RULING DELIVERED ON THEQ DAY OF JUNE 2020

 

Glenna Thompson JSC

 

1. The genesis of this matter has been elaborately explained in the judgement of this court delivered on the 21st January 2020. The second Respondent/ Applicant has now applied to this court for a stay of Execution of that judgement. In support of his application, he relied on an affidavit sworn to by the 2nd Respondent/ Applicant (hereinafter the Applicant) on the 4th February, 2020 and the exhibits attached thereto. These are:
   • Exhibit BB1 - His Deed of Conveyance dated  23rd  February 1995           · ,
   • Exhibit BB2 - The Writ of Summons dated 3rd July 2015
   • Exhibit BB3 - J udgment in Defau lt of Appearance dated 3rd

October 2015

• Exhibit BB4(1-6) - Medical reports

 

 

 

 

 

 

•          Exhibit BBS -Judgment dated 21st January 2020

• Exhibit BB6 - Notice of Appeal to the Supreme Court
• Exhibit BB7 - Ru ling of Alan Halloway JA (as he then was)
• Exhibit BBS - Notice of Appeal to the Court of Appeal
• Exhibit BB9 - Ruling of the Court of Appeal

 

1. It is regrettable that none of the certificates accompanying each exhibit accurately describes the exhibit nor the exhibit numbers. We remind counsel of the need to ensure that documents should be identified and exhibited accura tely. Failure to do so wastes valuable time and is likely to be reflected in costs.

 

1. The Appellant/Respondent (hereafter the Respondent) filed an affidavit in opposition sworn to on the 16th March 2020 by Brian Nelson­ Williams. Attached to that affidavit are the following exhibits:

 

• BNWl - Affidavit of Service of the writ of summons
• BNW2 (A-M) - Judgement in Default served on the Applicant
• BNW3 (A-F) - Copy of title deed of Thomas Nelson-Williams
• BNW4 - Report of Chaytor Committee (paragraph 11-14)
• BNW5 - Letter dated 3rd December 2013 from the Asset Commission.

 

1. On the 24th March, the day of the hearing, the Applicant served an Affidavit in Reply sworn to by Counsel Emmanuel Teddy Koroma on that same day. Attached to that affidavit are:

 

• ETKl - The Affidavit of the Applicant Brima Bah (Although not referred  to in the body of Counsel's affidavit
• ETK 2 - Pictures said to be of the Applicant's belong n thedayof execution.

 

1. Mr Mondeh, Counsel for the Respondent asked the court for leave to cross examine the deponent on that affid a vit. This was refused on the basis that the contents and the issue on which he wanted to cross examine are irrelevant to the proceedings before us.

 

1. We find the contents of th(1affidavit in reply irrelevant, ill-conceived and objectionable because Counsel, Mr Koroma should know or ought to know that if he has legitimate points to raise of that nature, this hearing was certainly not listed for that and he should have advised his client appropriately. With the exception of paragraph 10, nothing in that

 

 

 

 

 

 

 

 

Affidavit was relevant to these proceedings. However, paragraph 4 1s instructive for reasons which we will discuss later.

 

1. In view of the issue raised in paragraph 10 and the arguments as to whether execution had been completed, we granted leave to the Respondent to file an affidavit addressing only the issue of whether execution had been completed.

 

The Law

1.   It is settled law that the court has an absolute and unfettered discretion in deciding whether or not to grant a stay. In considering whether to grant a stay of execution, the court must ensure  that its  processes  are not being used inappropriately to keep a successful litigant from the fruits of his victory. A stay will only be granted upon proof of a prima facie good ground of appeal and the existence of special circumstances. The onus is on the applicant to show by affidavit evidence that the two requirements are met. Where  the  dissatisfied  appellant  can  show on the balance of probabilities by way of affidavit evidence, special and/ or exceptional circumstances, the court is likely to tip the balance in his favour. The need for special circumstances was explored in Winchester Cigarette Machinerv Ltd v Payne & Anr (No2) The Times Law Reports, December 15, 1993. Hobhouse L.J                                                                           said as follows: 'the appellant had to show some special circumstances which took the case out of the ordinary. 'In Linotyle-Ha ll Finance Limited v Baker [1992] 4 All E.R.887 Staughton W stated as follows:

