Misc. App 1/2016

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IN THE COURT OF APPEAL OF SIERRA LEONE

 

 

 

 

 

JAMES BULL

{Trading as LUMA MICRO FINANCE TRUST)

 

AND

 

ROKEL COMMERCIAL BANK
 

APPELLANT/ APPLICANT

 

 

 

 

RESPONDENT /RESPONDENT

 

 

 

PRESIDING;

 

THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA

 

Counsel;

Dan Fofanah Esq. for  the  Appellant/Applicant

• howers  Esq. for  the  Respondent

 

 

 

 

 

RULING dated 1st June 2016

1. The Applicant has filed a Notice of Motion dated 23rd December 2015 in which he seeks for the enlargement of time within which to appeal the Judgment of Justice A Showers dated 9th June 2015. In the event that time is enlarged within which to appeal, he seeks further that the execution of the said judgment be stayed pending the hearing and the determination of the  appeal.

 

1. The applicant  has filed  an  affidavit  of  substantial  length  and detail in  support  of  the application he has similarly annexed several exhibits to the  affidavit and these   shall be                                                                                                                                      • referred to as may be found necessary

 

1. The bulk of the affidavit in opposition as well as the exhibi ts filed to support the motion, the affidavit filed by the respondent in opposition as well as the  affidavit in reply devote  a significant time to rehashing the case which was already tried and judgment given. I have not  found this revamping of all the facts which were presented to the   Honourable

 

 

Court of Appeal Ruling: Misc App# 1/ 2016 - James Bull vs. Rakel Commercial Bank

CORAM : Reginald  Sydney Fynn JA (Sit t ing  Alone)

 

 

 

 

 

 

 

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trial Judge and which if this application is successf ul will come before us  for consideration necessa ry. It will be sufficient in such an application if counsel were to remain strict  ly guided by the requirements for an application such as this one.

 

1. Rule 11(4) of the Court of Appeal Rules provides:

Any application for enlargeme nt of time within which to appeal may be brought shall be supported by affidavit setting fo rth good and sufficient reasons for the applicat ion and by grounds of appeal which prima facie show good cause for the  enlargement of time to be  granted.

1. As mentioned alr eady the applicant has filed an affidavit supportinghis          application but does that affidavit "set forth good and  sufficient  reasons"?  In  answering  thi s quest ion I am guided by the following dictum:

"All  the  relevant  factors must be taken into account in de ciding  how to exercise   the discretion to extend the time. Those factors include the length of  the  dela y, whether there is on arguable  case on appeal, and  the  degree of   prejudice  to                   the defendant if the time where extended" (see Van Stil levold BV El Carriers 1963 1  AER 699 at p. 704 as per Griffiths U quoted favorably by Joko-Smart JSC  in Sesay & Other s vs. Kamara ( (1999) Supreme Court Unreport ed).

1. The judgment which is intended to be appeale d against was delivered on 9th June 2015 and it took the appellant another six month s on to 23rd December 2015 to make up his mind to file an appeal. Whilst this delay is significant I do not find it inordinately so, considering that this court has granted extension of t ime in  cases  with  signif icant ly worse delay provided alway s that there is an arguable issue being raised for appeal.(see the dictum of the Hon. Just ice Umu Tejan- Jalloh CJ in Monsoray v Kenny & Two Other s (unreported)  where the appeal was 15 months late)

 

1. A successful party will not be light ly deprived of the fruits of his judgment in a contested case. A party who seeks to st ay any such judgment has the onus of demonstrating to the court that circumstances do exist which will make it unjust for the successful party to proceed with execution of the judgment below whilst the appeal    is still pending. The

Firet ex Case1, The African Toke h2 case as well as t he dictum of Gelaga -Kin g JA in Decker

vs. Decker(Unreported) are too well known and settled for there to be a need to repeat

 

 

 

 

 

 

1   Firetex International Ca.  Ltd. vs. Sierra Leone External Telecommunications Ltd. Misc. App. 19/ 02

2   Africana Tokeh Village v John Obey (19940 Unreported)

 

 

Court of Appeal Ruling: Misc App tt 1/ 2016 - James Bull vs. Rokel Commercial Bank

CORAM: Reginald Sydney Fynn JA (Sitting Alone)

 

 

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them or the principles governing a stay of execution here. Especiall y consider ing that counsel did not contend one with the other as to  what those principles are .

