The Applicants, by Notice of  Motion  dated  4th  November  2014,  have applied to this Court pursuant to Rule  26  (1)  of  the  Supreme  Court  Rules,  1982, Public Notice No. 1 of 1982 (the Rules) for the following orders:-

 

1. That this Honourable Court grants to the Appellants/ Applicants herein enlargement of time within which to appeal to this court from the  judgement of the Court of Appeal dated 11th March 2014.

 

1. That this Court grants a stay  of  all  proceedings  flowing  from  the  judgements of the Court of Appeal dated 11th March 2014 and the High

t         Court dated 13th July 2011, pending the hearing and determination of this applic.ation if granted, pending the ensuing appeal in this Court.

 

1. Any further and/ or other reliefs as this Honourable Court may deem just.

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·f-'4_  That the costs  of  this application  be,costs in  the Cause,

 

 

For ease of reference, it is helpful to set out in extenso the whole of Rule 26 of the Rules so as to appreciate the context in which the application is made pursuant to Rule 26 (1):

"26, (1) Where an appeal lies as of right the appellant shall lodge his

notice of appeal within three months from the date of the judgment appealed against unless the Supreme Court shall enlarge the time,"

1. Where there is no appeal as of right the appellant shall lodge his notice of appeal within three months from the date on which leave  to  appeal or special to appeal is granted,
2. An application for special leave to appeal shall be filed within

one month from the date of the decision of the Court of Appeal,

1. No application for enlargement of time  in which to appeal  shall be made after the expiration of one month from the expiration of the time prescribed within which an appeal may be brought Every application for enlargement of time shall be by motion supported by an affidavit setting forth good and substantial reasons for the application and by grounds of appeal which prima facie show  good  cause  for  leave  to  be  granted, When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal,"

 

The facts are that judgment was delivered in the High Court on the 13th July 2011 in favour of the Respondent and the Applicant being dissatisfied  with that judgment appealed to the Court of Appeal, On the 11th March 2014, the Court of Appeal dismissed the said appeal and upheld the judgment of the  High Court, In paragraph 6 of the affidavit sworn  to on the 4th  November  2014 by the 1st Applicant in support of the motion herein for enlargement of time within which to appeal to this Court from the judgment of the Court of

j                 Appeal, the said Applicant  has  stated  the reason why it has  taken 8  months to file his application for enlargernent of time within which to file an appeal in

this Court as follows:

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"6. That due to some personal constraints, including but not  limited  to financial constraints, I  was  unable  to  instruct  my  Solicitor  to  file  an appeal  to  the  Supreme  Court  within  the  time  limited  by  the  Supreme Court Rules 1982. I have only just  returned  to  the  Jurisdiction  after travelling to the U.K. for medical treatment".

 

ISSUES

1.   Rule 26 (1) and (4) of the Rules are the relevant provisions of  the  Rules which must be construed in determining the fate of this application. Rule

26 ( 1) states that where an  appeal  lies  as  of  right  a  party  aggrieved  with the judgment of the Court of Appeal has 3 months  from  the  date  the judgment was delivered, to file his appeal to this Court unless this Court enlarges the said time. Rule 26  (4)  imposes  a  time  limit  of  one  month within which an application  for enlargement  of  time  can  be  made.  Once that period  of  one  month  for making  such  an  application  for enlargement of time has expired, no such application can be made. This is a statutory provision by way of subsidiary legislation which must be complied with strictly. This  Court  had  the  opportunity  of  considering  similar  provisions in the Court of Appeal Rules 1985 P.N. No.29 of 1985 (the Court of Appeal Rules) in the leading case of  Nigerian  National  Shipping  Lines  Ltd,  v. Abdul  Ahmed  Trading  as  Abdul  Aziz  Enterprises  (Unreported)   S.C. No.3/ 88 (Ruling delivered on 17th February  1989).  The Court  was called upon to construe inter alia  Rules  10  (1),  10  (4)  of  the  Court  of  Appeal Rules which arc largely in pari materia with Rules 26 (1) and 26 (4) of  the Rules. A difference is that Rule 10 ( 1)  of the  Court of Appeal  Rules deals  with situations where leave to  appeal  is  necessary  but  Rule  26  (4)  deuls with appeals as of right. The 1nujority decision (Kutubu, C.,J., Wurnc, JSC

