IN THE SUPREME COURT OF SIERRA LEONE CORAM:

Hon Mr. Justice S.M.F. Kutubu,                       C. J. - Presiding

Hon .Mr. Justice S.C.E. Warne,                       J.S.C.

Hon .Mr. Justice S.T. Navo Navo,                   J.S.C.

NIGERIAN NATIONAL SHIPPING LINES - APPLICANTS

Vs.   

 ABDUL AHMED                                            -RESPONDENTS                                      

(Trading as Abdul Aziz Enterprises) Garvas J.. Bettas Esq. with him Miss Y. Jusu-Sheriff           -for Applicants

A.J.B. Gooding Esq.                                                                                                                 - for Respondent

This is an application by the Applicants herein for the following Orders,

(1) Special leave to appeal against a ruling and order of the Court of Appeal dated the 20th of June. 1990.

(2) Stay of all proceedings in the High Court in an action No. CG 30/85. 1985. A. No. 26. Intituled Abdul Ahmed (Trading as Abdul Aziz Enterprises) Plaintiff v. Nigerian National Shipping Lines Defendants-

Facts           

On the 20th June ,1990, the Court of Appeal dismissed an application by the Applicants herein for an order for extension of time within which to appeal against the judgment of the High Court dated 4th July, 1989. (2) Further or other relief . The Order sought in the Court of Appeal were as follows:

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(1) That the Defendant Applicant be granted an extension of time to seek leave to appeal against the ruling and order of the Court of Appeal dated 29th January, 1990; (2) A Stay of Proceedings in the High Court action CC 806/85 1985 A. No. 28. Abdul Ahmed (Trading as Abdul Aziz Enterprises v. Nigerian Shipping Lines; (3) Stay of Proceedings of the action herein; (4) Further or other relief. On the 30th June 1989, the applicants sought leave from the Supreme Court for Orders of Mandamus, Prohibition and Certiorate. Leave was granted on the 18th July, 1989 and a Stay of Proceedings in the matter was ordered by the Court. On the 7th November 1989 the Supreme Court struck out the application for the Orders of Certiorate Mandamus and Prohibition.

The application before this Court is made pursuant to Section 103 (2) of the Constitution of Sierra Leone,Act No. 12 of 1978, hereinafter referred to as 'The Constitution' and Rule 6 (2) of the Rules of the Supreme Court PN No. 1 of 1982 (hereinafter referred to as 'The Rules').

In my view it is relevant that I state clearly the provisions that deal with the right of appeal to the Supreme Court. This is contained in Section 103 of the Constitution.

Section 103 provides:-

"103 (1) An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court (a)  as of right in any civil cause or matter where the amount or value of the subject matter of the dispute is not less such an amount as may be determined by Parliament; or

(b)  as of right, in any criminal cause or matter in respect of which an appeal has been brought to the, Court of Appeal from a judgment, decree or order of the High Court of Justice in the exercise of its original jurisdiction; or

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(c) with the leave of the Court of Appeal in any other cause or matter, civil or criminal, where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.

(2) Notwithstanding the provisions of the preceding subsection, the Supreme Court shall have power to entertain any application for leave to appeal in any cause or matter, civil or criminal, to the Supreme Court and to grant such leave accordingly". The provisions in section 103 (1) and (2) are repeated in Rule 6 (1) (a), and (c) and Rule 6 (2) of the Rules.

With special reference to Rule 6 (2) it is clear that it enables an intending appellant to apply to this Court for 'special leave' to appeal.

In the light of the application before this Court and the submissions of Counsel for applicants, due regard must be given to Rule 7 of the Rules. Rule 7 provides:

"An application for leave to appeal must first be made to the Court of Appeal, but if leave is refused by that Court, an application may be made for special leave to appeal to the Supreme Court by notice of motion in that behalf filed by the intending appellant".

Having stated the provisions of Rule 7. I shall now refer to Rule 8 which clearly spells out the procedure to be followed in an application for "Special Leave".

Let me here and now state that 'The Constitution' is the basic law of the land from which all other enactments spring.

The Rules provide the procedure to be followed to enable any application to be heard.

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In my opinion. Rules 7 and 8 must be read together. I cannot subscribe to the submission that they are separate and distinct. In my view, that will not only be a narrow construction of the said rules, it will violently attack the hierachy of Courts set up under 'The Constitution'. vide the case of Solomon Demby v. Mana Kpaka. S. Misc. App. No. 7/83 delivered on the 18th April 1984, per Beccles Davies JSC (unreported). The learned Justice had this to say:

"In order to give due regard to the hierachy of Courts set up by Sections 101, 107, 110 of the Constitution, Rule 7 of 'The Rules' provides that an application for leave to appeal must be made in the first instance to the Court of Appeal and if that Court refuses to grant leave sought, then application could be made to this Court for special leave to appeal".

