Counsel for Defendant: 

Editayo Parbs Garnon

Counsel for Plaintiff: 

Gibril K Tholley

Misc. App 12/2015

                                                                                  IN THE COURT OF APPEAL OF SIERRA LEONE

VICTOR DUMANSKI                                       -                                  1ST APPELLANT/APPLICANT

KANDEH BABA CONTEH                                -                                   2ND APPELLANT/APPLICANT

                                                            AND

MARTIN ANDREW REKAB                 -                                   RESPONDENT

(BY HIS ATTORNEY DR. ANDREW REKAB)

PRESIDING;

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

Counsel;

Gibril K Tholley Esq for the Appellant/Applicant

Editayo Pabs-Garnon Esq of Lambert & Partners for the Respondent

RULING dated 25th November 2015

FYNN JA

Introduction and Background

1. It is important to state at the outset that the application before this court is not an appeal against the judgment of 12th July 2012 (which I will refer to in this ruling as "the substantive judgment") nor is it an appeal against the ruling of the High Court dated 3rd June 2015 refusing an application inter alia for the enlargement of time within which to apply to set aside the substantive judgment (which ruling I will refer to herein as "the impugned ruling").
2.  This is a fresh application made to this court pursuant to R11 (1) and (4) of the Court of Appeal Rules 1985 and it will be treated as such. There will be no attempt to review or to rehear the applications, ruling, trial or judgment that preceded this application. The application will depend on its own merits alone.
3. The application is made by a Notice of Motion dated 1st day of October 2015 and it is supported by an affidavit of even date sworn to by Victor Dumanski the first applicant. The respondent filed an affidavit in opposition dated 16th October 2015. Several documents are exhibited to these affidavits and when necessary some of the exhibits will be           referenced in the course of this ruling.
4. The application is for several orders first amongst which is the following:
5.  
6. The parties are in agreement that the impugned ruling was a final one and therefore the time limit within which to appeal was three months. There is no contention that        three months had elapsed since the impugned ruling was pronounced to the date of the present motion which was filed on 1st October 2015.
7. R 11 (1) of the Court of Appeal Rules 1985 in addition to setting out the time limits within which an appeal may be made also provides that this court may enlarge the time. R 11(4) sets out what is required of the applicant who comes asking for enlargement of time;

Any application for enlargement of time within which to appeal may be brought     shall be supported by affidavit setting forth good and sufficient reasons for the application and by grounds of appeal which prima facie show good cause for the enlargement of time to be granted.

1. Justice Joko- Smart JSC dealing with an application for enlargement of time in Sesay & Others v. Kamara ( (1999) Supreme Court Unreported) was persuaded by the dictum of Griffiths LJ and I also find his words appropriate and instructive to the present application:

            "All the relevant factors must be taken into account in deciding how to exercise the discretion to extend the time. Those factors include the length of the delay, whether there is an arguable case on appeal, and the degree of prejudice to the defendant if the time where extended"(see Van Stillevold BV El Carriers 1963 1 AER 699 at p. 704)

Sufficient grounds and Delay

1. A dis-satisfied party has three months within which to file his notice of appeal. After those three months he has an additional month within which he can ask for the enlargement of time within which to appeal. The present applicant was unable to file on time. Even after he filed he was still unable to exhibit a filed copy of the impugned ruling.  Counsel for the applicant submitted that the filing process is sometimes laborious and that papers tend to move at snail's pace in the registry.
2. If the slowness in the movement of papers in the registry were to be accepted in and of itself as good and sufficient a reason for delay the floodgates would not only be opened they will be broken completely. I take the view that vigilance within a three months period will ensure that papers filed in a timeous manner will come up for consideration within a reasonable period.
3. Similarly I do not accept that the clock of the civil process stops just because parties are engaged in negotiations. Parties must know that time marches on even whilst they negotiate. Though submissions touching the fact of ongoing negotiations was raised, there has been no suggestion that the parties agreed or had an understanding that whilst they negotiated time would stop running. Not that such an agreement would necessarily be enforceable but if it existed it would have at least explained logically a party's failing to follow time lines set in the rules.
4. Considering the fact that the decision against which the applicant wishes to appeal was itself in respect of enlargement of time within which to appeal the thought cannot be suppressed that this applicant appears to have little if any regard for the time frames set out in the court of appeal rules.
5. It should be noted that in their various submissions counsel on either side traded accusations for explanations on this applicant's previous delay of the court processes. The date of the substantive judgment and the date of the motion for enlargement of time within which to appeal against it is quite telling.   An excess of twelve months elapsed.
6. The rules of procedure are there to guide the process and whilst in a deserving case they make allowance for this court to order their waiver, special care must nonetheless be taken to ensure that they are respected lest they fall into disuse and a free for all ensues.

