Misc.App. 11/2000

IN THE COURT OF APPEAL FOR SIERRA LEONE

BETWEEN:-

Josephine R. Ellis                       )

Desmond C.O. Ellis                   )           - Respondents

And Cecil O.E. King                             - Applicants

CORAM:

Hon. Mrs, Justice V.A.D. Wright             -J.A.

Hon. Mr. Justice N.D. Alhadi                - J.A.

Hon. Mr. Justice M.E, Tolla-Thompson - J.A. J.B. Jenkins-Johnston Esq., for the         Respondents

E.C. Sheara-Moses Esq., for the                                                                                  Applicants

JUDGEMENT DELIVERED THIS 6th DAY OF July, 2000

ALHADI J.A.

This is an application by the Appellants/Applicants that Execution of the Judgement of this court delivered on the 10th April, 2000 and all subsequent proceedings be stayed pending the hearing and determination of the appeal by the applicants to the Supreme Court.

The affidavit evidence and argument in support of this application is that the property 20. Soiling Street, Kingdom, the subject matter of this action is a family home and that if the Execution of the said judgement is not stayed and the properties sold extrime and undue hardship would be caused to the applicants.

There is an affidavit filed by the Respondent opposing the application on the ground that the applicants know fully wall that they are not entitled to the entire building, but only to the ground floor which was built by the 1st Applicant. Counsel for the respondent argued that the judgement of this court is for the applicants, to compensate the respondent in the sum of Le26, 452, 542.00 within the period of six weeke from the date of the judgement.

It is quite clear that in the main the judgment of this court is a money judgment in that the applicants are required to compensate the respondent.

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by an amount of money which is in these terms:-

" 1 The defendants/appellants do compensate the respondent in the sum of Le26,452,542.00(Twenty six million four hundred and fifty two thousand five hundred and forth two Leones). Such compensation to be made within six weeks of this order

2. That should the appellants fail to comply with Order(i) Supra that the Master and Registrar with the assistance of the Solicitor for the respondent conduct a sale of the property by private treaty or public auction with first option to either of the parties in this action. The second order is only operational on the failure of the applicants to comply with the first order therein, and an affective means of enforcing compliance therewith.

The order of this court is not an order simpliciter an order) for the sale of the property as in the case of Adama Mansaray v. Ibrahim Mansaray Civ. App. 31/81 referred to by Counsel for the applicants, but one for the payment of money.

It is the duty of the applicants to show special circumstances why a stay should be granted. In the case of a money judgement that financial hardship will be caused to him if the stay is refused. There is no such averment in the affidavit in support, or evidence that execution of the judgement will be oppressive on them. It is also the duty of the applicant to show that the judgement debt if paid will be unrecoverable on account of the inability of the judgement creditor to repay it. If there is no such evidence the stay will be refused.

It is clearly not a true state of the fact that the property is a family home. The undisputed, evidence is that the. ground floor was being occupied by the 2nd applicant as having been built by the 1st applicant whilst the top floor flat was in the occupation of the respondent for some~ time and then tenanted to a Mr. Dan Palmer who is in occupation. There is also the evidence that both applicants are resident out of this Country. The 1st Applicant residing in Banju, The Gambia, and the 2nd Applicant in the United States of America. I conceive a family house to be a normal place of abode of members of a family. There is no evidence that any member of the applicants' family are residing in this property.

Although I tend to agree with the submission of counsel for. the responde

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that me; special circumstances have been shown for a stay of execution of the judgement. However I will grant a stay on the condition imposed by the Learned Presiding Judge.                             

I will concur with the decision of the Learned Presiding Judge and grant a Stay on the condition stated by her.

(Sgd) Hon. Mr. Justice N.D. Alhadi-J.A.