Misc. App 45/2014

                                                   IN THE COURT OF APPEAL OF SIERRA LEONE

 

Estate of Khalilu Jabbie (Represented by                       -                       APPELLANT/APPLICANT

Mr. Bockarie Ensah as Court appointed Administrator

of the Estate of the deceased Khalilu Jabbie)                       

                                                AND

Skye Bank (SL) Limited                                        -                                   RESPONDENT

 

CORAM;

            HON. JUSTICE V.M.SOLOMON                       -           JSC

            HON.JUSTICE M. DEEN-TARRAWALLY                        -           JA

            HON. JUSTICE R. S.FYNN                                 -           JA

 

Counsel;

M.P Fofannah Esq for the Appellant/Applicant

R S V Wright Esq for the Respondent

 

RULING dated 29th February 2016

 

HON. JUSTICE REGINALD S. FYNN JA  (Dissenting Opinion)

 

I have had the opportunity of reading the draft ruling prepared by The Hon. Justice V M Solomon JSC and I hold a different view to that which she has expressed. My opinion on the matter is as follows:

 

1. In this application the Applicant seeks a reversal or the variation of orders given by a Justice of this court sitting alone. These orders were given on 15th June 2015 and briefly put they struck off the applicant's Notice of Appeal dated 25th August 2014 finding that they are in contravention of R 11(1) of the Court of Appeal Rules.

 

1. S.130 (b) of the Constitution of Sierra Leone Act No 6 of 1991 makes provision for the full panel of three to hear and review the decision of the single Justice of Appeal. However the law on when it is proper to allow such a variation or reversal has come to crystallize admitting only situations where the single justice has been found to have committed some error in the law. If no such error in the law has been found I take the view that the ruling or orders of the Justice should not be disturbed except some glaring and manifest injustice will result.

 

1. In the present case the applicant wants his Notice of Appeal restored. The single Justice had found that it was filed out of time and had refused to restore it.  The computation of the time within which to appeal would not usually admit to any contention as the rule provides with clarity that

" no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three month in the case of an appeal against a final decision unless the court enlarges the time"(R11 (1) Court of Appeal Rules)

 

1.  There is no doubt that the judgment of 6th August 2013 which it is sought to be appealed against is a final judgment. And that a Notice of Appeal should ordinarily have been filed on or before 6th November 2013. However this usually straightforward computation is given a nuance in this case as after the said judgment an application was filed by the respondent asking for a rectification of the judgment. This application for a rectification the applicant argues caused the judgment to become uncertain thereby depriving the applicant a clear and straightforward computation of time within which to appeal.

 

1. I have asked myself whether time had stopped running whilst the rectification application was being made. I have also asked myself whether the judgment was any less a judgment of the court whilst the rectification was being sought. In both instances I have had to answer in the negative.

 

1. No rule has been canvassed before us that will suggest that time within which to appeal should stop running in these circumstances and I know not of any such rule. Also it is my opinion that the judgment remained good and true notwithstanding and during the rectification application. The pith of the judgment was that the mortgaged property would be sold to recover the loaned amount if the latter was not paid. This was not up for rectification and appears quite certain unless appealed against successfully.

 

1.  I have also asked myself whether there was a possibility that the outcome of the rectification ruling could at all have made this applicant satisfied with the judgment and so cause him to give up his quest to appeal. Again I have had to come up with a negative answer. In fact it seems that regardless of what the outcome of the rectification application was going to be the applicant was poised to appeal. 

 

1. In my opinion the applicant had two possible courses of action open to him which could have avoided his present quandary. Firstly, he could have appealed against the judgment within the stipulated time and then later amended that notice of appeal in the event the ruling on the rectification application had made such an amendment necessary (as it turned out there would have been no need).

 

1. Secondly, he could have waited for the rectification order and then using the "uncertainty" as good cause he could have approached the court for enlargement of time within which to appeal (which I dare say would have made quite a compelling case for enlargement). Neither of these paths was taken.

 

1. The applicant has proceeded to file his Notice of Appeal on 25th August 2015 against a judgment dated 6th August 2013. The Notice of Appeal is undoubtedly filed out of time; for it to be within the law, time within which to appeal must first be enlarged. This is exactly what the Hon. Justice Showers JA (as she then was) found and her Ladyship made no error in law in this finding nor when she struck the application off.

 

1. I am of the opinion that to allow this Notice of Appeal to stand, by enlarging the time within which to appeal when the applicant has not asked for this specifically will be to act gratuitously and in direct contravention of the rules, considering especially that the arguments before this panel turned mainly on this very point.

 

1. This point of view finds persuasive support in the Nigerian case of Auto Import Export v Adebayo & Others SC49/1997 where it was opined as follows:

".......failure to file an appeal within the statutory period of time prescribed by law without obtaining an extension of time within which to appeal in accordance with the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate court could lawfully entertain. Such irregularity can by no means be regarded as a mere technicality but constitutes an incurable defect that must deprive the appellate court of jurisdiction....."

 

1. It cannot be denied that this Court has the power to enlarge the time within which to appeal and that it will readily exercise that power in a fitting case when same has been properly invoked. Courts should resist the pull of introducing outcomes different from that which the parties actually asked for and litigated. (see Ayode vs. Spring Bank PLC & Another 2013).

 

1. This applicant did not ask the single justice to enlarge time nor has he asked this panel to do so (neither in his papers nor in his viva voce submissions). To grant enlargement of time suo motto will in my opinion bring an outcome which was not prayed for to bear on the parties. This in my opinion will significantly undermine the time limits fixed by the rules, open the flood gates and generally create room for laissez faire.

 

1. I am also of the considered view that R 66 is not intended to be used to make substantive orders which have not been asked for. This rule (R 66) could be resorted to where there is a minor slip or irregularity in a party's papers but not when there has been such a major and foundational failing as filing out of time and without first seeking for enlargement of time.

 

1. I would Strike out the Notice of Appeal of 25th August 2014 the rest of the orders sought would need no further consideration as there is no subsisting appeal.

 

Ordered as follows;

1. Notice of Appeal dated 25th August 2014 is hereby struck out.

 

1. The applicant  shall bear the costs of the application which will be taxed if not agreed upon by the parties

 

 

 

 

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