The Chapter of Accidents and good grounds of Appeal

1. Counsel submitted that a chapter of accidents occurred in the course of this case and that this included wrong advise from the applicant's solicitor regarding the court of Appeal being on vacation when in fact it was not and the fact that the court below in reaching the impugned ruling relied on the contents of a motion it had previously allowed the applicant to discontinue.
2.  Solicitors owe their client's a duty of care and they may be liable for any loss which they negligently cause those clients. This having been said the courts will not ordinarily allow a litigant to suffer due to the wrong advice given him by his solicitor. In such situations a just balance has to be maintained between the parties. Firstly to ensure that any rights accrued to the other party will be adequately compensated and where necessary protected and secondly that the overall interest of justice is continually kept in view as well as be actually served.
3. A plea that my solicitor wrongly advised me is therefore no automatic guarantee to grant the application at hand. A closer look at the instant wrong advise will disclose that it was not the operative cause of the delay and failure to file an appeal within the proper time. The long vacation does not last for three months in fact it ended on 15th September and it took the applicant a further fourteen days to prepare and serve papers. The applicant had a good many days after the vacation in which he could have still filed his appeal within time.
4. With regards to the alleged error of the court below I do not believe an appeal against the impugned ruling is the best way to correct that if at all. Of course the error could have immediately been brought to the attention of the court at the time of the ruling. Considering how similar the motion papers are that allegedly got mixed up a safe resort could have been made to the slip rules and the error cleared up. 
5. A further and maybe better possibility would have been to come to this court with an application for enlargement of time to appeal against the substantive judgment. Regrettably such an application is not before this court. However all this is not to say that the applicant is precluded from adopting this line of action.

1. Justice Umu Tejan- Jalloh CJ in Mansaray v Kenny & Two Others (unreported) is very helpful with respect to the attitude which the High Court should adopt towards an application of this nature:

"Clearly an application for extension of time within which to appeal to the Court of Appeal made to the Trial Judge 15 months after the decision to appeal was both out of time and made in the wrong forum. It is the Court of Appeal which has jurisdiction to enlarge the time as provided for in Rule 11(1) of the Court of Appeal Rules 1985. In my judgment therefore the Court of Appeal was right when it held that “only the Court of Appeal can- extend the time and grant leave to do so. The High Court is only empowered to grant leave to appeal within the statutory period allowed for appealing and no more”.

1. Undisputedly, this court has power to extend the time within which to appeal against the substantive judgment after the time provided for same has elapsed but I cannot say the same for the court below. The High Court is not the proper forum to apply for extension of time in these circumstances but the application of 3/4/2014 (exhibit VD5) did not ask for this.
2. Unlike the motion dated 4/2/14(Exhibit VD 4) which had asked for extension of time within which to appeal the substantive judgment, Exhibit VD5 was asking for the extension of time within which to set aside the substantive judgment as a default judgment (if it was found to be that).
3. Counsel on either side spent considerable time and words on whether in fact the applicant had "appeared" before the court below. Each trying to persuade the court of the effect of the "appearance" or "non-appearance". Unfortunately their arguments and submissions related to such appearance in the trial leading up to the substantive judgment. They would have been of vital importance were I considering enlargement of time within which to appeal against that judgment but that is not what is before me.
4. This question of "appearance" or otherwise at the trial will in my view be the very pith of any subsequent appeal and it would therefore be premature for me to make an attempt at unraveling it in the consideration of the present application.

Conclusion & Orders

1. I do not find the reasons advanced for the delay and failure to file the appeal in good time convincing; but I do find that the error allegedly made by the court below if true (which it appears to be prima facie) a very substantial error which may make the impugned ruling completely irregular and constitute a strong ground of appeal.
2. I do not find any special circumstances that should warrant a stay of execution of the judgment of 12th July 2012 and I do find by the applicant's own admission in Exhibit P (the letter to HE the President) that execution is complete.
3. This passage by Bowen LJ in Cooper v Smith (1844) 26 Ch D. 750 at Page 818 illuminates the predominant thought leading to my conclusion;

“Now I think it is a well-established purpose that the object of Courts (is) to decide the rights of (the) parties, and not to punish them for mistakes they make in the conduct of their case…I know of no kind of error or mistake which if not fraudulent….(that)…the court ought not to correct if it can be done without injustice to the other party……”

1. In the circumstances I hereby order the enlargement of the time within which to appeal against the Ruling/Decision dated the 3rd day of June 2015 delivered by the High Court of Sierra Leone in this action by a period of 14 days and in any event no further than 9th December 2015. I also order that the Applicant bears the cost of this application assessed by the court in the sum of ....................................... agreed by the parties

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