IN THE COURT OF APPEAL OF SIERRA LEONE CIVIL DIVlsION

 

MISC. APP. 13/17

 

 

 

FATME MOURTADA

AND

 

FADEL ABASS MOURTADA DAVOUB TRADlNEi (SL.) LTD
 

APPLICANT

 

 

RESPONDENT

 

 

REPRESENTATION:

C.F. MAR.GA!&. ASSOCIATES                       COUNSEL FOR THE PLAINTIFF FORNAH-SESAV, CUMMINGS, SHOWERS CO.   COUNSEL FOR THE DEFENDANT CORAM:

HON. MR. JUSTICE M.F. DEEN TARAWALLY                                                                           JA HON. MR. JUSTICE R.S. FYNN                              JA

HON. MR. JUSTICE SEN6.U KOROMA                    JA

 

RULING DELIVERED ON THE 26TH OCTOBER. 2017 SENGU  KOROMA JA

1. This is an application by Notice of Motion dated the 30th May, 2017 for the

following orders:

1. That this Honourable Court do grant leave to the Defendants/Applicants herein to appeal against the Ruling of the Honourable Justice A.B. Halloway dated the 15th day of February, 2017.
2. A stay of Execution of the Judgment dated 6th June, 2016 and all

subsequent proceedings pending the hearing and determination of the Appeal.

1. Any further Order(s) that this Honourable Court may deem fit and just in the circumstances
2. Cost to be costs in the cause.

1. The Application was supported by the Affidavit of Adewale Showers sworn to on the 30th day of May, 2017 together with the exhibits annexed thereto.
2. The affidavit in support had seventeen exhibits. Mr. A. Showers appearing for the Defendants/Applicants (hereinafter referred to as "the Applicants") relied on the entire contents of his affidavit. He submitted that the proposed grounds of Appeal were not frivolous as they raised serious questions of law which ought to be tried by this court.
3. Mr. Showers also submitted that he was applying to this Court for a Stay of Execution of the Judgment of the High Court dated  16th  June, 2017.  In support of this submission, he relied on the case of ABDUL KARIM WURIE - V- THE ATIORNEY-GENERAL & MINISTER OF JUSTICE delivered on the 28th January, 2016 and the case of DAWNUS (SL) LTD -V- TIMIS MINING CORP. (2016) SLCA 18 (unreported)
4. Mr. C.F. Margai acting for the Plaintiff/Respondent (hereinafter referred to as the "Respondent") opposed the application and made the following submissions.
5. Firstly, that in the Notice of Change of Solicitors, the firm of FORNA-SESAY, CUMMINGS AND SHOWERS was named as the new solicitors whilst in paragraph 7 of the affidavit in support reference was made to the firm of FORNA-SESAY as the solicitors retained by the Respondents.
6. Secondly, that there was nothing in the Order of the High Court dated the 15th day of February, 2017 to appeal against. Mr. Margai further submitted that  as  the  Ruling  dated  15 t11      February,  2017  was  interlocutory,  an

 

 

RULING   SMK/CK  I 2

 

 
 

application for leave to appeal must be made within fourteen days - Rule 10 of the Court of Appeal Rules, 1985. The Ruling was delivered on the 15th February, 2017 and by virtue of Rule 64 of the Court of Appeal Rules, 1985, the Applicant ought to first apply to the Court below for leave. The Applicant failed to do so but instead filed a Notice of Motion in the High Court on the 17th May, 2017 seeking several other Orders.

1. Mr. Margai submitted that the only way open to the Applicant was an application for an extension of time. He referred this Court to the dissenting judgment of FYNN, JA in the matter of the Estate of KALILU JABBIE (Represented by Bockarie Engah as Court Administrator) -v- SKYE BANK (SL) LTD Misc. App. and the case of NIGERIAN NATIONAL SHIPPING LINES -V- ABDUL AZIZ (Trading as ABDUL AZIZ ENTERPRISES).

On the application for a stay of Execution, Mr. Margai argued that this was granted by Hon. Justice Kamanda J. on the 24th May, 2017 which was still in force. There was therefore no need for an application for such an application to be made to this Court.

1. Mr. Showers in reply firstly admitted that clerical error was made in respect of the name of the firm of Solicitors in paragraph 7 of the affidavit in support but argued that it would not prejudice the Respondent's case.