and  Thompson-Davis, JA) was to the effect  that  the rules were cumulative

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S.L. 277 and submitted that in the interest of justice  the application  ought to be granted. Firstly, I would say  that  it is in  the interest of justice  that the clear statutory rule imposing a time limit for applications for enlargement  of  time  (which  is  mandatory)  should  be enforced  to ensure

certainty  in  the  law.   Secondly,  there is an  important  difference between

 

<.,          the situation that was before the Court of Appeal in that case when  compared with the situation in this application. When the Court of Appeal

decided that case in December  1965,  there  was  no  express  provision limiting the time within  which  an  application  for  enlargement  of  time should be filed. It was agreed on all sides in that case that there was no provision in the Court of Appeal Rules under which applications for enlargement of time  could  be  made.  The  Court  had  to  rely  on  the Supreme Court Rules in England on April  27,  1961  to  find  authority  for such applications. But it must be noted (and I think this is the important difference between the two situations), that the English  Rules did  not  have any time limit within  which  an  application  for  enlargement  of  time  could be made. I opine that it is in this context of  the  absence of  any  mandatory time limit for applications for enlargement of time that one must read and appreciate the dicta of the then  Acting Chief Justice,  C.O.E  Cole.  It  must also be noted that  after  stating  the  dicta  of  the  learned  Acting  Chief  Justice which was cited by Counsel for the  Applicant,  the  Acting  Chief Justice went on to dismiss the application for enlargement of time and concluded:

"Taking all the circumstances into consideration, I do not think  the justice of this case requires that the application should be granted. I would therefore refuse it.»

 

1. The next question for determination is whether  Rule  103  is applicable in this situation as submitted  by Counsel  for  the  Applicant.  I  think not. Rule 103 of  the  Rules cannot  be used  to remedy  the  situation. The opening words of that rule are as follows:

 

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"103. Non-compliance on  the  part  of  an  appellant  with these  Rules or with any rule of practice for the time being  in  force  shall  not prevent the further prosecution of the appeal, cause,  matter  or  reference if the Supreme Court considers that  such  non-compliance  was not willful and that it is in the interest of justice that such non­ compliance be waived.» (emphasis added)

In my judgment for this Rule to be applicable, there must be a subsisting appeal. At this stage, what we have is  simply an  application  to  enlarge time for filing an appeal since the time within which to do so, has  expired. At this stage, there is no appeal in this matter  to  the  Court  and consequently the Applicant herein is not an Appellant (emphasis  added) and cannot be described as such. If there is no appeal in place, Rule  103 does not apply. Rule 1 of the Rules which is the definition section of the Rules define "appeal" and "appellant" as follows:

"appeal" means an appeal to the Supreme Court;

"Appellant" includes the party appealing from a judgment, order or decree and his counsel.

Since the application that is before the Court is not  an  appeal,  it  is incorrect to refer to the applicant in the title to this application as "APPELLANTS/ APPLICANTS". They arc simply applicants as stated in this Ruling. A similar issue came up for determination in the case of Savage v. Brewo Motors Ltd. [1972-73] ALR S.L. 426 in the Court of Appeal when  the Court decided that  the powers conferred  on the Court in Rules 31  and 32 of the Court of Appeal Rules do not apply in the case of an application. Headnote 2 states that:

"An application by motion for an order  of  the  court  does  not constitute an appeal for the  purpose  of  making  orders  under  rr.31 and 32 of the Sierra Leone Courtt.Rules, 1973, and so on such an application no order may be made under these rules."

At page 433 of the report, Tejan, J.A. delivering the judgment of the Court had this to say:

 

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"Rule 32 in my view, refers to appeals brought before the court, and when such appeals are brought before the court, then the court can exercise the  powers  conferred  upon it by  the  rule.  I have said earlier

that   the   notice   of   motion   presented    to   the    court   was    in  no

1                         circumstances an appeal. It was a motion praying for a particular order, and as such the court could not have made the order sought under r.32".

