifications of its members and a member is disqualified for one reason or another;

(b) Where the subject matter of the case is not within the jurisdiction of the Court;

[p.14]

(c) When the case has not come to the Court through the due process of Law and
conditions precedent to the exercise of the said jurisdiction have not been fulfilled.

This case falls under (C) above. In the light of all that I have been saying it is so obvious
that this case was not before the trial Court by due process.

A case comes before the Court by due process if it is properly before the Court.

The learned Trial Judge exercised his discretion on his whims and fancies instead of
judicially and judiciously. A judicial and judicious exercise of discretion is exercise of
discretion with sufficient, correct and convincing reason. This was lacking in this case.
With the facts available due process was not followed, and such a situation where the
case should be heard on Writ of Summons and pleadings but was not questions the
jurisdiction of the trial Court to hear the case. Suppose for instance the rules provide
that claims for Title to land, trespass shall be heard on a Writ of Summons and
pleadings but Plaintiff brings such claims by Petition and the Defendant does not object,
and trial proceeded to conclusion. Clearly the judgment would be a nullity. This is
substantive as opposed to procedural where for instance the defendant waived a flaw,
e.g. service of Originating process on him. Entered appearance filed a statement of
defence. He cannot be heard to complain thereafter. The former example applies in this
case. The directives of the trial judge was a fundamental error that renders the
judgment a nullity, notwithstanding that the Appellant/Defendant did not object at the
trial Court.

There is a distinction between a mandatory provision, Order 2 Rule 1 of the Supreme

Court Rules Cap 7 of 1960 which cannot be waived and a mere procedural requirement
in the course of trial which can be waived. See Smythe v Wiles 1921 2 KB p66,
Papadoponlos v Papadoponlos 1929-1931 Probate Division p55, where it was held that
parties cannot by consent confer jurisdiction upon a tribunal, which by law has no such
jurisdiction. The Courts have complete control over how suits should commence,
consequently a party in the case has nothing to waive, neither can it be said that a party
acquiesced.

[p.15]

An Appellant could set up in the Appeal Court an objection which was not put forward
and was not in issue at the trial Court if what he is setting up has to do with the
jurisdiction of the Court. In this case the Trial Judge had no jurisdiction to hear by
Originating Summons what should be heard by Writ of Summons and pleadings. Since
this issue is substantial, very fundamental and touched on the jurisdiction of the Court it
can be raised informally, although it is desirable some process is filed so that the
adverse party is not taken by surprise. After all jurisdiction can be raised at any time
even for the first time at the Supreme Court. Finally, judicial discretion must at all times
be exercised judicially and judiciously and not arbitrarily, or unrestrained or at the whim
and fancies of the Judge. In this case once the Trial Judge found that there were
disputes on facts in the affidavits he had no option but to order pleadings.

Furthermore not ordering pleadings denied the Appellant the opportunity to plead fraud
and prove it. He was thus denied a fair hearing and once a party is denied his right to
fair hearing in a proceeding such proceedings are a nullity.

This appeal is allowed. The following orders are made—

(a) The Judgment of the High Court (A.N. Stronge J.A.) given on 9th February 2001 is
hereby set aside.

(b) The Judgment of the Court of Appeal delivered on 11th July 2006 is hereby set
aside.

(c) All the monies held in Account No 2032189 at the Sierra Leone Commercial Bank
Limited shall remain in the said Account pending the final decision of the Courts on the
ownership of No. 37 Malama Thomas Street Freetown, in the Western Area of the
Republic of Sierra Leone.

(d) Trial shall proceed afresh by Writ of Summons and statement of claim if the parties
decide to resolve the issue of ownership of No.37 Malama Thomas Street Freetown, in
the Western Area of the Republic of Sierra Leone.

[p.16]

(e) Each party shall bear its own costs.

SGD.

HON. MR. JUSTICE BODE RHODES-VIVOUR - J.S.C.

I agree.

SGD.

