CC44/00   2000      A NO. 1

IN THE HIG COURT OF SIERRA LEONE CIVIL JURISDICTION)

ALHAJI BABA ALLIE & OTHERS -                PLAINTIFFS/ RESPONDENTS

VS.

MARCO KOROMA &OTHERS -                 DEFENDANTS/APPLICANTS

RENNER THOMAS & CO.                           For The plaintiff's / Respondents

SERRY KAMAL &CO                                  For The Defendants/Applicants

RULING DELIVERED THIS 7th DAY OF MARCH 2007

D.B. EDWARDS, J. By Notice of Motion dated the 8th day of February 2007 made under action intituled CC44/0 A NO. 1, the Applicants herein, the defendants in the action applied to this Honourable Court for an order that the order of the court dated 25th day of October 2006 and all subsequent proceedings thereto be stayed-pending the hearing and determination of the defendants appeal to the court of appeal. The application was supported by several affidavits viz. the affidavit of Abdul Franklyn Serry Kamal sworn to on the 8th of February 2007 together with the several exhibits referred thereto the supplemental affidavit of Abdul Franklyn Serry Kamal sworn to on the 15th of February 2007 and the exhibit referred thereto and the affidavit of Marco Koroma sworn to on the 6th of February 2007 together with the exhibits referred thereto .

At the hearing of the application on the 28th of February 2007, the solicitor for the Applicants Mr. Abdul Franklyn Serry Kamal sought and was granted leave to use the affidavit of Marco Koroma sworn to on the 6th of February 2007

From the facts before me as gleaned from all documents before this Court, the background leading up to this motion was that in an action for declaration of title instituted at the instance of the plaintiffs, now respondents in this Application, the court presided by the Hon Mr. Justice A B RASCHID now deceased had delivered judgment in favour of the plaintiff's declaring them owners of the two pieces of land delineated in Survey Plan LS 415/99 the full terms of the judgment of which are represented in exhibit AFSK 1 in the affidavit of Abdul Franklyn Serry Kamal sworn to on the 8th of February 2007. The defendants dissatisfied with the said judgment applied to the Court of Appeal. A copy of the said appeal was exhibited in the said affidavit of Abdul Franklyn Serry Kamal as exhibit AFSK2 dated the 2nd November, 2006. Pursuant to Order 28 of the Court of Appeal Rules PN No 29 of 1985 which provides that an appeal does not operate as a stay, the Appellants therein herein defendants /applicants have applied to this court for a stay of execution of the said Order of Justice A B Raschid dated 25th day of October 2006 pending the hearing and determination of their Appeal.

The plaintiff's / respondents opposed the said application their main contention being that the argument of the defendants that the property belonged to the defendants and not the plaintiff's do not amount to special circumstances and that the issue raised as special circumstances in that they fear that the property will be sold before the appeal is concluded was amply addressed by the plaintiffs' willingness to provide an undertaken.

This matter as is expressly indicated concerns stay of execution and the circumstances in which it could be granted. It is well settled by a long line of cases in our courts viz. i) AFRICANA TOKEH VILLAGE LIMITED VS JOHN OBEY DEVELOPMENT INVESTMENT COMPANY LIMITED 26™ APRIL 1994 COURT OF APPEAL MISC APP 2/94 (unreported); ii) PATRICK KOROMA VS SIERRA LEONE HOUSING CORPORATION AND DOLCIE BECKLEY 26TH MAY 2004 COURT OF APPEAL, MISC APP9/94 (unreported);iii) DESMOND LUKE VS BANK OF SIERRA LEONE 14 JULY 2004 COURT OF APPEAL MISC/ APP22/04 (unreported) iv) YUSUFU BUNDU VS MOHAMMED BAILOR JALLOH 23rd JULY 2004 COURT OF APPEAL MISC APP 23/04 (unreported) and v)EVELYN AYO PRATT ADMINITRATRIX OF THE ESTATE OF BETSY ROGERS PARKINSON (DECEASED) INTESTATE VS JACQUILINE CAREW &OTHERS AND ISHEKA DEEN SESAY 14th JULY 2005 COURT OF APPEAL MISC APP 7/05 to name but a few that it is in the discretion of the Court to grant or refuse a stay and that this stay will only be exercised in favour of the applicant where he can convince the court that the special circumstances of the case so warrant.

In HALSBURY'S LAWS OF ENLAND 3rd EDITION VOL16 PARA SJLAT PAGE

35 the wide discretionary powers of the courts and the principle on which it will act when considering an application for a stay of execution were stated thus:

"The Court has an absolute and unfettered discretion as to the granting or refusing of a stay and as to the terms upon which it will grant it , and will as a rule , only grant it if there are special circumstances which most be deposed to in an affidavit"

It is for the applicant to bring or place before the court those facts which he believes constitute special circumstances. But it is for the court to decide whether those facts indeed constitute special circumstances as to warrant it exercising its discretion in favour of granting the application. Each case stand on its own and will depend on its merits . Where the facts are in the opinion of the court special circumstances then stay will be granted and if not stay will be refused.