 

'It seems to me that if a defendant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospects of success, that is legitimate ground for granting a  stay  of exe cution . '

 

Also in Africana Tokeh Village Limited v John Obey Development Investment  Companv  Limited   Misc  App  2/94 (unreported)                             Justice G. Gelaga-King                    stated      that     "where      the     court    is     shown special circumstances, it will use its discretion in favour of a stay. It is for the applicant to bring before the court those facts on which he relies as

constituting special circumstances."

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The Argu men ts

 

1. At the hearing Counsel for the Applicant, Mr E.T. Koroma, relied on his affidavit in its entirety. He relied on the case of Rader v Jaber (1950-56) ALR SL 115, to argue that a stay of execution should be granted in

 

 

 

 

 

 

 

 

 
 

exceptional circumstances and is discretionary. This discretion should be exercised only after considering all the facts. Counsel submitted that part of the special circumstances in this case includes the fact that the Applicant has a legal interest in the property by vir tu e of exhibit BB1 which    is  the    conveyance   dated   23rd   February               1995. He further submitted   that   the Applicant  has  been in undisturbed and quiet possession of this property since 1995, save for the action instituted by the Respondent for declaration of title and possession  with  respect  to the property which the Respondent claims id part of the  property  of John Nelson-Williams (Deceased). Counsel asked the court to consider the physical challenges that this Applicant is going through.  He asked the court to consider the medical report BB4 (1-6) and that part of the property has been specifically adapted for the Applicant. He stated that though the medical report is  dated  2007 and  the projection  was  only for one year, the Applicant is still suffering from a disability. The Applicant, he said has spent all his life savings and he will suffer undue hardship if a stay is not granted. He referred the court to the Africana Tokeh case supra. This court, he submitted has a discretion  to grant a stay on terms. In view of the peculiar circumstances of this matter he implored the court to grant a stay. Hefurther submitted that the appeal filed has   a reasonable prospect of success because this court had wrongly upheld the appeal and he asked  that in the interest  of justice and fair play that this application  be allowed,  which he  made pursuant to Rule 28 of the Court of Appeal Rules 1985.

 

1. In reply, Mr Mondeh, Counsel for the Respondent similarly relied on his affidavit in its entirety. He submitted that the Notice of motion dated 4th February 2020 is untenable as it is an abuse of process of the court. For the following reasons:

 

1. That it does not show the grounds in which the application is made. He referred to Order 8 (4)(2) of the High Court Rules 2007 - which states that on the face of it the motion must give clear grounds on which the application is made.
2. That the application does not show special circumstances that have a reasonable prospect of success if this court is going to entertain such application for a stay in this particular case.
3. A stay of execution is an equitable remedy. Therefore, it is

impera tive that an, affidavit in support must be made in good faith.

1. Con tra ry to paragraph 3 of the Applicant's affidavit, it is clear the Applicant was served with the Writ of Summons.
2. On the 3 0 th October 2015, the Applicant and his privies were duly served the judgment that was entered in default of a p pea ra nce.

 

 

 

 

 

 

 

1. That the notice of appeal to the Supreme Court is frivolous and vexatious.
2. There is no reasonable prospect of success

 

1. He submitted that it is clear from R28 supra, that an appeal shall not operate as a stay of exe cu tion . No immediate act shall be invalidated. He also referred to the Africana Tokeh case as providin g authority for

the proposition that the court has no power to  undo  a fait accompli. The ih .rntem; act after judgment has been carried out so seeking a

stay nowis of no moment. We disagree  with  Counsel's  interpretation of the Africana Tokeh case. In fact the phrase ".... This court has  no  power or jurisdiction to order a stay and, as it were, undo a fait accompli" has to be read in context. It was part of the  three questions Justice  Gelaga­ King raised for consideration in the application before the court. Having carefully considered the facts of the case and the authorities of Adama Mansaray v Ibrahim Mansaray Civ App 31 / 81 unreported and Richard Zachariah v Jamal Morowah Mis c. App 12/  87  (unreported), the Learned J ustice concluded "......this court has unfettered power and  jurisdiction to order a stay of execution and may do so even though a writ of possession  may  have been issued and executed.................................................... "

 

1. As regards the Applicant's poor health, Counsel submitted that this is a court of law and this matter has been on for a very long time. The medical report is dated as far back as 2007. This, he submitted, does not amount to special circumstance.

