Alhaji Bockarie Kakay v Clementina Yambasu (32 of 2000) [2001] SLCA 10 (10 April 2001)

. * a # | 4s iO) lide. ww ea | = teh Sood le os ctl age aaa se A ee cA Ae RISC, ALP. 32/2000 abil frase! teem eh : x : . z Ces Sei tshst bie ie ios tid rie, 2 ‘DHE COURD OF. APEBAE Sate a i ear Gioia ies gv aan, i. bervnale- : we see a ae Bere day eS ee MM es AND Big 3 ty 2 ee ett i ’ crohns Ea eB aise d CLEMENTINA YJ BASU! SE Ua p RESPONDENT/“RESEONDENT taker en (As Admini stratrix OF Phe oe eee aie ee. Estate of Claris Gementalna + taut tign ate ss : seis Davies) : 2 a \ 4 Ere ae Chung = Ss (ils A, aac Hon. Mr. Re Le ee astles pat ey Wie Hon. Miss Justice Patricia Ma cote REY Hone Mey Juste AaB. Raghdd 07" 00) Ge iG +b. Jenkins-Jobnston Esq., for the Appellent/applicent Bates te “eis Monee Esaey tor the Respondent/Beepenient) ici! Sa. sup las Sd libeebatiai DE hs ARG Seale ian ieee He oe a eer ne RULING DELIVERED THIS JoMoat or AB moh 2000 NES ee eas re oe . ¢ TK, eae a a Reape aia st Rami Jf. 1 Rh nee, ® aie idk SUR Thic is an application by way of Notice of Motion dated 29/12 e008 4 °Y vec Jenkins-Johnston Esq., Counsel ‘for the. Appellent/Applicant, me Thot the Order of Dismissal made by thie Gout on 18/472

000. Abi cats Se the appeal of the Applicant civil Appeal ttoxt/98 ‘for Nentcomsiirs meee 5 : 4 ios BEE ee sates 12(4) and 14 of The court of Appedl Rilles PU Nos 2g GeeaeeS Bet set eaide by the Court and the said Appeal restored of such ‘terms ae it ae wey think fit pursuant to Rule 16(3). ei The Applicant will further rely that it was not proper for the Trial re : oudce who tried the matter in the High Court to ave sat on the pana. Bs ie vhich dismissed the Appeal. gai 7 capes tte: fe 5, Fs eee at ae The Application is supported by the Affidavit of the APPR SE ugiat2 Biot ener a ace Regt : *o on the 29/12/2000 and filed herein with severda exhibits, ~ ‘There feigLo0 2 * surplemental affidavit by the Applicant sworn to oh the 19/12/200%° There is sa Affidavit in Opposition fvorn sto by the Respondent on the /YAO1 with ceveral exhibits, Pie et Nae an Comet sea ae TROT acca ecb at eat ets + shall now consider the second dine of the relief: sought that it was ¢ wot proper for the trial Judge who tried the matter oin the High Court to « t on tie panel which dismissed the appeal . In his submission J.Be wok vein ‘on Counsel for the Appellant/Appliccnt said that’ the tial

