Abdul Rahman Jalloh v The West Africa Regional Director (CIV APP 2 of 2009) [2015] SLSC 1210 (24 November 2015)

IN HE SUPREME COURT OF SIERRA LEONE Noe CIV APP 1/2009

BETWEEN:

: ‘THE WEST AFRICAN REGIONAL DIRECTOR, | - APPELLANTS LEONARD CHESHIRE INTERNATIONAL, AND LEONARD CHESHIRE INTERNATIONAL AND ABDUL RAHMAN JALLOH - RESPONDENT AND CIV APP 2/2009 BETWEEN: ABDUL RAHMAN JALLOH - APPELLANT AND ‘THE WEST AFRICAN REGIONAL DIRECTOR, LEONARD CHESHIRE FOUNDATION - RESPONDENTS AND LEONARD CHESHIRE FOUNDATION ORAM: ‘The Hon, Mr. Justice V. V. Thomas, Acting Chief Justice - Presiding “The Hon. Mr. Justice N. C. Browne-Marke, JSC. The Hon. Ms. Justice V. M. Solomon, JSC. ‘The Hon, Mr. Justice P.O. Hamilton, JSC. ‘The Honourable Mrs Justice A Showers = JA. COUNSEL: J BJENKINSJOHNSTON FSQ for the Appellants in Civ App 1/2009 and for the Respondents in Civ App 2/2009 YADA WILLIAMS ESQ for the Respondent ir Civ App 1/2009 and for the Appellant in Giv App 2/2009 a

JUDGMENT DELIVERED THE. 24° DAY OF NOVEMBER, 2015. HONOURABLE JUSTICE N.C, BROWNE-MARKE - JUSTICE OF THE SUPREME COURT . ‘THE APPEALS

1. These are vin appeals brought by: the Appellants and by the Respondent respectively, aginst the Judgment of the Court of Appeal dated 18* June,2009. Civ APP 1/2009 was brought by the West Aftican Regional Director of Leonard Cheshire Foundation and Leonard Cheshire International against that Judgment, Civ App 2/2009 was brought by Abdul Rahman Jallob against the same Judgment,

CIVIL. APPEAL. 1/2009

2 In Givil Appeal 1/2009 filed on 24° July,2009, the appeal related to a cextain portion of the Judgment ofthe Court below, to wit, the following Order:

“Order 3 in the Conilicue of the Order of the Court: “The amount already taken in execution of the said judggven, including dhe onethird thereof paid to the Respondent be paid imo the interest bearing Account at Standard Chartered Bank currently in the joim names of both Soliciors pending the hearing and determination of the Action.”

‘The Appellants contend that this was a misdirection or error in law.

8. The Ground of Appeal is as follows,

“That the Court of Appeal having set asile the Judgment of the High Court died LP" February, 2007 and all subsequent proceedings, and ordered that the mater g0 diack 10 the High Court for wie, there was no legal basis for the Order they made hal the amount already taken in execution of the said Judgment including the onethird thereof paid 10 the Respondem should be paid imo the interest-bearing account at Standard Chartered Bank, since the execution of the Judgment of the High Court was a subsequent proceeding the said Judgment and was dependent thereon, and once the Judgment was set aside, nothing dependent thereon could remain in existence therealicr”

4. The relies sought from this Court are that the Order made by the Court of Appeal set out in paragraph 2, supra, be set aside, and that all monies taken in execution of the Judgment of the High Court dated 13° February,2007 which was set aside by the Court of Appeal be retumed forthwith to the Appellants, and that the Costs ofthe appeal be paid by the Respondent.

CIVIL APPEAL 2/2009

5. In Civ App 2/2009 filed on 16° September,2009, the Grounds of Appeal are as follows:

@ “That the Learned Judges of the Court of Appeal were wrong itr taw to have held that Edwards, J exeeeded his jurisdiction under Order XB,

High Court (Amendment) Rules, C.1. No 3 of 2006 when striking out the f defence filed on behalf’ of the Defendants/Respondent and entering judgment for the Plaintill/ Appellant as “dhere is no such provision for failure to comply with an Order for Directions given under Order XXB . he PARTICULARS

1. The Learned Judges failed to make and/or make any proper determination on whether orders 3 and 4 of the Order of Taylor, J of 26° September,2006 were made pursuant to Order XXA as this was necessary to determine the scope of the Judge’s powers.