 

Special Circums tances.

 

1. Counsel for the Applicant submitted that his client has a legal interest by virtue of the conveyance exhibited to the affidavit as exhibit BB1 and that legal interest must be considered as a special circumstance. The matter before us is not about title. We are quite aware that there is a conveyance. That said, if it needs saying at all,  the  mere production  of a conveyance is not proof of a fee simple title. He must go further and prove that his predecessor in title had  a  valid  title to pass to him. In  fact the Conveyance m::iy on fer no title at all e.g. where the vendor had no title to pass. See Seymour Wilson v Musa Abess (1981) Civ. App. 5/79 S.C. (unreported) per Livesey-Luke C.J
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1.     In the absence of any evidence or submission to the Court as to how this constitutes special circumstance, we cannot conclude that the conveyance and purported legal interest based on it is a s pe cia l circumstance.

 

 

 

 

 

 

 

 

1. The second ground put forward by Counsel is the  Applicant's health. In support of this, the Applicant in Paragraph 6 of his affidavit  in support, states as follows: "that I am seriously sick and suffering from partial paralysis and this is the only accommodation I have and which I have acclimatised himself with.(sic)" We assume that the applicant rather meant that which he has become accustomed  to.  Be that as  it may, the Applicant exhibited in  support  of  this  assertion  medi al reports Exhibit BB 4(1-6) which are all dated 2007, the most  recent being the Heath Care Professional Certification dated 12th December 2007. Hi::; prognosis is described as temporary but likely to improve within one year. The option of one year is specifically encircled. Given this prognosis and the fact that no other updated or  recent  medical report was provided by the Applicant, it is fair to conclude that the Applicant's condition has greatly improved in the  over 12 years since that report wasdone. Indeed, the  Applicant  attended  hearings  unaided on the second floor of the Law Court Building which unfortunately, has no disable access or facilities. The first time we saw the Applicant in court with any support or walking aid was at the hearing of the 24 th March.

 

1. The Applicant moved from the United States to Sierra Leone sometime ago. Further by the time of the hearing the Applicant no longer lived in the property as he had been evicted, with no evidence that his life expectancy has been shortened or that he has had any adverse impact over and beyond those that would ordinarily be expected in circumstances or situations such as these. There is therefore no or no sufficient evidence of ill health capable of su ppo r tin g the Applicant's application for a stay of the ju d gmen t. We therefore conclude that we do not find this sufficient to constitute special reasons.

 

1. The third ground Counsel for the Applicant submitted  was that there  is a reasonable prospect of success in the Supreme Court. This court cannot speculate or prejudge the outcome of the appeal, but in order to strike a fair balance between the competing interests of the parties, we can make a preliminary assessment on whether the Ap pli ca n t h a s an arguable ca::;e.   Our views cannot in any way be binding on the court

dealing with the appeal.

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1.             The Applicant's case is that this court should not have upheld the appeal by the Respondent against the ruling of Halloway JSC (then JA). In paragraph 3, the Applicant states as follows: "That no writ of

 

 

 

 

 

 

 

summons  was ever served  on me  and   therefore I had                                                  no knowledge of this (sic) proceedings." In paragraph 4, he states "That even the Default judgment obtained on the 30th Oc to ber 2015, no  notice  of same  was ever served on me before execution as provided by the  Rules."  We refe r to our judgement  of  the  21s t  January  2020, in  which  this court exposed as a blatant untruth that the Applicant, then  Res pon den t  was  not served with eith er the  Writ of Summons or the Judgement in Defa u lt . If anyone needs reminding, this is what we said at paragraphs 44 and

