GIBSON v SONGU-MBRIWA and Another (CC 266/06) [2008] SLHC 18 (05 December 2008);

CC 266/06                     2006                          G No. 3



(Suing as Administratrix of the Estate of MRS REBECCA GIBSON) (Deceased Intestate)                   - PLAINTIFF


MRS FATU SONGU-MBRIWA                                                                                                         - DEFENDANTS


ALHAJI KAMARA Esq for Plaintiff SAHID SESAY Esq for Defendants JUDGMENT

1.  This is an Action brought by the Plaintiff as Administratrix of the estate of MRS REBECCA GIBSON, deceased intestate, firstly, against the 1st Defendant, and later, after Joinder had been Ordered by the Court, against both Defendants. The original Writ of Summons was issued on 6 March,2006. Joinder was Ordered by this Court on 4 May,2006, on the Application of the 1st Defendant. The amended Writ was issued on 19 May,2006 and filed on 22 May,2006. The Plaintiff is a daughter of the deceased intestate. The 2nd Defendant is the elder sister of the Plaintiff.

2. In the Writ, the Plaintiff claims Possession of property situate at, and known as 66A Wilkinson Road, Freetown which forms part of the estate of the deceased intestate; an account of rents collected with effect from 24 September,2001 until delivery up of possession; an Order that the rents so collected be shared equally among the beneficiaries of the. estate of the deceased intestate; further or other relief; and the Costs of the Action.

3. In the joint Defence filed on behalf of the Defendants on 19 June,2006, the Defendants aver that the Plaintiff did not issue a Citation to the 2nd Defendant, her elder sister, before Obtaining the Grant from the Court. That she has no authority to ask the 1st Defendant to quit the property at Wilkinson Road. That the property leased to the 2nd Defendant was built, at the behest of the 2nd Defendant, by a previous tenant, MRS SAWYERR. And that the 1st Defendant's Tenancy still has 9 years to run.


In her Reply, filed on 22 June,2006, the Plaintiff joined issue with the Defendants.

4. Prior to the filing of the Defence, the Plaintiff had entered the Action for Trial on 11 May,2006 by Memorandum dated 1 May,2006.

5.  On 5 October,2006, on Application made by the Plaintiff, SHOWER,J gave directions for the future conduct of the trial. There is also in the Court file, a Defence filed on behalf of the 2nd Defendant that same day, 5 October,2006. It does not appear however, that an Order was sought from this Court to file the same out of time.

6. The minutes of the proceedings as recorded by SHOWERS,J show that on 5 February,2007 MR SERRY-KAMAL, Counsel for the Defendants, informed the Court that the 2nd Defendant had passed away. He is recorded a having said: "the second defendant has recently died. I am requesting a date in February,2007 to enable steps to be taken. I suggest Monday 19th February,2007." The Matter was then adjourned to that date.

7. No further proceedings were taken, and on 8 March,2007 SHOWERS,J adjourned the matter sine die. It is not clear what was adjourned sine die, as the trial had not yet commenced. Directions had been given on 5 October,2006 by the Court, but they were to say the least, imprecise: the Plaintiff merely got what she had asked for: no time limits were specified for the doing of any act or thing. There the matter rested until 7 April,2008 when the matter, after being assigned to me, came up for hearing before me. The parties were absent and unrepresented. I Ordered that Notices be served on the respective Solicitors, and adjourned the matter to 15 April.2008. On that date, MR KAMARA appeared as Counsel for the Plaintiff; the Defendants were 2 unrepresented. MR KAMARA had yet to file a Notice that he had been appointed Solicitor in the matter. I therefore adjourned the hearing sine die, once more.

8. On22 April,2008 when MR KAMARA filed a Notice of Change of Solicitors; and on 23 April,2008 he filed an Application for the Action to be relisted for hearing. That Application was heard by me on 9 May,2008. I Ordered that it be relisted for hearing on 21 April,2008. On the adjourned date, MR KAMARA appeared for the Plaintiff; and MR SM SESAY appeared for the Defendants. I gave both parties, one month to comply with the Order of 5 October,2006, vague though it might be. I adjourned to 27 June,2008 to see whether anything would have been done either , or both sides.

