Alhaji A. Sesay v Emad Bahsoon (MISC APP 1 of 2003) [2003] SLCA 26 (12 February 2003)

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pees ‘ BETWEEN: : ALHAJI ABDI ‘ \JI ABDULAI SESAY -APPELLANT/, AND aK EMAD BAHSOON, ..

Coram

HON MR JUSTICE MET. THOMPSON}.A. HON MRJUSTICE ANB.STRONGE JA. HON MR JUSTICE G. GELAGA KING J.A- 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 BRUARY. 29 : midstream of arguing his HON MR JUSTICE G. GELAGA KING IA 5% 9/0 bt x second ground of his two grounds sppeal Pr ey. same parties herein, the applicant filed this notice of motion, dated 14% January, 2003, praying for the following i * store in the premises - amonder that the respondent o7ets WO SNOT ced pinly by both the Bolling Street Kingtom recon PSY or ofthe High Com appellant and respondent prior fad also to inspect his equipments (sic) repair the roof of the said store i t store. a so and allowed to continue 1 88 ‘That the appellant be granted 2° 2 appellant® appeal to the Court said store until the determinal ‘Appeal for Sierra Leone- ; a 3 such sero oer ore 9 8 TRAOATS That the Court makes Court shall deem fit

F 2 notice is supported by the applicant's affi y The Band opposed by the respondents afdee a pe ety AAS: 0 Mr Serry Kamal, for the applicant, submitted that rity if One exhibit, “EB”. Mier the provisions of r. 31 of this Court's rules and application was made f the affidavit in su that he was relying on the whole of upport, particularly paragraphs 4; 5 and 6.1 shall reproduce those paragraphs in full and later on in this ruling them with ‘hecontrary averments contained in paragraph 4 of the rams ‘The applicant alleges as follows: - - +4, ‘There are 3 structures on the land. A store, 4 concrete house and a woo house (sic). The respondent leaves (sic) on the ground floor of the concrete house. I occupy the other floor on top of it 1 also the wooden top occupy structure. The respondent and I use the store. We both used the store until the judgement was delivered in the High Court. Ihave stored in that store valuable equipments (sic) viz.:-

(1) Newsafes,

(2) Various new machinery, | (@) Mining equipment. : . -_ iced that

5. Sometime ago during the beginning of the last rainy season T noticed a few of the corrugated iron sheets on roof had gone undone. Inotified my | aoe rsd told chem thatthe roof had to be repaired. They promised fo i take the matter up with respondent's solicitor. In the meantime a wide ‘ ed my solicitors to ask the | gap appeared in the room. I again informed My into the store to repair the roof to have my | respondent to allow me to 80 into fed by my solicitors that they very valuable equipments (sic). 1am a prey d 5Y ord ope wrote to the solicitors for the responders ‘True copies of permission to enter the store to cary faced: and shown to me and the relevant correspondence are NOW prod \ marked Exhibit “AAS6 1 -“ sic. “plot protect not only the roof © 6 itis very important that I take these oP ments (cic) and machinery: the said store but also my very valual . Dr} tended that the orders soughtseen i Renner-Thomas, for the respondent tr id be made ‘under I. ut - subremended and doubted whether Pad to show in his affidavit tet “hited thatthe applicant would MT aed i below. He ‘heed (ee seek ee od vl Tinted out that the sy cf exetfen enforceable ibit “EB1” an¢ ‘ "ented on terme order and oant inter abs 10 BT was the ownet Ndetta er erin’ with the POPEHY a ormoie, as the sng Taking that he will in no way deal wear undertaking: arutlat the applicant had indeed gO hat orl was ASSO . | it" AAS2” discloses, the applicant