HON. MRS. JUSTICE S. BASH-TAQI - J.S.C.

I agree.

SGD.

HON. MS. JUSTICE S. KOROMA J.A.

I agree.

SGD.

HON. MR. JUSTICE S.A ADEMOSU - J.A.

Ref: BR-V/HJ

[p.17]

SEMEGA JANNEH, J.S.C.

I have had the privilege of reading in draft the judgment of my learned brother, the
Honourable Justice B. Rhodes-Vivour-J.S.C., and I agree with the central conclusion
and reasoning behind it. I allow the appeal. However, I had drafted this opinion as I wish
to express my own perspectives of the matter.

[p.18]

THE FACTS

It is necessary to give the background facts for a better understanding of the issues.
The premises situate at and known as number 37 Malamah Thomas Street, Freetown,
in the Western Area of Sierra Leone, was purchased out of the proceeds of the sale of
an alluvial diamond. The facts relating to the purchase, and also the assignment of the
said premises, which is disputed, from one Alhaji Tejan Sows, exhibited as "A" to the
affidavit in support of SAHR SAMUEL NYANDEMOH (Respondent herein) sworn on the
2nd June, 1998, ought to be viewed from two different perspectives, that of Mr.
Nydandemoh and Aiah Momoh (the Appellant herein) respectively. According to the
said affidavit of Mr. Nydandemoh, he was permitted to work by his friend, one Mr.
Hassana Koroma, under his alluvial Diamond Mining License, at a part of his mining plot
situate at Njorpowahun, Nimiyama Chiefdom, Kono, District, Eastern Province. He, as a
Supporter, subsequently invited Mr. Momoh to join him in the business as one of his
three Tributors. The Tributors, it appears, are the persons engaged in the physical work
such as digging for diamonds within the allocated site. The Tributors, as custom
requires, are entitled to half the value of the find (diamonds) whether retained by the
Supporter or sold by him to another person. In the instant case, it was sold for Le
50,000,000.00 (Fifty Million Leones). The two Tributors were given Le5,000,000.00
(Five Million Leones) and the balance of Le 45,000,000.00 was jointly retained by Mr.
Nyandemoh and Mr. Momoh. It was from this balance that 37, Malamah Thomas Street,
Freetown, was purchased. According to the affidavit in opposition sworn to by Mr.
Momoh on the 3rd July, 1998 he, Mr. Momoh, denies the said version of Mr.
Nydandemoh and claims exclusive ownership of the diamond in issue. He expected the
assignment of the said premises to be made to him solely, and protested when he learnt
that it was made in the joint names of himself and Mr. Nydandemoh. The Partnership
Agreement dated the 13th February, 1993; the Sharing of Rents Agreement dated the
27th June 1993; and the Lease Agreement dated the 31st March, 1999, exhibited to the
said affidavit of Mr. Nyandemoh as "B" "C" and "E", respectively, are said by Mr. Momoh
not to be his deeds — he being an illiterate. In short, he denies and challenges the facts
and exhibits that Mr. Nyandemoh relies upon on his application contained in the
originating summons.

[p.19]
THE GROUNDS OF APPEAL

1. The decision of the Court of Appeal is against the weight of the evidence.

2. There was no originating summons issued in these proceedings to commence the

same.

3. These proceedings from their nature ought to have been commenced by the issue of
a writ of summons since there was a dispute about the ownership of this property.

4. The normal method of commencing a civil action is by a writ of summons. The

procedures adopted were wrong. There were no pleadings filed, the action was never
entered for trial and therefore the whole proceedings were a nullity.

5. The Court of Appeal failed to consider whether the procedure adopted ensured that
there was a fair trial of the issues in dispute between the parties in dispute.

6. The Court was not properly constituted when it delivered its judgment and the
judgment and the judgment itself that of only two of the Justices of Appeal. The
judgment of the justice yet to be delivered.