Submissions Counsel for the applicants submitted that Section 103 (1) and Section 103 (2) create different powers given to the Supreme Court. She submitted that it must be different, because Section 103 (2) is a restatement in a statutory enactment of the Courts inherent power or jurisdiction. Because the Legislature cannot envisage every situation; the Court, being the highest Court, is given such a power to see that justice is done. In my view,the main thrust of Counsel's submission, is that throughout the long and tortuous history of this case, the applicants have never had any opportunity to argue their case on the merits. She argued that at every stage they have followed the rules of the various courts and have come to the Courts with clean hands

Counsel for the Respondents, for his part, has submitted that (1) the application is not properly before the Court; (2) there is non-compliance with Rule 7 of the Rules of the Court; (3) the application is frivolous, vexatious and an abuse of the process of the Court. Counsel then buttressed his submissions with some vigorous arguments and legal authorities.

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Indeed,the case has a long and tortuous history. However, Counsel for the applicants has urged this Court to xxxxxx the history of the case by restricting itself to the events that took place from the 30th June, 1989 to the date of the instant application. I find this submission rather restrictive in view of the bulk of documents before the Court, which is the record of the case in the instant application.

In 'The Rules', in Part I Interpretation:-

Rule (1) provides "In these Rules unless the context otherwise requires "Records" means the aggregate of papers relating to an appeal (including the pleadings, proceedings, (emphasis mine) evidence and Judgments) proper to be laid before the Supreme Court on the hearing of an appeal or any application (emphasis mine) which by these Rules may be made to the Supreme Court".

Suffice it to say, that this Court cannot ignore all that is before it in the instant application. In my view, justice will be better served by paying due regard to the entire record before the Court. Counsel's submission is therefore untenable. Having said that, is this application properly before the Court? I will now consider the law applicable to this application. Rule 7 of the Rules is clear and unequivocal.

The application before the Court of Appeal, inter alia, was for leave for an extension of time to appeal against the judgment of the High Court given on 4th July, 1989, which application was dismissed. There was no refusal by the Court of Appeal to grant leave to appeal to the Supreme Court. In my opinion an application for special leave to appeal to the Supreme Court by an intending appellant ,can only be made after an application had been made to the Court of Appeal and it has been refused. There has been no such application to the Court of Appeal which was refused.

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Special Leave Rule 8 provides what the notice of motion should contain It cannot be said too often that this Court is a creature of Statute; indeed, so are the other Courts of the Superior Court of Judicature. This Court can only act within the confines of the Constitution, the Rules and any other law which permit it so to do.

As I see it, the applicants are asking this Court to make an absur order. That is,to grant special leave to appeal against a non-existing order. This it cannot do. Even if there was an order, this Court has no power to grant enlargement of time within which to appeal. The applicants are urging on the Court to invoke its inherent jurisdiction. This Court can do so if it is clothed with one. I have searched the Rules but I can find no specific rule giving the Court inherent jurisdiction except-what is provided for in Rule 98 of .The Rules'.

Role 98 provides;

"Where no provision is expressly made in these Rules relating to the Original and the Supervisory Jurisdiction of the Supreme Court, the practice and procedure for the time being of the High Court shall apply mutandis mutandis".

I will now revert to the High Court Rules.

The relevant High Court provision is Order 21, rule 4. Order 21 Rule 4 provides.

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be dismissed, or Judgment to be entered accordingly, as may be Just.

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An application tinder this rule snail be deemed to invoke the inherent Jurisdiction of the Court though not mentioned as well as that given by this rule".

The corresponding English Rule as contained in the Annual Practice is Order 25 Rule 4. Rule 4 provides:

"The Court or Judge may order any pleading' to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just".

It is clear that this Court has inherent jurisdiction to grant any orders to see that justice is done. However, this jurisdiction is not invoked in vacuo, but within settled principles of law and practice.

Several issues have been raised in this application, inter alia, that the Court of Appeal was wrong in not addressing the issues before' it to enable it to exercise its discretion judicially.

In her submission on the wrongful exercise of the discretion of the Court of Appeal to grant an extension of time within which to appeal. Counsel for the applicants has submitted, inter alia, that the Court of Appeal want outside the evidence before the 4th July 1989. The Court of Appeal was wrong when it said the applicants had been to the High Court, Court of Appeal and Supreme Court in the same matter.