With regards to compliance with Rules 10 and 64 of the Court of Appeal Rules, 1985, he referred this Court to Exhibit AS 5 of the affidavit in support.

ISSUES  FOR DETERMINATION

1. There are two issues here for determination to wit:-
   1. Whether the Applicant herein complied with Rules 10 and 64 of the Court of Appeal Rules, 1985; and
   2. Whether the Application for a stay of Execution is necessary in view of the Ruling of Kamanda, J dated 1ih May, 2017.
2. Before determination these issues, it will be necessary to review the authorities cited by counsel.
3. In the case of ABDUL KARIM SESAY WURIE -V- ATTORNEY-GENERAL AND MINISTER OF JUSTICE cited by A Showers Esq., Fyn, JA granted leave to appeal on the ground that the proposed grounds of appeal "being raised purely on an application based on law and not on facts ... I find that the seriousness of the legal question raised provide enough good cause on which an application for leave can be granted". His Lordship also granted a stay of execution of the Ruling appealed against on the ground that it

 

 

 

RULING   SMK/CK  I 3

would be absurd if leave to appeal was granted while the trial would proceed in the Court below.

1. In DAWNUS (SL) LIMITED AND TIMIS MINING CO RP, Fynn JA adopted the meaning given to special circumstances by Gelaga- King JA in the case of AFRICANA TOKEH VILLAGE LTD VS. JOHN OBEY MIS. APP. 2/94 (Unreported) and exercised his discretion to grant a stay of proceedings.
2. The Respondents relied on the case of NIGE RIAN NATIONAL SHIPPING LINES -V- ABDUL AZIZ (Trading as ABDUL AZIZ ENTERPRISES). In this matter, the application was to the Supreme Court seeking special leave to appeal against the Ruling of the Court of Appeal refusing leave to appeal on the ground that the Applicant was out of time, which deprived the Court of jurisdiction to hear the application. The Supreme Court in determining the issues in the Appeal dealt extensively with the construction of Rules 10(1), 10(4) and 64 of the Court of Appeal Rules, 1985. Kutubu CJ had this to say "By virtue of Rule 10(1) both the High Court and the Court of Appeal have concurrent jurisdiction in the matter of applications to these Court for leave to appeal an enlargement of time. The application must be made within 14 days. Where the application is refused after the 14 days period specified in Rule 10(1), an applicant must apply for enlargement of time together with an application to the Court of Appeal for leave to appeal, in view of the provisions of Rule 10(4), which taken together with Rule 10(1) gives the Applicant 28 days for time to run out".
3. Kutubu, CJ in his leading ruling held that the words of Rule 10(1) are plain and unambiguous and must be strictly applied. In doing so he relied on the dictum of Lord Esher MR in R-V- JUDGE OF THE CITY OF LONDON COURT (1892) 1 QB.27 "If the words of an Act are clear, you must follow them even though they may lead to manifest absurdity". He accordingly upheld the ruling of the Court of Appeal.
4. I have dealt with this case extensively because it is the leading authority on this subject in Sierra Leone.
5. In the case of estate of KALILU JABBE -V- SKYE BANK (SL) LTD, Fynn JA in his dissenting judgment stated as follows:-

"This applicant did not ask the single judge to enlarge time nor has he asked this panel to do so (neither in his papers nor in his viva voce submissions). To grant enlargement of time sotto motto will in my opinion bring an outcome which was not prayed for to bear on the parties. This in my opinion will significantly undermine the time limits fixed by the Rules..."

 

 

RULING   SMK/CK  I 4

 

 

1.  

This  Ruling appears to apply the ratio decidendi of  the     Nigerian

1.  

anssiagfunidtaomaepnptalilcptriionncipfoler,lethat appeal lies against the Order made by the

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athsek isre, awshoantsishtehegeafvfeecftoorf hOisrdedrescigsiivoenn.
 

bTyhetheobJvuidogues

 

wHtehh riceh, tdhoe Anoptplsicpaenatkatpopltiheed atopptlhiceatHioignhbCeofourret bhyimNoasticine othfeMinostitoanntdcaatseed. a3ctioDnecoemn baerp, o2in0t16ofseleakwinbgaisnetderoanliat,hleeafvoeltlhotowidnigspqousesotiof nthe"wshuebtshtearnttihvee

iLnetlatewrs..."of Administration granted on the 16          day of March,  2016 are valid

