RULING

Delivered this 6th day of July 2004.                                    

 

 

 

MURIA, TEJAN-JALLOH JJA, DOHERTY J: The substantive appeal in this matter had been dismissed on 2nd June 2004.  By a  Notice  of  Motion,  Counsel for the  appellant  seeks  to  have  the  appeal  re-entered  for  hearing  relying on rule

24(2) of the Court of Appeal Rules, 1985.   In the alternative, Counsel seeks to

 

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have the order dismissing the appeal on 2nd
 

June 2004, set aside and re-enter

 

the appeal for hearing pursuant to Rule 26(1) of the Court of Appeal Rules, 1985 In Court, Counsel for the appellant accepted the "blame in this matter" which we take  that to mean that Counsel  accepted his failure to attend the hearing  on  2nd

June 2004, resulting in the Court hearing only the respondent and dismissing the

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appeal.   The supporting affidavit in this application filed by the appellant herself

explained why  she was  not  able to come to  Court  on  2nd June 2004. She said

 

 

 

 

• She was ill. Counsel on the other hand did file also an affidavit explaining his absence and accepted the blame for what had happened on 2nd June 2004. Counsel asked the Court's indulgence for his client's sake.

 

Counsel for first respondent who appeared and argued his case for his clients on 2nd June 2004, urged the Court to dismiss the application, as the appeal was heard and considered on the merit before dismissing it. Counsel submitted that Section 70 of the Courts Act, 1965 applies here and that the only option for the appellant is to appeal to the Supreme Court. Rules 24(2) and 26(1) of the Court of Appeal rules, argued Counsel, did not apply.

 

Before we deal with arguments urged upon us by Counsel we set out the sequence of events leading up to the Order of 2nd June 2004. The case commenced  in  the  High  Court  by  an  originating  summons  on  4t th  March  1987 taken out by the Plaintiff (now the first Respondent) against Eunice James (First defendant now second Respondent), Vivat Davies (second Defendant and now Appellant) and Lucy Agbaji (third Defendant now third Respondent). The present Counsel for the appellant was then also acting for the second defendant (now appellant). The first Respondent (then Plaintiff) was represented by Mr. Nylander. The case was first listed for hearing on 28th October 1987 and after

numerous adjournments  it was finally determined  on 7th June  1989.  We note that

80% of the adjournments were due to absences of Counsel. We note with particular interest that the order for the sale of the property at 22 Sibthorpe Street, Freetown by private treaty, and not by public auction was made by the learned trial Judge on 2nd February 1988. By that Order also, the Master and Registrar was to appoint an independent valuer to assess the then current value of the property. 'There was no challenge to that order of 2nd February 1988. The parties did not come back to the Court until one year later, when on 6th March 1989 the Plaintiff applied for an Order that a reserved price be put on the value of the property.  After several adjournments, the learned trial Judge on 7th June 1989 gave his ruling on the questions sought in the originating summons. Among

 

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...
 

 

 

other things, confirming his earlier order that the property be  sold  by  private treaty rather than by public auction, and fixing the reserved price of  Le.100,000.00 below which the property must not be sold.

 

The second Defendant/Appellant by her notice of appeal dated 27th June 1989 appealed against the order of the High Court and on 22nd June 1989 filed an application  for  Stay  of  Execution  of  the  Order  of  the  High  Court  dated  7th   June 1989. It was not until the 7th December 1989 that a Stay of Execution of the High Court judgment was granted by the Court of Appeal. In the meantime an interested buyer, Madam Aminata Bangura, had made an offer of Le.300,000.00 for the property for which she paid Le.200, 000.00 as deposit pending approval  by the Court. Approval was given by the Court and the purchaser paid the balance of Le100, 000.00 on or about late November 1989. Thus by the 7th December 1989 when the Court of Appeal granted a Stay of Execution, the purchaser had already paid the full price for the property approved by the High Court. From November 1989 to the present day, the purchaser of the property remains waiting for the result of this case.

 

The next set of events occurred about one year later again.  By an Order dated 13th November 1990, the appellant's appeal was dismissed pursuant to Rule 16(1) by the Court of Appeal for non-compliance with the requirements of Rules 13(4) and 14 of the Court of Appeal Rules, 1985. The appellant applied on 14th March 1991 to the Court of Appeal to set aside its Order of 13th November 1990 and restore the appeal to the list pursuant to Rule 16(3) of the Court of Appeal Rules. The application was granted the appeal was restored. Since the appeal was restored, it had come before the Court of Appeal and adjourned at least 27 times (four times in 1993, eight times in 1994, fourteen  times in 1995 and once  in 1996) before it was adjourned sine die on 15th February 1996.

 

The matter was resurrected eight years later. this year 2004 and was  listed before  the  Court  of  Appeal at  the  Guma  Building  on  31st March 2004. For

 

 

 

reasons assigned thereto, their Lordships were not able to proceed to deal with  the appeal. Subsequently, the appeal had been re-assigned and listed before this Panel of the Court on 3th April 2004. The appeal came before us on 3th April 2004 for mention. The direction hearing was done on 23rd April 2004 and then adjourned for hearing on 19th May 2004. It was further adjourned to 26th May 2004 at which time Counsel for Appellant had to attend to a matter at the Special Court. The appeal was adjourned to 2nd June 2004. The Court had said that there would be no further adjournment. On the 2nd June 2004 the appeal was called. There was no appearance for the Appellant nor was the appellant herself present Mr.  Browne-Marke appeared for the first Respondent. The purchaser (Aminata Bangura) was in Court also. As the case was adjourned to the 2nd June 2004 for hearing and the Court indicating earlier that there would be no further adjournment, Counsel for the first Respondent argued the case for the first respondent, orally as well as relying on his synopsis of argument a copy of which had  been  filed with the Court. Apart from being absent, Counsel for the Appellant also did not lodge any synopsis of argument, for his client as earlier directed by the Court. Having heard Counsel for the Respondent and having considered the appellant's grounds of appeal, the Court dismissed the appeal.

