Abubakarr K.Bangura v Isata B.Kamara (MISC APP 23 of 2023) [2024] SLCA 1 (13 February 2024)

MISC/APP 23/2023 INTHE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:

ABU BAKAR KASSIM BANGURA = APPLICANT

34 BASSA TOWN,

FREETOWN,

vs.

ISATU BOIE KAMARA ~ RESPONDENT

(ADMINISTRATRIX OF THE ESTATE OF

ALHAIIUSMAN BOLE KAMARA)

116 WILKINSON ROAD

FREETOWN, BEFORE THE HON. MR. JUSTICE JOLIN BOSCO ALLIEU, J.A. RULING DATED THEI Day OF FEBRUARY 2024, COUNSEL:

E.T. KOROMA ESQ. FOR THE APPLICANT

O.JALLOH ESQ. AND I WILLIAMS ESQ. FOR THE RESPONDENT

Ruling

‘The Notice of Motion dated 14% November 2023 sought to be moved by E.T. Koroma Esq, Counsel for the Applicant herein, was objected 10 by O, Jalloh Fsq., Counsel for the Respondent, on Jurisdictional grounds. Inviting this Hon. Court's attention to “EXABK9” attached to the Notice of Motion dated 14% November 2023, O. Jalloh Esq, Counsel for the Respondent, submitted that the ‘Application based on enlargement of time and the other Orders prayed for onthe face of the said Notice of Motion cannot be made before this Hon. Court without first having been made in the High Court. ‘According to him, the Application ought to have been made in the High Court and if there is refusal of same, then, the Applicant would have been at liberty to come before this Hon. Court. He made reference to Rules 10(1) and 64 respectively of the Court of Appeal Rules 1985, He submitted that an Order dated 2 August 2023 was granted by Hon, Justice Wright J. and thee is nothing before this

Hon. Court that the Applicant had applied to the Court below and the same was refused. Unless this is done, this Hon. Court does not have Jurisdiction and prayed that the Application be struck out with significant costs.

un Responding to the objections raised by Counsel for the Respondent, E.’T. Koroma Esq, Counsel for the Applicant, submitted that Rule 10(1) of the Court of Appeal Rules 1985, relied upon by Counsel for the Respondent, is no longer operational as it has been amended by Constitutional Instrument No. 1 of

He referred to the case intitled Mise. App. 10/22, In the Court of Appeal of Sierra Leone (Civil Jurisdiction) between Mira Huballah and Zina Huballah ~ Applicants And Alimamy Fofanah, Shekou Kamara, Simeon Smith and Athaji Mohamed Bobo Bah — Respondents. He submitted that similar facts arose in that matter as in this one now pending before this Hon. Court. “The decision of the Court of Appeal been sacrosanct, he further submitted that this Honourable Court has the requisite Jurisdiction to hear and determine an Application of such. According to him, the objections raised have no legal efficacy and should therefore be overruled entitling him to whatever minimal costs, preferably Le30,000/00 (Thirty Thousand Leones).

uw In his reply, Counsel for the Respondent, O. Jalloh Esq, referred to the case of Nigeria National Shipping Lines Vs. Abdul Ahmed (I'rading as Abdul Aziz Enterprise) S.C. Civ. App. No. 3/88 (unreported), Judgdment of the Supreme Court of Sierra Leone delivered on 17 February 1989. He argued that the case of the Judgment of the Court in the case he referred to is that where there is an Application for an extension of time, the purport of Rules 10(1) and 64 of the Court of Appeal Rules

1985 in that approach should first be made in the High Court and resort can only be in the Court of Appeal when there has been a refusal. Referring to Constitutional Instrument No. | of 2003, he submitted that a close reading of Rule 10(1), Court of Appeal Rules 1985, does not affect his objections; rather it confirms it in the following phrase “Unless the Court below enlarges time”. In the same vein, Rule 64 of the Court of Appeal Rules 1985 is not affected by his objections as it acknowledges amended Rule 10 (1) of the said rules which placed emphasis to first seek resort in the High Court before coming to the Court of Appeal. Referring to the Huballah case cited to Counsel for the Applicant, Counsel for the Respondent submitted that, that case docs not displace the Judgment of the Supreme Court in the Nigerian National Shipping Lines case and that this Hon. Court is bound by the Judgment of the Supreme Court by virtue of Section 128(3) of the Constitution of Sierra Leone 1991. In effect, the Huballah case does not change the Law in Sierra Leone as the same is a Court of Appeal decision. wv

| find it necessary and appropriate, at this tage, to set out Rule10(1) and Rule 64 respectively of the Court of Appeal Rules 1985. Rule 10(1) states:

“Where an Appeat lies by leave only, any person desiring to

Appeal shall apply to the Court below or to the Court by Notice

of Motion within fourteen days from the date of the decision

against which leave to Appeal is sought unless the Court below

or the Court enlarges time.”

Rule 64 states:

gnactiment, where any application may be made either to the Court

below or to the Court, it shall be made in the first instance to the By virtue of Rule 10(1) both the High Court and the Court of Appeal have concurrent Jurisdiction in the matter of Application to these Courts for leave to Appeal for enlargement of time. Rule 64, however, provides that the Application must first be made to the High Court and on refusal, to tlhe Court of Appeal for determination. In the case of Nigerian National Shipping Lines Vs. Abdul Ahmed (Trading as Abdul Aziz, Enterprise) S.C. Civ. App No. 3/88, Kutubu J.S.C. eiting the case of Ohene Moore Vs. Akesseh ‘Tayee (1933) A.C. 972, the ratio of Lord Atkin in the Privy Council where the Learned Judge

Held

It must however be noted that this Authority was delivered not on the extent of time but failure to fulfill certain requirements requisite for the purposes of an Appeal.

a

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