CC. 33/08                                 2008                                          B NO1

IN THE HIGH COURT OF SIERRA LEONE COMMERCIAL AND ADMIRALTY

BETWEEN: -

BEIJIN URBAN CONSTRUCTION

GROUP LIMITED (CARRYING ON

BUSINESS AS( "BENTUMANI HOTEL")           - PLAINTIFF

AND

CLARENCE BLANKSO.N                   - 1st DEFENDANT

RICHARD OWIREDU                            - 2ND DEFENDANT

RANSFORD JOHNSON FOR THE PLAINTIFF / RESPONDENT

SAHID MOHAMED SESAY - For the 2nd DEFENDANT /APPLICANT

RULING DELIVERED THIS 4TH DAY OF APRIL 2008.

D.B. EDWARDS, J. By Notice of Motion dated 25th MARCH 2008 made under action intituled CC33/08 BNO 1, the 2nd Defendant in this action applied to this Honourable Court for the following orders:

1. That leave be granted to the 2nd Defendant /Applicant to appeal to the Court of Appeal against the order of this Honourable Court dated the 22nd day of January 2008 and an enlargement of time within which to do so the time limited for doing so having expired.

2. That execution of the order of this Honourable Court dated 22nd of January 2008 and all subsequent proceedings be stayed pending the hearing and determination of this application.

3.  That execution of the order of this Honourable Court dated 22nd of January 2008 and all subsequent proceedings be stayed pending the hearing and determination of the 2nd defendant/Applicant's Appeal to the Court of Appeal of Sierra Leone.

4. Any further order that this Court shall deem just and expedient.

5. That the costs of and incidental to this Application be costs in the cause

I have particularly noted the orders prayed for in this application and the affidavits in support of same which are those swom to on the 25th by the 2nd defendant's solicitor and the second defendant himself and the supplemental affidavit sworn to by the defendant's solicitor on the 26th of March. I have also noted with keen interest the arguments of the

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2nd defendant's solicitor particularly that relating to what he termed the inadvertence of the previous solicitors which on the authority of GATTI VS SHOOSMTTH CA 1939 ALL ER PAGE 916-920 gives this court discretion to extend time for the appeal. The plaintiff's solicitor has vehemently opposed the application, in particular, noting that it was flawed ab initio. The plaintiff has also filed an affidavit in opposition sworn to on the 31st of March 2008

Having considered all, I should conclude that central to this application is whether this court has power to entertain the said application. The 2nd defendant's solicitor did categorically state that all they want is an opportunity to appeal against the order of. this Court dated 22nd January 20008. It is usually the right of a losing party to appeal against the order of a Judge but for him to do so that person has specific directions as to how and when he could do so. First of all because it is an Order of the Court he must seek the leave of the Court to appeal

Secondly, as per rule 10 (1) of the Court of Appeal rules as amended by Constitional Instrument No 1 of 2003 he must apply to the court below (that is to the court that made the order) within 14days of the order unless that Court enlarges time .

Further order 10(2) & (4)of the Court of appeal rules provides as follows:

2. Any Application for leave to appeal or for enlargement of time which an application for leave to appeal may be made shall be supported by an affidavit setting forth good and sufficient reasons for the application and by proposed grounds of appeal which prima facie show good cause for leave to appeal or for enlargement of time within which to apply for such leave to be granted.

4. No application for enlargement of time within which to appeal for leave to appeal shall be made after the expiration of the 14 days from the expiration of the time prescribed within which an application for leave to appeal may be made.

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The purport of RULES 10(1) (2)(4) and 11(1) is that the aggrieved party has 14days from the order to seek leave to appeal unless the court enlarges time and if per chance that person is unable for reasons beyond him to so apply and seek leave to appeal then he has another 14 days which begins to run from the expiration of the time prescribed within which an application for leave to appeal may be made( i.e. after the 14th day from the Order for which leave is sought to appeal against). So in all the person has at the most 28 days from the order after which unless the application for enlargement of time was made within the second 14days it becomes impossible for this court to enlarge time or entertain an application to enlarge time within which to apply for leave to appeal. What this means is that the 1st 14 days you can seek leave to appeal with no enlargement of time; the second 14 days you must ask for enlargement of time; after the second 14 days you could never seek leave to appeal. Rule 10(4) is a mandatory provision ousting the court of any jurisdiction whatsoever where it has not been adhered to .

