CIV.APP.NO.1/99

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN

PRESIOUS MINERALS MARKETING COMPANY SIERRA LEONE LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT CAP. 249

CORAM: THE HON. MRS.JUSTICE V.A.D. WRIGHT                                - J.A.

THE HON. MRS.JUSTICE N.D. ALHADI                                                     - J.A.

THE HON. MRS.JUSTICE M.E.TOLLA-THOMPSHON                             - J.A

J. S.VINCENT ESQ. FOR THE                                              APPELLANT

F.M. CAREW ESQ. & M.E. MICHAEL ESQ FOR THE       RESPONDENTS

RULING DELIVERED ON 8/3/00 ALHADI, J.A.

By Notice of Nation dated 26.10.99 learned counsel for the Respondents pursuant to Rule 19 of the Court of Appeal Rules objected to the appeal before the Court be entained 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 the Court, judgment having been delivered on this matter on the 23rd day 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 tire provided for by the Rules of this court.

3. Failure to comply with Rule 9(2) of the Rules of the Court of Appeal.

Learned Counsel for the Respondent in support of his objection argued that once there in a failure by an appellant to comply with Rule 11(1) of the Court of Appeal Rules Public Notice No.29 of 1985 this court cannot entertain the appeal as the appellants have not obtained an order for enlargement of time in which to appeal.

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He urged that the appeal be dismissed. He stated that the judgment appealed against was delivered by Stronge J on the-23.10.93. That the Notice of Appeal dated 4.1.99 was filed

on the 8.3.99. That there was no order for enlargement of time made by the Court,. That the judgment of Stronge J was a final judgment, Learned Counsel for the Appellant in reply relied on his affidavit swron to on the 28.10.99 and filed in reply to the objection raised. In that affidavit he deposed. that the Notice of Appeal dated 4.1.99 was filed on the 8.3.99 because the Court of Appeal Registry was closed from about the 6.1.99 to sometime during the first week of March 1999 becaused of the AFRC/REF invation of Freetown on the said 6.1.99 He said tthat from the 24.1.99 when he safely arrived at his then temporary residence at 4 Ranger Street he made weekly check to find out whether the Registry of the court was functioning . That onaly on one of those checks on or about Friday the 5th March 1999 that he discovered that the Registry had started. functioning. That on Monday the 8.3.99 the earlient possible day after the 5.3.99 he filed . the said Notice of Appael. That his failure to file the Notice of Appeal before the 8.3.99 was not wilful but due to the impossibility to gain access to the said court Registry as it was closed during the period mentioned.

He agreed with counsel for the Respondents that the judg-ment of Stronge J was a final judgment and in support and in support of which he referred to Halsbury's Law Vol 22 3rd Edition Paragraph 1607 Page 743.

Frederick. Max Crew Esq, Solicitor and Counsel for the Respondent at Solicitor sworn to an affidavit dated 15.11.99 in reply to the affidavit referred to above. He deposed paragraph 4 thereof the following "In answer to the averments made particularsly paragraphs 2,4 and 6 of the said affidavit whilst it is true that the rebels evaded Freetown on the 6th of January 1999 I am reliably informed "by Mrs. A. Showers Registrar of the Sierra Leone Court of Appeal and that I verily believe that the said, Registry was. not formally closed

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during the said evasion,"

He further deposed that the failure of the appellant to file his Notice of Appeal within time as stipulated in the rules was not due to the January 6 1999 incident, but by the reliance in securing the orders on Notice of Motion dated 24.11.98 requesting Stroge J to grant the appellant leave in the High Court to comply with the provision of Rules 27(3) of the Winding-Up Rules 1929. He also deposed that he was informed by Mrs . Showers and verily believed that the Registry of the Court of Appeal was fully operational in February 1999, and that none of the Registry's staff left the jurisdiction.

