Misc App 4/90

IN THE SUPREME COURT OF SIERRA LEONE

CORAM:-

HON. MR. JUSTICE S.M.F. KUTUBU,                                            CJ. - Presiding

HON. MR. JUSTICE S.C.E. WARNE                                                J.S.C.

HON. MR. JUSTICE S.T. NAVO                                                      J.S.C.

BETWEEN:-

NIGERIAN NATIONAL SHIPPING LINES                                    - APPLICANT

VS.

ABDUL AHMED (TRADING AS ABDUL AZIZ ENTERPRISES     - RESPONDENT

GARWAS J. BETTS ESQ., WITH HIM MISS Y. JUSU-SHERIFF   FOR APPLICANT

 A.J, BISHOP GOODING ESQ.,                                                        FOR RESPONDENT

RULING DELIVERED THIS 15th DAY OF AUGUST. 1990 NAVO, J.S.C.,

By Notice of notion Misc.App. 4/90 dated the 19th day of July, 1990 the Applicant, the Nigerian National Shipping Lines. applia8 to this Court for the following Orders:

1. That the Applicant be granted Special Leavs to Appeal against the Ruling and Order of the Court of Appeal in the matter:

Misc. App,50/89

IN THE COURT OF APPEAL FOR SIERRA:LEONE BETWEEN:

NIGERIAN NATIONAL SHIPPING LINES                                                 -APPLICANT

AND ABDUL AHMED (TRADING AS ABDUL AZIZ ENTERPRISES)      - RESPONDENT

DATED 20TH JUNE, 1990

2. A Stay of all proosedinds in the High Court action CC 30/85 1985 A. No. 26 IN THE HIGH COURT Of SIERRA LEONE

BETWEEN:

ABDUL AHMED (TRADING AS ABDUL AZIZ ENTERPRISES

AND NIGERIA NATIONAL SHIPPING LINES DEFENDANT Pending the hearing and determination of this application

and pending hearing and determination of the proposed appeal .(The underline for purposes of emphasis is mine)|

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The Applicant supplied three grounds upon which special leave to appeal is fought, which if the necessity arises, I shall consider in the Ruling.

I find it necessary at this stags to stats that I have had the previledge of reading in the Ruling of my learned brother Warne J.S.C., with which I am in total agreement that this application fails in its the entirety and should be dismissed.

The Applicant says that this application is made pursuant to Section 103(2) of the Constitution, Act. No. 12 of 1978. My learned brother Warne JSC has so exhaustively interpreted the provision of Sec. 103 of Act. No.12 of 1978 that there is very little, if anything that I can usefully add to his exposition of that Section However to my mind, that provision is merely an snabling clause, a desatiefied litigant to come this Court. The practise and procedure to do this is provided for under Rules 6 and of the Rules of this Court, Public Notice No.1 of 1982 as follows:

"6(1) An Appeal shall the from a Judgment, Decree or Order of the Court of Appeal to the Supreme Court

(a)----------

(b)-----------

(c) With leave of the Court in another cause of matter Criminal civil or Criminal where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.

(d)--------

(e)--------

(f)-------

7. Application for Leave to Appeal must first be made to the Court, but if leave is refused by the 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 Applicant". The Provision of Rule 6(1) (c) is ipssisima verba that of S.103 (1)(c) .

There is no evidence before us that,procedure in Rule 7 of these Rules was complied with in bringing this Application. Further more, the Order against which still leave is sought to appeal was not drawn up and filed. The Application therefore is not properly before this Court and ought to have been dismissed without asking the Respondents to answer. The Rules of our Court speaks, in peremptory language - they says " Thou shalt: and if thou does not,/ those out"

But before I dismiss this Application let me consider the Second Order prayed for. It asses for

"(2) A Stay of all proceedings in the High Court Action CC 30/85 1985 A. No.26 IN THE HIGH COURT OF SIERRA LEONE BETWEEN:

ABDUL AHWED (TRADING AS ABDUL AZIZ ENTERPRISES) -PLAINTIFF

AND NIGERIAN NATIONAL AND SHIPPING LINES - DEFENDANT

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I quota extracts from the Judgment of Purcell C.J. at p.15 Purcell C.J. - after hie opening remarks had this to say inter alia ".........I can only express my surprise that Mr. Barlatt la not batter informed and instructed with regard to the practice regulating appeals and the time within which such application must be made. Not only has this appeal court been in existence for nearly 10 years but the rules regulating those Matters are perfectly wall known and have on several occasions been discussed at length in this court."

