Alhaji W. Jalloh v Istiasaco Enterprise (CIV APP 61 of 2013) [2021] SLCA 24 (4 November 2021)

* civ. App. 61/2013 IN THE COURT OF APPEAL OF SIERRA LEONE _ Between: ALHAJI WURIE JALLOH + Appellant And: ISTIASACOENTERPRISES + - —_ Respondents

Coram

HON, MR. JUSICE ALLAN B. HALLOWAY JSC HON. MR. JUSTICE M. SENGU KOROMA JSC HON MR. JUSTICE JOHN B, ALLIEU JA COUNSEL AM, KAMARA ESQ. for the Appellant A, SHOWERS ESQ. for the Respondents

Judgement

DELIVERED THISAI\, DAY OF Novem se/ 2024

ALHAJI WURIE JALLOH, the Appellant herein, being aggrieved by and dissatisfied with the

Decisiondludgment delivered by the HON. MR. JUSTICE ABDULAI H. CHARM J (as he then

was), dated the 10" January 2013, hereby on the 7% Oclober 2043, appeal tho said

Decision/Judgment on the following grounds:

1. That the Leamed Trial Judge erred in Law in holding that the Appellant’ affidavit showing cause against the Respondents’ application made pursuant to Order 16 Rule 1(1) of the HIGH COURT RULES 2007, did not raise triable issues, the Leamed Trial Judge having falled to avert his mind to the fact that there were triable issues to warrant the matter to proceed to tral

2. That the learned Trial Judge was wrong in law by holding for the Respondents herein, the said Learned Trial Judge having fled to avert his mind that the property had passed to the Appeliant herein, before the sale tothe Respondents was concluded 0c)

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3. That the Leamed Trail Judge misdirected himself by falling to place the appropriate weight and emphasis on a crucial exhibit, the seme being Exhibit ‘AW 8° whichis an agreement betwoen | the Appellant herein and one LAMIN KARGBO, the saine going to the root of the matter herein.

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4. That the Judgment is against the weight of the evidence, | Wherefore ALHAJI WURIE JALLOH, the Appellant herein, pray that the DecisionKludgment Gelivered by HON. MR. JUSTICE ABDULAI H. CHARM J (es he then was) dated 10" January, 2013 be set aside and the matter entered for trial. The Learned Trial Judge HON. MR. JUSTICE ABDULAI H. CHARM J (as he then was) on the 10

January 2013 ordered as follows:

1. That the Respondents herein are the owners and persons entitled to possession of all that piece or parcel of land and hereditaments situate lying and being at Off Wikinson Road, Lokott Freetown in the Western Area of Sierra Leone measuring an area of 0.1012 Acre.

2. Recovery of Possession of the sai piace or parcel of land.and hereditaments situate, lying and being at Off Wikinson Road, Lokoti, Freetown in the Western Area of Sierra Leone measuring an area of 0.1012 Acre.

3. That the Appellant herein pay damages for trespass in the sum of Ten Milion Sierra Leone Leones (SLL 10,000,000).

4. That a Perpetual Injunction is hereby granted, restraining the Appellant herein whether by himself, his servants, agents, privies or howsoever called from entering or remaining on the Respondents’ piece or parcel of land and hereditaments aforesaid or any portion thereof, or interfering with the Respondents said piece or parcel of land or any portion thereof in any way ‘whatsoever and for any reason whatsoever.

5. That the costs of the application assessed at Two Million Five Hundred Thi sand Sierra Leone Leones (SLL 2,500,000/00) be bore by the Appellant herein..." 24¢ ors ibe : ECA Yaron io

6. Liberty to apply oa ES The Orders aforesaid were granted pursuant to an application mado iG-aéid on behalf of ISTIASACO ENTERPRESISES, the Respondents herein, by way of a Judges Summons dated the

ae 314 3 |" 20% January 2012, principally praying for an order that Judgment be entered for the said Respondents, against the Appellant herein, pursuant to the provisions of Order 16 Rule 1(1) of the j HIGH COURT RULES 2007, for the reliefs as set out in the Statement of Claim accompanying the | Writ of Summons in the action herein, issuicd on the 3% June 2011, the said reliefs prayed for being | as follows

1. A Declaration that the Respondents herein, are the owners and persons entitled to possession of all that piece or parcel of land and hereditaments, situate lying and being at Off Wilkinson Road, Lokoti, Freetown in the Western Area of Sierra Leone, measuring 0.1012 Acres, | 2, Recovery of Possession ofthe said piece or parcel of land and hereditaments, situate lying ard | being at Off Wilkinson Road, Lokoti, Freetown aforesaid

3. Damages for trespass.

4. A Perpetual Injunction restraining the Appellant herein, whether by himself, his servants, agents, privies or howsoever called from entering on and remaining on the said piece or parcel of land and hereditaments or any portion thereof or interfering with the Respondents’ use and enjoyment of the said piece or parcel of land and hereditaments or from disposing of the same or any portion thereof, in anyway whatsoever and by any reason whatsoever.

