Amadu Kanu AND Cyril Walter Sawyerr & Others (SC.MISC.APP.NO 2/93) [1993] SLSC 2 (16 March 1993);
This is an application by R. Awoonor-Renner Esq., counsel for Appellant/Applicant for sta.y of execution of the order contained in the Ruling of;.the Honourable Thompson-Davis J .s.c. delivered in the Court of Appeal of qierra Leone on the ·4th
day of March, 1993 and fo 'all subsequent proceedings to be stayed until the .determination of Appeal in the Court of ·Ap:peal. The i;l.pplication is supported by the Affidavit of A.madu Ka.nu Applicant herein, sworn at Freetown on 10th day of March, 1993 and filed.
At the threshold of this application prelimino.ry objection
;;as taken by Dr. H.I . Joko-Smart counsel for · Respondent:. on· the ground of non-compliance by connsel for Applico.nt of the mandatory provisions of RulJ.e 60 of the Rules of the Supreme Court, 1982 (P.N. No. 1 of 1982).
Rule 60 (1) states:-
....../2.
"A civil appeal shall not operate as- :.; fY of execution or of proceedings under the jude;ment qr decision appealed against except in so far as the Supreme Court
.or the Court of Appeal may otherwise order".
Rule 60· (2)' states:-
"Subject to the provisions of these lules and to ;1'
any other enactment governing the .s ·une, an application for stay of executton or proceedincs shall first bemade to the Court of Appeal and if that : ourt refuses to grant the application the Applicant shalJ be entitled to renew
the application before the Supreme C:ourt for determination.'
Eas counsel for Applicruit complied with tL-:: mandatory provisions of the afore-mentioned Rules in the instant l-Plication'I' If the
:.c'.,swer is in the negative can the Supreme Cou ·t entertsin this
.'.'.!! ;._ 1'c;Jplication without causing violence to the ' :les? Has the Coc:rt
·D.:·,y discretion in the matter if it takes the .·iew that the mandatory 1,rovisions have not been complied with?
Counsel for Applicant with. candour concc-ied the point that
resort wasnot hadto theSupreme Court Rules :.:1 the instant
•
c,J;plication, but nevertheless, ·based his app:.·.cation on the grounds
of concurrent jurisdiction of both the Supre: . Court· and the Court
o:: Appeal in this regard. .A.fortiori, that as ime was ·,of the essence hce i:;roc eeded under the provisions of the Con:.·': i tut ion of Sierra
Lc:or.e 1991 Act. No. 6 of 1991 namely, Sectio: 23 which overricles the
I-'1lcs. What does the Section say?
;
.•
'- i
Section 123 (1) (a) states:-
- An appeal shall lie from a judgment, .cecree or order of the Court of Appeal to the . :preme Court
- as of right in any civil cause c matter.
Section 123 (2) -
"Notwithstanding the provisions of c. bsection (1)
the·Supreme Court shall have power '-' entertain
any application for special leave ', any cause or matter civil or crimi, Supreme C:ourt, and to grant such l.
appeal in
. , to the •
:e uccordingly".
The purported application before this Court is for stay of.· execution of the order conts.inod in the "'uling of .. the Honourable Thompson-Davis delivered in the Court of Appeal of Sierra Leone on the 4th :io.y of March, 1993.
It .is not an appeal or an application for speciaJ. leave to appeal. I cannot therefore see how this provis n of. the Constitution can avail counsel .n this application.
Rule 60 is of obvious advaY1t2[e to an applicant:·in stay of execution proceedings. The rationale behind it is to give an applicant two chances, one in the Court be,low,
the Appeal.Court in this insta..Y1ce 1d another in the .supreme Court, should the Court of Appeal refuse to grant the Application sought. Applicant will therefore have the advantage of a second bite rather than jumping his. gun
to his detriment or risko
The order of the Court of ,Appe:;,l was given on 4th March to take effect on the 15th March, 1993 eleve!l days from the date of the said order. Counsel for Ap licant depressed that since time was of tho essence compliance with Rule 60 of the Supreme Court Tiules would not ho.ve
been to his. ad antage, as execution would ha.ve been effected, thereby making the proceedings nuc;c,·:ory. In our view eleven days was a reasonable time within ,.hich an applicati'on for stay would have been made to the Co,;rt of Appeal in the
first instance. On refusal a second applic&tion would be made to the Supreme Court.
In an application for stay of execution this Court has always taken the view that there :.:;h0t,ld be no s1-,ort cut
to the procedure; the r::wndatory prc".'isions shoi;ld be complied with. Nothing has changed the view of this Honoi;rable Court
in that regard.
Now what are the consequences of failure to comply with the mandatory provisions of Rule 60 of the Supreme Court Rules?
- In the. instance case has the proper foundation been . laid, a condition precedent for us to entertain this purported application
The answer is in the negative. is. struck out_.
In the circumstances th:,-e applicati
Court
I agree
I agree
Costs awarded Le30,ooo.oo.
Special Leave of Appeal