1. The Learned Judge in his Ruling stated that "By reason of ... the fact that

 

t

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21.2Th0a1t7.the trial of the counterclaim is hereby fixed for Wednesday,  1           March,

 

in isolation from  the reason given therefor.  To my mind,  it amounts to aref        f             i                io h                e                                             t

It is my view that in the instant case, the Order given cannot be treated

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1. willH.tahveirnegfosraeidnothtias,piptliys hneortee.worthy that the grant of leave to appeal and or

 

 

with  Rules_

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.10theansdake64ofocflartihtye toCosutartte othf eArpepleevaalntRRuuleles,s. 1985.  It  will  be

 

 

apply toanthe  court below or  to the Court by  Notice  of  Motion within

Rule 1"0W(1h) eprreofvoirdeasptpheaatl:-lie by leave only, any person desiring to appeal shall

 

 

 

 

10(4) prescribes:

Rule

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iennstlarwgheischtimleea"ve  to

 

 

 

 

 

 

RULING   SMK/CK  I 5

 

 

 

 

 

 

 

 

"No application for enlargement of time within which to apply for leave  to appeal shall be made after the expiration of fourteen days from the expiration of the time prescribed within which an application for leave to appeal may be made."

Rule 64 provides as follows:-

"Except where otherwise provided in these Rules or any other enactment, where any application may be made either to the Court below or to the Court, it shall be made in the first instance to the court below, but if the Court below refuses the application, the applicant shall be entitled to have the application determined by the  court".

1. These provisions were extensively reviewed by KUTUBU, CJ in the NIGERIAN NATIONAL SHIPPING LINES CASE and reached the following conclusions:-
   1. Rule 10(1) - it means simply that an applicant can make his application either to the Court below or  this  Court  within fourteen days from the date of the decision appealed against unless that period is enlarged either by the Court below or this Court
   2. Rule 10(4) makes it mandatory for an applicant who is seeking an enlargement of time within which to apply for leave to do so within twenty-eight days from the date of the decision appealed against which leave is sought. By way of clarification, His Lordship expressed the view that this provision only applies when no application whatsoever  has been made to the Court below or court of Appeal.
   3. Rule 64 makes it obligatory for an applicant to first make his application to the court below and where that court refuses the application, he shall proceed to have the application determined by the Court of Appeal.
2. Has the Applicant in this case complied with the Rules?

The Ruling the Applicant is seeking leave to appeal against was delivered on the lSth day of February, 2017 and on the 1st  March, 2017, the Applicants filed a Motion seeking leave to appeal against the said ruling. The application was refused by the court below on the 11th May, 2017. The application was apparently for an enlargement of time within which to appeal as could be discerned from the Order dated 11th May, 2017. The applicant filed the present application on the 30th  May, 2017.

1. It has been held that the Court of Appeal though it lacks the right to entertain an appeal from an Order allowing an extension of time to appeal, does have jurisdiction (subject to the requirement   of leave to appeal)     to

 

 

RULING   SMK/CK  I  6entertain an appeal against a refusal of an extension of time for appealing to the Court below. In this case, the time within which to seek leave to appeal started to run from the 1zth May, 2017. This means the Applicant had fourteen days from this date to seek leave to appeal against the ruling dated 11th May, 2017, when the application to the Court for enlargement of time was refused. They filed their application to this Court on the 30th May, 2017, four days after the expiration of the fourteen days. It was argued that at this point, an application for enlargement of time should have been made to the Court below and refused before seeking leave from this Court.

1. It should be noted that the application for enlargement of time was made to the High Court when the Applicant was already out of time. However, by virtue of the Court of Appeal Rules, 1985 Rule 10 (4) as clarified by Kutubu CJ in the NIGERIA NATIONAL SHIPPING LINE CASE, the time lines will only apply where there had been no application whatsoever to the Court below or this Court. It appears to me that where such an application has been made to any of these Courts, time will start to run from the date of Ruling on any such application. It will be illogical to start the computation of the relevant period from the 15th February, 2017 which

will clearly conflict with Rule 10 (1) of the Court of Appeal Rules, 1985 in that the Application cannot come before this Court until and unless it has been refused in the'Court below. Time must start to run from the date of the refusal of the application by the Court below. In the instant case, on the 11th May, 2017..

