CIV. APP. 53/2008

 

IN THE COURT OF APPEAL OF SIERRA LEONE

 

BETWEEN:

 

OSMAN MANSARAY - APPELLANT

 

AND

 

ALICE FATMATA KENNY - RESPONDENTS

 

ISATU BANGURA ELIZABETH BANGURA

 

CORAM

HON. MR. JUSTICE P.O. HAMILTON, J.S.C. HON. MR. JUSTICE S.A.ADEMOSU, J.A. HON. MR. JUSTICE S.A. FOFANA, J.

 

SOLICITORS

CJ. PEACOCK ESQ. FOR APPELLANT M.P. FOFOANA ESQ. FOR RESPONDENTS

 

JUDMENT DELIVERED ON THE 4 ^th DAY OF JUNE 2009

 

This is an appeal against the Ruling of the High Court presided over by Honourable Mrs. Justice A. Showers .J. delivered on 25th September, 2008 as contained in the records (pages 137 to 138).

 

Before proceeding to consider this appeal, it would be better to fully outline the steps leading to this present appeal as this would clear whatever doubts existed in this matter.

 

The Plaintiffs/Respondents ( herein referred to as the Respondents) filed a Writ of Summons dated 16th October, 2000 against the Defendant/Appellant hereinafter referred to as the Appellant) for several relieves contained therein.

 

The Appellant through his Solicitor A.S. Sesay Esq. (as he then was) entered Conditional Appearance to this said Writ of Summons. The Appellant then filed in a Notice of Motion to set aside the Writ of Summons on the ground of irregularity i.e. non personal s?rvice of the said Writ. This Motion did not proceed when A.S. Sesay Esq. withdrew his representation and the motion was struck out.

 

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The matter was then entered for trial, evidence was led and judgment given as contained in pages 71 to 75 of the records ( a judgment in default of defence). After a period of over six (6) months after the judgment the Appellant hired another solicitor (CJ. Peacock Esq.) who then applied for an extension of time to file an appeal to the Court of Appeal against the said judgment in default of defence which was granted by the High Court to the Appellant herein.

 

Based on this background the Appellant filed Civ. App. 19/2004 to the Court of Appeal which became the basis or grundnorm for filing the appeal. The Respondents herein then filed an appeal against the court order granting an extension of time within which to appeal which was then Civ. App. 18/2004 dated 1st June 2004 and 2nd June 2004 respectively. Both appeals (Civ. App. 18/2004 and 19/2004) came up for hearing

 

together and on 13th March, 2007 the Court of Appeal said: "This appeal is upheld

Reasons to be given later." The reasons have not been delivered when the Appellant then proceeded to go back to the High Court to set aside the default judgment of the High Court (which was Civ.App. 19/2004) by notice of motion dated 19th June 2008 with Counsel for the Appellant submitting that the Appellants have unfettered right to apply to set-aside a judgment in default referring to Order 22 Rule 11 of the High Court Rules 2007. I shall deal with this issue in the course of this judgment as Counsel for the Appellant failed to put his cards in order before taking his brief as a new Solicitor in the matter.

 

It was against this background that the Learned Trial Judge Honourable Justice

 

Adeliza Showers J. dismissed this application by the Appellant on 25th September, 2008. It is against this that the Appellant has filed a Notice and Grounds of Appeal dated 3rd October, 2008. The Grounds of appeal are as follows:

 

1. That the Learned Presiding Judge erred in law in holding that the Certificate of Ruling given under the hand and seal of the court on 13th March, 2007 of both Civ. App. 18/004 and Civ. App. 19/2004 where the purport of the Ruling reads thus:- "This appeal is upheld with cost assessed as (Le1 ,000,000) one million Icones. Reasons to be given later."

 

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2. That the Learned Presiding Judge erred in law in holding that the Defendant/Applicant (now Appellant) cannot apply to set aside the judgment in default dated 11 th July 2002 without having taken judicial notice of the reasons given for the said Ruling

 

The two grounds of appeal filed by Counsel for the Appellant to me are identically one and the same. I shall therefore deal with both grounds together.

 

Counsel for the Appellant in his written submission on behalf of the Appellant submitted that the Ruling of the Learned Trial Judge creates some legal ambiguity in that if the order relates to both appeals when there was no order for a consolidation of both appeals then to which does it relates or that both were upheld as they were filed differently. There is no mention which appeal was upheld and no mention Civ. App. 19/2004 was dismissed or that Civ. App. 18/2004 was upheld or vice versa and reasons to be given later.

 

Counsel for the Respondents in his reply submitted that it is clear that the Ruling of 13th May, 2007 disposes of Civ. App. 18/2004 and Civ. App. 19/2004 and that is what is contained in the said Order.

 

In my humble opinion were such legal ambiguity arises in the certification of an Order given under the hand and seal of the Court it is the duty of Counsel to file in papers to the Court seeking a clarification of the said Certification Order rather than misinterpret the Order and then proceed to use the Order to correct whatever mistakes may have occurred as in this case where Counsel for the Appellant now seeks to correct his initial mistakes using the said Certification Order as his escape route.

 

On the other hand Counsel for the Appellant should have waited for the reasons from the Court of Appeal before taking any steps to set aside in the High Court a judgment which is on appeal to the Appeal Court.

 

It was for Counsel as a new solieitor in the matter to have come by motion for "an enlargement of time within which to set aside the said default judgment" and not a "Notice of Motion for an extension of time to file an appeal against the default judgment of the High Court.

 

 

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Suffice it that all the authorities submitted by Counsel for the Appellant did not help him in anyway since they are all authorities on setting aside a default judgment despite the lapse of time viz. - Kabba & Anor v Young 1937 - 49 ALR S.L. 130 and F3erthan Macauley v Jim Diamantopoulous (1962) S.L.L.R. 14. All these authorities deal with the setting aside of an Order or Judgment which can be described as a nullity.

 

In Craig v Kanseen (1943) K.B. 256 it was held that the Court can set aside such
an Order it is not necessary to appeal from it. (Emphasis mine).

 

Based on the foregoing, it is my view that this Appeal lacks merit and should be dismissed and it is accordingly dismissed. The Ruling of the Learned Trial Judge Honourable Mrs. Justice A. Showers J. is hereby affirmed. There shall be cost to the Respondent such cost to be taxed if not agreed upon by Solicitors.

 

However before folding up this Judgment it must be noted that Counsel for the Appellant did raise issues that do not fall within the realm of this Appeal. This is in relation to delay by the Court of Appeal in delivering Judgments and Rulings and the legal consequences citing Rule 6 of the Court of Appeal Rules (1985) (Public Notice No. 28 of 1985) and Section 120 (16) of the Constitution of Sierra Leone 1991 (Act No.6 of 1991).

 

All I would say is that this is a Constitutional issue for which there is the proper forum not for this Court to dwell on it.

 

 

Hon. Justice P.O. Hamilton. JSC.

I agree.

Hon. Justice S.A. Ademosu, J.A.

I agree

Hon. Justice S.A. Fofana, J.