Mohier Enterprise & Mr Adel Mullah & Others (54) [2016] SLCA 54 (24 March 2016);

Counsel for Defendant: 

Ms I Jalloh

Counsel for Plaintiff: 

Ms T A Jabbi

Civ. App 54/2015

                                                                                IN THE COURT OF APPEAL OF SIERRA LEONE

 

MOHEIR ENTERPRISES                                   -                                   Plaintiff/Respondent

(Suing by its Attorney Alhaji Kareem Yansaneh)

                        AND

MR. ADEL MULLAH                                        -                                   1st Defendant /Appellant

MR MOHAMED MULLAH                               -                                   2nd Defendant/Appellant

both trading as General Marketing Company SL Ltd.

GENERAL MARKETING COMPANY SL LIMITED -                              3rd Defendant/Appellant

 

 

PRESIDING;

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

Counsel;

T. A Jabbi Ms. of Jabbi Associates for the Appellant/Applicant

I. Jalloh Ms. of Macauley Bangura & Co for the Respondent

 

RULING dated 24th March 2016

 

  1. The Applicant/Appellants primarily seek a stay of the execution of the judgment/ruling of the Hon Justice Alusine Sesay J. dated 23rd October 2015 as well as a stay of all and any  proceedings which may be pending before said Judge such stay to last whilst the appellants' appeal before this court is heard and determined.

 

  1. Prior to approaching this court for the mentioned orders the applicants had applied to the court below for similar orders and the Hon Justice Alusine Sesay J had on 24th February 2016 granted the orders but had done so on the following terms;

 

            i.          That the applicants pay the sum of $40,000 in an interest bearing account                                    in one of the commercial banks in Freetown within 14 days

            ii.         that the applicants shall enter a bond guaranteeing the payment to the                             Respondent of the rest of the judgment debt and interest within 14 days                           etc

  1.  The principles upon which a court will grant a stay of execution are not being called to question in this application by either side. However the following passages from the case of Firetex International Co. Ltd. vs. Sierra Leone External Telecommunications Ltd. Misc. App. 19/02) are illustrative of these principles:

 

            "The general rule is that a stay of execution will be granted upon proof of prima facie good ground of appeal and the existence of special or exceptional          circumstances. The onus is on the applicant to show by affidavit evidence that the two requirements do exist."

            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"

  1. In the Firetex case the court found fault with an order which allowed partial execution of the judgment which was sought to be stayed. The court found that the term upon which the Stay of Execution is granted ought properly to  be distinguishable from the judgment itself.  The Hon. Justice TollaThompson JA referring favorably to the case Adama Mansaray v. Brima Mansaray Civ. App. 37/84 unreported  said that "the order which purported to grant a stay of execution was in law and in fact not a stay of execution of the judgment since it ordered compliance with the judgment"

 

  1. I have already mentioned that a stay of execution on terms had been granted by the court below in this matter. It should be mentioned also that the terms upon which that stay of execution was granted do not commit the fault recently mentioned. In fact the terms are in my estimation modeled quite strictly after the fashion and style used in the Firetex case. It seems to me that the issue to be decided is whether the terms upon which the stay was granted are onerous and therefore render the "stay of execution" itself a mere academic pronouncement.

 

  1. The applicant argues with great passion that the terms on which the stay of execution were granted are onerous and it is this posture that has made necessary  the application dated 11th March 2016 which otherwise may not have been filed at all.

 

  1. Counsel on either have assisted the court with thoughts and submissions of what constitutes "onerous-ness". What makes a term onerous? I have repeatedly asked whether it is merely the difficulty to satisfy a term that makes it onerous? Is it the difficulty which the particular person encounters in satisfying it? Or is there an intrinsic quality to it which is objective and completely independent of the persons and circumstances in which the term exists.

 

  1.  The applicant has urged that he cannot meet the first term ie pay into a commercial  bank the sum of $ 40,000. He has exhibited his bank statement to illustrate his present impecunious situation. He also presses the point that in the absence of a stay without this "onerous" term the employment of his staff are at risk as his business may very well go burst with the consequence of him having to let his staff go.

 

  1. I do not think that it is the inability to comply with a term that would make it legally onerous. Terms after all are imposed as a safe guard - bearing in mind that one party has in hand a judgment which he ought not be lightly deprived off, in the absence of a successful appeal. Whether a term is onerous would therefore be a reflection of the whole of the circumstances including the judgment.

 

  1. I have asked myself which would work greater hardship on the applicant : on the one hand,  the execution of the full judgment the fruits of which the respondent is entitled or on the other hand, the present terms upon which the stay of execution has been granted. I think the former presents a more fearsome prospect and the term imposed pales in comparism. If that is so then it is difficult to conclude that the term is unfair and or oppressive or in other words onerous.

   

  1. The applicant has not shown the steps he has taken to comply with the orders of the court. He has not paid the money into the bank nor has he executed a bond for the balance. Submissions have been made to the effect that the applicant has raised the sum of $10,000 towards satisfying the term imposed. However there is no evidence to show that the money is there and for the indicated purpose (except for Counsel's word which given from the bar is received with great respect).

 

  1. Courts ought not to act in vain and it behoves all ministers of justice on either side of the bar to ensure that judgments, rulings and orders are treated with the seriousness which they deserve and that they be obeyed. I note that the terms were imposed on the 24th February 2016 and the fourteen days granted were to expire on or around the 10th/11th March 2016. I also note the promptness with which the present application has been filed so as to be within the time limits stated.

 

  1. Nonetheless, I do not think the terms granted are onerous in an oppressive and unfair sense but I do find that the defendant appears to be stressed out by them in no small measure. I have reviewed the difficulties that the applicant has submitted he is presently challenged with but I do not find his situation any more different from that which is to be expected from a person faced with a judgment of this kind. He needs to show something more; something 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) 

 

  1. Similarly I am reminded that Sir John Muria J. (Luke v. Bank of Sierra Leone unreported) had cautioned against paying undue heed to considerations which are of a "moral, social and political” character. I find that the applicant’s concerns ie insufficient funds, risk of employees losing their positions and the fact of the other party being resident abroad all fit very well as "moral"  and or "social" considerations which whilst they may have a sympathetic ring they are lackluster in the eyes of the law.

 

  1. I have also considered the submissions made on Wilson v Church 1878 and I opine that there is very little risk if any that the appeal herein may be rendered nugatory. In the event that the appeal is successful any amounts paid will be recoverable from the account into which they had been paid. This account shall not be solely operated by the applicant but rather jointly by the parties or their nominees and the Master and Registrar. Any two to sign and I order accordingly.

 

In the circumstances I confirm the orders and terms already granted by the Honorable Mr. Justice Alusine Sesay J (as he then was).

 

The application is refused. Costs to be taxed if not agreed

 

 

Reginald Sydney Fynn J A.............................................................