9. On 18 June,2008 the Plaintiff filed her Court Bundle. When the matter came up before me again on 27 June,2008, MR KAMARA brought this to my attention, and also drew my attention to the lapse on the part of the Defendants. I advised that, in order to save time, he address a letter to the Defendants' Solicitors, reminding them of the lapse. On the next adjourned date, 4 July,2008 MR KAMARA informed the Court that he had indeed addressed a letter to Defendants' Solicitors on 1 July,2008 but that he had heard no response from them. On 14 July,2008 being the last day of the Trinity Term, I adjourned the hearing to 23 September,2008. On that date, MR KAMARA applied orally, for an Order under Order 28 Rule 2(5) of the High Court Rules,2007 for the Defendants' Defence to be struck out, and for Judgment to be entered for the Plaintiff. I advised that he should do so by way of Notice of Motion. A Notice of Motion was duly filed by him on 2 October,2008. The Motion is supported by an affidavit deposed to by himself. Exhibited to it as "AMK1" to "AMK15", are all the important pleadings, Orders and Notices and other documents which have been filed in the Registry. "AMK16" is a copy of an undated letter addressed by MR KAMARA to Messrs SERRY-KAMAL & CO, Solicitors for the Defendants. In paragraph 14 of his affidavit, MR KAMARA claims it was dated 1 Juiy,2008.

10.I heard MR KAMARA's Application on 6 October,2008 and then reserved Judgment.

11. Order 28 Rule 2(5) provides that "if either party fails to comply with the order as required by sub-rule (4), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly." Sub-rule (4) provides that: "on the hearing of the Summons for Directions, the Court shall give directions on all matters which by this Order are required to be considered on the hearing of a summons for directions......and the summons shall be adjourned to a date after the deadline fixed for compliance with that order; and no date shall be fixed for the trial of the action until there has been total compliance with the order made by the Court at such hearing." No deadline was set in the Order of 5 October,2006 for complying with any of the directions given therein. The Plaintiff did not ask for one; the Court did not grant one. Though I accept that this does


not mean that the Defendants should not at any time comply with that order, it means that this Court cannot, in the exercise of its discretion, throw the Defendants' respective cases out for non-compliance with an Order which had no time limit. The Plaintiff should have asked for a resumed hearing of the Summons in order to rectify the deficiency. She did not do this.

12. There is the added obstacle to acceding to the Plaintiff's prayer for Judgment on the Pleadings. The Court is seised of the fact, though unconfirmed by documentary evidence, that the 2nd Defendant died sometime in early 2007. The Court cannot ignore this piece of information coming from that Defendant's Counsel, presently the Attorney-General & Minister of Justice. Order 18 Rule 9 et seq, sets out the procedure to be followed when this happens. This Court cannot pronounce Judgment against a Defendant it has been informed, though not formally, is deceased.

13. In the result, and in the exercise of this Court's discretion, I would, refrain from giving Judgment in favour of the Plaintiff on the basis of non-compliance with the Order of this Court of 5 October,2006

14.I ORDER that the Plaintiff issue, file and serve a fresh Summons, seeking directions on all the issues I have raised above: time limits for doing any thing or taking any action; confirmation that the 2nd Defendant is indeed dead; and if so, substitution of another person for the deceased 2nd Defendant; in the event that the 2nd Defendant did not die testate, and no person applies for a Grant to be made to administer her estate, the proper person to be substituted in her stead. This is an important issue, in view of the fact that the Plaintiff is sister to the deceased 2nd Defendant, and in view of the provisions of Rule 9 of Order 18.

15. The Plaintiff's Application for Judgment is therefore dismissed: I make no Order as to Costs, as the Plaintiff was not at fault in applying for Judgment to be entered in her favour. The Court may have, inadvertently, given her cause to believe that her Application would meet with its approbation. But after reviewing all that has transpired, it is clear this cannot be done.

N C. BROWNE-MARKE Justice of Appeal 5 December ,2008