No argument has been proffered in respect of ground one by the Applicant. As a

consequence, it is treated as abandoned and shall not be dealt with. Grounds 3, 4 and 5
have been argued together and rightly so. The three grounds relate to the same
issue(s) and ought to have been crafted as one ground of appeal. I will deal with the
issue(s) raised by grounds 3, 4, and 5 and then decide on grounds 2 and 6.

[p.20]

THE ISSUES

(1) Was the learned trial Judge right in law in proceeding with the hearing of the
Originating Summons in the face of the facts disclosed by the affidavits filed, and his
own conclusion that there was dispute as to the facts, and more specifically, the
ownership of the diamond; the premises situate at 37 Ma/amah Thomas Street,
Freetown; and the proceeds of sale of the said premises.

(2) If the learned trial Judge was wrong, what was the course open to him instead of
proceeding with the hearing of the Originating Summons.

THE COMMENCEMENT OF ACTION

How an action is commenced in the High Court is found in Order 2 rule 1 of the
Supreme (now High) Court Rules of 1960 Cap. 7 of the Laws of Sierra Leone which
provides:
"1. Every action in the Supreme Court unless otherwise expressly provided for shall be
commenced by writ of summons, which shall be endorsed with a statement of the
nature of the claim made, or of the relief or remedy required in the action" (emphasis
provided).

It is clear from the provisions of rule 1 of Order 2 of the High Court Rules of 1960 that
an action must be commenced by a writ of summons unless such an action is
expressed to be commenced by another method of procedure. By necessary
implication, such an expression is generally found in or given by a particular statute
dealing with a particular matter or matters, or, by the Rules of Court.

The other procedures within the purview of rule 1 of Order 2 of the High Court Rules
1960 include the Originating Summons. By Order 41 rule 1 every application at
chambers, not made ex-parte, shall be by summons. In such instances, if the
application is made within an existing action or suit, the ordinary summons is used but
when the application is outside an on-going action and, by its nature, is intended to or
commences an action, then the procedure to be employed is the originating summons.
At this juncture, it should be noted that where the High [p.21] Court Rules or statute
prescribes an originating summons as the method of procedure; the proceedings so
commenced constitute an action. See Re Fawsitt, 30 Ch. D.231, and Order 71 rule 1A
of the English Rules of 1960 for the definition of an originating summons. It should be
borne in mind that the High Court Rules were amended by rule 3 of the Supreme (now
High) Court (Amendment) Rules 1969 - Public Notice No.41 of 1969 by the deletion
therefrom of the words "1st day of January, 1957" and the substitution thereto of the
words "1st day of January, 1960", and also in respect of rule 3 of Order 52 which now
reads:

"3. Where no other provision is made by these Rules the procedure, practice and forms
in force in the High Court of Justice in England on the 1st day of January, 1960, so far
as they can be conveniently applied, shall be in force In the High Court"

It should further be borne in mind that our High Court Rules of 1960 are an abridgement
of the Supreme Court Rules of England.

Before closing on this issue, let me give a few examples in which another method of
procedure other than the writ of summons is expressed or authorized by the following
statutes: the Registration of Instrument (Amendment) Act, 1964; and the Adoption Act,
1989; and by the High Court Rules 1960: Order 45 rule 1, under the rubric —
ADMINISTRATION AND TRUSTS; FORECLOSURES AND REDEMPTION; and by
implication, Order41 rule 7 under the caption: APPLICATIONS AND PROCEEDINGS
AT CHAMBERS; and paragraph (10) of Order 42 under the caption: BUSINESS TO BE
DISPOSED OF IN CHAMBERS. Several of such rules in the English Rules of 1960 are
listed in the explanatory notes at page 1397 under Order 54 rule 4B under the rubric:
Form and issue of Originating Summons.

