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Misc. App, 9/99                                                 

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:-

MRS. NAJET TURAY                             - PLAINTIFF/RESPONDENT

87, WILKINSON ROAD,

AND

INTERNATIONAL COMMITTEE OF DEFENDANT/APPLICANT  THE RED CROSS

CORAM:-

HON. MR.   JUSTICE N.D. ALHADI                                    - J.A,

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

HON. MR.   JUSTICE F.C. GBOW                                       - J.A.

RULING DELIVERED ON, THE 12TH DAY OF JANUARY, 2000

GBOW J.A.

On the 11th day of January, 2000, this Honourable Court was moved by 9. Notice of Motion dated 8th December, 1999 filed by Mr. Berthan Macsulay, on behalf of the Defendants/Applicants herein for an order that this Honourable Court do make an order granting a stay of all further proceedings in this action pending the hearing and determination of the appeal to this court.

And, also, that the costs of this Application be that of the plaintiff /Respondent..

In support of the application, an affidavit was filed on the 8th of December, 1999 by Berthan Maoaulay(Jr,) A Supplementary Affidavit dated 30th December 1999 was also sworn to and filed by the same deponent, Berthan Macaulay (dr.).

It is appropriate at this juncture to mention that Mr. E.E.C. Shears-Moses, Learned Counsel for the Plaintiff/Respondent filed no Affidavit in opposition, and indeed, he did not say in so many many words that he was opposing the application learned Counsel for the Defendants/Applicants referred us to Paragraph 8 of the supporting affidavit of the 8th of Decembe,1999 wherein it is stated that :

"if a stay of further proceedings is not granted, the appeal, if successful, could have been rendered

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nugatory because the Defendants/Applicants would, have had to proceed with its Defence as originally filed without being allowed to lead evidence on the matters set out in the proposed amended Defence -that although the appeal would be in respect of an interlocutory matter, the same may not be heard and determined by this court before the Defendants/Applicants is called upon to proceed, with its defence in the High Court; the plaintiff/Respondent having alread. closed her case."

Counsel also referred to Paragraph 4 of the Supplemental Affidav Several documents were exhibited to the affidavits filed by the applicant including a proposed Defence, a Notice of Appeal and the drawn up order of the High Court refusing an earlier application for a stay of all further proceedings. These exhibits were marked "BMJ 1" - BMJ 10" .

Learned Counsel Mr. Shears-Moses for the Plaintiff/Respondent in his reply submitted that if the application were granted and the proceedings stayed this would frustrate the plaintiff's case. Counsel particularly referred to Paragraph 3 of BMJ 3 the Original Defence and compared it with BMJ 5 the Proposed Amended Defence. He submitted that the Proposed Defence is virtually the same as BMJ 3 and that EMJ 5 is mere evidence of what is contained in BMJ 3. Therefore, argued Counsel, the Proposed Defence should not affect the outcome of the Appeal.

In reply to this argument Mr. Berthan Macaulay referred " to Bullen and Leake and Jacob's Precedents of Pleadings.....

Paragraph 756 under the Rubric "Defence alleging Frustration of Contract. This Paragraph requires that particulars of the frustration must be stated - the facts, matters and circumstances relied on which is what BMJ 5 is doing!,

I have carefully considered both arguments... I agree with learned Counsel for the Applicant that what........ averred in the Proposed Defence BMJ 5 constitutes the particulars of the frustrations - they are not necessarily evidence of BMJ 3.

In the interest of justice all further proceedings in this action ought to be stayed until the appeal is heard and

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and determined. I so order.

Costs of this application to be that of the Plaintiff/

(Sgd) Hon. Mr Justice F.C. Gbow -J.A.

I agree.....Hon. Mr. Justice N.D. Alhadi - J.A.

I agree....Hon Mr. Justice M.E Tolla Thompson