MISC. APP. 6/2000.

IN THE COURT OF APPEAL FOR SIERRA LEONE.

BETWEEN:- IN THE MATTER OF PRECIOUS MINERALS MARKETING COMPANY

(SIERRA LEONE) LIMITED

AND IN THE MATTER OF THE COMPAMIES ACT CAP. 249.

CORAM: Hon, Mr. Justice N.D Alhsdi            - J.A.

Hon. Mr. Justice M.S. Tolla-Thompson,           -J.A.

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

RULING DELIVERED

THIS 11TH DAY OF ....... GBOW J. A.

This is an application by way of notice of motion dated 14th day of March, 2000, by counsel for the Petitioner/Applicant for the following orders -

That this Honourable Court do make an order granting the petitioner/ Applicant an enlargement of time within which an appeal may be brought to the Court of Appeal against the order of the Honourable Mr. Justice' A. B. B. Stronge, Judge, dated the 23rd. day of October 1998.

An affidavit in support of the application dated 14th day of March . and also a supplemental affidavit dated 21st day of March, 2000, were filed tog-ether with several exhibits attached thereto...... learned Counsel for the Respondent also filed an affidavit in Opposition dated 17th day of March, 2000, and also an affidavit in reply to the supplemental affidavit dated 22nd. day of March, 2000. To his affidavit in Opposition, learned Counsel exhibited a Misc. App,4/95 together with an Affidavit attached thereto, dated 20th day of January, 1995.

2

0n the same date that Respondent's Counsel filed his affidavit in opposition he filed a NOTICE of his intention to rely on a preliminary objection. The preli - objection was heard and a ruling delivered before the Petitioner/Applicant's application was heard. The preliminary objection was overruled. In arguing his objection learned. Counsel submitted that The application cannot be entertained because it in-finjhes the rules of Res Judicata and Estoppiel - that the application is  antamount to requiring this Honourable Court to review its ruling delivered on the 8th of March 2000, in the case titled CIV App. 1/99 -that the Petitioner/Applicant is estopped from making this application on the grounds that the several admissions, facts, and arguments relied upon in the said case of CIV-App. 1/99 between the same parties and subject matter and upon which this Court based its said rulings are the same facts, admissions, and arguments now relied upon for the orders new sought, - that it will be prejudicial to the Respondent and would not be just for this Hon, Court having deliberated upon the issues how before it in its ruling delivered on the 8th of March, 2000 in the case titled CIV. App/ 1/99 between the same parties to entertain and hear the application now before it - that this Hon. Court being a creative of statute cannot and should not exercise its discretion beyond the contemplated matters within the court of Appeal Rules.

I need hardly dwell on the preliminary objection since my learned brother has sufficiently dealt with it in our ruling on the matter. For emphasis however, I should point out that the ruling on the 8th of March, 2000 was about a notice of Appeal which the court struck out on the ground that it was not properly before it, in that it was filed out of time.

The ruling was not based on the merits of the appeal..... It was not a final ruling or orders or judgement. It was based on a preliminary objection.

In my view, the striking out meant that the Applicant could come back to the court. If you appeal out of time without first coming under Rules 11.(1) and 11(4) to obtain enlargement of time within which to appeal, the appeal "should be struck out. But it appears to me that the appellant cannot be prevented from coming back to the court to ask for enlargement of time otherwise he could be blocked by Rule ll(6) of the Court of Appeal Rules which states, "No application for enlargement of time within which to appeal shall be made after the expiration of one month from the expiration of the time prescribed within which an appeal may be made".

3

The case CIV\App.l/99 is not the same as the Application MISC App.6/2000. This is an application for enlargement of time within which the applicant can file a notice of appeal... There is a marked difference between the proceedings in CIV.App. 1/99 which were in pursuant to Rule 9(1) of the Court of Appeal Rules, and the application now before the Court which is being brought under Rule 11(4) of the same Rules. At page 3 of Justice Wright's ruling of the 8th March, 2000 she stated that "there is no application before this court for enlargement of time". Doesn't this observation by the learned judge suggest that the appellant could return to the court and apply for enlargement of time as he has now done?

