HON. KAKPINDI JAMIRU MP and Another v Dr. JOHN KAREFA-SMART MD (SC.3/97)  SLSC 2 (16 February 2000);
IN THE SUPREME COURT OF SIERRA LEONE
IN THE MATTER OF AN APPLICATION BY HON. KAKPINDI JAMIRU MP. AND
HON .JOSEPH SALLU CONTEH MP FOR LEAVE TO APPLY FOR ORDERS OP CERTIOEARI,
MANDAMUS AMD PROHIBITITION AND FOR DECLARATIONS.
IN THE MATTER OP A DECISION OR ORDER DATED 2ND APRIL 1997 MADE BY HON. MR. JUSTICE A.B. RASHID,JUDGE OP THE HIGH COURT OP JUSTICE OP SIERRA LEONE.
IT THE MATTER OP AN APPLICATION BY DR. JOHN KAREPA-SMART MD TO THE HIGH COURT FOR AN INTERLOCUTORY INJUNCTION IN RESPECT OP AN ACTION PENDING THEREIN BETWEEN THE SAID DR. JOHN KAREFA-SMART MD (PLAINTIFF) AND JAMES SULAIMAN BANGURA AND 13 OTHERS (DEFENDANTS), BEING CIVIL SUIT N0.CC149/ 97 Z. NO. 22 ALSO PENDING IN THE SAID HIGH COURT.
HON. KAKPINDI JAMIRU MP - 1ST APPLICANT
20D Off Pratt Street, New England, Freetown
HON.JOSEFH SALLU CONTEH MP - 2ND APPLICANT
2 Off Aberdeen Road,Lumley
Dr. JOHN KAREFA-SMART MD 20 Pipe Line, Juba Hill, Lumley,. Freetown.
CORAM: Hon. Mr. Justice D.E.P. Luke - CJ.
Hon.Mr.Justice A.B. Timbo - J.S.C.
Hon.Mr. Justice H.M. Joko-Smart - J.S.C.
Hon .Mr .Justice S.C.E. Warne - J.S.C.
Hon.Mr. Justice E.C. Thompson-Davis - J.S.C.
Dr. Bu-Buakei Jalabi for the Applicants N.D. Tejan Cole Esq., for the Respondent.
RULING DELIVERED THE 16TH DAY OF FEBRUARY, 2000 TIMBO, JSC., This is an application by notice of motion dated the 4th day of February 2000 that the proceedings in the action known as SC3/97 be continued between Hon.Ibrahim Bashiru Kanu MP. as the first Applicant in the place of the 1st applicant Hon.Kakpindi Jamiru (Deceased) and the 2nd applicant Hon.Joseph Sallu Conteh MP. therein on the one part
and the respondent herein on the other part. The substantive SC.3/97 seeks among other things, an order for Certiorari to remove into the Supreme Court and to quash the decision or order of the Hon.Mr. Justice A.B. Rashid High Court Judge made on the 22nd day of April 1997 to the effect that the High Court has jurisdiction to hear and determine an application for interlocutory injunction pursuant to order 37 rule 10 of the High Court Rules 1960 and sub-section (3) of section 78 of the Constitution of Sierra Leone 1991 in respect of the action titled CC:149/97 K. No. 22 pending before the said High Court.
The application has been necessitated by the death of Hon. Kakpindi Jamiru the 1st applicant in the substantive application. '
At first, counsel informed the court that the application was made in pursuance of Rule 98 of the Supreme Court Rules 1.982. (PN.No. 1 of 1982) and the High Court Rules Order 13 rules 2 & 4 and order 24 rule 6. It was only after he had been reminded by the Bench of Rule 37 of our rules that he hesitatingly referred to that rule.
The first question that arises for determination therefore is, which rule governs this application - is it rule 37 or rule 98? Rule 37 provides that:
"An application for an order for Revikor or Substitution shall be accompained by an affidavit sworn by the applicant or where the applicant is represented by a legal practitioner the said affidavit shall be sworn by such legal practitioner showing who is the proper person to be substituted or entered on the record in the place of or in addition to a. party who has died or undergone a change of status".
Rule 98 which is ever so familiar, on its part reads:
"Where no provision is expressly made in these rules relating to the Original and Supervisory Jurisdiction of the Supreme Court the practice and procedure for the time being of the High Court shall apply "mutatis mutandi".
The fact that rule 37 falls under the rubric "Civil Appeals Generally" does not in my opinion) preclude in any manner, its application to circumstances other than appeals in the Supreme Court. The rule is quite explicit. It delibrately uses the word "Applicant". It is intended to deal with the kind of situation that has arisen here.
Having thus held that, it is rule 37 that is applicable, has counsel fulfilled the prescriptions of that rule?
In the present application, Dr. Bu Buakei Jabbi has failed to show any where in his supporting affidavit, as is required by rule 37, that the Hon.Ibrahim Bashiru Kanu MP is the proper person to be substituted in the place of the deceased 1st applicant accept to describe him vaguely in paragraph 5 thereof as the successor in interest to the late Hon .Kakpindi Jamiru and filing his consent to so act. The only interest it would appear that is common between the proposed 1st applicant and the deceased he seeks to replace is that at one time they were both Members of Parliament together.
This application can be contrasted with that made in the Supreme Court not so long ago in Civil Appeal No.3/87
AUGUSTA KAI MUNA - APPLICANT
AND JLA BRODEH GRANT
AND JHON ADAMA - RESPONDENTS
There, while the appeal was still pending in the Supreme Court and before the actual commencement of the proceedings, all two respondents died. Dr. Ade Renner Thomas, Counsel for the relatives of both respondents applied to the court by Notice of Motion dated 22/5/92 to have the deceased respondents substituted by their personal representatives. The application was brought under rule 37. The order for substitution was granted readily by the Supreme Court.
Unlike what Dr. Bu Buakei Jabbi has done, Dr. Ade Renner Thomas deposed in very clear language in paragraph 3 of his affidavit;
"3 that the High Court of Sierra Leone (Probate Jurisdiction) granted Probate of the Will of the First respondent herein to Weabah Smith on the 2nd day of April 1992 and also granted Letters of Administration of the estate of the second respondent to Francis Bannerman (alias Adama) on the 28th day of April 1992.
Copies of the said Probate and Letters of Administration were also produced and marked ART1 and ART2 respectively.
The mere consent by the Hon. Ibrahim Bashiru Kanu UP to act is not sufficient to cloth him with the necessary capacity to continue with the proceedings begun by the deceased 1st applicant..
In the circumstances, I will accordingly refuse the application, and it is so refused. Costs assessed at Le500,00/00 to be paid personally by counsel.
A.B. TIMBO JSC.
I agree..................Hon.Justice D.E.P. Luke, CJ.
I agree.................Hon.Justice H.M.Joko-Smart, JSC
I a gree..................Hon.Justice S.CE. Warene,JSC
I agree ...............Hon Justice B.C.Thompson-Davis, JS