Turay v Kargbo (Civ. App. 39/2006) [2009] SLCA 9 (26 March 2009);

CIV. APP. 39/2006

 

IN THE COURT OF APPEAL OF SIERRA LEONE

 

BETWEEN:

 

STEVEN TURAY APPELLANT

 

AND

 

AMINATA KARGBO RESPONDENT

 

CORAM

Hon. Mrs. Justice S. Bash-Taqi, JSC Hon. Ms. Justice S. Koroma, JSC

Hon. Mr. Justice E. E. Roberts, J.A.

 

Barristers

A K A. Barber Esq. for the Appellant

A. E. Manly-Spain Esq. for the Respondent

 

 

JUDGEMENT DELIVERED ON 26th DAY OF MARCH 2009 S. BASH-TAQI :-

 

The Appellant's appeal herein is against the whole judgment of the Learned Judge Nylander, .I (as he then was), sitting in the High Court in Freetown given on the 3rd May 2006 dismissing the Appellant's claim for a declaration of title to a piece or parcel of land situate lying and being Off Philip Street Wellington Freetown.

 

The single ground of Appeal set out by the Appellant in his Notice of Appeal dated 7th July 2006 appears at page 65 of the Records of the Proceedings and it reads as follows:-

 

"1. The decision can not be supported having regard to the evidence. N. B. Particulars to be provided later"

 

On 23rd April 2007 Mr. Manly-Spain of Counsel for the Respondent filed a Notice of Intention to raise a preliminary objection pursuant to Rule\9(l) of the Court of Appeal Rules Public Notice No. 29 of 1985 at the appeal hearing. His objection as appears in the Notice of Preliminary Objection filed was on two grounds namely, that-

 

a) That the Notice of Appeal contains a ground of appeal that is not known in law; and

 

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b) That the Notice of Appeal contravenes Rule 9 (1) of the Court of Appeal Rules.

 

On the 12th December 2007 when the appeal came before us for hearing, we granted permission to Mr. Manly-Spain to argue his preliminary objection.

 

He referred us to the Notice of Appeal filed by the Appellant appearing at page 65 of the Records and submitted that the ground of appeal as worded is unknown in our jurisdiction, and therefore it has failed to comply with Rule 9 (1) of the Court of Appeal Rules; that Rule 9 (4) of our Court of Appeal Rules provides for the filing of a Notice of Appeal and grounds of appeal; that the ground of Appeal on the Appellant's Notice of Appeal is not a ground known in law in civil proceedings. He relied for this submission on the Supreme Court decision in the matter of Kora Sesay & Others Misc. App. 6/96; that in civil proceedings the practice has always been to frame the general ground of appeal as:

 

"The decision /Judgment is against the weight of the evidence."

 

He submitted what the Appellant stated in his Notice of Appeal is a novel ground which amounts to an irregularity and that the irregularity is one that renders the entire appeal a nullity. He called in aid the West African Court of Appeal decision in the case of F. I Oranye vs. O, J. T, Brown of 12th April 1950 in support of his submission. He finally urged us that in the interest of justice the appeal be dismissed.

 

Commenting on the Appellant' s Notice of Additional grounds of Appeal filed on 21st March 2007, Counsel submitted that these are merely proposed grounds of appeal which require the leave of the Court to be argued as grounds of appeal in the matter; that in the circumstances the Court cannot at this stage consider them as grounds of appeal in the absence of such leave. He urged us to disregard the Notice of Additional Grounds and dismiss the Appellant's appeal.

 

In his reply, Mr. A. K. A. Barber, of Counsel for the Appellant submitted that the Notice of Additional grounds of Appeal filed on 21st April 2007 was filed before Mr. Manly-Spain' s Notice of Preliminary Objection of 26th April 2007; that the proper time for the Appellant to apply for leave to argue the additional grounds would be when an appeal comes up for hearing before the Court; that this Court is only now seised of the appeal in this matter, and therefore this would be the proper time for him to apply for leave to argue the grounds as additional grounds of appeal. He submitted that under Rule 16(1) of the Court of Appeal Rules, the Court has wide discretionary powers to allow the Appellant to argue the additional grounds; therefore in the interest of justice, he submits that we allow him to argue the additional grounds.

 

Having looked at the Ground of Appeal at page 65 of the Records, we are inclined to agree with Mr. Manly-Spain that the wording of the ground is not in conform with the wording usually applied in the case of a general ground of appeal in civil matters.

 

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In Kora Sesay & Others vs. Allie M. Kamara, Misc. App. 6/96 (unreported) the Supreme Court, Joko Smart, JSC (as he then was), decided to put an end to the conflict surrounding the genera) grounds of appeal to be applied in both civil and criminal appeals corning before the Supreme Court. For criminal appeals, the Learned Justice of the Supreme Court referred to Rule 75(2) of the Supreme Court Rules which provides specifically, inter alia:

 

"No Ground of Appeal which is vague or general in terms of disclosing no reasonable ground shall be permitted except the general ground that the judgment is unreasonable or cannot be supported having regard to the evidence " (emphasis added.)