In his affidavit of the 14th of March 20000 learned counsel for the Applicant averred at paragraph 4» that "on the 8th day of March, 1999 when the said Notice of Appeal was filed in the Registry of the Court of Appeal, I honestly believed that I was within time since it was filed on the 79th day after discovering that the Registry of the Court of Appeal, was operational on Friday the 5th day of March, 1999"

I shall now consider the application for the enlargement of time. The application is being brought under Rule 11(4) of the Court of Appeal Rules P.N. No.29 of 1985. Rule 114) provides that, "Any application for enlargement of time within which an appeal may be brought shall be supper-ted by an affidavit setting forth good and sufficient reasons for the application and the grounds of appeal which prima facie show good cause for the enlargement of time to be granted."

The question I should ask at this stage is whether the applicant's affidavits have set out good and sufficient reasons for the application and whether the proposed grounds of appeal prima facie show good cause for the enlargement of time to be granted.

The supporting affidavit dated 14th March, 2000 avers at paragraph 5 thereof, "that the said notice of appeal ought to have been filed on or before the 22nd. day of January, 1999, but because of the reasons given in the affidavit of Dunstan Samuel Vincent sworn to on the 28th day of October 1999, and the supplemental affidavit of Dunstan Samuel Vincent sworn on 16th day of November, 1999 in support of the said notice of apeal it was impossible for me to have done so. Photocopies of the said Affidavits are exhibited hereto and marked "D.S.V. 4A" and "D.S.V. 4B"....

4

appeal dated the 4th day of January 1999 was filed by me on the 8th day of March, 1999, because the Registry of the Court of Appeal was closed from about the 6th of January 1999 to sometime during the first week of March, 1999 because of the APRC/RUF invasion of Freetown on the 6th of January, 1999 - 3. That from my temporary residence at 4 Ranger Street, Freetown aforesaid where I arrived safely on Sunday the 24th of January, 1999, I had been making weekly checks to find out if the Registry of the Court of Appeal at Walpole Street, Freetown aforesaid was functioning -4- that on one such check on or about - Friday 5th of March 1999, I dissevered that the Registry has started to function - 5 - that I immediately proceeded to file the said notice of appeal on Monday the 8th day of March, 1999, that being the earliest day on which it was practicable to do so - 6 - that my failure to file the said notice of appeal before the 8th day of March, 1999 was not wilful but because it was impossible for me to gain access to the said Regisyry since it was closed during the period mentioned in paragraph 2, above.

AEXH. 4B contains the following averments -"2,That following the brutal murder of the former Solicitor General during the January 1999 invasion of Freetown, repeated requests were made to the Government to provide adequate security for our judges, the courts and their officer - 3 – that adequate security was provided for the judges, the courts and their offices some time in March 1999 - 4 - that contary to what has been stated in paragraph 6 of the affidavit of the solicitor for the Respondent, Frederick Max Carew, the courts and their offices including the Registry of the Court of Appeal became fully operational some time in March, 1999 and not in February, 1999, - 5 - that the solicitor for the Respondent Frederick Max Carew, was out of the jurisdiction at the material time. I therefore believe that he cannot fathom what prevailed here from the 6th January, 1999, to about the end of March, 1999. Now let us see whether the proposed 'GROUNDS of Appeal prima facie show good cause for the enlargement of time to be granted. In the proposed Notice of Appeal two grounds are stated as follows:-

(i) The learned trial judge erred in law when he ordered that the Petition dated the 23rd. day of April, 1997 for the winding up of the Precious Minerals Marketing Company (SL). Limited be removed from the file in the Companies (Winding-up) Office Registry.

5

(ii) The. learned judge erred in law when he ordered that the said petition be struck out.

I think that these two proposed grounds of appeal prirma facie show good cause for the enlargement of time to be granted. I am also of the view that the affidavits in support of the application have set forth good and sufficient reasons for the application.