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The interlocutory branches had been chopped off. No basis for the reasons the Court of Appeal gave for its conclusion". She added

In answer to the submission, I will refer to the case of Ratnam v. Cumarasamy and Another (1965) 1WLR, 8; (1964) 3 AER, 893. where Lord Guest said in an appeal to the Privy Council from the Court of Appeal of the Federation of Malaya:

"The principles on which-a Court will act in reviewing the discretion exercised by the lower Court are well settled. There is a presumption that the Judge has rightly exercised his discretion: Charles Osenton & Co. v. Johnson (1941) 2 AER 245 at 257, (1942) A.C. 130 at p. 148: per Lord Wright. The Court will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of Justice. Evans v. Bartlam (1937) 2 AER (646; 1937 A.C. 473 .................................

The rules of Court must prima facie, be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the Law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation (emphasis mine). The only material before the Court of Appeal was the affidavit of the appellant. The grounds stated were that he

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did not instruct his solicitor until a day before the record of appeal was due to be lodged, and that his reason was that he hoped for a compromise. Their Lordships are satisfied that the Court of Appeal were entitled to take the view this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their Lordships find it impossible to say that the discretion of the Court of Appeal was exercised on wrong principles.

The principle for which the appellant's counsel contended was that the application should be granted unless to do otherwise would result in irreparable mischief". The learned lawlord considered the extract from the judgment of Bramwell L.J., in Atwood v. Chichestsr (1878), 3 Q.B.D. 722 at p. 723, and continued:

"Their Lordships note that these observations were made in reference to a ease where the application was to set aside a judgment by default, which is on a different basis from an application to extend the time for appealing (emphasis mine). In the one case the litigant has had no trial at all in the other he has a trial and lost. Their Lordships do not regard these observations as of general application"„ I am of opinion also, that the observations of Bramwell L.Jo (Supr, are not of general application, at least, not in the instant case.

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The facts contained in the various affidavits before the Court of Appeal were of such a nature, that this Court cannot say the exercise of the discretion by the Court of Appeal was on a wrong principle. I am of opinion that the ratio decidendi in the case of Ratnam V. Cumerasamy (supra) is applicable in the instant case with equal force.

Under the rubric "Inherent Jurisdiction", it is stated that "The Court has jurisdiction to stay all proceedings before it which are obviously frivolous and vexatious or an abuse of its process, vide Reichel V. Magrath 14 App. Cas. 665. The Court can also remove from its file any matter improperly placed therein vide Nixon V. Laundea (1909) 2 IR.R. I.

The inherent jurisdiction is a valuable adjunct to the powers conferred on the Court by these Rules. When an application is made to the inherent jurisdiction of the Court, all facts can be gone into and affidavits as to facts are admissible vide Willis V. Earl Howe (1893) 2 Ch. pp. 551, 554. Vide Remmington V. Scoles (1897) 2 Ch. 1. where it was only by extrameedus evidence that Romer J., was convinced that it was a sham defence that ought to be struck out as an abuse of the process of the Court...............................................

In the case of Willis V. Earl Howe (1893) 2 Ch. (supra) in the statement of claim of an action for ejectment, the plaintiff was heir at law of W. J. who died intestate, in 1798, and that on his death his real estate was wrongfully taken possession of by the mother of G.C., an infant, in his name under the false pretence that G.C. was the heir at law to W.J., that G.C. died an infant and that his mother continued to hold possession of the estate in the name of R.G, an infant, whom she falsely asserted to be the brother of G.C. but who was really a supposititious child ............................................

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The Defendant now to have the statement of claim struck out as frivolous and vexatious, and filed an affidavit showing that the story of B.C. being a supposititious child was publicly spoken of in newspapers and otherwise as early as 1853. and had been made the ground of previous unsuccessful actions of other claimants against the defendants and his predecessors.

Held (affirming the decision of Kekewich J.) that the allegations in the statement of claim as to the entry in 1798 on behalf of G.C. did not show a case of concealed fraud within Sect. 26 of the 3+4 Will 4 C. 27, but only a wrongful entry under a false claim; that the statute began to run against the Plaintiff's predecessors in title in 1798. and as the possession had been adverse to the Plaintiff and his predecessors ever since, the operation of the title had not been suspended by the alleged fraud in 1305; and that the Plaintiff or his predecessors might with reasonable diligence have discovered the concealed fraud, if any, more than twelve years before the commencement of the action. On these grounds the statement of claim and the action was struck out and the action dismissed as frivolous and vexatious."

