Counsel for Defendant: 

S K Koroma

Counsel for Plaintiff: 

JB Jenkins Johnston

Misc. App 17/2015

                                                                                 IN THE COURT OF APPEAL OF SIERRA LEONE

MABINTY TIMBO                                -                                   APPELLANT/APPLICANT

                                                            AND

WUROH TIMBO                                  -                                   RESPONDENT

PRESIDING;

            THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA (SITTING ALONE)

Counsel;

J B Jenkins-Johnston Esq. for the Appellant/Applicant

S K Koroma Esq.  for the Respondent

RULING delivered on ………….. December 2015

FYNN JA

1. The Applicant has come to this court primarily for two reasons, the first being that she seeks an enlargement of time within which to appeal to this court against the judgment of the court below which is dated 29th July 2015. Secondly the applicant applies that the execution of the said judgment of the court below be stayed pending the hearing and determination of the proposed appeal.
2. The respondent has indicated that he does not contend with the first of the requests and I have not found any reason why I should not grant that order as prayed. It therefore remains only for a consideration of the second request and any other matters consequential to it.
3. As a general rule the courts will not lightly interfere with the rights of the successful party. It is established that the successful party ought ordinarily to be allowed to enjoy the fruits of his judgment.  Any party who seeks to have the court deprive the successful party of the fruits of the judgment will have the onus of demonstrating to the court that special circumstances exist which would make such an order necessary and just.
4. The “special circumstances” which the applicant relies on are set out in her affidavit dated 24th November 2015 which is filed in support of the motion of even date. These “special circumstances” are further explained and clarified in the affidavit –in-reply dated 7th December 2015. Read together these two affidavits make the whole of applicant’s case for a stay of execution.
5. The applicant contends inter alia that the premises which she occupies constitute the matrimonial home and that as she is still married to the respondent (which the respondent denies) the matrimonial home will be the most convenient place for her to stay whilst the appeal is being heard.
6. The respondent’s affidavit in opposition dated 30th November 2015 and it’s supplemental of 8th December 2015 set out that the respondent objects to the judgment being stayed. In summary it maintains that the parties are divorced, that the applicant’s continued stay on those premises will cause injury to other buildings and tenants at the same address.
7. The law governing the grant of stay of execution is substantially settled and is well-articulated in the case of Africana Tokeh Village Limited v. John Obey there the Hon Justice Gelaga –King JA posed the question “Under what circumstances will this court order a stay of execution?” In answering this question His Lordship turned to Halsbury’s Laws of England 3rd Edition Vol 16:

“The court has absolute and unfettered discretion as to the granting or refusing of a stay and as to the terms upon which it will grant it and will as a rule only grant it if there are special circumstances which will be deposed to in an affidavit unless the application is made at the hearing”

1. This leaves us with the question what then would constitute special circumstances? Sir John Muria JA provides some guidance on this by noting some things which may not amount to special circumstances. The Honorable Justice opined that;

“Moral, Social, or Political considerations are often raised in arguments by an applicant to support his/her application for a stay of execution of the Judgment or Order of the Court. Such considerations however do not and ought not to form the basis of the exercise of the Court’s discretion to grant or refuse a stay of execution”. (See Desmond Luke vs. Bank of Sierra Leone, Misc. App. 22/2004 (Muria JA as he then was) (unreported)

1. There can be no tailored template of what special circumstances are. Every set of facts must be evaluated separately and a decision reached as to whether in fact they would constitute special circumstances. To this end counsel for the applicant has urged that cases which involve a married couple ought properly to be treated differently taking into consideration the unique nature of every matrimonial situation. Counsel was obviously re-echoing Lord Denning’s concern when he said in Jansen v Jansen (1965)

“….agreements such as these ……..are outside the realm of contract altogether. The common law does not regulate the form of agreement between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts”

1. I do share these concerns and especially so in the circumstances of this case as they relate to the issues of the paternity of the child of the marriage, whether in fact the marriage is still subsisting and the matrimonial home/property questions which form an integral part of the proposed appeal. It cannot be ignored that some of these very significant issues still remain unresolved and are still before the court below. This ought to lean heavily in favour of maintaining the status quo.
2. However a just balance must be maintained in these circumstances to ensure that any stay granted would not merely deprive the respondent of the fruits of the judgment but will also not work any hardship on him and or third parties. It is on this latter matter that the respondent raises some very serious allegations that bring on a fresh complexion to the consideration of the application.
3.  It is alleged that there are two other buildings in the premises which have fallen (or are falling) into disrepair because of the applicant’s conduct. It is further alleged that the tenants on the premises who occupy or occupied those other buildings were/are being deprived of the quiet enjoyment of the premises demised to them. It is alleged that this deprivation is being caused by the applicant.
4. The applicant vehemently denies these allegations but the letters purportedly written on her behalf by solicitors (Exhibits WST8 & WST9) and that addressed to her and the Inspector General of Police (Exhibits WST10 and 11) cannot be ignored even if they are not believed. The first two seek to give seven days’ notice-to-quit to tenants whilst the other two complain about the unlawful interference with tenants in the said building by policemen acting for the applicant. These exhibits even when considered in the light of the corresponding denials and taken at their very least present the existence of a risk which this court must guard against. A risk which if realized will result in a travesty of justice and hardship on persons who are not before the court.
5. The applicant in his submissions urged that the court can make orders which will ensure that these other buildings and any third party interests will be protected and preserved whilst the appeal is being heard and determined. However, I note that the court below had already made orders in this regard in Exhibit A of the affidavit-in-reply when it ordered inter alia:

  “ That the tenants to whom the Plaintiff/Respondent has let or intends  to let the two houses in the compound should have unfettered access to their respective premises and should not in any way be disturbed or interfered with either by the Defendant/applicant or by her agents servants, privies or howsoever called

1. I have noticed that the court order referred to recently is dated 6th day of June 2015 whilst the letters alleging interference and misconduct by the applicant are dated 11thJune 2015 and 29th August 2015 respectively. This suggests to me that even after the court had made the said orders there were subsequently activities between the parties that required intervention from solicitors and the police.
2. As this court will not be able to monitor and or continuously supervise its own orders relating to premises I will therefore refuse the requested stay of execution and order as follows:
   1. Time is enlarged within which to file an appeal against the judgment of 29th July 2015 such time to run out on 30th January 2016

1. Stay of Execution of the judgment of Hon. Mr. Justice Abdulai  Charm J.A. dated 29th July 2015 pending the hearing and the determination of the appeal is hereby refused

1. That in the event counsel are unable to agree on “appropriate accommodation” for the applicant by 30th January 2016 the respondent shall pay forthwith the sum of USD 2,500 to the Master & Registrar of the High Court

1. That the applicant shall collect the said sum of USD 2,500 from the Master & Registrar of the High Court and shall use the same to provide herself accommodation no later than 29th February 2016.

1. That the applicant shall give up possession of premises situate and being at # 57 Peninsular Road Goderich no later than 29th February 2016.

1. The respondent shall have the costs of this application as assessed by the court in the sum of …………………………………….. agreed by the parties.

………………………………………………………. The Hon. Mr. Justice Reginald Sydney Fynn JA