DAKLALLAH v COLE and Others (C.C. 556/07)  SLHC 15 (21 January 2009);
C.C. 556/07 2007 D No. 17
IN THE HIGH COURT OF SIERRA LEONE BETWEEN: BASITA MAKI DAKLALLAH (MRS) - Plaintiff
(Suing by her Attorney SAHID DAKLALLAH)
GEORGIANA ELIZABETH COLE -1st Defendant
QUEENI WILLIAMS -2nd Defendant
MARILYN TUCKER -3rd Defendant
SIMEON MORIBA - 4th Defendant
OLUWALE STAFFORD -5th Defendant
(By Original Action) AND
BETWEEN: BASITA MAKI DAKLALLAH (MRS) - Plaintiff
(Suing by her Attorney SAHID DAKLALLAH)
JOYCE DUNIE JOHNSON (Nee DAVIES) GEORGE AGIBADE JOHNSON - 1st Defendants
QUEENI WILLIAMS - 2nd Defendant
MARILYN TUCKER - 3rd Defendant
SIMEON MORIBA - 4th Defendant
OLUWALE STAFFORD - 5th Defendant
(By Order to Carry on and Continue) E.A. HALLOWAY ESQ for the Plaintiff R A &URING ESQ for the 1 C J. PEACOCK ESQ for the 2nd to 5Th Defendants
1. This Decision, is in respect of two Applications filed firstly, on behalf of the joint 1st Defendants in the action to carry on and continue; and secondly, on behalf of the 2nd, 3rd and 5th Defendants respectively, in the original action, and in the action to carry on and continue.
1. By Notice of Motion dated 22 October,2008 the 2nd, 3rd and 5th Defendants respectively in the Original Action, applied, to this Court, firstly, for a Stay of Execution of the Judgment of this Court dated 20 October,2008, and all subsequent proceedings, pending the hearing and determination of the Defendants Notice of Appeal bearing the same date, in the Court of Appeal ; secondly, any other Orders this Court may deem fit and just; and lastly, that the Costs of the Application, be Costs in the. This last Order prayed for, is of course, one which this Court cannot grant, for the obvious reason that the Cause ended when Judgment was delivered on 20 October,2008. Costs, therefore, have to follow the event.
MR PEACOCK'S APPLICATION
2. There are certain peculiarities in the 2nd, 3rd and 5th Defendants' Application which I must at once point out. At the date Judgment was pronounced and delivered, the 1st Defendant, to the knowledge of Counsel, for the 2nd, 3rd and 5th Defendants was already deceased, she having died on 6 September,2008. This fact was made known to me by R A DURING ESQ, Counsel for the joint 1st Defendants, in his Application to this Court for the present joint 1st Defendants to be substituted in place of the deceased 1st Defendant in the original action. That Application was filed after the present Application, as it was dated 27 October,2008 but was heard before the present one by me on 3rd November,2008, on which date I granted the Order that the present joint 1st Defendants be substituted in place of the deceased 1st Defendant in the original action. That Order is exhibited to the joint affidavit of the joint 1st Defendants, deposed and sworn to on 19 November,2008 in support of their Application of the same date, seeking the same reliefs sought by the 2nd, 3rd and 5th Defendants respectively in their Application dated 22 October,2008. It is clear therefore, that at the date MR PEACOCK filed his Application, the 1st Defendant could not have been a Defendant in the original action, as she was already dead.
3. It seems to me, that with knowledge of this fact, it would have been prudent on MR PEACOCK'S part, to have applied to this Court, for an Order under Order 18 Rule 11(1) of the High Court Rules, 2007 for an Order that the action be struck out as against the deceased 1st Defendant in the Original action; or for an Order to be made under Order 18 Rules 2 and 3 respectively, before proceeding with the filing of his Application. Clearly, a deceased person cannot be a party to an Application, as purported in MR PEACOCK'S Application. Similarly, it seems to me, that in the interests of justice, Counsel for the 1st Defendant at the trial, should have brought this fact to the attention the Trial Judge, before he delivered Judgment, as it appears from my reading of his minutes, that the former 1st Defendant died after Judgment had been reserved by him.