2 That in view of Order XXB (1)(3), the Leamed Judges of Appeal ‘were wrong in law to have held that “Order XXA does not require a party to an action (o apply to the Court for an Order of Discovery",

3. ‘That Order XXB of the amended High Court Rules which deals with summions for directions gives the Judge the discretion to strike out pleadings where a party (0 proceedings is required to “give any information or produce any documem and that information or document is not siven or produced.”

4. ‘The Leamed Judges, having concluded that “even under this Order (ANA), the power (o strike out and enter judginent against a detaulter is discretionary only, and such discretionary powers must be exercised along established principles’, failed (0 make any proper determination of the reasons why they were holding that Edwards, J had wrongly exercised his discretion.

5. The Leamed Judges failed to consider or failed to consider properly that the Defendants had not provided evidence of sufficient cause (0 require the Count to set aside the judgment of Edwards, J as required under the provisions of Rule 19 of Order XXA.

co) ‘That the Leamed Judges were wrong in law to set aside the Order made

‘on the Summons for Directions by Taylor, J on 26° September, 2006 as

being void as the provisions of Order L, of the High Court Rules, 1960

require that an application to set aside proceedings for irregularity should

first be made to the High Court within a reasonable time and before a

fresh step has been taken.

PARTICULARS

(1) "That the issue of the summons for directions being irregular was never raised nor argued by Counsel for the Respondents in the High Court.

2) That the issue of the irregularity of the summons for directions was not raised within a reasonable time as it was brought up for dhe first time fourteen months afier the summons for directions was filed andl

argued and aller proceedings in the High Court had long been . condluded. @) That solicitors for he Respondents had taken several Ines steps in the proceedings in the High Court including applications to extend . the tie for compliance with the impugned summons for directions before raising the issue ofthe iregularity in the Court of Appeal. ii) the judgment was given per incuriam. PARTICULARS “That the Leamed Judges of Appeal filed to consider or adequately consider the wide scope provided by Order L (2) of the High Court Rules, 1960 which clearly states that *no application to set aside any proceedings Tor imegularty shall be allowed unless made within a reasonable time, nor ifthe parey applsine, has taken a fresh step alter knowledge ofthe ioregulary.” (The reliefs sought from this Court are thatthe Order of the Cou of Appeal dated 18" June, 2009 be set asides thatthe Order and Judgment of 28° February, 2007 entered by Hon Justice D B Eawards agains! the Respondents be restored; and thatthe costs of this appeal bye paid by the Respondents. That Judgement and Order of the High Cou, reads as follows: “UPON HEARING Yada Hashiny Williams esq of Counsel for the Plainll” Applica and the Defendaans/Resporggys having tailed to comply with the Court Onder dived 13 Februaty,2007; IT IS TH babe nD a follows: Yur

1. That the Defence dated 15° May;2006 and filed herein be struck out and judgment be entered for the Punll as follows: @ —Le60,000,000 the cost of Phan’ tipper ory with registration mumber AL

(©) Le14060,000, the value ofthe goods lost in the accident (0 £e2,960,000 per mouth for the loss of use of the said vehicle liom 19 December,2003 till payment. ()Inerest to be assessed. (Cost be sed if not agreed by the partic. HIGH COURT PROCEEDINGS 7.Litigaion commenced on 21° February,2006 when the Respondent in the I* Appeal, Ghereaier refered to as “the Respondent”) issued a writ of summons against the Appellants in the 1" appeal (hereafer referred to as “the Appellans”. I arose out of an accident which occurred on 19° December, 2008 involving vehicles orened by both sides. “The Respondent alleged that the Appellants diver was responsible for the accident. He was nol a party t0 the action, It was alleged that at the time of the accident, the

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