MISC. APP 10/90

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN: Joseph Faulkner & Ansu                                                   APPLICANTS

Khaaday Amara-Bangali                                                                       RESPONDENT

Mr. A Tejan-Cole for Applicants

Mr. Eke Halloway & Mr. A.S. Sesay for the Respondent

Ruling delivered on:.....18th.day..of ..May.,2000.................................

TOLLA THOMPSON J.A,

By notice of motion dated the 20th December 1999 the defendant/applicant applied to this court for an order granting stay of execution of the judgment by Nylander J delivered on the 26th November 1999.

The motion is supported by the affidavit of Joseph Faulkner sworn to on the 20th of December 1999                                                                                                                         

With exhibits attached. In response to the affidavit in support there are in opposition sworn to (1) by Khaday Amara-Bangali on the 31st December 1999, (2) by Alusine Sesay on the 4th January 2000. With exhibits attached, (3) by Khaday Amara-Bangali again on the 25th January 2000 with exhibits attached.

Mr. Tejan Cole in moving the court made the following submission:

That the basic principles in our jurisdiction on which a stay will be granted are:

1. That the applicant must have good and arguable grounds of appeal.

2.  There must exist special circumstances necessitating the granting of a stay of execution.

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In suppert of his submission he refers the court to the affidavit Joseph Faulkner; and said that the applicant is an employee of Guardship (SL) Ltd and was sued in his personal capacity.

That the applicant cannot afford to pay the judgment debt.

In support of his submission he cites the case of Linotype Hill Finance Ltd v Baker 1992 4 EAR P887.                                                                                                                 

Finally he submitted that Guardship.(SL) was not made party to the action.

Mr. Sesay in reply submitted that the condition, which the court may consider granting, includes the overriding principle that the. successful litigant cannot be deprived from the fruits of his judgment.

That the defence filed was for both defendants and that the defence was tantamount to an admission.

At this stage Mr. Sesay asked for an adjournment to file a further affidavit.

On the adjourned date when the application came up for further hearing. Mr. Halloway informed the court that he was now appearing as counsel for the respondent. Inspite of the objection by Mr. Tejan-Cole the court ruled that Mr. Halloway can continue the reply to the application.

Mr. Halloway in reply submitted that the affidavit of Faulkner does not disclose special circumstances and that hardship deposed to in the affidavit cannot be special circumstance.

The principle of special circumstances, which has been recognised in this court, is to be found in the following cases.

1. Africana Tokey Village v John Obey Development Investment misc. app 2/94 unreported

2. Commercial Enterprises Ltd v Whitaker misc. app 2/94 unreported

3. Abu Black v Rev Archibald John Civ app 5/93

He submitted that the case of Linotype Hill Finance v Baker Supra is not applicable in this jurisdiction. It is the old law that is recognised and applied in this jurisdiction and not the new situation formulated by Linotype Hill Finance v Baker Supra. It is only of persuasive authority.

The general rule is that a stay of execution will not be granted. Save on special circumstances, such as where the execution will destroy the subject matter of the action or where irreparable damage or hardship would be caused to the applicant in the event of the appeal succeeding. However the court must ensure that if the appeal succeeds it will not turn out to be nugatory.

It is equally a principle of law that the court must ensure that a successful litigant is not deprived of the fruits of his judgment.

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I have carefully considered the application and the reply thereto. I have also had the opportunity of perusing the affidavits and exhibits. In my view the affidavits of Faulkner discloses enough materials for me to hold that special circumstance does exits for this court to grant a stay of execution.

I accordingly grant a stay of execution of the judgment on the following terms:

That the defendant/applicant and two sureties one of whom must be Guardship Sierra Leone do enter into a bond guaranteeing the payment of the judgment debt within 4 days of the date of this order.

1. If the above order is not complied within the above date, the order stands vacated after 2 days thereof.

2. The defendant/applicant to pay the cost of this application which I assess at Le200,.000.

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