In this case the emphasis was on the previous unsuccessful claims that had been made by other claimants against Defendants and his successors, and the Plaintiff had slept on his right and adverse possession had given title to the Defendants. In the other case of Remmington V. Scoles (1397) 2 Gh 1, A defendant delivered a statement of defence in which he either denied or refused to admit each of the allegations in the statement of claim, but set up no case of his own. In previous proceedings in another action he admitted several of the material statements which he now denied, and had not denied any of the others:-

Held (By Romer J. and by the Court of Appeal) that though the Court will not on affidavit evidence order a pleading to be struck out on the ground that the statements in it are false, the circumstances in the case showed the statement of defence to be frivolous and vexatious, and which ought to be struck out as being an abuse of the procedure of Court"

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These two cases are very instructive and are of persuasive influence when addressing the issue of the inherent jurisdiction of the Court. In the Remmington V. Scoles (supra) Homer J. said:-"The Court has an inherent power to prevent the abuse of legal machinery. Willis V. Earl Beauchamp 11 P.B. 63. Uhdoubtly therefore, the Court has power to strike out a statement of claim; but the power of the Court is not confined to that: it applies also to a statement of defence which is frivolous and vexatious and an abuse of the procedure: Reichel V. Magrath (1889) 14 App. Cas. 665 It appears to me that evidence may be received in a proper case on a motion of this kind to show that a pleading is an abuse of the process of the Court: Boswell 7. Coaks (1894)6R, 167. In the present case I think the Plaintiffs are entitled by their evidence to state the circumstances which show that the statement of defence is merely an abuse of process of the Court, though they are not entitled to show by evidence generally the untruth of the statements in the statement of defence". I agree with the learned judge and the principle of law and practice

In the. instant case, the several affidavits filed,state the in circumstances of the action,culminating in this application.

"The Court of Appeal affirmed the decision of Romer J. in the aforementioned case." The Judges in the Court of Appeal, while recognising the right of a defendant to put in a statement of Defence not confined to denying the allegations in the statement of claim, agreed with Homer J. that where the defence is a mere sham defence, not an honest defence, but framed with a view to gain time, it ought to be struck out.

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 The court has inherent jurisdiction to stay an action which must fail ................. A judicial discretion must be used as to what proceedings are vexatious; for the Court must not prevent a suitor from exercising his undoubted rights on any vague or indefinite principle. The jurisdiction will not be exercised except with great circumspection and unless it is perfectly clear that the plea cannot succeed ........................................ so, too, any action which the plaintiff clearly cannot proved and which is without any solid basis, may be stayed under this inherent jurisdiction as frivolous and vexatious......................

And when any party to an action has made repeated frivolous applications to the Judge or Master, the Court has power to make an order prohibiting any further application by him without leave,vide Grepe V Doam (1687) 37 Oh. D. 168; Kinnard V. Field (1905) 2 Ch. 306. But if the action be clearly vexatious and oppressive, the proper course is to dismiss it".

I am of the opinion that the Court of Appeal considered the submission of Counsel on both sides and the affidavits before the Court and made a deliberate finding that is to say:-

"Taking therefore the peculiar nature of the case and all the other authorities cited before, we are unable to grant the reliefs sought by the applicants".

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I see no reason why this Court should interfere with the exercise of the discretion of the Court of Appeal to refuse to grant the reliefs sought. I am satisfied the discretion was properly exercised. Indeed, the Court of Appeal need not have given any reason for refusing to exercise its discretion in favour of the applicants. Vide the case of Donald Macauley V. Emmanuel Shallop and Mirib Shallop SC Misc.App. 3/84 (Unreported). In that case the Supreme Court made this ruling per Harding J.S.C., Beccles Davies J.S.C. agreeing and Awunor-Renner J.S.C., dissenting.

"I have listened carefully to the arguments, of Counsel on both sides and read the various affidavits thereto filed herein. As regards the first order applied for, I do not think this is a proper case calling for the exercise of my discretion to grant special leave to appeal to this court, accordingly, I would refuse special leave. Special leave to appeal to this court having been refused, it necessarily follows that no order for a stay of execution of the judgment could be ordered by this Court. I would dismiss the application with costs to the. respondent".

Having spelt out some of the principles and practice by which the Court acts when the inherent jurisdiction is invoked, I will now consider its applicability in the instant case.