Learned Counsel for the Appellant with leave of this court used a supplement affidavit sworn to on 16.11.99 in answer to certain averments in the affidavit of Frederick Max Carew supra. He said that as result of the brutal murder of the former soli-citer General during the January 1999 repested requests were made to Government to provide adequate security for judges, the courts and their offices. That this security was only provided in March 1999. He said that contrary to what is deposed to by the solicitor for the Respondent in paragraph 6 of his affidavit, the courts and their offices including thfe Court of Appeal Regis -try because fully operational in March 1999 and not in February 1999

It is agreed by both sides that the order of Stronge J of the 23.10.98 was a final order, Therefore Rule 11(1) of the Court of Appeal Rues applies. Rule 11(1) prescribes that no appeal shall be brought after expiration of three month in the case of an appeal against a final decision unless the court en larges the time.

The objection raised "by the "Respondents} is firstly that the Notice of Appeal filed herein is out of time (in. that it is) in violation of Rule 11(1) of the Court of Appeal Rules 1985. This is the issue for consideration by this court at this stage. It is only when this has been disposed of that it can concern itself whether or not an application for extention of time ought to be made.

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It is clear from the evidence before this court that the Appel-lant is completely out of time for about a month and a half, They are clearly out of time as stipulate in Rule 11( 1) of the Court of Appeal Rules, Counsel for the Respondent has argued that in light of his non-compliance this court ought not to entertain the appeal, Counsel for the Appellant has conceded to this as a natter of law but has forcefully argued that the non-compliance was not wilful or deiiberate. That the then prevailing situation in the capital city of Freetown made it imposible for an citizen to venture out-side his home because of the widespread attrocities been perpce-trated on the civilian population, of the city by the invading rebel forces. That this state of insecurity in this city made it inpos-sible for Government office to function and accessibility to them

It is agreed by both sides that sides that this state of insecurity of the city did exist at the relevant period under consideration, that is, from the 6th January 1999 to weeks or months thereafter. The only area of contention is how long did this state of affairs last. Frederick Max Carew in his affidavit deposed that he has been reliably informed by Mrs A. Showers, Registrar of the Appeal that the Court of Appeal Registry was not formally closed during the invasion, That he was also infomed by Mrs A. Showers that the court Registry was fully operational in February 1999 and that none of the Registry's staff left the jurisdiction.

An affidavit in reply to this was filed by Dunstan Samuel Vincent referrerd to supra in which he deposed that following the brutal murder of the former solicitor-Genera1 during the January 1999 invasion of Freetown and repeated requests were made to the Governmemt for the provision of adequate secu-rity for the judges the courts and their offices and that this was only provided sometime in. March, 1999. He said that contrary to what is deposed to by Frederick Max Carew supra, the courts and their offices including the Registry of the Court of Appeal became fully operational in March 1999 and not in February 1999.

The aspect of the evidence relied on by the Respondents that the Court of Appeal Registry was not formally closed during the invasion cannot be refuted because there was no declaration by Government that its offices were and remained closed during the

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invasion , What I consider to be of relevance is whether it was possible in what state of insecurity of the capital city for persons to go about their normal business without being exposed to danger of their livers, I am inclined to accept the evidence for the Apellants that there was a state of anarchy that reined in the city for a considerable period, of time from the 6th. January 1999 to sometime in. March 1999 which made accessibility to the courts Regis-try and other Government offices impossible.                         

I will accept the evidence for the Appellants that the non compliance with the rule referred to that is Rule 11(1) of the Court of Appeal Rule was not wilful or deliberate. I find that they were faced with circumstance beyong their control. I agree that the prevailing situation then was abnormal which made compliance wit'h this rule impossible.

Even, if the evidence of the Respondents its accepted that the court's registry was fully operational in February, is in my view an admission that all was not well by the statutory date for com-liance with the rule, which should have been 23.1. 99.

I believe that this type of abnormal situation was envisageded by the Rules of court against Committed for enacting Rule 66 which

"Hone compliance on the part of an appellant with these rule or with any rule of practice for the time being in force shall not prevent the further prosecution of his appeal if the Court considers that the non-comliance was not wilful and that it is in the interest of justice that the non-compliance should be waived., The Court may in

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such manner as it think fit , direct the appellent to remedy the non-compliance, and thereupon, the appeal shall proceed.

The Register shall forthwith notify the was not present at the time when those I will in the Right of this prevision and the evidence of the Appellants and also that of the Respondent and in the in-terest of justice waive the non-compliance with Rule 11(1) of an application of enlargement of time within which to appeal within seven days thereof. Me objection is over ruled.

Cost in the cause.