Abdulai Moijueh & ORS V Abu Smart (CIV 1 of 2011) [2015] SLCA 1123 (12 March 2015)

. CIV APPEAL 1/2011 a IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: ABDULAL MOLJUEH = APPELLANTS 2 FRANK ANTHONY MRS ROGERS AND ‘ABU SMART ~ RESPONDENT THE PESSIMA FAMILY COUNSEL: E EC SHEARS-MOSES ESQ for the Appellants AM BANGURAH ESQ for the Respondent

Coram

‘THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF THE ‘SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF THE SUPREME COURT THE HONOURABLE MS JUSTICE V M SOLOMON, JUSTICE OF THE SUPREME COURT JUDGMENT DELIVERED THE whey OF MARCH,2015.

The Appeal

1. This is an appeal brought by way of Notice of Appeal filed on 7 Tanuary,2011 by the Appellants herein against the Order of KONOYIMA,J made and delivered on 19 October,2010 in the High Court sitting at Bo. There are 3 Grounds of Appeal: i. The Learned Judge erred in Law in ordering that a matter pending in the District Appeals Court be transferred to the High Court. ii, The Learned Judge erred in ordering the transfer (rom the ‘ District Appeals Court of Bo to High Court of the Bo District Registry (Sic) of a matter which the Plaintiff/Respondent claimed in both their Notice of Motion and their affidavit in support was presided over by Magistrate Steven Conteh there being no such

as Magistrate presiding over the District Appeals Court at Bo at the ~ ‘material time. iii, The Learned Judge misapplied the provisions of Section 10 of the Courts’ Act 1965.

2. The Appellants pray that the Ruling of the Learned Judge, and all subsequent proceedings consequent upon the same, be set aside and that « a Ruling in favour of the Appellants be entered by this Court. And also, that the Respondents bear the Costs of this Appeal.

Background

3. The Record - pages 142 - shows that on 5 March,2007 the Respondent herein applied to the District Appeals Court, Bo, by way of Notice of Motion, for three matters to be transferred from the Kakua Local Court, Bo, to the District Appeals Court for hearing and determination. The matters were those between Abu Smart as Plaintiff and Abdul Moijueh as Defendant; between Abu Smart as Plaintiff and Frank Anthony as Defendant: and between Abu Smart as Plaintiff and Mrs Rogers as Defendant. The Respondent also asked that if the Order for transfer be made, that the three actions be consolidated. 4, The reasons for the Application are to be found in the supporting affidavit of the Respondent, deposed and sworn to that same day - pages 445, Reference is made in paragraph 5 of the affidavit, to the ‘dual capacity’ of the District Appeal Court though it is not quite clear what this means, But in paragraph 6 thereof, the deponent deposed that: “There are complex legal issues involved in these matters that in my opinion can only be competently handled by legally trained minds and with expertise...” The Record does not show whether and when if at all, an Order for transfer was made in 2007, but at page 8 et seq, we find minutes of the proceedings in the District Appeal Court presided over by His Worship M. Stevens esq., Magistrate. At the top of page 8, the minutes of the proceedings on 22 April,2010 read: *...Counsel for the Respondents is not opposed to the application for a transfer. The Bench: the Motion of (sic) transfer is granted by this court. Case adjourned to z 4" May,2010 for hearing." On the same page in the Record, it appears, the hearing before Mr Stevens actually commenced on 18 May,2010 and witnesses were taken on that day and intermittently, on subsequent days unto 5 October,2010. On that day, Counsel for the Respondentg was not in Court. Lt appears he had sent a letter to the Court dated 1"

October,2010 stating that he would not be able to attend Court on 5"

~ October as he would be travelling to Freetown on Sunday 3 October, and expected to return to Bo on Wednesday 6 October. Reading the minutes at the bottom of page 15 of the Record, it is quite apparent that the Learned Presiding Magistrate was most annoyed at Counsel's absence and the request for an adjournment. He was not prepared to grant the

' adjournment. He therefore proceeded to hear the surveyor witness for the Respondent as he was present in Court. Mr J Cole, Counsel for the Appellant then applied that the Respondent's case be closed as his Counsel had been the cause of the protracted nature of the proceedings. The Learned Magistrate granted the Application - page 16 - and closed Respondent's case. He adjourned the hearing to 19 October,2010 for addresses.

RESPONDENT'S MOTION OF 12 OCTOBER,2010

5, By Notice of Motion dated 12 October,2010 the Respondent through his Solicitor Mr A M Bangurah, applied by way of Notice of Motion to the Local Appeals Division of the High Court, Bo for, inter alia, the following

Orders

An interim stay of the proceedings in the District Appeal Court, Bo; that the consolidated matter pending before in that Court, be transferred to the Local Appeals Division of the High Court sitting at Bo for *...0 continuation of its hearing and determinatiort; that the order(s) of the District Appeal Court, Bo made by His Worship "Steven Conteh” on 5" October 2010 in the said matter, be set aside,

6. Mr Shears-Moses has made much play of the error in the last mentioned Order prayed for, in that it referred to Mr Steven Conteh, now deceased, as the Presiding Magistrate, instead of Mr M. Stevens who was the Presiding Magistrate. The error was even canvassed as a ground of ‘appeal. It was an obvious error which could have been corrected at the hearing of the Application, and we do not think it merits the consideration of this Court as a proper and/or important ground of ‘appeal. It deceived no one; nor, did it prejudice the Appellants in any way whatsoever.

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7. The Application was supported by the af fidavit of the Respondent himself, deposed and sworn to on 12" October 2010. He deposed to the perceived prejudice and bias of His Worship, Mr Stevens. He said, among other things, that at that 5" October hearing, he, an illiterate man, had been forced to cross-examine an expert witness, and had been told he

must call his other witnesses who were not available that day. He had not ss himself testified as to the facts, yet still, the Learned Magistrate had declared his case closed. APPELLANT'S AFFIDAVIT IN OPPOSITION 8, The 1” Appellant deposed and swore to an affidavit in opposition on 15 - October,2010, He deposed that the Respondent had been guilty of excessive delay in the way he had prosecuted his claim. The Respondent had ulterior and mercenary motives in causing the unnecessary delays in the hearings. In his view, the Learned Magistrate had bent backwards on several occasions to accommodate the Respondent's Counsel HEARING BEFORE KONOYIMA,J

9. The Respondent's Motion first came up for hearing before KONOYIMA, J. on 15 October,2010 page

100. Counsel on both sides were present. An interim stay of the proceedings before the Learned Magistrate was Ordered and the hearing adjourned to 19 October, the same day the Learned Magistrate had adjourned the hearing before him. Counsel on both sides were heard in argument by the Learned Judge that same day. At the end of the hearing, he gave his Ruling. He referred to Section 10 of the Courts’ Act,1965 and Section 134 of the Constitution of Sierra Leone,1991, Section 10 of the Courts’ Act states: * The High Court may of its own motion or on the application of the presiding magistrate or of any party to the proceedings on cause shown transfer - (a) any matter pending before the Magistrate's Court in its civil jurisdiction to the High Court or t0 another Magistrate's Court for hearing and determination there...” Section 134 of the Constitution states: The High Court shall have supervisory jurisdiction over all inferior and traditional Courts in Sierra Leone... and in the exercise of its supervisory jurisdiction shall have power to issue such directions, writs and orders...as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers. 10, The Learned Presiding Judge Ordered as follows: That the matter = between the Appellants and the Respondent be transferred to the High Court for *for the continuation and final determination: that all the records of the proceedings in the Magistrate's Court be prepared and filed/lodged at the High Court, Bo within fourteen days from the date of bai

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