As learned counsel for the Respondent rightly submitted when considering whether to extend time or not, the following factors must be taken into account.

1. The length of delay

2. The reasons for the delay.

3. Whether there is an arguable case on the appeal.

4. The degree of prejudice to the Deft/Respondent each time the period is extended.

I have thoroughly considered all these factors and according to what is. stated in the affidavits filed in support of the application herein, I have come to the inescapable conclusion that undue delay in filing the appeal did occur, but that the reasons given in the affidavits for this undue delay are justifiable.. I have also come to the conclusion that there is an arguable case on the appeal.

I do not agree with learned counsel that necessary information was not forthcoming to enable this court to decide whether the applicants were justified in coming late with their appeal.

I counsel was maintaining that no staff of the Court of Appeal left the jurisdiction contrary to what the Appellantsare saying, learned counsel for the Respondent should have applied to cross examine the deponent of the affidavits in support of the application. Learned counsel made no such application for cross examination.

Learned counsel for the Applicant urged the court to invoke the provisions of rule 66 of the court of Appeal Rules which states that "None compliance on the part of the appellant with these rules or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal if the court considers that the non compliance was not wilful and that it is in the interest of justice that the non compliance should be waived.

6

The Respondent's Counsel submitted that those was no appeal before us and therefore this rule 66 should not be considered by us. I am afraid this interpretation of rule 66 by learned counsel is erroneous. The applicant had in the earlier proceedings come to this court as appellant. How pan we now say that for the purposes of rule 66 he is 'not an appellant. This is a very naroow way of interpreting this rule. I would hold that rule 66 is applicable to this application.

Learned Consel for the Applicant referred us to the Amendment of the Court of Appeal Rules by Public Notice No. 8 of 1994 amending Appendix B with regard to payment of fees which differentiates fees paid in respect of an appeal,—five-&»4 fees paid in respect of a motion for extension of time, if the time has already expired. On filing a Notice of appeal the fee is Le10,000.00 whilst the fee for a motion for extension of time is Le20,000.00.

It has been contended by learned counsel for the Respondent that; rule 11 (6) of the Court of Appeal rules is mandatory and accordingly, once an application is made one month after the expiration of the time prescribed for filing the notice, the application for extension of time should not be made. This rule states, "No application for enlargement of time within which to appeal shall be made after the xpiration of one month from the expiration of the time prescribed within which an appeal may be brought".

Learned Counsel for the Applicant maintains that the rule is disoretional not mandatory.

Although Counsel for the Respondent contends that the rule is mandatory he has produced no legal authority to back up his contention. For my part the rule is. discretional otherwise what would be the point in creating rule 66. mentioned above, or rule 32 of the same court of Appeal Rules.

Having dealt with the affidavits of the Applicant, I shall now deal with the Respondent's own affidavits - what has he dsposed to in these affidavits "FMC 2" sworn to on the 15th of November 1999. In this affidavits learned Counsel F.JS.Carew deposed among other things,that Mrs. A. Showsers ,Registrar of the Sierra Leone Court of Appeal informed him and he verity believed that the Court of Appeal Registry was not formally closed during the rebel inva- . sion. Mrs. Showers did not swear to any affidavit, which in my opinion she ought to have done having regard to her very senior position in the judicial hierarchy.

7

Learned Respondent's Counsel's other affidavit was sworn to on the 20th day of January 1995. It was in support of a Notice of potion dated 20th day of January, 1995 filed on behalf of Previous Minerals Marketing Company (SL) Limited, the 2nd. Defedant/Applicant. the motion sought the following orders -

a) An order granting an enlargement of time within which an appeal may be brought by the 2nd. Defendant/Applicant and any other party wishing to do so.

b) An order granting an interim stay of the excution of the said judgement to allow, the 2nd Defedant/Applicant and/or any party wishing to do so to apply for a stay of execution of the aforementioned judgement and order.

c)  And/any other relief which this Hobourable Court in its discretion may deem fit and just.

d) That costs arising from these proceedings be posts in the cause.

