Alhaji Abdulai Bangura v The Court of Appeal of Sierra Leone And Others (SC CIV APP 4 of 2006) [2007] SLSC 10 (26 November 2007)

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SC. MISC. APP. NO, 3/2006 IN THE SUPREME COURT OF SIERRA LEONE (SUPERVISORY JURISDICTION) IN IE MATTER OF SECTIION 125 OF THE CON: 1ON. LEONE 1991 AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY AN ORDER OF CERTIORARI TO QUASH THE ORDER OF THE COURT OF APPEAL DATED THE 13 THE DAY OF JULY 2006 IN THE MATTER CIVIL APPEAL NO. 60/2005 BETWEEN ALHAJI ABDULAI BANGURA (APPELLANT) AND TOUFIC HUBALLAH, SIERRA LEONE NATIONAL PETROLEUM COMPANY LIMITED, UMARU SAWANEH MOHAMED KAMARA (RESPONDENTS) FOR THE SAME TO BE QUASHED. BETWEEN: ‘ALHAJI ABDULAI BANGURA . APPLICANT 7 AND THE COURT OF APPEAL OF SIERRA LEONE PRESIDED OVER BY HONOURABLE MISS JUSTICE U.H. TEJAN ? JALLOH JUSTICE OF APPEAL, HONOURABLE MR. JUSTICE P.O. HAMILTON JUSTICE OF APPEAL AND HONOURABLE MS. JUSTICE S. KOROMA JUSTICE OF APPEAL AND JUFIC HUBALLAH SERRA LEONE NATIONAL PETROLEUM COMPANY LIMITED UMARU. 'SAWANEH MOHAMED KAMARA AND JUSTICE - RESPONDENTS THE ATTORNEY GENERAL & MINISTER OF JUS’ \ a

CORAM: 4 HON MR. JUSTICE G, SEMEGA-JANNEH ~ J.S.C. HON MRS. JUSTICE V.A.D. WRIGHT- J.S.C. HON MR. JUSTICE M.E. TOLLA-THOMPSON - J.S.C. HON MR. JUSTICE S.A. ADEMOSU - J.A. HON MR, JUSTICE JON KAMANDA - J.A. COUNSEL: . AF. SERRY-KAMAL ESQ FOR THE APPLICANT ? ©. KANU ESQ. FOR THE 1°" RESPONDENT ~ E, PAPS-GARNON ESQ. FOR THE 2"° RESPONDENT C.C. V. TAYLOR ESQ. FOR THE 3°° RESPONDENT RULING DELIVERED ON THE 26™ NOVEMBER, 2007. See J.S.C. This is an application for an order of certiorari to Jremove to this court the order of the Court of Appeal dated the 13" day of July 2006 in the matter civil appeal numbered 60/2005 between Alhaji Abdulai Bangura (Appellant) and Toufic Huballah, Sierra Leone National Petroleum company Limited, Umaru Sawaneh Mohamed Kamara (Respondents) for the same to be quashed. The application is made pursuant to leave of this court given on the 8" day of - ‘September 2006.

Facts

In civil suit numbered CC151/1996 in the High Court, Toufic Huballah, obtained judgement on the 8” day of June 2005 against the Sierra Leone National Petroleum

Company Limited; Umaru Bah Sawaneh; Mohamed Kamara (the 2m 3! and 4 Respondents herein) and Alhaji ‘Abdulai Bangura (the Applicant herein) Subsequently an application was made on behalf of Mr. Bangura to the High Court

“= the Honourable Mr. Justice A.S. Raschid, to set aside his judgement of the day of June 2005 in default of appearance. A preliminary objection to the sont was raised on behalf of the Sierra Leone National Petroleum Company imited. The Judge upheld the objection by his order given on the 12” October 200s Mr, Bangura was dissatisfied with the judge’s order and as a consequence a md of Appeal dated the 25" day of October 2005 was filed on the same date, the 25" day of October 2005. On or about the 4” day of July, 2008, Mr. Serry-Kamal, of counsel, for Mr. Bangura, received a summons to settle the records for the appeal ; filed on behalf of Mr. Bangura. While the appeal processes were going on, the Court ] ‘of Appeal on an application made on behalf of Mr. Huballah, struck out the appeal numbered 60/2005 which was the appeal filed on behalf of Mr. Bangura to set aside the judgement of the High Court given on the 8 day of June 2005. The Court of ‘Appeal that struck out the appeal was comprised of Honourable Ms. Justice ULH-Tejan-valioh - Presiding; Honourable Mr. Justice P.O. Hamilton (Justice of Appeal) and Honourable Ms, Justice S. Koroma (Justice of Appeal)

Grounds

Mr, Bangura was dissatisfied with the striking out order of the Court of Appeal, thus ‘esulting in this application invoking the supervisory powers of this cour, and which said application is premised on the following grounds 4 The Court of Appeal exceeded the limits ofits powers by striking out the said appeal

2. The Court of Appeal by striking out the said appeal acted ultra vires 3, The Court of Appeal had no power to strike out a duly constituted . appeal on which another panel of the same court had granted a stay of ‘execution and a summons had been issued to settle records 4, The Court of Appeal has no power fo hear an interlocutory application to set aside a duly constituted appeal.

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ARGUMENTS OF COUNSEL z Mr. Serry-Kamal, cotinsel for the Applicant, in argument, states that the appeal ‘numbered 60/2005 which was struck out by the Court of Appeal was duly constituted and filed within time. He states that the strking out order of the Court of Appeal exhibited as “AFSK 18" to is affidavit in support of the application swom to on the 4” August, 2008, was made on the 12" day of October 2005. Whereas the appeal against the striking out order exhibited to his said affidavit as “AFSK 19° was filed on the 25" October 2005 - less than one month after the striking out order appealed against. He points out that the period allowed for appealing is three months plus one month extension of time. Mr. Serry-Kamal contends that the procedure employed in. the application to have the appeal struck out is not prescribed by or known to the Court of Appeal Rules, 1985. He further contends that the application made for the striking out of the appeal is in the nature of a preliminary objection to the hearing of . the appeal when properly set down for hearing, and the procedure to be employed for such an objection is specifically set out in rule 19 of the Court of Appeal Rules. Mr. Serry-Kamal buttresses his argument by submitting that the Court of Appeal is a creature of statute and can only exercise the powers accorded it by the creating legislation, the Courts Act and the rules that govern the Court. He concludes by” submitting that the Court of Appeal acted completely outside its powers. Mr, Pabs-Gamon, counsel for the 2 Respondent, draws the court's attention to the striking out order of the 12 October 2005 appealed against and also the final Judgement of the High Court given or the 8" day of June 2005 and exhibited to the. said affidavit in support as “AFSK 13", He posits that there is no appeal against the judgement of the 8° June 2005. He argues that the appeal filed on the 25" October 2005 is @ purported appeal against an interlocutory order and refers the court to section 56 of the Courts Act which deals with appeals against interlocutory orders ‘and final judgments. He further draws the court's attention to rule 10(1) ofthe Court of Appeal Rules and argues that the appeal filed on the 25" October 2005 is incompetent because no leave to file same was sought and obtained. Finally, he argues that there was no appeal properly before the Court of Appeal and submits fs that the only appeal that could have been’ brought before the Court of Appeal was against the judgement of the 8” day of June 2005. 3 i

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