 

The Learned Judge in that case noted that there is no similar provision in the Supreme Court Rules governing Civil Appeals, and there is yet no practice direction by the Supreme Court regulating the practice and procedure which shall apply to any appeal or application before that court as required by Rule 5(2) with regard to the form that a general ground of Appeal in Civil cases should be framed. He opined therefore that the acceptable wording for a general ground of appeal in a criminal matter is that mentioned in the wording of the Rule, namely:

 

"That the judgment is unreasonable or cannot be supported having regard to the evidence "

A similar general ground of appeal as in Rule 75(2) of the Supreme Court Rules quoted above is provided for in Rule 9 of the Court of Appeal Rules;, except that Rule 9(4) of the Court of Appeal Rules Public Notice No 29 of 1985 makes provision for the practice and procedure governing Civil Appeals in the Court of Appeal, as opposed to criminal appeals.

 

Under Rule 9(4) of the Court of Appeal Rules, it is provided:

 

"We; ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence. Any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its-own motion or on the application by the respondent" (emphasis added)

 

From the above Rule, it would seem that the acceptable wording of a general ground of appeal in a civil matter is:

 

"That the judgment is against the weight of the evidence ".

 

Having carefully looked at the wording of the Appellant's ground of appeal, we agree with Mr. Manly-Spain that the general ground of appeal which appears in the Appellant's

 

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Notice of Appeal in vague and discloses no reasonable ground permitted in law in this jurisdiction.

 

What the Solicitor for the Appellant had done in his single ground of appeal is to frame his general ground in the manner usually applicable to criminal appeals (see Kora Sesay, supra). He appears to be uncertain as to which ground was appropriate in his in client's case. The general ground that "That the decision cannot be supported having regard to the evidence", is more a ground of appeal to be used in a criminal appeal as stated in Rule 75(2) in the Supreme Court Rules, than a general ground in a civil appeal. The result is a failure to comply with the statutory requirement for Appeals of this nature.

 

Counsel for the Appellant has argued that the irregularity in this case is a mere technicality that could be set aside so that substantial justice might be done. We do not hold this view. In our view the failure to fulfill certain statutory conditions requisite for the purpose of hearing an appeal, deprives this Court of jurisdiction to hear the appeal. In other words, there is or there was never an appeal before the Court of Appeal.

 

As regards the Notice of Additional Grounds of Appeal, when the Solicitor filed the Appellant's general ground of appeal, he did not indicate that he intended to file additional grounds of appeal at a later date. This is normally what a prudent and conscientious solicitor, who knows he is running out of time for filing his Notice of Appeal, would do in a situation where he is unable to properly identify his grounds of appeal within the time limited for filing a Notice of Appeal. This is usually the case where, for example, the records or facts of the case are not immediately available and time is running out for the filing of the appeal; or where the Solicitor receives a late brief and he has not had sufficient time to read the records or to advise himself as the grounds of appeal he wishes to pursue. In such situations, a general ground of appeal and a notice of intention to file additional grounds will suffice to persuade the Court on appeal to grant leave to argue the additional grounds.

 

If the Appellant's Notice of Appeal in this case had included a Notice that he intended to file additional grounds of Appeal or that he intended to amend or substitute as the case maybe,, his ground of Appeal, we would have been persuade to hear him on his additional grounds in place of or in substitution of the Ground of Appeal recorded at page 65 of Record of Proceedings.

 

As it is, we cannot, for the reasons we have stated above, hold that the ground of appeal filed by the Appellant in this case is a proper ground of appeal in a civil case. The ground discloses no reasonable ground known in our laws. In the premise there never is an appeal before the Court of Appeal.

 

We agree with Counsel that this Court has wide discretionary powers under Rule 62(1) to grant applications in the interest of justice. In this instant case, we find ourselves unable to use this discretion without injustice to the Respondent.

 

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In the result we uphold Mr. Manly-Spain's objection that there is no ground of appeal in the Notice of Appeal filed, and therefore there is no appeal before this Court.

 

With respect to the Notice of Additional Grounds filed, having held that there is or there never was an Appeal before us, there is no basis on which to argue additional grounds. This is not to say that the additional grounds contemplated have no merits. All we are saying is that we are unable to consider them at this stage where there is no appeal before us. We will in the circumstances ignore the Notice of Additional Grounds of Appeal filed and dismiss this appeal.

 

 

In premises this appeal is dismissed with cost to the Respondent such costs to be taxed,agreed

 

THE HON MRS. JUSTICE STBASH-TAQI, JSC

 

THE HON MS JUSTICE S KOROMA, JSC

 

THE HON MR JUSTICE E. E ROBERTS, JA