Misc. App. 1/2003 .

IN THE COURT OF APPEAL OP SIERRA LEONE

BETWEEN:

ALHAJI ABDULAI SESAY                 -APPELLANT/APPLlCANT

AND EMAD BAHSOON                   - RESPONDENT

CORAM:

HON MR JUSTICE M.E.T. THOMPSON     J.A.

HON MR JUSTICE A.N.B. STRONGE         J.A.

HON MR JUSTICE G.GELAGA KING         J.A.

Mr A. F. Serry Kamal                                                                                     for the applicant

Dr A. Renner-Thomas, with him, Mr Pabs-Garnon and Mr R. Johnson              the respondent

RULING DELIVERED ON THE 12TH DAY OF FEBRUARY, 2003

HON MR JUSTICE G. GELAGA KING, J.A: In the midstream of arguing his second ground, of his two grounds of appeal in. Civ. App. 9/2002 between the same parties herein, the applicant filed this notice of motion, dated 14th January, 2003, praying for the following:

"1. An order that the respondent opens the general store in the prentises at 4 Boiling Street Kingtom Freetown previously used jointly by both the appellant and respondent prior to the judgement, of the High Court to repair the roof of the said store and also to inspect his equipments (sic) and machinery in that store.

That the appellant be granted access to and allowed to continue to use the said store until the determination of the appellant's appeal to the Court of Appeal for Sierra Leone.

3. That the Court makes such further or other order as this Honourable Court shall deem fit."

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The notice is supported by the applicant's affidavit with six exhibits, "AAS1" to "AAS6" and opposed by the respondent's affidavit having one exhibit, "EB1". Mr Serry Kamal, for the applicant, submitted that the application was made under the provisions of r. 31 of this Court's rules and that he was relying on the whole of the affidavit in support, particularly paragraphs 4, 5 and 6. I shall reproduce those paragraphs in full and later on in this ruling compare them with the contiary averments contained in paragraph 4 of the respondent's affidavit.

The applicant alleges as follows: -

"4. There are 3 structures on the land. A store, a concrete house and a wooden house (sic). The respondent leaves (sic) on the ground floor of the concrete house. I occupy the other floor on top of it. I also occupy the wooden structure. The respondent and I use the store. We both used the store until the judgement was delivered in the High Court. I have stored in that store valuable equipments (sic) viz.: -

(1) New safes,

(2) Various new machinery,

(3) Mining equipment

5. Sometime ago during the beginning of the last rainy season I noticed that a few of the corrugated iron sheets on roof had gone undone. I notified my solicitors and told them that the roof had to be repaired. They promised to take the matter up with respondent's solicitor. In the meantime a wide gap appeared in the room. I again informed my solicitors to ask the respondent to allow me to go into the store to repair the roof to have my very valuable equipments (sic). I am informed by my solicitors that they wrote to the solicitors for the respondent and the latter refused to grant permission to enter the store to carry out the said repairs. True copies of the relevant correspondence are now produced and shown to me and marked Exhibit "AAS61 - " sic.

6. It is very important that I take these steps to protect not only the roof of the said store but also my very valuable equipments (sic) and machinery."

Dr Renner-Thomas, for the respondent, contended that the orders sought seem to be open-ended and doubted whether they could be made under r. 31. He submitted that the applicant would have had to show in his affidavit that the relief he was seeking was one to which he was entitled in the court below. He referred to exhibit "EB1" and pointed out that the stay of execution was only granted on terms ordering the applicant, inter alia, to give a written enforceable undertaking that he will in no way deal with the property as if he was the owner and that the applicant had indeed given that undertaking. Furthermore, as the exhibit " AAS2" discloses, the applicant's counterclaim was dismissed.

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In response the applicant denied that the order sought was open-ended and maintained that the application could be made under r. 31.

It is of crucial importance to observe that the application brought was made after the lower court had granted a stay of execution, on terms, of the judgement delivered on the 19th day of March 2002. The relevant portion of the order for a stay of execution, exhibit "EB1", states: -

1 That execution of the judgement of the Honourable Court dated the 19th day of March 2002 be stayed pending the hearing and determination of the defendant/ applicant's appeal to the Court of Appeal of Sierra Leone on the condition that the defendant/ applicant gives a written enforceable undertaking that he will in no way deal with the property by way of disposing of it by outright transfer or parting with it by way of lease or otherwise or by allowing any additional occupants to occupy the properties on the premises or deal with the property as if he is the owner in default of which the plaintiff/respondent should be at liberty to execute the judgement. 2. That taxed costs...."