4. I do not know whether MR HALLOWAY, Counsel for the Plaintiff was aware of this fact, but if he was, he should have known that he could take no further proceedings as far as the deceased 1st Defendant was concerned, without taking the steps I have indicated above, I expected MR PEACOCK should have taken before filing his Application. Clearly, the Defendants were sued jointly and severally, as appears in the Judgment of SE5AY,J exhibited to the affidavit of MARILYN TUCKER sworn to on 22 October,2008 as "MT1" and as such, the action did not abate as against the other surviving Defendants. The notes to Order 15/7/9 in the White Book, 1999 tell us that "if the Defendants are jointly and severally liable the action may, on death of a Defendant, be continued against the survivors, or against the representative of the deceased and the survivors. What certainly cannot happen, is the continuance of proceedings against a deceased Defendant. Regrettably, our Rules do not have the equivalent of the English Order 35 Rule 9 which provides for giving Judgment the Defendant dies after the finding of facts, but before Judgment.
5. There is clearly a defect therefore, in MR PEACOCK'S Application which has not been corrected to date. I note also that despite my Order of 3 November,2008 for the substitution of the present 1st joint Defendants in place of the deceased 1st Defendant in the original action, MR PEACOCK has taken no steps to amend all papers filed by him, but has in fact gone on to file additional affidavits bearing the original title of the action, without more. I note also that the title used by both MR HALLOWAY and MR DURING respectively, in the papers filed by them subsequent to that Order, do not correctly reflect the contents of that Order. I certainly did not Order that proceedings continue between the Plaintiff and the present joint 1st Defendants
alone as purported in the said papers. My Order was that the proceedings continue between the Plaintiff on the one hand, as against the new joint 1st Defendants together with the other Defendants in the original action on the other hand.
6. Further, the new joint 1st Defendants should have, after the Order of 3 November,2008 entered appearance in accordance with the provisions of Order 18 Rule 10(4). This was clearly not done. It follows therefore, that notwithstanding my giving audience to Mr DURING as Counsel, papers ought not have been filed by him as Solicitor for the new joint 1st Defendants. There should have been full compliance with the Rules relating to Appearance in Order 12 of the High Court Rules.
7. The other peculiarity I wish to deal with, is Mr PEACOCK'S purported withdrawal as Solicitor, and as Counsel for the 2nd, 3rd and 5th Defendants respectively. Throughout the proceedings in this Court, there has been no legal representation for the 4th Defendant. I was made to understand during the course of the hearings that he is a Policeman, and that moves were being made for him to be provided with representation through the good offices of the Attorney-General and Minister of Justice. According to the Rules and to custom and convention, Counsel can withdraw his representation in Court, on behalf at. any stage, without formalities. But where Appearance has been entered by a Solicitor for and on behalf of a Defendant, he can only withdraw his Appearance with the Leave of this Court, in accordance with the provisions of Order 24 Rule 1. This was not done by MR PEACOCK. His Notice of Withdrawal dated 13 November,2008 is therefore ineffectual to relieve him of his duties as Solicitor. His Appearance for and on behalf of the 2nd, 3rd and 5th Defendants therefore stands for the purposes of the Application before me.
MR PEACOCK'S WITHDRAWAL
8. Notwithstanding what I have stated in paragraph 7 above, MR PEACOCK'S conduct leaves me in considerable doubt about the bona fides of his clients' Application. By letter dated 7 November,2008 addressed to his clients, and copied to this Court, MR PEACOCK notified his clients of his intention to withdraw his representation on their behalf. But on 10 November,2008 he deposed and swore to an affidavit on their behalf. By Notice dated 13 November,2008 and duly filed in the Registry, he withdrew his services. I have of course stated above that this was not sufficient to relieve him of his duties as Solicitor. But again, on 17 November,2008 he filed further affidavits on
behalf of his clients, deposed to by the 2nd and 3rd Defendants respectively, on 14 November,2008.I noted this anomaly in my minutes of the proceedings of 17 November,2008. In fact, on that day, I had to stand the Court down, and resumed sitting at 3.10pm awaiting MR PEACOCK'S appearance in Court in order to explain his apparent conflicting actions, but to no avail. His last appearance before me was on 11 November,2008. He did not appear before me again until I reserved Judgment on his Application on 28 November,2008. Notwithstanding his vacillations, and the irregularities I have highlighted above, I propose to consider the merits of his, and MR DURING's respective Applications. Both in their arguments, and in the several affidavits filed on behalf of their respective clients, both Counsel have respectively sought to show that there are special circumstances which warrant a stay of execution of the Judgment of the High Court.