is ie, |

the applici . * in response the applicant denied that the maintained that the application could be madg der eat WH Open-ended and itis of erucial importance to observe thatthe 1. the lower court had granted a stay nr ne APPlcation brought was made ser “4 tay of execution, on terms, delivered on the 19% day of March 2002. The nar of the judgement ‘tay of execution, exhibit “EB1”, states: ‘ant portion ofthe order for a “1, That execution of the judgement of the day of 1h 2002 be stayed qromoarable Court dated the 198 Mare . Pending the hearing and determination of the defendant/applicant’s appeal to the Court of Appeal of Sierra Leone on the condition that the defendant/applicant gives» written enfomeatle undertaking that he will in no way deal with the property By way af disposing of it by outright transfer or parting with it by way of lease or otherwise or by allowing any additional occupants to occupy the properties on the premises or deal with the property as if he is the owner in default of which the plaintiff/respondent should be at liberty to execute the judgement. 2 That taxed costs...” _ Itis against this background that the applicant has applied to this Court for the orders stated supra, praying in sid and relying ont 5 ofthis Coerts rolée PX. No. 29 of 1985. Before I deal wea rere rd bast) ce ha Copeeatin of jurisdiction of this Court as provided for in section “the Constitution”). It Sierra Leone, Act No 6 of 1991 (hereinafter referred to as “the states: - “For the purposes of hearing and determining ay SPP May jurisdiction and the amendmen appeal and for the purposes of any judgement or order made on any implication given to the Court of other authority expressly or by necesste) A the Cour of Appeal tall Appeal by this Constitution oF SY aiction vested in the have all the powers, mented as which the appeal is brouj of nt that section 1 woth say that its made cue Cour ie atone ming now to r. 31, it is otiose to ‘the general powers i * Constitution. ‘The rule details the 60 of deter tis Court 18 teal’ ¥s to make appropriate orders SES spine. To. en On ety ees ian appeal Ey ta Nord ofthe ral, “may dest the Co thinks Bt im onder of grant ay sage on ay question wich the Os any intr OO sna tal iyeement in the appeal, is authorised 0 MA 1.6 proceedings “Reon which the Court below i attr ceedings 28 ON cy ad mY X85 full jurisdiction over the 1 ‘Court as a out rope itstituted and prosecuted in the i "the whole case...” Bibra

be borne i os 9 must always in mind that ie no original jurisdiction untesg I cp Coe Con | jrisdction is clearly appellate, It ig for the Biven it by sate ee | Eeaicon tha this Court “may from tae PO Of exerci tat see | fnemining the real question in controversy inthe eae ott cena fr ould it be said that the orders soy ight | SNemnining the real question in by the applicant are forthe | determ controversy in this Purpose of contrary, the orders asked for are in respect of mater Pine Bot On the which were before the lower court, for which that court hare ie ste ihich judgement is currently the subject of appeal Leven seement and ‘pplicant/ appellant himself. brought here by the The drawn-up order on the judgement states . indgement for the respondent/plaintif for specie piace wea Gu te applicant/ defendant must sign a conveyance ofthe property at 4, Boling Street Freetown, in favour of the respondent. Furthermore, the applicant's counterclaim was dismissed with costs, Added to that, the very applicant himself has given a written enforceable undertaking not to “dedl with the property as if he is the owner”. On top of this, the trial Court ordered that ifthe applicant defaulted on the terms of the stay of execution, the respondent should “teat liberty to execute the judgement’. Itflies in the f of right-thinking persons that in the midst of all these facts, the applicant area and unabashedly come before this Court to ask for the dforesid orders. To accede’ to their request will be tantamount to, his Court being, unwittingly, a party to breaching, flouting beaten herein even the stay of execution and, in effect, deciding issues in ‘cfore arguments are concluded! the respondent's affidavit ‘now direct my attention to comparing peer oe I said I would. The with paragraphs 4, 5 and 6 of the applicant f *spondent’s paragraph 4 reads: . : ir forms part of : Jicant herein intends to repair i ‘That the store which the appucat matter of an appeal now pending the said property which is the SUBSET tore has at all mater tines before this Honourable Court w! ‘control.” rn been in my possession and under mY lear that | ux of the applicant’ and 1 foresaid | SP this paragraph with those f EP riving meget : | git diametrically opposed t0 C00 2's abe preferes "S of the lower court, the respon’ have said about 31 does not | let se quite clear that what Constitution to rend up by making it quite Cer, power under 'Y way detract from this

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