In this particular case the application for enlargement of time, if at all, is being made on the 25th of March 2008 when the Order for which he is seeking enlargement of time to appeal against, was made on the 22nd of January 2008; this is almost 2 (two) months after the Order for which the 2nd defendant is seeking enlargement of time to seek leave to Appeal, and clearly, noting rule 10(4) of the Court of Appeal Rules PN 29 OF 1985, clearly out of time. There is no provision in our rules for enlargement of time beyond the time allowed i.e. beyond the second 14days after the 1st 14 days has expired; but mis is what the 2nd defendant is asking this court to do. This court therefore has no jurisdiction to hear this application. For this court to hear and determine such application for enlargement of time the application must be made latest within the second 14 days and depending on the cogency and soundness of the application this court would be empowered to prescribe time way beyond the last day of the second 14days a time at which the application for leave to appeal could be made to the court .What these rules are saying is that an aggrieved defendant must within a 28day period from the date of the order decide whether they are appealing or otherwise forget about or lose all chance of appealing against the order. GATTI VS SHOOSMITH CA 1939 ALL ER PAGE 916-920 on which the 2nd defendant's solicitor is placing heavy reliance on is in applicable

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here because the rules therein and rule 10(4) are different as the latter does not give discretion to this court and also the facts are different.

On this issue as to whether you can apply for enlargement of time as well as for leave to appeal I should think that the fact that the court would have to fix a time during which the application for leave to Appeal could be made and the fact that the applicant would have to exhibit the order granting the enlargement of time in the application for leave to appeal and more so the fact that rule 10(2) adopts the disjunctive "or" rather than the conjunctive "and" in innumerating the 2 separate applications that carry similar requirement under rule 10 (2) makes it clear that you must seek enlargement of time before seeking leave to appeal.

Even if this court were prepared to accept the argument of the 2nd defendant's solicitor that they could be done together in one application surely it must be couched in such a way in the orders prayed as to suggest that this is what you are seeking first before the leave to appeal i.e. you seek separately for enlargement of time as your first order and providing it is accepted then the other orders. This is not what has been done here by the 2nd defendant's solicitor stating

"That leave be granted to the 2nd Defendant /Applicant to appeal to the Court of Appeal against the order of this Honourable Court dated the 22ttd day of January 2008 and an enlargement of time within which to do so the time limited for doing so having expired" Here worse still he puts the cart before the horse even in the one order

The plaintiff's solicitor accepts that time has expired but yet still makes the application. How unfortunate in view of rule 10 sub rule 4 of the Court of Appeal rules herein before mentioned.

The court in such circumstances where the application is made within 28 days could well have been prepared to lean back wards to accommodate and dismantle what appears to be a mere technicality of some sort which should not render the application irregular, if one

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takes the case of RUSSEL VS KOMBE (1962) SLLR into consideration or simply in the interest of justice & take substance over form. In such situations there must have to be compelling reasons for the court to lean backwards. But in this case, I note that the application was not just joined but worse still not made within the 28 days rule or deadline. I should think that in such circumstances, the application, particularly with the 2na defendant having noted that it was an interlocutory order, was not well advised, fundamentally flawed and not before this court. The application for enlargement of time ought not to have been made and is therefore refused. Where it is refused the other Orders prayed for i.e leave to appeal and stay of execution pending leave to appeal goes, wastes or fails in the ordinary course of events as it becomes impossible for you to seek leave to appeal and apply for stay pending the appeal where there could be no appeal as the appeal is out of time. In short, all the arguments relating to why leave ought to be granted to appeal or why stay ought to be granted, even if convincing and /or persuasive, which I dare say was not the case in this current application, becomes irrelevant and destitute of the desired effect

This scenario may not be palatable to the 2nd defendant, but this is the law, and the situation imposed on him not by this court but through the failure of his lawyer to challenge the order of the court while there was time.

As I stated in the case of STATECH ELECTRICALS AND GENERAL SUPPLIERS CC533/06 UNREPORTED

"a Solicitor is paid to represent his/her client and he undoubtedly owes a duty to his clients and to the court to conduct the action with reasonable expedition. Where be/ or she fails to so, or lapses in doing what he / she should of necessity do the client suffers, no matter what" .

Having said this, one must not lose sight that the previous solicitors might have seen that there is no ground in the appeal in the first hence their so called indolence or so called inadvertence . Against this back ground, this court orders as follows;

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1.  Application by Notice of motion dated 25th March 2008 for the orders prayed on the face of it is dismissed with costs.

2. Costs to be taxed

Hon Mr. Desmond Babatunde Edwards J

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