1. The  Learned  Judge in the exercise of his discretion refused    the

application for enlargement of time. There are many authorities for the proposition that on appeal will not be entertained from an Order which was within the discretion of the Judge to make (English Supreme Court Practice, 1999 59/l/14 2. The question here is not the proper exercise of discretion which I believe the trial Judge has exercised but whether that exercise could lead to injustice. The reason given by His Lordship was that entertaining such an application for leave to appeal would only serve to delay and frustrate the ends of justice and same would be in bad faith (paragraph 17 of the affidavit in Support). The Judge by giving reasons fulfilled the requirements of judicial exercise of discretion.

1. I have however looked at this issue from the perspective of what the

determination of main ground of appeal would achieve. To my mind, without attempting to  go into merits  of the  appeal,  the  issue   for

 

 

RULING   SMK/CK  I 

determination in the appeal "whether the learned Judge with respect erred in law and in consequence misdirected himself in holding that even if the Letters of administration granted on the 16th March, 2016 is invalid in law, it would not determine the entire cause or matter herein without a full trial of the same" is of sufficient public importance to be given an opportunity to  be heard on appeal.

1. As regards the time limit, I note that most, if not all authorities concerning enlargement of time to appeal deal with inordinately long periods of delay based mainly on the nature of the claim. In the Nigerian Shipping Lines case for example, the matter was a commercial transaction in which time was of the essence. This matter on the other hand concerns land and property. In any event, by the Order of the High Court dated 1ih May, 2017, the Applicants have been restored into the premises.
2. IN THE MATIER OF PRECIOUS MINERALS MARKETING COMPANY (SL) LIMITED  AND   IN   THE   MATTER  OF   THE   COMPANIES  ACT,   CAP.249  ( Misc.App.6/2000), the Court of Appeal held that the following conditions  must be taken into consideration in determining  whether  to  grant a   stay.

• Length of delay
• The reasons for the delay
• Whether there is an arguable case on the appeal
• Degree of prejudice to the Defendant/Respondent each time the time is extended.

1. After considering the said conditions, the said Court granted enlargement of time to appeal in the exercise of its discretionary powers. This was notwithstanding that the Applicant was out of time.
2. In any event Rule 66 of the Court of Appeal Rules, 1985 provide that "Non-compliance on the part of an Appellant with the Rules or any of the Rules of practice for the time being in force shall not prevent the further prosecution of the appeal if the Court considers that non-compliance, was not willful and that it is in the interest of J ustice that the non-compliance should be waived". The non-compliance should be waived.

On the issue of stay  of execution of  the  Judgment dated  5th  June,  2016,   I

agree with Mr. Margai that the Applicant is not properly before this Court at this stage.

1. A Notice of  Motion dated 1ih   May,  2017  was filed  by  the Applicants

herein seeking a stay of execution of the said Judgment. On the same day, Hon. Justice Kamanda, J. granted an interim injunction and adjourned  the

 

 

RULING  SMK/CK J  8

 

 

 

 

 

 

 

 

th

been a refusal in the Court below. Since there has been no such refusal; thisCo                                   i       in    a        art           t e              s     w             d in t             d

in force. The Applicant can only apply to this Court a stay when there has

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34.   dFeorr dthe reasons given above, I order  as follows:-

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2)

h

oThf aFtebthrueariyn,te2r0im16 stay  of  execution  of  the Judgment dated  5th  day of

)  rJeumnea, in20in17fogrcraen. ted by  Kamanda J. on the  1t          day of  May,  2017 shall

34)  CThoestrse isnhall bce luibe.rty to apply.

 

....   . ..

 

 

 

...   ... ..........·  �. ..  ..           . .. ............................. .

 

HON. MR. JUST   E     NGU M. KOROMA JA
 

l>p ... -

 

H(PORNE. SMIDR.INJUGS)TICE M.F. DEEN TARAWALLY JA ........(,:)........ :=-... """--�......... HON. MR. JUSTICE R.S. FYNN

 

 

 

 

 

 

 

 

 

RULING   SMK/CK  I  9