Decker and Others v Decker (Misc. App.13/2002) [2002] SLCA 6 (09 July 2002);

Misc. App.13/2002






4.   GERSHON DECKER                   - APPLICANTS





HON MR JUSTICE G. GELAGA KING                                                                                                                     J A

A F Serry-Kamal, Esq., with him, S.M. Sesay, Esq., for the applicants. Anthony R Brewah Esq., for the respondent


HON MR JUSTICE G. GELAGA KING J A: Mrs Lucy Decker, the first applicant herein and the sister-in-law of Goldstone Decker, the respondent, was the wife of Gisborhe Decker, the younger brother of Goldstone Decker. She and her husband begat three children, namely, Gisborne Decker (jnr), Olive Decker and Gershon Decker, the second, third and fourth applicants respectively. The children are the nephews and niece of the respondent. Mrs Lucy Decker's husband died on the 11th day of May, 1995.

Or the 28th day of July, 1999, Goldstone Decker issued a writ against Lucy Decker and the three children claiming, inter alia, a declaration that the land and hereditaments situate at 21, Old Railway Line, Freetown, where the applicants were all living, is owned by him He further claimed immediate possession of the property. The case was heard in the High Court and on the 18th day of April 2002, judgement was delivered in favour of Goldstone Decker granting him the declaration sought and immediate possession of the property. Thereafter, the applicants applied to the court below for a stay of execution pending an appeal against the judgment, but this was refused with costs on the 13th day of May 2002.

Even before the refusal by the High Court, the applicants had taken out a notice of motion dated the 8th day of May 2002, ex abundante cautela they claim, for, inter alia, an order that the execution of the judgement of. 18th April 2002 be stayed pending the hearing and determination of the appeal herein. The motion was supported by the affidavits of the 1st applicant and her solicitor, S.M. Sesay and opposed by that of the


Respondent We gave the applicants leave to file supplementary affidavits to clear up irregularities and omissions in their papers and the matter was finally heard on the 27th June 2002

Mr Sesay, for the applicants, acknowledged that this Court will not, as a rule, deprive a successful litigant of the fruits of his judgement. He then went on to submit, however, that a stay is usually granted in cases where the applicant convinces the Court that there are special circumstances which warrant a stay. In support of this principle of 'special circumstances' he referred strenuously to certain facts deposed to in the affidavits in support That the respondent in December 1981 had induced the 1st applicant's husband to move from rented premises at 30A Victoria Street, Freetown to 21 Old Railway line, the property now in dispute; that the 1st applicant and her husband had expended large sums of money repairing the disputed property, brought in electric supply, built a shop to facilitate a livelihood for the applicants; that it is now rainy season and little children living in the property may catch "pneumonia and other deadly diseases". He prayed in aid the following unreported cases:-


Civ. A.PP. 31/81 ADAMA MANSARAY v. IBRAHIM MANSARAY Misc. App. 16/73 S.M. SACCOH v. IBRAHIM A.H. DAKLALA and also Halsburys Laws of England, 3rd ed. para. 51 p 35.

Mr A Y. Brewah, for the respondent, vehemently opposed the application. He submitted that no special circumstances had been shown to warrant this Court exercising its unfettered discretion in favour of the applicants and granting a stay of execution. He also relied on the cases cited by the applicants, but referred to Misc. App. 26/93 REV. ARCHIBALD GAMBALA JOHN V. ABU BLACK & ORS (unreported) in which this Court refused a stay. He further submitted that in this type of application, the Grounds of Appeal must show prima facie good grounds of appeal and opined that that was not the case in this instance.

It seems to me that in arriving at a decision, the crux of the matter is whether the applicants have shown convincing special circumstances to enable this Court to grant a stay. This principle of 'special circumstances' is now flowing, with increasing momentum, through applications for a stay of execution and the ingenuity with which special circumstances have been invented boggles the imagination. To give a few examples: pneumonia, deadly diseases; inducement to move from rented property to disputed property and huge expenses in repairing part of disputed property; building a shop in the property and obtaining a Business Registration Certificate. In my judgement, most of the matters relied on in the affidavits in support as special circumstances relate to the issues raised in the pleadings which were dealt with in the court below. No doubt, they will be argued in the pending appeal. They are best brought up when the appeal is argued They are not, I opine, special circumstances in the context of a stay of execution.

What then do we mean by special circumstances in the context of a stay of execution? Before answering this question it is well to bear in mind the fundamental principle that neither the lower court nor this Court will grant a stay unless satisfied that there are good reasons for so doing. This follows from the basic principle enunciated in THE ANNOT LYLE (1886) 11 P. 114. p.116 that the Court does not "make a practice of depriving a successful litigant of the fruits of his judgement. . .pending an appeal". 'Good reasons'


go hand in glove with 'special circumstances'. Viewed in that light, special circumstances must mean circumstances beyond the usual: a situation that is uncommon and distinct from the general run of things. As I said in Africans Token's case, supra, "It is for the applicant to bring before the Court the facts on which he relies for the Court to decide whether they constitute special circumstances and, of course, each case will depend on its merits".

In my judgement, the only special circumstances in the affidavits in support are to be found in the special relationship between the parties - a relationship stemming from marriage and consanguinity. The 1st applicant, now a widow, was the lawful wedded wife of the respondent's brother and consequently the sister-in-law of the respondent's. The 2nd, 3rd and 4th applicants are the children of the respondent's late brother and the nephews and niece of the respondent's. This family relationship is distinct from the great majority of the usual cases where the litigants are strangers in the sense that they are not related either by marriage, or consanguinity, or at all. But for this peculiar and overriding and special circumstance, I would have been disinclined to exercise my discretion in favour of the applicants and grant a stay. The intimate family relationship is a special circumstance and affords good reason for the exercise of our discretion in favour of granting a stay, for in such a case justice demands that the status quo be preserved until the appeal is heard and determined.

For all these reasons, I have decided to allow the application on terms. I make the following orders:-

1 A stay of execution is granted on terms pending the hearing and determination of the appeal herein.

2. That the appeal be speedily heard.

3. That the record of appeal be settled within one week of the date of this order.

4  That the conditions of appeal be fixed within one week of the date of this order.

5  That the applicants fulfill the conditions of appeal within four weeks of the date of this order.

6. That the appeal be fixed for hearing on the 30th September 2002. 7 That there be costs in the cause. 8. Liberty to apply.

Hon Mr Justice George Gelaga King, J. A.

I agree Hon Mr Justice E. C, Thompson-Davies, J. S. C.

I agree  Hon Mr Justice A. N. B. Strange, J. A.