Learned Counsel argued that although his clients were in a worse plight than the Applicants in the present application their application for an enlargement was refused because the application had been made out of time. Rules (11(1) and 28 of the Court of Appeal Rules under which the application was made did not help the applicants. What was this plight of the applicants. According to the affidavit, at the time the judgement was delivered in January 1994 the then NPRC. Government had frozen the Bank Account and all assets of the Applicant. There was no money available for the Applicant /Defendant to draw up the judgement, file it and pay for the stamp duty which amounted to Lel8,600.000 on a judgement of $4,000,000. The Applicant was only able to secure funds after their acting Managing Director Mr. Yazbe returned to the country by which time the prescribed, period within which to appeal had expired.

Counsel vehemently argued that if his clients were refused enlargement of time in the face of such financial difficulties, caused by the NPRC. Regime, the applicants in the present proceedings should also be refused enlargement, never mind their story of a rebel invasion.

An affidavit in opposition to the affidavit in support of the application was filed by Dr. H. M. Joko-Smart as he then was, solicitor for the Plaintiff/Respondents. The deponent, now His Lordship, Dr. Professor

8

Joko-Smart said in this affidavit dated 23rd. day of January 1995 that "In answer to paragraphs 10 and 11 of the deponent's affidavit neither the said deponent nor any other counsel tendered or attempted to tender in the proceedings in the High Court any winding - up order in respect of the 1st. defendant.. That the deponent merely verbally informed the court at one of its sittings that he believed that there was a ,winding-up Order in respect of the lot. defendant and he wanted the whole proceedings to be stayed even in respect of the 2nd. defendant/applicant, his clients. That the trial judge opined that the deponent's statement was stay proceedings against any of the defendants - that thereafter the deponent did nothing to satisfy the court of the exis-tence of a winding - up order.

At paragraph 6, Dr. Joko Smart averred that "In answer to paragraph 14, of the deponent's affidavit, within three months after the judgement in the High Court had been delivered, I asked the deponent whether his clients intended to appeal. hat the deponents reply was in the affirmative but he said that he could nit advise his clients to pay the stamp duty as it was exhorbitant and that he would wait for me to. draw up the order, and that if the order was drawn up by me outside the period allowed to appeal, he would apply for an en-largement of time. Further, that the deponent said that he would rely on the fact that I could not execute the judgement xxxss I drew up and filed the order Which would be to his advantage, he would then apply for an enlargement, of time. That at no time did the deponent express to me his client's accounts were frozen and could not therefore pay the stamp duty."

Dr. Joko-Smart finally stated in his affidavit that the 2nd Defendant/ Applicant's accounts ,were not forzen to the point that he could not draw on such account to pay bills, or specific debts, liabilities, because there was a special arrangement between the NPRC. and the 2nd. Defendant/ Applicant, whereby the latter could apply to the former for any amount of money for payment of such liabilites. The Doctor said that, the 2nd. Defendant/Applicant never applied to the NPRC for any amount to pay the stamp duty.

Having carefully perused the affidavits filed by the Respondent herein I should observe that no two cases are ever quite the same. The case Misc. App.4/95 cannot be said to be on all fours with the application now before us The former case involves the inability of the applicant to obtain funds to file his appeal within time. The inability of the present applicant to 9 have filed his appeal within time was due to the rebel invasion.

I believe the affidavit evidence of the Applicant.  I would therefore grant him an order for enlargement of time within which an appeal may be brought to the court of Appeal against the order of the Honourable Mr. Justice A. N. B, Stronge, Judge , dated the 23rd. day of October, 1998

I so order.

I agree. .. Hon. Justice, N. D. ALHADI, J.A.

I agree..................Hon. Justice  M.E.Tolla-Thompson, IT,A, Tolla Thompson

I order that:

1)  Notice of Application filed within three days of today's date

2) That the effect be fixed for having on the 17thon May 2000

3) Cost to the Respondent