Alhaji A. Sesay v Emad Bahson (1 of 2003) [2003] SLCA 17 (12 February 2003)

Jf" = {2q a : . Mise. App. 1/2008 . wipaie 3 INTHE COURT OF APPEAL OF SIERRA LEONE gt ORGS fee isn PRO 4% : CBee eS a is! : A aehtpe e peo Ree ES x BETWEEN: Pee ene ALHAJI ABDULATSESAY ~APPELEARY/ APG ANSE OP ich aa) AND ert Sete omg Rh

Coram

HON MR JUSTICE MET. ‘THOMPSON].A. HON MRJUSTICE A.NB.STRONGE j.A. HON MR JUSTICE G. GELAGA KING jA Mr A. F, Serry Kamal for the applicant Dr A. Renner-Thomas, with him, Mr Pabs-Garnon and Mr R. Johnson for the respondent RULING DELIVERED ON THE 12" DAY OF FEBRUARY, 2003

HON MR JUSTICE G. GELAGA KING, J.A: In the midstream of arguing his

Sccond ground of his two grounds of appeal in Civ. App. 9/2002 between, the

S00, partes herein, the applicint filed this notice of motion, dated 14% January,

2003, praying for the following:

“An order that the respondent opens the general store in the pivmises at 4 appoint and ropa nn Eres aed ly oth the appellant and respondent prior to the judgement of the Hi Court to repair the roof of the said store and also to inspect his equipments (sic) and machinery in that store.

That the appellant be granted access to and allowed to continue to use the Said store until the determination of the appellant’s appeal to the Court of Appeal for Sierra Leone. * That the Court makes such further or other order as this Honourable Court shall deem fit.”

Re 425 - ; : Th notice i supported by the applicants afidavie Wish sb extibity, “AASL" to XAASG" and oppose by the respondent ffi AVING One esto FEB", Mr Serry Kamal, for the applicant, submit that ie Abpea stade . under the provisions of r. $1 of this Courts rales ani that he was relying et whole of the affidavit in support, particular! paragraphs 5 und 6: 1 shal x reproduce those paragraphs in full and later on in this ruling cOhipare t hem tyith the contrary averments contained in paragraph 4 of the resbanden affidavit The applicant alleges as follows: - ; ee Blea oN i “4. There are structures on th lan, cahesell Rolie and a wbiiten house (sc). The respondent leayes (aic) on the gro itd floor ot the concrete house. 1 occupy the other floor oh top oft ls be soy te wove structure, The respondent and I use fhe store. Wel bot ase the store until the judgement was delivered in the High Count: 1 We stored ih fia store valuable equipments (sic) viz.: =

(1) New safes, . 2) Various new machinery, @) Mining equipment.

5. Sometime ago during the beginning:of the last rainy season sidticed that afew ofthe corrugated on hes Ser hada idomie. Fiotified my ‘solicitors and told them that the roof had to be repaired, ‘promised to take the matter up with respondent's solicitor. ‘dy the meantime a wide gap appeared in the room, T again informed my. solicitors to ask the respondent to allow me to go into the store ro Ge iE ae sy very valuable equipments (sic). I am informed by my: that they wrote to the solicitors for the respondent and the latter refused to grant

seeeion to enter the store to carry out the said repaits True copies of the relevant correspondence are now Produced-and shown to me and marked Exhibit “AAS61-" sic, & 11's very important that I take these stops to protec. not only the roof of the said store but also my very valuable equipments (sic) and machinery.” Dr Renner-Thomas, for the respondent, contended that the orders sought seem to be @Pen-ended and doubted whether they could be made under’ ot He Submitted that the applicant would have had to show in his affidavit that the refarncte Was seeking was one to which he was entitled in the court below te ‘eferred to exhibit “EBI” and pointed out that the stay of execution noe only ¥ ranted on terms ordering the applicant, inter alia, to giye a writfén enforceable indirtaking that he will in no way deal with the property as if he was fle eae und that the applicant had indeed givca that undertaking. Furthermore, as the SANDILAAS2” discloses, the applicant's counterclaim was disitiseed,