The Learnad C.J. refered to the Ghana Case of AMPONDURD V. WEREKU(1905) them 313 and want on to say

"........We are quite certain that theobject of the rules was to limit the time during which an appeal could be kept hanging over a successful litigant's head, and during which he could be kept out of the fruits of his Judgment."

The Learned C.J. went on to say at p. 19 " As was said by The C.J.

X          X              X           X          X      X

" In the interest of the public the Court ought to take care that appeals are brought before it in proper time, and as between the parties it has often been remarked, in the branch of this Court which sits at Lincoln's Inn, that when a Judgment has been pronounced, and the time for appeal has elapsed without appeal, the successful party has a vested right to the Judgment, which ought, except under vary special circum stances, to be mads effectual. And I think that the legislature intended that appeals from Judgments should be brought within the prescribed time, and that no extension of time should be granted except under very special circumstances."

X          X              X           X          X    X

The Learned C.j. concluded his Judgment in these words

"For myself I think the time has cons when this court should speak with no uncertain voice on the question, of these applications by a would-be appellant who has merely neglected to take advantage of the machinery which the law allows him with regard to appealing. 1 think that this court should let it be known that in future it will not, except under very peculiar and extraordinary circumstances, grant special leave to appeal. I do not think that this can be too widely understood or recognised. So far as thepressnt application is concerned, and for the reasons I have already stated, I think that this application should be dismissed with coats. "

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pending the hearing and determination/this application and pending the determination of the proposed appeal. The Order Prayed for is most interesting if not deceiving. All through these proceedings the records in this action speak of and the parties argued on an action emanating from Writ of Suasions numbered CC.806/85 1985 A.NO.26 between the parties mentioned above. That we are asked to stay ell proceedings in an Action CC30/85 1985 A.NO.26 did not only defeat this application itself but also led us to do some research in the records. which surprisingly revealed that Action CC.30/85 was, or is still a matter between KABBA BANGURA VS. SAMUEL CAREW who are not parties to this application.

How on earth can we be asked to, and can we, stay all proceedings in Action CC30/85 between different parties than those in the current action when they are all strangers to that action. If reference to the Bangura V. Carew case CC.30/85 was made only once in this Notice of Motion one would have entertained a vary remote probability. That it was a mistake but it was repeated even in para 2 of the Affidavit of Yasmin Baindu Jusu Sheriff sworn to on the 19th day of July 1990 exhibit as "YBJS"?

In his Affidavit in Opposition to this application Mr.A.J.Bishop Gooding has deposed, and that has not been refuted, that since Judgment in the original action in the High Court was delivered in 1985 the Defendant/Applicant has adopted various strategies to defeat the ends of justice and to deprive the successful Plaintiff/ Respondent of the fruits of his Judgment. For example not lets than four applications have been made to the court of Appeal, six to the Supreme Court and which but for one in the Supreme Court for an Order of Certiorate if Certiosari, Mandamus and Prohibition have been dismissed with costs which costs plus that of the trial by the High Court ordered against the applicant, have till now not been paid and that this tan amounts to a deliberate attempt to defeat the ends of justice. Ha further asked the court to make an Order that the applicant be not allowed to come by any means to this Cour or the Courts below as there is no appeal is pending within the jurisdiction of these courts.

I have considered this application and perused also the affidavits and document filed by both parties and have come to the conclusion that they are all for leave or special leave to appeal against the judgment of the High Court and this defeats the ends of justics a gross abuse of the process of these courts. There must be an end to litigation. And it is this Court, the highest in the land, to speak loud and deal once and for all, to all who practise before our Court.

On the question of application for extention of time within which to appeal the Rules are quite clear and have been dismissed on empty times in this Court and in the Courts below, andall practitioners in these Courts ought to be aware of. I wish only to refer to the case of NICHOLAS US. MUCYAWA (1922) A.L.R. (S.L. Series) 1930-36 (Full Court (Purcell CJ.,) xxxxx - Cookson 3, and McDonnell.                                                                   

 

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 And so do I, speaking for myself, dismiss this application with costs .

The respective judgments of the High Court and the Assessment Proceedings are affirmed.

"I further Order that the said Applicants or any of them be not allowed to make any further applications in these proceedings or either of them to this Court or to the Courts below without the leave of this Court being first obtained. And if notice of any such application shall be given without such leave being obtained, the Respondent shall not be required to appear upon such application, and it shall be dismissed without being heard."

HON Justice S.T. Navo Justice of The Supreme Court