THE REASONING

Mr. Tejan-Cole, Counsel for Mr. Momoh, in his argument, recognizes that there is a
dispute as to a basic fact, that is, ownership of the alluvial diamond from which its
proceeds of sale, the premises, 37 Malamah Thomas Street, Freetown, was purchased
and thereby transferring the dispute to the ownership of the premises. And because of
Mr. Momoh's claim of inclusive [p.22] consequential orders for partition or sale in the
High Court Rules of 1960, or by statute. In this regard, I have searched in the High
Court Rules of 1960 for provisions expressing the use of an origination summons and
found none. The same applies in respect of statutes. Mr. Tejan-Cole has not provided
any rule of court or statute requiring the use of an originating summons that is on the
point. It follows that the action was not commenced in accordance with the provisions of
rule 1 of Order 2 of the High Court Rules, 1960, and the law; the commencement of the
action therefore, was irregular.

The originating summons commencing the action sought orders for partition or sale of
37 Malamah Thomas Street, Freetown, and an account of the rents of the premises
collected. It has not been shown, in my view, that the originating summons is the proper
procedure for commencing action for such orders (or claims). Mr. Tejan-Cole, in the
statement of case for the Nyandemoh, points out that the relevant statutes as regards
partition or sate are the Partition Act, 1868, and the Partition Act, 1876, of England and
made applicable in Sierra Leone by virtue of Section 74 of the Court Act, 1965, Act 31
of 1965, but fail to point out whether these statutes (or any one of them) express or
require that action for order (or claims) for partition or sale should be commenced by
originating summons. The rule of court that Mr. Tejan-Cole seems to be relying is Order
42 paragraphs (7), (9) and (10) under the caption: Business to be disposed of in
chambers, and reproduced hereunder:

"(7) Application connected with the management of property".

"(9) Such other matters as the Judge may think fit to dispose in chambers".

"(10) The determination of any question of construction arising under a deed, will or
other written instrument and declaration of the rights of the persons interested.

Provided that a Judge shall not be bound to determine any such question of
construction if, in his opinion, it ought not to be determined on originating summons"

[p.23]
The order gives a list of the business or matters that may be disposed of in chambers.
This can be clearly discerned in the opening paragraph of the Order which states:

"The business, to be disposed of in chambers by Judges, shall consist of the following

matters, in addition to the matters which under any other rule or by statute maybe
disposed of in chambers" and proceeds to list the matters numbered (1) to (10). It can
be clearly seen that the Order does not indicate the procedure to be employed to bring
the matter before the Judge in chambers. The corresponding Order in the English Rules
of 1960 is Order 55 rule 2. In this English Order, as in the other Orders, the procedure
to be applied be it summons or originating summons or petition or etc., is specifically
given. In respect of the list of matters in Order 42 of our Rules, if a procedure is not
provided for bringing a matter before a judge in chambers, the procedure or practice in
respect of the same may be imported from the English Rules, 1960, by virtue of Order
52 rule 3, reproduced herein, at page 5 Supra. By the generality of the English Rules,
1960, and our Rules, I surmised the procedure applicable within an ongoing action or
suit would be a summons (or motion) but, where it is intended to commence an action in
respect of a matter, it would be an originating summons or originating motion or a
petition. The writ of summons is not intended for matters that are ordinarily heard in
chambers but the judge may receive or hear certain evidence or matters in the suit
commenced by writ of summons in chambers by virtue of Order 42 paragraph (9) or by
his inherent jurisdiction. Obviously, paragraph (10) cannot be for the purpose of
commencing an action as the judge in chambers is not a party to the action, and in the
instant case, he must have been completely oblivious of the decision to file, or, of the
filing of the Originating Summons. The order (or claim) for an account of rents collected
by Mr. Momoh, in my view, does not come within the purview of paragraph (7) of Order
42. A quick reference to Order 55 rule 2 (13) of the English Rules, 1960, at page 1486,
under the Rubric: Applications as to management of property, which is exactly of the
same wording (ipsissima verba) as paragraph (7) would reveal support for the view
expressed. The extent of the rule under the rubric: Scope of paragraph, is explained
thus:

[p.24]

