Civ. App.1/99

IN THE MATTER OF PRECIOUS MINERAL MARKETING COMPANY (SIERRA LEONE) LIMITED

AND) IN THE MATTER OF COMPANIES ACT CAP.249

SAEIK ABDULLA ABDULKALIE BIN RAFAAH                                        -APPELLANT

PRECIOUS MINERALS MARKETING COMPANY (S.L)LIMITED           - RESPOND

CORAM:

THE HON. MRS.JUSTICE V.A.D.WRIGHT                                     - J,A.

THE HON .MR. JUSTICE M.D. ALHADI                                        - J.A,

THE HON. MR. JUSTICE M.E.TOLLA-THOMPSON                     -J.A.

J.S.VINCENT ESQ., FOR THE                                                          APPELLANT

F.N CARDEW ESQ., AMD M.E. MICHAEL ESQ FOR THE           RESPONDENT

RULING DELIVERED ON 8TH MARCH ,2000

The respondents solicitor F.N. Carew Esq., filed a Notice of Intention dated 26th October, 1999 to rely upon Preliminary Objection on the following Grounds:

1. That the Appeal filed by the Appellant herein on the 8th March, 1999 is out of time allowed by the Rules of Court, judgment having been delivered in this matter on the 23rd of October, 1998.

2. That the appellant has failed to apply to this Honourable Court and obtained an order for extension of time to appeal out of time as provided for by the Rules of this court.

3. Failure to comply with Rule 19 (4) (2) of the Rules of the Court of Appeal

An affidavit dated 28th October 1999 and a supplemental affidavit dated 15th November, 1999 were filed by. Durstan Samuel Vincent, Esq and an affidavit in opposition was filed by Frederick Max Carew Esq., dated 15th November, 1999.

F.N Carew Esq., for the respondent stated that he filed notice c Intention in accordance with Rule 19 of the Court of Appeal Rules 29 of 1985. although, the notice of appeal was dated 4th January 1999. Learned Counsel for the respondent stated that there was no evidence that the respondent applied for an extension of time, and since there was failure to comply with Rule 11(1) of the Court of Appeal Rules this court cannot entertain this application. At first he argued that the order was an interlocutory order but later agreed with counsel on The other side that it was a final order.

J.S. Vincent Esq., Learned Counsel for the Appellant argued vehemently that the order was a final one, and that the delay in

2.

filing his notice of appeal was duo to the fact that the Court of Appeal Registry was not fully in operation until sometime in March 1999 due to the rebel invasion of Freetown and the general insecurity on the following months. Ha cited a list of authorities to show why this period during whit the Court of Appeal Registry was not in operation should not be taken inxx account when counting the three months within which the appeal should be brought. In the Affidavit of J.S. Vincent Esq., of Counsel for the Appel ant he said in his Affidavit of the 28th October 1999 that he made weekly checks to find out if the Court of Appeal was functioning and that on one such check on or about Friday the 5th March, 1999 he discovered that the said Registry had started to function.

F.M. Carew Esq.. Counsel for the respondent in his affidavit in opposition dated 15th November, 1999 deposed that he had been reliably informed by Mrs. Showers Registrar of the Court of Appeal that the Regist was not formerly closed during the said evasion. He further deposed that the failure of the appellant to file his Notice of Appeal within time was 2 not due to the 6th January incident but his reliance on securing the orde sought in his notice of Motion dated 24th November, 1968 requesting Hon. A.B. Strong J. to grant the appellant leave in the High Court to comply with the provisions of Rule 27(5) winding up Rules 1929.

I have carefully perused the several authorities cited by counsel on both sides. Rule 11(1) of the Court of Appeal Rules P.N. Up.29 of 1985 states.

(1) "No appeal shall be brought after the expiration of fourteen days, in the case of an appeal against an interlocutory decision or of three months in the case of an appeal a final decision unless the court enlarges the time." Rule 11(6) states no application for enlargement of time within 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.

In accordance with, this ,Rule (11)(1) of the Court of Appeal Rules the period of consideration for consideration is from the 23rd October, 1998 to 8th March, 1999 which is a period of about four and half months as such the appellant is out of time for about one and a half months.

It is true that the bebels invaded the Country on the 6th January and that Freetown became insecure for sometime following the invasion. I do also believe that the Court of Appeal Registry was not functional for some time after the invasion but I strongly believe that it was in operation by the end of February.

This case can be clearly distinguished from Misc. 3/98 Alhaji

3

Bockarie Kakay vs. Cleminta Yanbusm unreported since in the application the applicant applied for an enlargement of time within which to file the appeal against the judgment and also in that ruling my learned brother Alhadi J.A. said :-

The Notice of Mot.ion of Appeal dated 24th May 1997 exhibited in the affidavit of the defendant/applicant as "ARK2" was filed in the court Registry on the 9/6/98 which on my computation falls within the period of three months within which an appeal can be brought.My. impression on this application is that the defendant was acting ex abundantia cautels,"

I will not go into the question of whether the order was an interlocutory or final order . Assuming it was a final order the notice of appeal was filed. about one and half months late. Since in accordance with Rule 11(3) of the Court of Appeal Rules "An appeal shall be deemed to have been brought when the Notice of Appeal has been filed in the Register of the Court, " The appellants should have filed their papers before the 8th March and "by so doing was way out time. There is also no evidence that the applied for an enlargement of 'time within which to file an appeal an required the Court of Appeal Rules,

Boaring all what I have said before I find myself unable to entertain that appeal. The preliminary objection is therefore upheld and the appeal is struck out .The appeal is to pay the cost to the respondent

Sgd) Hon. Mrs. Justice

V.A.D. Wright -J.A.