Agricultural Products Manufacturing Company Limited v Sahid Koroma And Another (MISC APP 3 of 2019) [2020] SLCA 31 (19 July 2020)

—\|2s—- x MISC.APP/3/2019 IN THE HIGH COURT OF SIERRA LEONE BETWEEN: AGRIDUt URAL PRODUCTS -PLAINTIE°S/RESPONDENTS ‘ , MANUFACTURING COMPANY LIMITED 4° FLOOR 68 SANDERS STREET FREETOWN AND SAHID KOROMA “15° DEFENDANT/APPELLANT MANAGING DIRECTOR MARIKA ENTERPRISES WELLINGTON INDUSTRIAL ESTATE FREETOWN AND MARIKA ENTERPRISES -280 DEFENDANT/APPELLANT WELLINGTON INDUSTRIAL ESTATE FREETOWN BEFORE THE HON. MS. JUSTICE. MIATTA M. SAMBA J.A - PRESIDING DATED THE 9™ DAY OF JULY 2020 Counsel: A.M. Kamara Esq for the Plaintiff/Respondent R. B, Kowa Esq for the Defendants/ Applicants

Ruling

1. On file is an application by way of Notice of Motion dated the 11° day of April 2019 filed for and on behalf of the Defendants/Applicants for the Orders as appear on the face of the Notice of Motion basically for a stay of execution of the judgment of this Court delivered on the 21% day of September 2018 by the Honourable Mr. justice Mohamed Sengu-Koroma, |.A as he then was, pending the hearing and determination of an appeal to be filed by the Defendants/Respondents and for leave to appeal the said judgment. 1.1. The application is supported by the Affidavit of Robert Baoma Kowa sworn toon the 11% day of April 2019 with the following exhibits attached. a. Exhibit A isa copy of the Writ of Summons which commenced this action. b. Exhibit B1 4 is a Notice and Memorandum of Appearance filed for and un behalf of the Defendants/Applicants. Exhibit C1-4 is a copy of a Judges Summons made pursuant to Order 16 of the High Court Rules, 2007 together with its Supporting Affidavit for and + on behalf of the Plaintiff/espondent. 4d. Exhibit D1-7 is a copy ofa Judgment dated the 21" day of September 2018 pronounced by the Hon. jst. Mohamed Sengu Koroma, [A as he then was. ©. Exhibit E isa copy of a Proposed Notice of Appeal. {Exhibit Fis a copy of Notice of Appointment of Solicitors x

g Exhibit G1-2 is a copy of an application dated 8 October 2018 for stay of execution of the Judgment dated 21% September 2018 hereinbefore referred to for and on behalf of the Defendants/Applicants, h, Exhibit H is a copy of a Report on locus visit on the property, the svhiect * matter hereof. > Exhibit] is a copy of a Ruling by the Learned Jst. Mohamed Sengu Koroma, JSC refusing the application for a stay as per application dated 8% October 2018 as in Exhibit G1-2, j. Exhibit K is a copy of a brochure showing production machines on the subject matter herein,

2. On file is an Affidavit in Opposition sworn to by Allie E. Bangura on the 10% day of May 2019 with Exhibit AEB1 attached showing the Applicants’ and Respondent's property. On file are a Supplemental Affidavit and a Further Supplemental Affidavit in Opposition sworn to by Allie E. Bangura on the 6 and 20% day of June 2019 respectively. Attached to the Further Supplemental Affidavit in Opposition sworn to on the 20% June 2019 are the following Exhibits: k. Exhibit AMK1 is a copy of letter dated 30" September 2009 from the National Commission for Privatisation to the Plaintiff in respect of a balance of $329,700 guaranteed for the Plaintiff herein by the Access Bank, Sierra Leone Ltd in respect of sale of assets of the PK Oil Mill and Feed Mill at Wellington and cline ‘Town, the subject matter hereof. |. Exhibit AMK2 is a copy of an Agreement signed by both the Applicant and the Respondent herein and witnessed by three other persons including the then Chairman of National Commission for Privatisation, same dated 9 April 2010, m. Exhibit AMK3 is a letter dated 31% day of July 2013 from the Managing Director of the Respondent herein to the Applicants herein, “Re: Notice to hand over Feed Mill Building and Address other breaches of Agreement’. 1, Exhibit AMK¢ is a copy of Court Ruling dated 26 March 2018.

3. On file is an Affidavit in Reply sworn to by Robert B. Kowa on the 11° june 2019 with the following Exhibits attached: o. Exhibits L1 & 2 ~ Ruling delivered by the Hon. Mr. jst. Mohamed Sengu Koroma J5.Con the 28% March 2019, p. Exhibit M1 & 2 - Orders as per the Ruling referred to in Exhibits Li & 2 above. 4, Exhibit N1-10-copies of sale contract, commercial invoice and a packing list of ‘equipment in the name of the 1* Applicant. Interlocutory or Final Judgment

3. Counsel or the Defendants/Applicants have asked for leave to appeal the Judgment pronounced pursuant to an Order 16 application of the High Court Rules, 2007 on the basis that he understands the said judgient as in Exhibit D of . 21* September 2018 to be an interlocutory judgment because rent, interest and costs were yet to be assessed hy the Learred fudge. Counsel argued that because 2 separate Orders were made by the Learned Judge, it could only mean that the judgment and Orders of 21* September 2018 was interlocutory.