"This paragraph refers to application in proceedings when the estate is or trusts are
being administered. On an application by summons for payment out of court of the
proportion of the life tenant's special contribution payable under part V of the Finance
Act, 1948, attributable to the income of the life tenant from an estate being administered
by the court it was held that the order could properly be made on summons under this
paragraph (Re Willins, (1949) W.N. 1936)"

As regards paragraph (10) of Order 42, it can be said, that by implication, it expresses
that application may be made for "the determination of any question of construction
arising under a deed, will or other written instrument and declarations of rights of the
persons interested". The implication is embedded, and may be read from the proviso, in
paragraph (10) of Order 42. In the English Rules, 1960, Order 54A rule 1, provides.

"1 In any Division of the High Court, any person claiming under a deed, will, or other
written instrument, may apply by originating summons for the determination of any
question of construction arising under the instrument, and for a determination of the
rights of the persons interested"

In my judgment, the originating summons in question does not in any way indicate or
manifest an application for the determination of any question of construction arising out
of the Deed of Conveyance dated the 25th day of August, 1992. The paragraph1 of the
originating summons merely rehearse the Deed of Conveyance and prays, among
others; for its partition between Mr. Nyandemoh and Mr. Momoh. Therefore paragraph
(10) of Order 42 is not applicable in the circumstances.

As regard regards the decision of the Court of Appeal, composed of Justice M.E. Tolla-
Thompson — J.A.; Justice G. Gelaga-King (who did not indicate dissent or
concurrence); and Justice P.E. Macauley, I am of the view that the Court, with all due
respect to the Justices of Appeal, misapprehended the crucial point in issue, and this
misapprehension appears to have [p.25] arisen from its misperception of the facts as
can be discerned from the brief statement of the facts in the judgment which, for clarity,
is in part reproduced hereunder:

"The Brief Facts of the case is that the plaintiff Sahr Samuel Nyandemoh and the
defendant Aiah Momoh were business partners. The plaintiff and defendant jointly
owned property situate at 37 Malamah Thomas Street, Freetown as evidence by elect
(Sic) of conveyance dated 25th August 1992. A dispute arose as to the management of
the said property."

These 'facts' represented the version of Mr. Nyandemoh as reflected in his said affidavit
in support particularly in paragraphs 16-22 and 26-30. Even the affidavit alone clearly
manifests a history of disagreement between Mr. Nyandmoh and Mr. Momoh as to the
ownership of the alluvial diamond; the premises known as 37 Malamah Thomas Street,
Freetown; and that Mr. Momoh has been asserting ownership and control over the
premises. And if there is any doubt from the said affidavit of Mr. Nyandemoh, and I
cannot understand any one having a doubt that there is a dispute as to ownership of the
alluvial diamond and the said premises, the said affidavit in opposition sworn to by Mr.
Momoh, particularly paragraphs 2-7, 13, 15 and 16; 20-23, 25 and 26, ought to dispel
any doubt. The affidavit discloses denials of and challenges to material averments in the
said affidavit of Mr. Nyandemoh; claims of ownership of the alluvial diamond and
premises; allegation of fraud and other misdeeds by Mr. Nyandemoh and his alleged
confederates. The trial Judge recognized the dispute as to ownership and the need to
determine same. See page 6, supra.

The Court of Appeal's reliance on Order 41 rule 13 and Order 42 paragraph (8) of the
High Court Rules, 1960, which, respectively, provides:

"13 In every cause or matter where any party thereto makes any application at
chamber, either by way of summons or otherwise, he shall be at liberty to include in one
and the same application all matters upon which he then desires the order or directions
of a judge and upon hearing of such application it shall be lawful for the court to make
any [p.26] order and give any directions relative to, or consequential on, the matter of
such application as may be just, and any such application may, if the judge thinks fit, be
adjourned from chambers into court or from court into chambers" (Emphasis Provided)

"(8) applications for or relating to the sale of property by auction or private contract, and
as to the manner in which the sale is to be conducted, and for payment into court and
investment of the purchase money".