MERITS OF THE RESPECTIVE APPLICATIONS
9. As stated above MR PEACOCK and his clients, and MR DURING and his clients have deposed and sworn to affidavits in respect of their respective applications. They have exhibited pictures of the present state of the houses being built by the deceased 1st Defendant, and by the 2nd, 3rd and 5th Defendants respectively. They have also exhibited architectural drawings and plans, which drawings and plans have been approved by the Ministry of Lands. What is immediately noticeable about the plans exhibited to the respective affidavits of the 2nd and 3rd Defendants respectively, is the blatant attempt to alter them. Exhibit "QW2" exhibited to the affidavit of the 2nd Defendant deposed and sworn to on 14 November,2008 has clearly been altered: "7" has been superimposed over "8". So also with the approved plan exhibited as "MT2M to the affidavit of the 3rd Defendant deposed and sworn to by her on 14 November,2008: "7" has been superimposed on "8". It appears that both Defendants wished to provide convincing evidence to the Court, that they had commenced building in 2007 before the Writ was issued, rather than in 2008 when the trial of the action was in progress. Likewise, they have altered the Approval Notices issued to them by the Ministry of Lands. Exhibits "QW3" and "MT3" respectively, were both clearly issued on 18 July,2008 when the trial had ended. But the figure "7" has again been superimposed on the figure "8". With such barefaced deception to contend with, it is a wonder that both Defendants wish this Court to exercise its discretion in their favour.
10. In the case of the joint 1st Defendants, they too have exhibited the approved architectural drawings in respect of the building the deceased 1st Defendant was putting up, as "tF". Approval was only given by the Ministry of Lands on 25 July,2008. The name of the Architect does not appear on the exhibit, but on 26 November,2008 they filed an affidavit deposed and sworn to by an Engineer, SAHR JOHNNY in which MR JOHNNY claims that he prepared the drawings in 2006 but failed to send them for approval until July,2008. As he is an Engineer, and not an Architect nor a draughtsman, it is difficult to attach much weight to his affidavit. Besides, exhibit "F" is remarkable in the sense that apart from the first page thereof which bears the date 25/7/08 within the approved plan' stamp, no date appears on the other pages. The date should appear in the 'approved plan' stamp on each page as is apparent in exhibits "QVV3" and "MT3" respectively. Further, there is no signature in the stamp column. As it is, there is no clear evidence before me that this document was indeed submitted to the Ministry of Lands for approval.
11. As regards the pictures of the buildings in progress, save for their ipsit dixit, which I deem unreliable, I have no evidence before me that they were commenced before Action was brought against them. If anything, the approval notices I have referred to above show that they may have commenced quite recently. The deceased 1st Defendant's building according to the picture, exhibit "E" attached to the new joint 1st Defendants affidavit, is at an advanced stage. But in view of the discrepancies I have highlighted above, it is extremely difficult to attach much credence or weight to them.
12. In the affidavit in opposition to the Defendants' respective Applications for a Stay of Execution, filed on behalf of the Plaintiff on 28 October,2008, the Judgment of the Court of Appeal of which I was a member, in the appeal intitled: Civ App 34/2007 Minister of Lands v ALHAJI AMADU WURIE JALLOH has been exhibited as "BMD1." As I was a member of the panel, and in view of the possibility that there might well be an appeal pending in the Supreme Court, I shall not comment on that decision. Nevertheless, it has no bearing on the conclusion I have reached in respect of the Defendants' respective Applications.
13.1 have peached the conclusion, based on what I have outline above, that the respective Applications for a Stay of Execution of the Judgment of the High Court lack merit. There are too many irregularities in the manner in. which
Counsel for the 2nd, 3rd and 5th Defendants has presented his arguments: and there are far too many discrepancies and distortions in the affidavits filed, to render any validity or authenticity to these Applications.
14. In the result, both Applications for a Stay of Execution of the Judgment of SESAY, J dated 20 October.2008 are REFUSED. The joint 1st and the 2nd, 3rd and 5th Defendants shall the Costs of both Applications, to the Plaintiff, such Costs to be Taxed, if not agreed.
N.C. BROWNE-MARKE Justice of Appeal 21 January,2009.