Santigie Fofanah and Isata Fofanah (16) [2015] SLCA 16 (30 November 2015);

Counsel for Defendant: 

A Marrah

Counsel for Plaintiff: 

E.T Koroma

Misc. App 16/2015

 

                                                                                     IN THE COURT OF APPEAL OF SIERRA LEONE

SANTIGIE FOFANAH                           -                                   APPELLANT/APPLICANT

                                                            AND

ISATA FOFANAH                                 -                                   RESPONDENT

 

PRESIDING;

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

 

Counsel;

E. T Koroma  Esq for the Appellant/Applicant

A. Marrah of Yada Williams & Associates for the Respondent

 

RULING dated 30th November 2015

 

FYNN JA

 

  1. The Applicant’s notice of motion dated 13th November 2015 is for several orders including:

“that leave be granted for an extension of time within which to Appeal against the default Judgment dated the 22nd January 2015 and the Ruling dated 16th June 2015 respectively”

  1.  The respondent objects on a preliminary point that the appellant is out of time within which to seek an enlargement of the time within which to appeal. The respondent submitted that R 11(6) of the Court of Appeal Rules is clear that such an application can only be brought within one month after the time limited for appeal. Counsel submitted further that where the rules are so clear and specific the court cannot have resort to its inherent jurisdiction. Counsel referred the court to  Nigerian Shipping Lines Authority vs. Abdallah Ahmed Abdul Aziz 1989 SL SC 5 and also to the Nigerian case of Auto Import Export vs Adebayo 2007 7WRN (SC) arguing that both these cases illustrate that the court cannot enlarge time in these circumstances.
  2. In answer the appellant/applicant urged the court that S.129 (1) & (2) of the Constitution of Sierra Leone Act No. 6 of 1991 clothe the court with sufficient jurisdiction to consider and grant the orders prayed for. Counsel invoked the inherent jurisdiction of the court urging that the following cases are demonstrative of the courts’ use of its inherent powers in similar situations: Mohamed Musa King & Gershon Collier v Nylander 2/2006 COA (unreported) and Alhaji Bockarie Kakay vs. Clementina Yambasu (1999) 3/98 (unreported).
  3. I cannot agree more with counsel about the limiting effects of R11 (6) of the Court of Appeal Rules. I find Justice Abdulai Timbo JSC’s application of the rule in Bangura and Another vs Jah 2000 (unreported) quite telling. He makes short shrift of an application to the Court of Appeal for enlargement of time with the following comment:

 “Regrettably with the facts before us, I am unable to allow the applicants extension of time within which to lodge their appeal because as already rule 11(6) says I cannot”

  1. In neither of the cases cited including those mentioned by the respondent is there a denial that this court has a jurisdiction which is but inherent. Such inherent jurisdiction is residual and the court must turn to it when it is clear that the bare rules (which are a highly respected guide to the judicial process) cannot in a particular case ensure that the ends of justice are best served.
  2. In the case of Kora Sesay & Others v Allie M. Kamara and others (2000) 8/99 the Supreme Court did not refuse the application for extension of time merely because it had been brought outside the time limits but rather heard the full arguments and based its refusal on the failure to demonstrate good and sufficient grounds of appeal. The Court did not disclaim jurisdiction to enlarge time.
  3. In Mansaray Vs. Kenny & another (unreported) the Supreme Court acknowledges the power of the Court of Appeal to enlarge time in circumstances not unlike the present one. There the extension of time was being sought fifteen (15) months after judgment was delivered and Justice Umu Tejan- Jalloh CJ  opined:

"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. It seems to me that post the year 2000 the Supreme Court has consistently followed a path that favored allowing an extension where the circumstances are such that the interests of justice will be better served. Examples of this attitude are found in Okekey Fishing Company Ltd vs Hamid Mojoe Kamara 2012 (unreported)  and  Devenaux vs. Kamara 2014 (unreported). In the latter case the Supreme Court whilst allowing an extension of time approvingly quoted Justice M E Tolla-Thompson JA;

“Procedural rules are intended to serve as hand maiden of justice and not to defeat it, and invoke the courts discretionary power to waive strict application of the rules, in order to ensure that the parties have a fair opportunity to argue their case in the Supreme Court.” (see Civ App 4/2002 Ibrahim A. N. Basma vs.  Adnan Yousef Wansa (unreported)

  1. I find the following passage on the strict enforcement or otherwise of the court rules a very useful guide as per Justice Gelaga-King J.A.(as he then was) in Moses Kindowa & The Director SL/IDA 3rd Education Project vs. Aureol Tobacco 7/93 COA (unreported)

“In my judgment the provision of that section do not mean and cannot mean that the practice and procedure of the courts must be regulated in such a manner as to defeat its ultimate purpose which is to ensure that justice is dispensed in a fair organized simple speedy effective civilized and just manner……..It is for this laudable reason that it has been the practice in Commonwealth jurisdictions that whenever the court is satisfied that substantial justice requires…..(it will)…dispense with the strictness of its own rule except where a matter is directly regulated by an Act of Parliament or Decree as the case may be”

  1. Additionally, I take the view that the ambit and reach of R66 of the Court of Appeal Rules 1985 is such that it includes R11 (6) of the same.
  2. I may very well find at the determination of this application that this is not a fitting case in which the court should turn to its inherent jurisdiction dispensing with the strict application of the Court of Appeal Rules. I may find then that this is a case the justice of which demands that the letter of the rule must hold sway. However, to enable me arrive at any one of these conclusions, I hold that I must first hear the full application and make a reasoned assessment of the same.
  3.  I therefore overrule the preliminary objection and will allow the applicant to proceed with his application.

 

 

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