It is against this background that the applicant has applied to this Court for the orders stated supra, praying in aid and relying on r. 31 of this Court's rules, P.N. No 29 of 1985. Before I deal with r. 31 it is instructive to bear in mind the jurisdiction of this Court as provided for in section 129 (3) of the Constitution of Sierra Leone, Act No 6 of 1991 (hereinafter referred to as "the Constitution"). It stales- -

"For the purposes of hearing and determining any appeal within its jurisdiction and the amendment, execution or enforcement of any judgement or order made on any such appeal and for the purposes of any other authority expressly or by necessary implication given to the Court of Appeal by this Constitution or any other law, the Court of Appeal shall have all the powers, authority and jurisdiction vested in the Court from which the appeal is brought."

Turning now to r. 31, it is otiose to say that it is made pursuant to that section of the Constitution. The rule details the general powers of this Court that will enable us to make appropriate orders for the purpose of determining the real question in controversy in an appeal. Emphasis mine. To that end this Court, in the words of the rule, "may direct the Court below to enquire into and certify its finding on any question which the Court thinks fit to determine before final judgement in the appeal, and may make any interim order or grant any injunction which the Court below is authorised to make . . . and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may rehear the whole case ..."

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It must always be borne in mind that unlike the High Court, this Court generally has no original jurisdiction unless it is expressly given it by statute, Our jurisdiction is clearly appellate. It is for the purpose of exercising that appellate jurisdiction that this Court "may from time to time make any order necessary for determining the real question in controversy in the appeal..."

Could it be said that the orders sought by tile applicant are for the purpose of determining the real question in controversy in this appeal? I opine not. Oh the contrary, the orders asked for are in respect of matters involved in the issues which were before the lower court, for which that court has given judgement and which judgement is currently the subject of appeal brought here by the applicant/appellant himself.

The drawn-up order on the judgement states categorically there will be judgement for the respondent/plaintiff for specific performance and that the applicant/defendant must sign a conveyance of the property at 4, Boiling Street, Freetown, in favour of the respondent. Furthermore, the applicant's counterclaim was dismissed with costs. Added to that, the very applicant himself has given a written enforceable undertaking not to "deal with the property as if he is the owner". On top of this, the trial Court ordered that if the applicant defaulted on the terms of the stay of execution, the respondent should "be at liberty to execute the judgement".

It flies in the face of right-thinking persons that in the midst of all these facts, the applicant should brazenly and unabashedly come before this Court to ask for the aforesaid orders. To accede to their request will be tantamount to this Court being, unwittingly, a party to breaching, flouting and disregarding the terms of the stay of execution and, in effect, deciding issues in the appeal herein even before arguments are concluded.

I now direct my attention to comparing paragraph 4 of the respondent's affidavit with paragraphs 4, 5 and 6 of the applicant's as earlier I said I would. The respondent's paragraph 4 reads:

"That the store which the applicant herein intends to repair forms part of the said property which is the subject-matter of an appeal now pending before this Honourable Court which said store has at all material times been in my possession and under my control."

Juxtapose this paragraph with those of the applicant's and it becomes clear that they are diametrically opposed to each other. Having regard to the aforesaid orders of the lower court, the respondent's is to be preferred.

Let me end up by making it quite clear that what I have said about r. 31 does not in any way detract from this Court's power under the Constitution to make

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orders for the protection of person or property pending the determination of an appeal to it. Lord Cairns in Harrington v. Harrington Law Rep. 3 Ch. 576 laid down the principle that property will be kept so that the person who is ultimately successful may have it. This principle which I endorse In toto ab inito was emphasised by Jessell M.R. in Polini v. Gray, Sturla v. Freoria (1879) 12 Ch. D. 438 when he said that the principle underlying all orders for the preservation of property pending litigation is that the ultimate successful party is to reap the fruits of that litigation, and not obtain merely a barren success. See also Hyde v. Warden (1876) 1 Ex. D. 309 and Wilson v. Church (1879) 11 Ch. D. 576 c. the instant motion what is being asked for, in effect, is that this Court, by means of a miscellaneous application, should adjudicate on questions incidental to the issues raised in the High Court, even though that court has given judgement ordering the applicant to convey 4 Boiling Street to the respondent and even though that court has further ordered the applicant not to deal with the said property as if it were his own. This we cannot do, particularly as the applicant's appeal is still being heard. For all these reasons I have come to the conclusion that the orders must be refused and they are refused. The motion is dismissed with costs.                         

Hon Mr Justice G. Gelaga King, J. A.

I agree  Hon Mr Justice M.E.T. Thompson, J. A.

(presiding)

I agree  Hon Mr Justice A.N.B. Stronge, J. A.