CIV, APP. 69/95

IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN:-

ABDUL KANU & ORS

AND

ALPHA SESAY & ORS CORAM:-

HON. MRS. JUSTICE V.A.D.WRIGHT                                 - J.A.

HON. MR. JUSTICE M.E. TOLLA-THOMPSON                 - J.A.

 HON. MR. JUSTICE F.C. GBOW                                        - J.A.

J. B. JENKINS-JOHNSTON ESQ., FOR THE                      RESPONDENT/APPLICANTS

S.M. TOURAY ESQ., FOR THE                                            RESPONDENT

RULING DELIVERED THIS 28th DAY OF SEPTEMBER, 2000 WRIGHT J.A.

This is an Application by the Respondents/Applicants for an Order that The Respondents/Appellants do recover cost necessarily incurred by them prior to the service on them for the notice of withdrawal. The application is supported by the affidavit of Alpha Sesay sworn to on the 25th November, 1999 together with the Supplemental Affidavit sworn to on the 6th December, 1999 with the exhibits thereto. This application was made pursuant to Rule 20(2) of the Court of Appeal Rules Public Notice No.29 of 1985.

Counsel for the Appellants/Respondents filed an Affidavit in Opposition. He argued that the costs alleged to have been incurred as deposed in the Affidavit were expenses incurred after service of the withdrawal of the Appeal. He said that the Respondents/Appellants paid another Solicitor although there was a Solicitor on record without filing a change of Solicitor.

Having heard the arguments of Counsel on both sides I hereby award the Respondents/Appellants costs of Le500,000 to be. paid by the Appellants/Respon-dentso

(Sgd) Hon.Mrs.Justice V.A.D.Wright.

I agree.... Hon. Mr. Justice M.E. Tolla-Thompson                     - J.A.

I agree.......Hon. Mr. Justice F.C. Gbow                                   - J.A.

CIV. APP. 19/96

BETWEEN:-

JOSEPHINE E.R. ELLIS

DESMOND C.O. ELLIS

AND CECIL O.E. KING

CORAM-:-

HON. MRS. JUSTICE V.A.D. WRIGHT

HON. MR. JUSTICE N.D. ALHADI

HON. MR. JUSTICE M.B.T, THOMPSON  WRIGHT J.A

I Learned Counsel for the Plaintiff/Respondent applied' Viva Voce for leave to amend the relief claimed at Page 4 of the Recor for the amount Le2,544,898 to be amended to read Le26,452 '542 Pursuant to Rule 32 of the Court of Appeal Rules Public Notice No. 29 of 1985 and Order 58 Rule 9 in the White Book of 1960. He submitted that ther was sufficient evidence at the Trial to support the amendment sought. That the amendment is necessary so that the judgment and the, evidence are not at variance.

Learned Counsel for the Defendant/Appellant opposed this applicat stating that it was a Ground of Appeal and that grave injustice will b done to the Appellant if the application for the amendment is granted . this stage.

It is an undoubted law that the Court of Appeal has an unfettered power to allow an amendment for the purpose of defaming the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings if it can be done without injustice to the other side. In CROPPER V. SMITH (1884) 2.6CH.1

DOWEN LJ had this to say at Page 710-711........ "It seems to me that as soon as it appears that the way in which a party has proved his case will not lead to a decision of the real matter in controversy it is as much a matter of right on this part to have it corrected if it can be done without injustice, as anything else in the case is a matter of righto"

2

She Application of Counsel for leave to amend the pleadings or the record is within the competence of this court to entertain but as to whether it will grant or refuse the application is another consideration depending on the circumstances See DAVIES V. BICKESETH 1964/66 ALR(S.L.) Page 403.

One of the issues settled by the pleadings is the pecuniary compensation to the Respondent for the loss suffered by the deprievation of his proprietory interest in the property the subject matter of this action.

From the record it is very clear that this issue has been ventilated by evidence at the Trial, and ±t must be patently obvious-to Counsel for the Plaintiff, now Respondent, that an amendment to the pleading should have been made. An application for leave to amend therefore at this stage,having fretted away the opportunity opened to them, in our view will work grave injustice to the Appellant which cannot adequately be compensated by Costs. In the light of this the application is refused.

I agree............Hon.Mrs Justice V.A.D.Wright

I agree..............................Hon. Mr. Justice N.D.Alhad

I agree...............Hon. Mr.Justice M.E.T. Thompson