 

The principles governing re-hearing of an appeal or application by the Court of Appeal are well settled. The Court of Appeal has power to alter the Court's decision before its order has been perfected but it has no power to rehear an appeal  after its order has been passed and entered:  Hession  v Jones  (1914) 2 KB 421. Where, however, the appeal has been struck out or dismissed for non-appearance of the appellant, the Court of Appeal has inherent jurisdiction to reinstate tile appeal for rehearing: Brooksband v Rawsthome and Co.  (1951)  2 All England Reports 413. With those principles in mind, we now turn to the contentions of Counsel in this application.

 

 

 

Rule 24(2) of the Court of Appeal Rules.

Mr. Jenkins-Johnston .of Counsel for the Appellant contends that Rule 24(2) of the Court of Appeal Rules gives power to this Court to order re-entry of the dismissed notice of appeal for re-hearing. That rule provides:

 

"24(2) where an appeal has been struck out owing to the

non-appearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing".

 

There is no ambiguity in the wording of that rule which applies to a situation where an appeal. SeeBrooksbae.  The position in this appeal is different.  In this case, the appeal was adjourned to 2nd June 2004 to be heard on its merit. The Court heard the respondent as well as considered the appellant's grounds of appeal, dismissed the appeal and ordered costs of Le.500, 000.00 against the appellant. The order of the Court was drawn up and signed on the same day. It was not struck out or dismissed for non-appearance of the appellant. This is a final

wishes.

judgment and the only option left for the appellant is to appeal to the Supreme Court if she wishes.    Rule 24(2) does not apply in this case and this Court has no power to direct a re-entry for hearing of an appeal that has been dismissed on  the merit. See Hession v Jones (above).

 

The appellant further relies on Rule 26(1) of the, Court of Appeal Rules. That rule provides:

 

26(1) where an appeal has been heard ex parte under rule 25 and any judgment has been given therein adverse to the Respondent, he may apply to the Court to sit aside that judgment and to rehear the appeal".

 

 

 

 

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Again the language of that rule is plain and unambiguous. It gives the Respondent the right to apply to set aside in adverse judgment made by the Court under Rule 25 (proceedings ex parte for nonappearance of the respondent). That is-not the case here where it was the appellant herself or by her Counsel did not appear when the appeal was called on and heard. The appellant can take no comfort under Rule 26(1) of Court of Appeal Rules.

 

Lastly, the appellant sought to rely on Rule 66 of the Court of Appeal Rules which

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provides that:

 

 

"66. Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force shall not prevent the further prosecution of his appeal if the

Court considers that the non-compliance was not willful and that it is in the interest of justice that the non-compliance

should be waived. The Court may in such manner as it thinks fit, direct the appellant to remedy the non-compliance, and thereupon, the appeal shall proceed. The Registrar shall forthwith notify the appellant of any directions given by the

Court under this rule where the appellant was not present at the

time when those directions were given."

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The above rule in our respectful view, applies only to a case where an appellant fails to comply with a provision or provisions of the rules on the practice of the Court on appeals and such non-compliance may be waived by the Court in order to allow the appellant to further prosecute his appeal. However, Rule 66 goes further requiring the applicant to satisfy the Court that the non-compliance was not willful and that it is in the interest of justice that the non-compliance should be waived. This rule entitles the Court to look at circumstances of the case as well

• as the manner in which the parties conduct the case before the Court to assist it

In determining the questions of willfulness and justice of the case.

 

 

 

With respect, the present case is not one of non-compliance with the rules which may be waived. This is a case of the appellant failing to appear  to substantiate her appeal when called upon at the hearing of the appeal.  But even if there was an issue of non-compliance with the rules, the appellant has to satisfy the Court that the non-compliance was not willful and that it is in the interest of justice to waive the non-compliance. The Court would be bound to look at the whole circumstances of the case and conduct of appeal by the parties.  Regrettably, when one looks at the circumstances and conduct of the case, both in the Court below  and  in  this  court,  the  manner  in  which  this  case  has  been conducted throughout has  been very unsatisfactory.  The case has been allowed to linger on in the Courts for 17 years (High Court, 2 years and Court of Appeal, 15 years) not because there is any merit in the appeal, but simply because the Courts have been too keen to grant adjournments whenever asked for. This in our respectful view is bordering on an abuse of the process of the Court and an injustice to all the parties, including the appellant, but more so, the bona fide purchaser who pursuant to the Order of the Court, paid for the property only to wait for 14 years and 8 months (to date) to receive the property she had paid for. We all know of the salutary principle that justice delay is justice denied.  The present case is in our view an instance of such a case. The Court is under a duty to ensure that parties coming before it obtain justice within a reasonable time.  Legal practitioners are equally under the same obligation. We are of the firm view that the justice of this case is in the achievement of finality of litigation, a principle that the Courts must be vigilant in applying it.  We must apply it in this case and we do so. His Lordship Gelaga-King JA had this in mind when he reiterated the maxim.  Interest reipublicae ut sit finis litium".  Mohamed Fofanah v Mohamed S.Turay (4th March 1988) Court of Appeal, Misc.App.40/87 (unreported).

 

 

With respect, the Court agrees with Counsel for the Respondent that Section 70 of the Courts Act 1965 applies here and the only option left for the appellant is to take her case further to the Supreme Court by way of an appeal.  In this Court, the appeal has been decided finally.

 

 

 

 

 

The application for the Orders sought in this case must be refused and the orders sought are accordingly refused.