ae Jue wow fuatoleetomson Je ond thabidb jee is Se ta 8G te a et ah Thompson CAs one of the Juatives who at, 6 H the Panel to: sul Boho : Appea] Pursuant to Rule 16(1) of the ee Neuza of ix8> for tion Compliance of the requdrenante of Riles 1 58) and oe “yes die unged the Gourt to set aside the order 6 Ditaiscar vend the al cM ’ Appecl be restored Pursuant to Rule 16(2 3) ee the 5 ois or sea Fulda) 4 opposed the application. ie ee lie suid thet the Affidavit in surort Sab got tn good andl atl os ceure, lie oubitted thet vhen M.Es Dolla thoap 28 Uke ‘eal on the) piel has which dismissed Civil Appeal 1/98 for Non Goa} te . s vo Rule | 13 t) a4) bi he “Ac not take part in any Hearing of end hee He Bald Het Waeb: thew Aegistrar invoked Rule 16(1) of the geese, sapesy Es EO uirag he certisy that the Appellant had failed ¢6 Bare Gear the bs iautvonane) tutes 13(§) end Rule th to the Court. “He /ibgu a Hat He wae a6 faced hooving of the Appesl. He gubmitted that an Appeal 4s a Judieied Meena by © superior Court on the decision of ap Inferior Court. te ae es : Spe a ge He seid that whet happened in. Bx sa as ok AReerins. of soit o Rule 16(1) of the Court of Appeal! Roles eta} Uae teat ses "If the Appellant has failed to comply ‘wit any of be yh me requirements of Rules 13(4) and tH. the ole Sey ae shall certify such facts to the court which may thereupon order that, the Appeal be dismissed with costs or aun] without costs. ee ee Be 4 3* secs to me that as a result of the-failure of the Appellant to cously with Ueles 13(4) and 14 thet the Registrar invoked Rule 16(1). i ‘het womcine 10 be considered is whether when the Registrar certified such facts te the court was it a hearing of an Appeal?. is wy view on eppeal ic a Judicial Examination by a Superior Court of th decision of on Inferior Court. What took place in'Exh “Gi was it a if hearing?. ; ‘ in ny humble Judgement it was not a hearing '» I shall now consider 2 tne first Linghef the relief bought . ‘That the order of dismissal, be set acide Ly the court~and the said Appeal restored on such terms as it may think fit Pursuant to Rule 16(3) . Rule 16(3) states: 3), "in Appellant whose Appeal has been dismissed under this rule may apply by Notice of Notion ‘that the Order of - Diomiosal be set aside and ‘the ‘Appeal ‘be restored nc the Court may in its deseretion for good and ficient cause order that the Appeal be restored Toecececes

4 . by bh ied agile huge anlar a meee ee a ee eta, % upon such terms as it may asl fi aa ae oe :

sae, the usterial averments on which the sonication eee Sprite Be ete :

‘ Iorageaphs ty Sy 6) 8 and 10 of the Affidavit an ciipert’ of ‘the erpldeation

sore to on the 29/10/2000 and Paragraphs 3h, 5 ae 6) 9.08 the os in supplemental Affidavit sworn, to by URS IPH a ZNSE See eae eae eGa 2 which are to the effect that his failure to spunsueine at Bentonite, Man. due to the Coup de ‘tat! of the 25/5/87: ant tuatrhe gableg Beare Bigaran. Lecne » Thereafter he had been in and out of Stein tnond ier Neate! we ‘Treutment in Guinea. ae ee Se) ne ie denies being in contempt of the Col uns Onder, Bee: Ap Taguas Gorn s: for the Respondent has opposed ‘the applications omigustbat tien, thet ton /tt e affi¢avit to be good and sutticléht Tor tye eosReaU ee aeration Sk ought to show good and sufficient reasons .. He did that’ Lobe As ok the agplicant te show good and sufficient reasons 4 ae as es se ee ye caid that the applicant has béen aie oh 5 Gourete ‘order in that after the Judgement the Appellant continued to’ flout ‘the Goirt!s <

Order

He relies on Paragraphs 4, 5, 6) 7». Be 95) 6. wi at david in Opposition « ee ge i pause here to say that thie ajuliostion apa se te oe nutter of ease. To be entitled to the indulgence’of the Court the rank wuct chow cogent credible and cenvimeeing reasons for the delay. In the iutant case I do not believe that the applicant has been honest to ,the court in im coming to this conclusion I have taken cognisance of the applicaite’ ff Affidavit in support and the Respondents! Affidavit in Opposition. these’ put together show that the applicant has not acted bona fides. In’ view of he conelucions I have reached I am convinced that the application ought to Lo cofooe’. I accordingly refuse it. 7 a qe y Re. Hons Mr, Justice AB. Rashid. i p aaa O00 ceeeseceaaeeeeeeeececeeeeeesHOnsMre Justice B.C.Thompson-Davis ~J.S.C. z NG ’ i UR