Should be viewed within the context of this misapprehension of the issues and
misperception of the facts After citing the above rule 13 and paragraph (8), the learned
Justice of Appeal, (as he then was) the Hon. Mr. Justice E Tolla-Thompson, J.S.C., who
delivered the judgment of the court, concluded, and I quote:

"It seems to me that the learned trial judge had these two High Court Orders in mind
when he adjourned the summons from chambers to open Court and also when he
ordered the sale of the property situate at 37 Malamah Thomas Street".

Rule 13 of Order 41 is cited in the Judgment of the Court of Appeal to show that the trial
Judge had the jurisdiction, to transfer the hearing of the originating summons from
chamber into count. I do agree with the learned Honourable Justice but hasten to add
that this rule 13, in my view, has no relevance or bearing to the Amended Grounds of
Appeal in the Court of Appeal which states:

"5 That the whole procedure are null and void and ought to be set aside on the grounds
that there is original summons properly issued out of the Masters Office"

"6 7/76 learned Trial Judge having ruled out that there was a dispute as to the fact in the
matter the proper course was to have ordered that the matter be set down for trial as a
normal action commenced by writ of summons, properly set down for trial" and issues in
contention. The issues were: (1) whether the originating summons properly issued from
the Master's Office and (2) the originating summons was not the proper procedure given
the factual dispute. I can see that Mr. Serry-Kamal, of counsel, did not help matters and
invited the court's reaction when he submitted that "The 1960 High Court Rules does
not allow the court to continue the originating summons in open court". The issue was
and still is whether the learned trial judge was right to proceed with the hearing of the
originating summons in the face of the factual dispute, and not whether the court could
order or give direction, as it did, for the hearing of the originating summons to be
continued in chambers or that "the matter be set down for trial as a normal action
commenced by writ of summons, properly set down for trial".

This brings us to the issue of what the learned trial judge could have done in the
situation that presented itself. It seems to me the learned trial judge faced with the
situation, attempted to alter the nature of the hearing, or, manner of the trial, to conform
to a trial by writ of summons as much as the circumstances permit by giving the said
directions of the 22nd day of November 1999 at pages 130-131 of the records (see
page 6 above) which is akin to continuing the proceedings as if begun by writ of
summons. In my judgment, the High Court Rules, 1960, do not permit the trial Judge to
give such orders or directions, or embarked on such a course. Nor can such a rule be
imported from the English Rules pursuant to rule 3 of Order 52 of our High Court Rules,
1960, because there is no such or appropriate rule in the English Rules of 1960. The
appropriate English rule first came into existence in the English Rules in 1964 as a
result of the recommendation of the Evershed Committee (Final Report: para. 101 see
page 578 of the English Rules of 1960) and is manifested in Order 28 rule 7. To
illustrate the point, it is enough to reproduce sub-rule (1) of rule 7 of Order 28 which
provides:

[p.28]

"7-(1) Where in the case or matter begun by originating summons, it appears to the
court at any stage of the proceedings that the proceedings should for any reason be
continued as if the cause or matter had been begun by writ, it may order the
proceedings to continue as if the cause or matter had been so begun and may, in
particular, order that any affidavits shall stand as pleadings, with or without liberty to any
of the parties to add thereto or to apply for particulars thereof”

The only English rules that can be imported into our local Rules pursuant to Order 52
rule 3 are rules that are contained in the English Rules of 1960, and not rules made
thereafter. At this juncture let me point out, for purposes of clarity, that rule 13 of Order
41 of our High Court Rules is present, in the same wording, in the English Rules in
Order 54 rule 9. This rule 9 of Order 54 and rule 7 of Order 28 are both in the English
Rules of 1964. This leads to the eluctable conclusion that the two rules are not meant
to, and do not serve, the same purpose. After reading the two rules, I came to the same
conclusion.
As regards paragraph (8) of Order 42, I am of the view that the Court of Appeal cited it
in the judgment to indicate that trial, court had the jurisdiction to order sale of the
premises and, therefore, the prayer for an order of sale was properly before the trial
court. My reasoning in respect of rule 13 of Order 41 as regards the misapprehension
as to the crucial issue and misperception of the facts applies to paragraph (8) of Order
42 of our High Court Rules, 1960.