‘ ee) : ‘ ars r 1m response the applicant denied that the ofdée pies: et-endéd and maintained that the application could be matletmnder Gf. ag : It is of crucial importance to observe that the Rigg ogee jr the lower court had granted a.stay of execut ee of the ju : delivered on the 19% day of March 2002. The relevatit pdftion of the a stay of execution, exhibit “EB1’, states: - : : “1. That execution of the judgement of the Hohotabls Gout dated! he "193 day of March 2002 be stayed pending die Svat ana deters sou the defendant/applicant’s appeal to-the Coit gh ippealist Siena Lisa on the condition thatthe defendant/ applica BAe¥ atten enforcedbl undertaking that he will in no way deal ‘0 Bie pepaity by ‘ay 8h disposing of it by outright transfer or parting will Eb) Way Of Teak 0 otherwise or by allowing any additi vectipants fo oc ry fe properties on the premises or deal with the proper fab is the own in default of which the plaintff/respondent shot bea liberty to execu the judgement, f , 2 That taxed costs...” _ It is against this background that the applicant has ied to this Court for the orders stated supra, praying in aid and relying ont. # ‘Of is Court's ridés, PN. No. 29 of 1985. Before I deal with r.-31 it is ittstractive to Béar-in mind the jurisdiction of this Court as provided for in section 129 (8) of the Con of Sierra Leone, Act No 6 of 1991 (hereinafter referred to a3 “the Constitution”). It states: - “For the purposes of hearing and determining any appeal within its jurisdiction and the amendment, execution or ehforcement ‘of any Judgement or order made on any such appeal and for the purposes of any - other authority expressly or by necessary implication given to the Court of Appeal by this Constitution or any other law, the Court of Appeal shall have all the powers, authority and jurisdiction: vested in the ‘from * which the appeal is brought.” Turning now to r. 31 it is otiose to say that it is made pursuant to that séction of the Constitution. The rule details the general powers of this Couft that will enable us to make appropriate orders for the. of ining. the real question in controversy in an appeal. Emphasis mine. To ‘hat end this Court, in the words of the rule, “may direct the Court below to enguire into and certify its finding on any question which the Court thinks fit to determine before final « judgement in the appeal, and may make any interim order of grant any njunction which the Court below is authorised to make . . . and generally shall ave as full jurisdiction cver the whole Proceedings as if the proceedings had “en instituted and prosecuted in the Court as a Court of first iistance, and may hear the whole case...”

ane : Itmust always be borne in mind that unlike the High Court this Court gener in has no original jurisdiction unless it is expressly piven it by stat 7 jarisdiction is clearly appellate. It is for the ry ‘se. OF Exercising s “Jurisddciion that this Court “may from time to Himé male any ord ay determining the real question in controversy in the appeals. .”" Could it be said that the orders sought by the applidint ite fot the pu pose of determining the real question in controversy in his appeal? bine Rok, On tie contrary, the orders asked for are in respi of tet involved. in the isis z which were before the lower court, for we ts cohit hasgivenjtidgentént and which judgement is currently the subject of appeal brought here by the applicant/appellant himself, 2 i The drawn-up order on the judgement states ca tegotically thiefe will be judgement for the respondent/plaintiff for spetific BeHormAnG a a he applicant/ defendant must sign a conveyance of the property at 4, Bulli Street, Freetown, in favour of the respondent. Futtheratore, the 3 Sounterclaim was dismissed with costs. Added to that, the very 4 an himself has given a written oats ee Hot: t6 “deal ‘with the Property as if he is the owster’. On top of this, the trial Court ordered that if the applicant defaulted on the terms of the stay of execution; the respondent should “be at liberty to execute the judgement”. 3 {t fies in the face of right-thinking persons that in the midst of all these facts, the applicant should brazenly and unabashedly come before this Court to ask for the aforesaid orders. To accede to their request will be tantamount to this Court being, unwittingly, a party to breaching, flouting and disregarding the terms of the stay of execution and, in effect, deciding issues in the appeal herein even before arguments are concluded! 1 now direct my attention to comparing paragraph 4 of the respondent's affidavit with paragraphs 4, 5 and 6 of the applicant’ as earlier 1 said I would. The respondent's paragraph 4 reads: 7 “That the store which the applicant herein intends to repair forms part of the said property which is the subject-matter of an appeal now pending before this Honourable Court which said store has at all ‘material times been in my possession and under my control.” juxtapose this paragraph with those of the applicant's and it becomes clear that é they are diametrically opposed to each other. Having regard to the aforesaid ‘orders of the lower court, the respondent's is to be preferred. ‘et me end up by making it quite clear that what I have said about r. 31 does not ‘any way detract from this Court’s power under the Constitution to make

The pages read for this report end here. The judgment continues in the PDF.