Misc App.3/2000                                                                               

IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN ERIC JAMES (CARRYING ON BUSINESS)

AS JAMES INTERNATIONAL ENTERPRISES                    -RESPONDENT

AND SEABOARD WASET AFRICA LIMITED                    -APPELLANT/RESPONDENT

CORAM:

Hon. Mrs. Justice V.A.D. Wright                                 - J.A.

Hon. Mr. Justice N.D. Alhadi                                      - J.A.

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

A.F. Serry-Kamal Esq. for the Applicant/Respondent E.E.C Shears Moses Esq. for the Respondent/Appellant.

RULING DELIVER THIS 11TH DAY OF APRIL,2000

This is. an. application by the respondent/applicant for an Order that the Respondent/Applicant be granted leave to adduce fresh, evidence in such form as the court shall allow to wits-(1) The business registration certificate No.205/1930 issued by the then Adninistrator and Registrar-General Mr. A.E.U. Davies on the 3rd day of May, 1980 to James International Enterprises. (?) The Annual Return of the Appellant/Respondent made up to 5th November 1992 filed with the Administrator and Registrar General for Sierra-

Leone. (3) The Certificate of Registration of James International Enterprises Limited.

This Application was Under Rule 27 of P.N. 29/35 and supported by the affidavit of Franklyn Serry-Kanal sworn to on the 25th January 2000 and filed herein and the Exhibits attached thereto. Counsel for the Applicant/Respondent submitted that Exhibit "A" was Certificate of Incorporation dated 22nd July, 1985 and Exhibit "C" was the Annual Return of Seaboard West Africa Limited dated 25th January 2000 which was made up to the 5th November, 1992. He said that the 1st the 1st relief sought was in respect of Exhibit "A" . The 3rd relief was in respect of Exhibit "B" and relief No.2 in respect of Exhibit "C".

2

He referred to Gap.256 Rule 19 that in any proceeding cither you introduce the original or certified true copy in relation to Exhibit "A" and that in the interest of justice fresh evidence should be adduced as the court seems fit.

Counsel for the Respondent/Appellant objected to the application and referred to the evidence of Mrs. Massalley in which she stated that she could not trace the records of James International Enterprises, and that it was in bad faith to wait four and a half years before applying to the court to adduce fresh evidence. He further submitted that if the copy was genuine then it should have certified.

He further submitted that after the other side objected to an application to amend the pleadings as regards their status, they came with this application.

The general rule about the admission of further evidence by the Court of . Appeal which is well recognised requires that two conditions must be satisfied. 1. That the evidence could not reasonbly have been available at the time of trial of hearing.

2.. It must be of a character which would be likely to have a substantial effect on the decision appealed from.

The issue raised in this application is whether the respondent/applicant is a legal entity which given it a status to institute the present action.. This is a natter which should have been decided by his legal adviser as to whether he was in a position to sue. This very point about the status of the respondent/applicant had been argued on behalf of the appellants/respondents during the hearing of this appeal before us. It is my view that it will be highly prejudicial of the appellants/respondents if I were to allow fresh evidence to be adduced at this stage. I do not think that this deficiency can be cured at this stage because I am of the view that this evidence was available at the Registry and with due deligence it would have been discovered.

In the light of this the application cannot be granted.

The application is therefore refused.

Costs in the cause.                                                               

I agree (Sgd) Hon.Mrs. Justice V.A.D.Wrightsri

I agree . ..Hon. Mr . Justice N.D. Alhadi                   - J.A.