45:

 

"I refer to  the  affidavit  of the  2nd Respondent  Brima  Bah  sworn  to on the 6th July 2018 (Vol II, page 467) and  filed by Manly-Spain. & Co. He described  himself  as  the  8t h  Defendant  in  Paragraph  1  and in paragraph  2  denied  knowledge  of  the  judgment  "dated  30th  day of October  2018" (si c ).   At   p a r a g r a p h  3,  he   deposed that "  after

the writ of summons was served on me, I instructed my solicitors to enter appearance and file defence on my behalf." At paragraph 4 "that it is never to my knowledge that my solicitors didnotenter appearance and file in defence on my behalf to the Writ of Summons served on me." At paragraph 5, " sometimes (sic) after

service of the writ of summons on me a fai led attempt of eviction on my property gave reason to believe that my solicitors have entered                    appearance  and  filed  in  defence  on  my behalf."                      At paragraph 6 "... I know not that an action in litigation lie or subsists against me on the basis of that writ of summons served on  me sometime ago."           In the penultimate paragraph is stated "That all I have deposed to in the affidavit is true and correct." I have quoted extensively from the 2nd Respondent's affidavit  to show that not only was the 2nd Respondent aware  that an action had been instituted against him he expressly accepts that  that  he was properly  served.                    At page 576, Ibrahim Kamara, a Solicitor's clerk at DIJAMED CHAMBERS, depose d that on the 3rd July 2015, he personally served the Respondent with the Writ of Summons, who introduced himself to him. The 2nd Respondent accepted service  and  signed his way book.      Mr Kamara then informed him that he had another sealed copy of the writ for the other occupants but the 2nd Respondent stated that he would challenge the  action of all other occupant . Theaffidavit of the 2nd  Respondent referred to above was sworn to and filed in support of a Notice of Motion dated 8th July 2018 seeking amongst other reliefs "leave to file an appeal out of time against the judgment of the 30th October 2015 and an extension of time to fi le an appeal against the judgment of the 30th October 2015 to the Court of Appeal." A draft defence

 

 

 

 

 

 

 

containing 6 paragraphs was also attached as well as a Notice of Appeal both of which are exhibited to the 2nd Respondent's affidavit. That Notice of Motion was properly filed and it was intended to be moved on the 10th July 2018.

 

Yet at page 523 (Vol II), the Notice of Motion dated 11th July 2018 filed on behalf of the 2nd Respondents herein the second order prayed for was ".....that the De fa u lt judgement dated 30th October 2015 and all  subsequent  proceedings  be set  aside  on the  grounds of fatal irregula ri t i es in that: That no Writ of Summons was ever personally served on the 8th Defenda nt .." The affidavit in support of that Notice of Motion is sworn to by the 2nd Respondent.           In his paragraph 3, he says as follows: ..."no writ of summons was ever served     on    me    and                 therefore             I                      had          no    knowledge of this proceedi ngs."               Attached is also a proposed defence and counter claim which is different from that which was exhibited to the affidavit of the 8th July 2018. Barely three days after filing the first Notice of Motion, the 2nd Respondents filed another on the 1Ith July 2018 with no reference to the first and with different facts deposed to in the supporting affidavit."

 

1. Mr  Koroma  was      reminded  of            this by the Court. Mr Koroma's submission was that as the motion dated 6th July 2018 was not moved, the Court should disregard the affidavit sworn to in support of it even though he confirmed that it was his client who signed and swore to the affidavit in question. Counsel was effec tive ly saying that it was alright to  lie  and          attempt   to deceive  the court   so long  as the previous application was not proceeded with. One of the troubling and disturbing facts of this case is the fact that Counsel himself appears to find it impossible to refrain from joining his client's attempts to deceive the court. We observed that in paragraph 4 of the Affidavit in reply (sworn to by Counsel), Counsel stated that "the signature in the way book acknowledging service of the writ of summons is completely diffe rent from the 2nd Respondent/ Applicant (sic) signature.". On the one hand Counsel is accepting that it was his client who filed the affidavit acknowledging  service  of  the                   writ   of   summons, yet  in        the same submission          he  is  alleging     that    t.h    signature   in             the             way book acknowledging the serv;i<f which his client accepted, is not his client's. This is the first time this point has ever been raised and the issue of service was sufficiently explored at the hearing of the appeal.

