Counsel for Defendant: 

A.Marrah Esq of Yada Williams and Associates

Counsel for Plaintiff: 

E.T. KOROMA Esq

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 dated17th December 2015

FYNN JA

1. The Applicant in these proceedings is the respondent’s husband. The High Court on 22 January 2015 had given judgment against him in an action brought by his wife the respondent herein. He tried to have this judgment set aside as it was given in circumstances where he had not been heard or in the alternative that it be stayed whilst he appeal against it. The applicant had argued and still maintains that he was severely ill and in search of treatment at the material time. The High Court would have none of it and in a ruling dated 16th day of June 2015 refused to set aside the judgment and also refused him leave to appeal against the same.
2. The effect of these two rulings as gleaned from the court records from below is that the respondent is now entitled to one third share of the applicants property situate at # 379 Bai Bureh Road. The applicant complains that as the ruling of 22nd January 2015 was given in his absence and the court did not hear his side of the story it was for all intents and purposes reached in default and in violation of the basic principle of justice which requies that the other side must  be heard. He now requests that this court enlarges the time within which he can appeal against the ruling of the court below and he also asks that the a stay of execution of the orders of that court be granted pending the hearing and the determination of the proposed appeal. The applicant has deposed to all these facts in his affidavits of 13th November 2015 and 3rd December 2015 which he has filed in support of his motion and in reply to the respondents affidavit respectively.
3. The respondent opposes the application she maintains that the applicant had ample opportunity to be heard and he neglected to take them. His not being heard is of his own deliberate making. His illness should not count as an excuse she argues submitting that if the illness did not prevent him from taking a new wife it should not prevent him from appearing and defending the suit against him. The respondent argues that the applicant had divorced her (a fact he flatly denies) and even employed legal assistance to evict her from the premises which are now subject matter of the action. She submits that she ought not to be deprived of the fruits of her judgment. She has filed an affidavit in opposition to the motion.
4. I had earlier ruled herein on the preliminary question of whether the court can enlarge the time within which to appeal and I now adopt the opinions and reasoning I expressed in that ruling. Suffice it say that I found there and still hold that where the court deems that the justice of peculiar circumstances in a given case requires such enlargement of time it ought favorably to exercise its discretion in aid of the applicant.
5. I have carefully reviewed the affidavits herein together with the various exhibits. I find that whilst the facts deposed to on either side bring a fuller understanding of the circumstances and the relationship between the parties, much of it ought properly to be unraveled in a "contested case". 
6. I take the view that a contest requires a struggle between one or more. In a trial where only one side was heard it is difficult to hold that such a case would constitute a "contested case" as envisaged in the following passage:

            The legal principle for the exercise of the Court’s discretion has always been that the applicant must establish that there are special or exceptional circumstances        justifying the grant of a stay of execution. This is so because in a contested case      the successful party should not be deprived of the fruits of a judgment
            given in his favor (See Firetex International Co. Ltd. vs. Sierra Leone  External Telecommunications Ltd. Misc. App. 19/02)

1. The Polygamous circumstances in which this case has sprung should not be lost sight of. Evidence is before the court that the applicant had a total of five wives. The order of the wives has not been agreed by the parties one side claiming that the respondent is the fourth whist the other maintains that she is the fifth. The position of the respondent in the chronology of the applicant's marriages is not in itself of immediate significance but it does obliquely point at the fact that the decision herein will directly affect other persons.
2. The applicant has raised this concern that these are his only property and that if the respondent were allowed the fruits of her judgment this may impact the lives of the other wives (some of whom are deceased) and their children.  It is my opinion that this is an issue that ought to be considered when reaching a decision between the parties if a just, fair and sustainable outcome is to be achieved.
3. Had there been evidence of other properties this may not have been an important issue. Where there are no other properties any decision in my opinion must necessarily have in contemplation the interests of the other spouses and their children in these properties. As this issue was not fully considered by the court below I am of the opinion that it provides a strong ground of appeal as well as a special circumstance in the present context.
4. The applicant has urged that he was ill and that that was the reason why he was not able to instruct solicitors at the material time. He submits that this is why he was unable to defend the original action and that this is why he was unable to file his appeal on time. He further argues that if the judgment where executed he would not have a place to stay.
5. The respondent does not deny that the applicant was ill. She corroborates his narration in this respect. She also provides corroboration that he was sufficiently ill for him to be moved to the provinces in search of treatment. She even had to accompany him on one such occasion.
6. I have had the opportunity to observe the applicant who attended at the hearing of his application and he does appear to me (and very much so) like a person recovering from paralysis. His movement and speech seem to be achieved with significant effort and sometimes with assistance. I do not agree with counsel for the respondent that this is an example of the "moral, social and political" matters which the Hon Justice Sir John Muria JA (as he then was) had cautioned were not proper considerations for the grant of a stay of execution.
7. It appears to me that great harm would be done if this judgment were executed and later found to be wrong. The applicant’s counsel has submitted on how such a possibility might impact an applicant faced with the present health challenges faced by this one. Whilst the court will not join in these speculations I am satisfied that the interests of justice will be better served in light of the applicant’s health if the property is preserved till the hearing and determination of the proposed appeal
8. Each of the issues recently mentioned (ie the uncontested action, the polygamus family situation and the applicant's illness) arguably taken on their own may not amount to an "uncommon" situation which is " distinct from the general run of things" (See Lucy Decker and Others vs. Goldstone Decker Misc. App. 13/2002 (Judgment of G. Gelaga-King, JA  however finding them all together, in one place and in the same case as we have them here in my opinion satisfies the requirement of special circumstances and I so hold.
9. During arguments it came out clearly that the respondent is concerned about her continued upkeep and maintenance. It appears that she had hoped that the execution of the judgment of the court below will assure her of her up keep and maintenance. In reply to this concern the applicant counsel submitted that his client remains ready and willing to support the respondent whom he still reckons to be his wife. Whilst this court will make no orders relating to the status of the marriage it will nonetheless fix terms for the continued maintenance of the respondent being guided by the amounts mentioned by counsel during their submissions.

I now make the following orders:

i.          Time within which to file an appeal against the judgment of Hon Justice Alusine   Sesay J. dated 22nd January 2015 is hereby enlarged and shall expire on 15th  January 2016

ii.         Time within which to file an appeal against the ruling of Hon. Mr Justice Alusine Sesay J. dated 16th June 2015 is hereby enlarged and shall expire on 15th January 2016

iii.        Stay of Execution of the judgment of Hon Justice Alusine Sesay J. dated 22             January 2016 and the ruling dated 16th June 2015 is granted pending the hearing and determination of the proposed appeal

iv.        The stay of execution granted herein is granted on the following terms and it is further ordered that:

a.         that the applicant shall pay maintenance to the respondent in the sum of Le 1,000,000 monthly pending the hearing and determination of the proposed appeal

b.         that the applicant shall continue to maintain and care for his children by the respondent

c.         that the applicant files an affidavit exhibiting a chart showing:  the names of all his tenants, the amount that each pays as rent  and the term each tenant holds

d.         that the applicant shall pay one third of all rents collected into court

e.         that the applicant shall not without leave of the court alienate,transfer or create any interest in property situate at 379 Bai Bureh      Road Freetown

f.          that the applicant shall not without leave of the court alienate, transfer or create any interest in property  comprising three    hundred and thirty-six acres of farmland situate some 9 miles   from Masiaka

IV.        The respondent shall bear the costs of the application which is assessed in the sum of Le 2,500,000.00 as agreed by the parties

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