In its search for what constitutes special circumstances the court would try to consider from the applicant's affidavit(s)

"whether a case has been made out for depriving the plaintiff the benefits of the judgment which he has obtained. It is for the applicant for a stay to make that case before the court."

See the case of WILSON VS CHURCH LR 12 CHANCERY 454 PER LORD GRAHAM PAUL C J.

In the instant case the defendants /applicants have deposed as follows:

1That the defendants appeal stands a good chance of succeeding and that the

plaintiff respondents are not children of the deceased Madam Fatmata Kattah; they are only stepchildren of the deceased estate. The deceased intestate and a grant of letters of administration was obtained by the Administrator and Registrar General. When that grant was obtained the property, which this court found to be the Plaintiffs' property was never declared to be part of her estate. In 1998 when the further grant was obtained by the Administrator and Registrar General for Sierra Leone after a previous action commenced by them in the High Court had failed this property which has been in full free and uninterrupted adverse possession of the defendants was declared to be part of her estate.

2. That per instructions the defendants /applicants were born on this land and they had lived on it continuously for over forty five years and that their father before them resided on this land for over 60 years before his death.

3. That the plaintiff's have never lived or had any permanent residence in the property declared to be theirs and that what was rightfully theirs they had sold to two sets of purchasers with true copies of such conveyances exhibited as MK 1 &MK 2 respectively.

4 That recently they have seen a lot of people looking around this property and making                                 

5 That the appeal will be rendered nugatory if the property is sold before the appeal is heard and determined.

The affidavit in opposition, on the other hand, disclosed that the property occupied by the defendants forms part of the plaintiff's property and that this was so decided by the court in the judgment of the court dated 25th October 2006; that they have consulted together and under no circumstances did they send any one on the land to look at it for the purpose of sale of it; that they are willing to give an undertaking to the court that they will not sell or dispose of the land until the conclusion of the appeal by the defendants; that there are people on the land which the court adjudged to be theirs and that they are not paying rent to them but the defendants.

The question is do any of these facts as deposed by the defendants /applicants constitute facts which the courts invoking it discretionary powers could properly regard as special circumstances?

Both counsels argued in favour of their respective depositions and made their submissions. I have considered keenly the various arguments by both parties for and against the stay of execution. It is my opinion that what could have been special circumstances have been carefully addressed by the plaintiffs. This was the issue of the fear of sale and the likelihood of sale before the appeal is concluded. In the case of ATKINS VSGW RAILWAY(1886) TIMES LAW REPORT AT P400 it was held that.

"As a general rule the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid there is no reasonable probability of getting them back if the appeal succeeds"

Taking the inference from this case, in the case of land matters it would seem to me that what would amount to special circumstances must be such that would put the applicant in danger of losing the land, the subject of the appeal. Thus to sell the land would mean that the appellant if he succeeds would lose or could have lost the land and would of necessity have to fight a 3rd party bonafide purchaser for value without notice in order to secure the land. Thereby his appeal would have been made nugatory. As things stand as evinced from the plaintiffs'/ respondents' affidavits despite their being successful they are ready willing able to give an undertaken that they would not sell . I think what this does is to make this very application nugatory in that there is no reason for ordering a stay of execution, not even on terms as the other issues raised in the combined affidavits quite clearly relate to matters for consideration by the appeal court and clearly do not amount to special circumstances .I would definitely refrain from commenting on the appeal itself.

Furthermore, the effect of an undertaken of the kind proposed by the plaintiff's at their own instance is to make the land declared to be theirs by the Hon Justice A B Raschid now deceased premises which can not be dissipated prior to the hearing and determination of defendants /applicants appeal. If the appeal is successful they would be sure of getting back exactly the entire acreage of property declared not to be theirs .

Against the foregoing, I have advised myself to exercise the discretion in favour of refusing a stay of execution.                 

The Defendants will in the circumstances be well advised to prosecute their appeal in the court of appeal with diligent expedition which I note was quite lacking in the way they did this application from the numerous adjournments at their instance and re applications that had to be made in order to get this matter underway and to conclusion.

I therefore order as follows:

1. Stay of execution is refused.

2. That the costs of this application be taxed if not agreed.

3. That the plaintiff's /respondents gives and files an undertaken that they will not sell any portion of the land in question pending the hearing and determination of the defendants appeal and that the same be served on the Administrator and Registrar General and the Director of Surveys and Lands.

4. That by this order and by the said undertaken this court forbids the Administrator and Registrar General to register any document respecting sale of the land in question pending the hearing and determination of the Appeal

5. That by this order and the said undertaken this court forbids the Director of Surveys and Lands to do any surveys respecting the said land pending the hearing and determination of the appeal.

Hon. Mr. Justice D.B. Edwards J.