However, let us suppose that the action was properly commenced for the purpose of
obtaining the orders sought. It is clear to me that the orders sought assume or
presuppose that the Deed of Conveyance is accepted by Mr. Momoh and that he is not
claiming ownership of 37 Malamah Thomas Street, Freetown, which the Deed of
Conveyance conveys to Mr. Nyandemoh and Mr. Momoh jointly. We know the situation
to be the contrary. We also know from the said affidavits of Mr. Nyandemoh and Mr.
Momoh that Mr. Momoh has been and is claiming exclusive ownership of the premises
and has been and is alleging fraud and other wrongful acts, not only in respect of the
Deed of Conveyance but also in respect of other material documents exhibited to the
said affidavit of Mr. Nyandemoh. In pleadings, the allegation of [p.29] fraud requires
particularization. It is very clear in my mind, and was obvious to the learned trial judge,
that he, the trial Judge, needed to determine ownership before he could possibly deal
with the orders prayed for. In the circumstances of this case, I hold that the issue of
partition or sale cannot be dealt with unless and until the issue of ownership is
determined; if in doing so, joint ownership is found, then and only then, can an order for
partition or sale be made. The procedures that follow the filing of a writ are better suited
for determining disputes that are grounded on facts and, more so, where fraud is
alleged.

I am of the firm view that the learned trial judge instead of giving the following direction:
—

"1. That the deponents' to the affidavits filed in this action do attend before the court at a
date and time to be fixed for cross examination thereon but the parties to be at liberty to
supplement their evidence by oral evidence but to adduce further evidence"

ought to have struck out the action with liberty for either party to commence an action by
writ of summons. See the Ghanaian Supreme Court case of POKU and Another Vs
KWAO and Another [1989-90J 2 GLR, which, if not in all fours, has commonality with
the instant case in respect of the issue or complaint that the action was commenced by
a wrong procedure in the given facts of the respective cases.

THE CONCLUSION

In the circumstances I hold that commencement of the action by an originating

summons is an irregularity which constitutes such a fundamental defect in procedure
that the proceedings before the trial Judge cannot be allowed to stand. Accordingly, I
hereby set aside the judgment of the trial Judge given on the 9th day of February 2001
and that of the Court of Appeal delivered on the 11th day of July 2006, without prejudice
to the sale of the premises, 37 Malamah Thomas Street, Freetown, which was executed
pursuant to orders of Court, with liberty to either Mr. Nyandemoh or Mr. Momoh to issue
a writ. The proceeds of sale to remain in the custody of the court, and in the savings
account numbered 2032189 at the Sierra Leone Commercial Bank Limited in which the
proceeds of safe have been deposited pursuant to the orders of court to await further
orders of the courts.

[p.30]

As can be seen by now, the issues raised by grounds 2 and 6 have become irrelevant
and redundant; and it would serve no purpose, in respect of the Appeal, for this court to
deal with the said grounds of appeal.

SGD.

HON. JUSTICE GIBRIL B. SEMEGA-JANNEH (PRESIDING)

CASES REFRERRED TO

1. Tamakloe v Basel Trading Co. 6.W.A.C.A. p. 231

2. Seaford Count Estate Ltd, v Asher 1949 2 K.B. Page 498

3. Mayor and ST Mellons Rural District Council v New Port Corp 1952 ACP 189,

4. Fisher v Bell 1960 3 ALL E.R. Page 731

5. Smythe v Wiles 1921 2 KB p.66

Papadoponlos v Papadoponlos 1929-1931 Probate Division p.55

STATUTES REFERRED TO

1. Supreme Court Rules Cap 7 of 1960