nf 3.1. Counsel for the Respondent submits that the application made on behalf of the Plaintiff/Respondent was an Order 16 application which is only subject to appeal and that same is not interlocutory as Counsel for the Applicant submits. Inessence, it is Counsel's position that the Defendants/Applicants need not seek leave of this Court to nie an appeal against the judgment of 21* scptember 2018 z as such appeal is as of right and that the subsequent Orders as to rent and interest granted by the Judge does not make the judgment an interlocutory

Judgment

In support of his submission that the judgment of 21st September 2018 is a final judgment, Counsel referred to the following cases: Joseph M.B Johny v Total (SL) Ltd Civ. App 49/214 (Unreported), Mohamed R. Tejan-Cole v Bank of Sierra Leone Civ. App 39/2011. 4. [have looked at Order 16 of the High Court Rule of Sierra Leone, 2007 under which the application was made for and on behalf of the Plaintiff before the Honourable Mr. Justice Mohamed Sengu Koroma. It provides: : Order 16R 1(1) HCR, 2007 provides that Where in an action to which this rule applies, a defendant has been served with a statement of claim and has entered appearance, the Plaintiff may, on notice apply to the court for a judgment against the defendant on the ground that the defendant hhas no good defence to a claim included in the Writ, or to a particular part of the claim except as to the amount of any damages claimed. Rule 3(1) states Unless on the hearing of an application under Rule 1, ether the court dismisses the application or the defendant satisfies the Court with respect to the claim or the part ofa claim, co which the application relates, that there is an issue of question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the Plaintiff ‘against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed. 4,1. It is clear from Order 16 Rule 1 that the Judge needs not even wait for a Defence to give judgment on an Order 16 application. It is also clear from Order 16 Rule 3(1) that the Court could give such judgment to the claim or part of the claim as may appear just to the Judge having regard to the nature of the relief sought. 4.L-. It is the Court’s position that the judgment and Orders of the 21% day of September 2018, with Counsel for both parties on record present, is final. It was held in the Court of Appeal Botswana case of Kweneng Land Board v Daniel Selaki and Paphane Sekgome C.A Civil Appeal No. 10 2004 that the geanting of summary id judgment is a final judgment since it determines the rights of the parties and the only way to upset such a decision is on appeal. On the other hand, the refusal of a summary judgment is thus a simple interlocutory order which is not appealable, without leave, because it did not directly bear upon or dispose of the issues in

a the action or irreparably anticipate or preclude any of the relief which must be given at the hearing”. 4.1.2. It is the Court's view that applications for assessment of rent or interest have fiothing to do with the substantive claita icr possession and we believe + Counsel knows that applications for assessment of interest also could be made even after final judgments. For the above position, the Court is persuaded by the Nigerian Court of Appeal decision of Michael Adeboye V Steve Boje CA/L/934/2014 delivered on the 10 March 2016 and the Associated Discount House Ltd v Hon. Minister of the Federal Capital Territory & Anoth (2013) LPELR- 20088 (SC) delivered on Friday, 22" day of February 2013. It is therefore the Court's position that the Applicants need no leave to appeal against the judgment of 21% September 2018; such appeal is as‘of right. Stay of execution of the judgment of 21* September 2018

5. Counsel for the Applicants referred and relied on Exhibits E, H and K of the Affidavit in Support and argued that the Learned Judge was wrong in Exhibit D in granting an Order 16 application in favour of the Plaintiff/Respondent because there were issues to be determined including the Applicants Counter-Claim which the Judge did not address. We have ruled that the judgment of 21% September 2018 is a final judgment and the Court need not entertain Counsel's submissions otherwise. 5.1. He referred to Exhibits H, the Locus Visit Report and K, photos of machines, fon the subject matter and to paragraph 13 onwards of the Supporting Affidavit which he submitted constitutes special circumstance as deposed to in the Applicants’ Supporting Affidavit. He submitted that the machines which are implanted into the ground cannot be easily removed; that the machines will be easily damaged if removed and that removal will paralyse the business of the 2°4 Defendant/Applicant. Counsel referred and relied on the Africana Tokeh Village V John Obey case and argued that execution of the Judgment of 21% September 2018 will affect the economic status of the 2! Applicant as well as 3% parties, to wit: persons employed by the 2"! Applicant. 5.1.1. Counsel argued that the Applicants have a Counter-Claim and that ‘execution at this stage will be disadvantageous to them because if they are given an opportunity to pursue their Counter-Claim, the damage of removal of the machines would have been done, resulting in huge financial loss for the Applicants. 5.1.2. There is on file a Conveyance giving title to the Plaintiff/Respondent. The Defendant/Appticant has not shown any document that gives him legal ttle to the disputed property.

. 6. 1tis the Respondent's case that for the Court to grant a stay of execution of the final judgment of 21 September 2018, the Applicants must show special Circumstances and an appeal with 3 prospect of suecess. He argued, that the Applicants have not, since 21* September 2018 when judgment was pronounced

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