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5. Any furthef'relief(s) that this Honourable Court may deem fit and just. Soe SH

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6. Costs. sd Order 16 Rule 1(1) of the HIGH COURT RULES 2007 pursuant to which the application for an order that Judgment be entered for the Respondents herein against the Appellant herein, was ‘made provides thus: ‘Where in an action to which this rule applios, a Defendant has been served with a statement of claim and has entered Appearance, the Plaintiff may, on notice apply to the Court for Judgment against the defendant on the ground that the Defendant has no Defence toa claim included in the Writ, or to a particular part ofthe claim, except as to the amount of > damages claimed’ Without any doubt, the application aforesaid concerns an action in which the Appellant karin was served with a Statement of Claim, the said Appellant who entered an Appearance dated 21s June 2011, found at Page 6 of the Records of Appeal herein, to the Writ of Summons issued on the 3 ~ June 2011, found at pages 1 to 5 of the Records of Appeal, which tie Statement of Claim

“accompanies. As seen from the said Statement of Claim, the reliefs prayed for, contained above, H are claims which Order 16 Rule 1(1) aforesaid would apply to, being other than an action which includes a claim by the Plaintif for Libel, Slander, Malicious Prosecution, False Imprisonment or | Seduction and an Admiraity.Atction in Rem, exempted as contained in Order 16 Rule 1(2) of the | rules aforesaid. "Order 16 rule 2(1) of the HIGH COURT RULES 2007 provides thus: | ‘An application under Order 16 Rule 1(1) aforesaid, shall be made by Summons supported | by an affidavit, verifying the facts on which the claim, or part of a claim to which the | application relates is based and stating that in the deponent's belief there is no Defence.t0 | that claim or part as the case may be, or no Defence except as to the amount of any damage | claimed’. Clearly, as is seen from and contained in pages 70 to 73 of the Records of Appeal herein, the pplication for an order that Judgment be entered for the Respondent herein against the Appellant herein was made by Judges Summons dated 20 January 2012 and supported by the affidavit of ABU TURAY, sworn to on the 20 January 2012, the said affidavit verifying the facts on which the Claims to which the application aforesaid related to is based, the said ABU TURAY who in the said affidavit, deposes at paragraph Twelve (12) and Thirteen (13) that, he is reliably informed that the said Appellant does not have a good Defence to the action as contained in the Statement of Claim accompanying the Writ of Summons issued on the 3 June 2011 aforesaid and verily believes that the Appellant's Defence is a sham and does not show any legal ttle or right of the said Appellant to {he property at Off Wilkinson Road, Lokotti, Freetown aforesaid, subject matter of the action herein, Order 16 rule 3(1) of the HIGH COURT RULES 2007 provides thus: ‘Unless at the hearing of an application under Order 16 Rule 1(1) aforesaid, either the Court dismisses the application or the Defendant satisties the Court with respect to the claim or the part of a claim to which the application relates, that there is an issue or question in dispute which ought to be tried or 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 the Defondant or art as may be just, having regard to the nature of the remedy or reliof claimed’ Clearly, the application by Judges Summons dated 20% January 2012 aforesaid, for an order that Judgment be entered for the Respondent herein, against the Appellant herein, was not dismissed by the Leamed Trial Judge, the HON. MR. JUSTICE ABDULAI H. CHARM J (as he then was). Cannot be disputed that the Leamed Trail Judge indeed gave Judgment for the Respondent herein 2 against the Appellant herein, the said Decision/Judgment dated 10: January 2013, oulined above which iS sought o be appealed herein. This Court holds the view that, what it needs to initially determine is whether the said Decisionludgment dated 10% January 2013, was given because the Appellant herein was unable to satisfy the Leamed Trial Judge with respect to the claims of the Respondent herein to which the application aforesaid related, that there is no issue or question in _ dispute which ought to be tried or there might for some aaah to be trial of that claim. Tho ah VO i Sa i opt

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