 

1. A question that I have had to contemplate though  is  whether  in  fact  the  special  circum st ances which should be urged on the court in considering a stay of execution should be the self same facts which have been raised in the court below and which have already been adjudicated  upon, without more.

 

1. This thought is of particular note in the present case where the proposed appeal Ex JB7, on every proposed ground advanced has an admixture of facts and law. And where in  his arguments it is t hese same facts that counsel urges the court to accept as being the special circumstances which surr ounds his client and the appeal. I shall set out some of coun sel' s arguments on this matter for the sake of clarit y:
   1. Counsel urged that the bank had changed the interest rates  on the loan without reference to the appli cant
   2. He argues that the wrong person may have been sued and that this applicant may not even be the proper person liable on the loan...notwithstandinghis being a guarantor

Ill. The respondent bank failed to give notice to the applicant as required by the guarantee form and mortgage deed that they were about to enforce the applicants undertaking

 

1. These were all matters which were before the court below or which properly ought to have been before that court and upon which th e Honourable Trial Judge contemplated before reaching her judgment. These matters also form the gravamen of the appeal and will be retried by thi s court. Whilst I find that they raise arguable and good grounds of appeal, I t ake the view that they cannot now by t hemselves, and without more, at thi s stage be relied upon as the special circumstances which sho uld make a stay of execution available to the applicant . They need something more compelling.

 

1. The applicant has additiona ll y, submit ted on issue s which t ouch non-representation or inadequate represent at ion. Whilst these form part of the appeal th ey were not befor e the court below for con sideration. This court is mindful that this is an easy re sort for any unsuccessf ul litigant and I take the view that there was in fact suff icient  representation  to satisfy the basics of the maxim audi alterem partem. Strictly speaking the applicant was present and was heard . However in the course of arguments before me it came out clearly that on occasion this applicant was his own lawyer and had to changecounsel (at

 

 

Court of Appea l Ruling: Misc App# 1 / 2016 - James Bull vs. Rokel Commercial Bank

CORAM: Reginald SydneyFynn JA (Sitting Alone)

 

 

least once) and that even when he had a lawyer the Honorable Trial Judge found fault with the processes employed by counsel which, significantly , may have deprived the applicant of having had his full day in court. I refer here to the applicant's would-be counter claim which was "disregarded"(and rightfully so) because it was advanced in an unort hodox manner; within an affidavit in opposition. An appeal now gives the applicant another opportunity for this counterclaim to receive full consideration and a decision on its merits.

 

1. I am mindful of Sir John Muria 's caution in Luke vs Bank of Sierra  Leone (Unreported)  that "moral, social and political" matters are not proper considerations for the grant of a stay of execution. However on the whole I can conclude that this applicant is in a distinctive circumstance and I am minded to grant the  present  application.  I  am however also aware that this applicant had previously had a favourable hearing on a similar application before the Hon. Mr. Justice Sengu Koroma J. (as he then was) but  that the applicant had failed to follow through with those orders for  reasons  which  I  have found to be utterly unimpressive, I shall therefore grant  a stay on terms.

 

In the circumst ances I make the following orders:

 

1. Time within  which  to  appeal  against  the  Judgment  of  the  Hon.  Mr s. Ju stice Showers JA (as she then was) dated 9th June 2015 is hereby enlarged
2. The execution of the Judgment of the Hon. Mrs. Justic e Showers JA (as she then was dated 9th June 2015 is hereby stayed pending the hearing and determination of the appeal herein on the condition precedent  that  the appellant pays the sum of Le 150 Million into his account at the Respondent bank no later than 30th June 2016 (or into an  account opened there for this purpose) and that this account shall thereafter remain frozen for the  duration of the  appeal.
3. That in the event that the appeal herein is successful the Respondent  bank shall return the amount of Le 150 Million to the applicant no later than five  (5) days from the date of such judgment  or as that  judgment  sha ll direct
4. Costs to be taxed if not agreed by the partie

 

 

Reginald Sydney Fy

 

 

Court of Appeal Ruling: Misc App tt 1/ 2016 - James Bull vs. Rokel Com

CORAM: Reginald Sydney Fynn JA (Sitti ng Alone)

 

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