This is a case replete with several applications since the Writ of Summons was issued in December, 1985. The first of these was, to secure ; an order to enter judgment in default of appearance by the applicants. Thereafter, all the applications for some order or the other have been made either in the High Court, Court of Appeal or Supreme Court by the applicant. Some have been warranted and some unwarranted. In my 20 years in the Superior Court of Judicature, I have yet to recall any such prolific and persistent applications as in the instant case.

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In the instant case, it is one more attempt by the applicants to secure an order to challenge the judgment given on 4th July 1989; and I am of opinion that it is an abuse of the due process of the law. This Court ought not to permit it and will not permit the abuse of its process. From the record before the Court, this application ought to have been dismissed without Counsel being heard. It ought to be noted that the application before the Court is for the following orders: "(1) Special leave to appeal against a ruling and order of the Court of Appeal dated 20th June, 1990.

(2) Stay of all proceedings in the High Court in an action CC. 30/85, 1985, A. No. 26 -IN THE HIGH COURT OF SIERRA LEONE ABDUL AHMED  TRADING AS ABDUL AZIZ ENTERPRISES) -

PLAINTIFF And

NIGERIAN NATIONAL SHIPPING LINES - DEFENDANTS Pending the hearing and determination of the application and pending the hearing and determination of the proposed appeal".

Let me here and now state that the action sought to be stayed before the Court of Appeal, which among other orders sought, was CC. 806/85 1985 N. No. 28 - Between Nigerian National Shipping Lines vs. Abdul Ahmed as amended to read Abdul Ahmed (Trading as Abdul Aziz Enterprises and Nigerian National Shipping Lines.

The High Court Cause List revealed that CC. 30/85 B. No. 4, was between Kaboba Bangura vs. Samuel Carew. This being the case, how then can the Court be required to make an order in respect of a matter that had no relationship to the matter which was before the Court of Appeal. It is either one of two things or both:- That the application was made

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male fides or it was a deliberate attempt to mislead the Court. Whether it is one or the other, it is clear by an abuse of the due process of the Court.

I shall say no more. Nevertheless, this Court in its pursuit of fairness and in the interest of justice, heard arguments on both sides. In my opinion, the applicants having failed to obtain an order for an extension of time within which to appeal against the Judgment of the High Court dated the 4th July, 1989, have now come to this Court for special leave to appeal against the Ruling of the Court of Appeal for an order which is tantamount to an enlargement of time within which to appeal against the said Judgment. If this Court were to grant the orders prayed for, it would be a travesty of the law.

This Court has ruled that it has no power to grant an order for enlargment of time within which to appeal. Tide Solomon Demby v. Mana Kpaka (supra). In that case,Beccles Davies J.S.C. reviewed the decision in the case of Gatti. Shoesmith (1939) 3 All E. R. 916 and ruled thus: "To be able to exercise a discretion, the Court must be empowered by some rule of law or practice which then becomes the basis on which the discretion could be exercised one way or the other. There is no similar provision in the Rules of this Court giving it a blank cheque as it were to exercise its discretion to extend time within which special leave could be applied for". I entirely agree with the Ruling of the learned justice.

In view of the fact that there was no application before the Court of Appeal which was refused which could be renewed under Rule 7 of the Rules, I am of the opinion that it was inappropriate and premature to invoke the provisions under Rule 8 of the Rules.

Finally, the applicants having invoked the inherent jurisdiction of the Court, the law must take its course. I will re-echo the submission of Counsel for applicants, that the history of this case is not

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long and tortuous. but scandalous. Litigation must come to an end. See the case of In Re Davies A.L.E. 8L(1920-1936) 12 at 14; and the case of Brown v. Deen & another (1910) A.C. 373 at 374.

In the case of Brown v. Dean and another (1910) A.C. 373 at 374 where Lord Love-bury L.C. said:

"My Lords, the chief effect of the arguments which Your Lordships have heard is to confirm in my mind the extreme value of the old doctrine "Interest Republican ut sit finis litium," remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist.

With great respect for the authority of Fletcher Moulton L.J., I am of opinion that the order of the Divisional Court confirmed by the majority of the Court of Appeal is perfectly right. When a litigant has obtained judgment in a Court of justice, whether it be a County Court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery ,: of new evidence, it must at least be such as presumably to be believed, and if believed would be conclusive".

I entirely agree with the learned law lord, and adopt the -pronouncement in toto.

In view of what I have said supra, I hold this application to be wholly unfounded, frivolous and vexatious and ought to be dismissed, and I accordingly dismiss the application with costs to the respondent.