 

1. It has not been suggested who allegedly forged the signa tu re and the clear inference is that the suggestion that the sign a tu re was forged is a

 

 

 

 

 

 

 

 

 
 

belated attempt to corroborate and bolster the false statement in the Affidavit. This of course flies in the face of the Applicant's own admission. Counsel's excuse in the face of such overwhelming evidence of dishonesty, lies and deceit is that he is acting·o n  instructions.  We find this astonishing to say the least and can  only  conclude  that Counsel is prepared to join his client's attempt to deceive the court.

 

1. As we have said before an affidavit is not a document to be taken lightly. It is a document that is sworn on oath. Making a deliberately false statement in an affidavit is a criminal offence and will also amount to perjury if produced in court with the intention that it should be relied upon. Those who swear to an affidavit are deemed to understand the consequences of swearing to a document which they know contains falsehoods. It would be an affront to justice and the integrity of the court were we to a llow this to happen. It is, not to put too fine a point on it, surprising that experienced Counsel, aware he is  presumed  to  be, that he is under a duty not to mislead the court, could  seek to place  before the court a contrary affidavit without proffering any explana tion as to the disparity between the two, save that we should ignore the previous affidavit because it was not relied upon. Clearly both counsel and his client failed to appreciate or grasp the seriousness of their actions  and the consequences that flow from such a blatant  disregard  for honesty and integrity in court proceedings.

 

1. This court finds the Applicant's conduct in  this  case  to be such  that he lacks credibility and is an  unreliable  witness of fact. He is prepared to say or do anything including committing perjury so long as  it achieves his desired end. In our judgement of the 21st January, we stopped short of setting in motion crim in a l investigations into the offence of perjury. Instead of reflecting on the conduct that concerned the Court the Applicant on the contrary and  astonishingly  seems  to have has been emboldened to repeat his untruth.

 

1. Finally, the fact that execution has already taken place does not preclude this court from ordering a stay. However, for the reasons we have stated above, we do not find that this case merits a stay of execution.

 

1. The order of this coi:i/t is therefore as follows:

 

\      h e Applicant's motion dated 4th February 2020 is refused

 

1. We further make the following ancillary orders:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11.

 

 

 

 

 

 

111.
 

The Applicant, specificallb r Brima Bah and his Counsel Emmanuel Teddy Ko ro m a referred to the Attorney Genera l and Minister of Justice to be investigated  for  perjury  pursuant  to section 1(3 ) of the Perjury Act 1911

That Counsel also be referred to the Attorney Ge ne ra l to be investigated for aiding, abetting, counsei r procuring another person to commit perjury pursuant to Section 7(1) of  the  same act

That Counsel Mr Emmanuel Teddy Koroma be referred to the General Legal Council for contravening Rules 2, 4, 5 and  42 of  the Code of Conduct 2011, in that he knowingly or recklessly attempted to mislead the Court. Further that he failed to act with: honesty,   competence,   and      professionalism  as        is                                           reasonably necessary for the preparation and conduct of a case, failed to maintain his independence in the performance of  his  functions and engaged in activity which compromised his independence or which reasonably created the appearance of such compromise; failed to act with integrity to ensure that his actions do not bring the administration of justice into disrepu e and a failure to act courteously and respectfully towards all persons with whom  he has            professional     contact,      including            judges,                                 other            legal practitioners, court staff, litigants, witnesses, victims and clients and allowing himself to be used as a channel to insult or annoy either a witness or any other person in court. In this regard, an officer of the Court of Ap pe a l Registry will swear to an affidavit attaching lhe judgment of lhe 21st January 2020 and this Ruling and cause the same lo be delivered to the Secretary of the General Legal Council no later than 7 days from today.