I adopt the reasoning in the above case and hold that in this application, Rule 103 is predicated on a subsisting appeal and it is only when there is such an appeal in place that the court can exercise the power conferred  upon it by Rule 103.

 

1. Assuming that Rule  103  was applicable (and I have held that it is not)  in this situation, the reasons  advanced  by  the  Applicant for the  Court to waive the non-compliance with this mandatory Rule are inadequate and it is my opinion that if the Court were to start granting waivers for such non-compliance for the reasons advanced  in  this  application,  it will open the floodgates. In his affidavit, the Applicant stated  that  he had "personal constraints including but not limited to financial constraints" and so was unable to instruct his Solicitor to file an  appeal to this Court. It is a notorious fact that most people  in Sierra  Leone today have financial constraints and if the Court were  to allow this reason as justification or excuse for enlargement of time outside the period permitted by the Rules, our courts will be inundated with such applications and it may be difficult to refuse them once a precedent has been set. The Applicant has not stated what the other  personal constraints were and so one cannot speculate. He has  however stated  that he has just returned to the jurisdiction  after  travelling  to  the  UK for medical treatment. He has not stated when he left the jurisdiction

r                                                 or  when  he  returned   which  might   indicate  that  he  was  out  of  the

country during the period of one month when he could have applied for enlargement of time within the statutory period permitted by the Rules.

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In my view, one telephone call to his Solicitors  who had  represented him so far in the case, instructing them to file an appeal on his behalf would have been sufficient to comply with the Rules.

 

'\                     When  this application  came  up  for hearing on  the  20tl1     November  2014, there was no representation on behalf of the Respondent and the Court was informed by the Registrar that notice of the hearing was sent to the Respondent's Solicitor, namely E.E.C. Shears-Moses Esq. and  an affidavit filed. That was the basis upon which the Court proceeded  to hear the application.  Subsequently  to that  hearing  of  the  application by the Court, Miss Wara Serry-Kamal filed an affidavit in opposition sworn to on the 1st December 2014 in which she averred that  the Solicitors for the Respondent throughout the case have been  Serry­ Kamal & Co and not Mr. Shears-Moses. An affidavit in reply sworn to  on the 4th December 2014 was filed by Solicitors for the Applicant in which the deponent, Mr. J.  B.  Jenkins-Johnston  challenged  the aforesaid averment of Miss Serry-Kamal. The records in this case disclose that the original writ was issued by Serry-Kamal & Co and that there has not been a change of Solicitors for the Respondent.

 

Miss Serry-Kamal for the Respondent opposed the application for enlargement of time within which to file an appeal to this Court and informed the Court that the Respondent has nothing to do with the property at lA Babadorie Hill, Lumley, Freetown and that  her client is not in receipt of any rent accruing  therefrom.  She further  stated  that  her client is willing to convey her share in  that  property  to  the Applicant as adjudged in the High Court decision which was upheld in the Court of Appeal subject to her receipt of her 50% share in rents

• collected therefrom up to the time  her  share is conveyed.  It  appears  that there is no agreement between both Counsel as to which of their clients have been in receipt of rents for the said property up to the
  • present. Once this matter as to which of the parties have been

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collecting rents is resolved between them with the assistance of their  legal representatives,  the share of the  Respondent  in the said  property is to be conveyed to the Applicant.

 

In the circumstances, I will dismiss this application for the enlargement of time within which to file a notice of appeal to this Court and  make  the following further orders:

1. That the Respondent  conveys  her  50%  share  in  the property  situated at IA Babadorie  Hill,  Lumley,  Freetown  to  the  Applicant  Arthur Ebun Agbaje once the issue of the party  who has  been in receipt  of  rents in respect of the said  property is  resolved  and  any  payment  of her share made to the Respondent, if necessary.
2. Liberty to apply.
3. No order as to costs.