Alhaji Wurie Jalloh v Istiasaco Enterprises (CIV APP 61 of 2013) [2021] SLCA 9 (4 November 2021)

S

CIV. APP. 64/2013 IN THE COURT OF APPEAL OF SIERRA LEONE e

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

A.M. KAMARA ESQ. for the Appellant

A. SHOWERS ESQ. for the Respondents

JUDGEMENT = g

DELIVERED THIS {payor NSW. 2024

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

Decision/Judgment delivered by the HON. MR. JUSTICE ABDULAI H. CHARM J (as he then

was), dated the 10% January 2013, hereby on the 7® October 2013, appeal the said

Decision/Judgment on the following grounds:

1. That the Leamed Trial Judge erred in Law in holding that the Appellant's 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 failed to avert his mind to the fact that there were triable issues to warrant the matter to proceed to trial.

2. That the learned Trial Judge was wrong in law by holding for the Respondents herein, the said Leamed Trial Judge having failed to avert his mind that the property had passed to the Appeliant herein, before the sale to the Respondents was concluded.

3. That the Learned Trail Judge misdirected himself by failing to place the appropriate weight and

@ _embhasis on a crucial exhibit the same being Exhibit ‘AWJ 8 which isan agreement between the Appellant herein and one LAMIN KARGBO, the same going to the root of the matter herein.

4, That the Judgment is against the weight ofthe evidence.

Wherefore ALHAJI WURIE JALLOH, the Appellant herein, pray that the Decision/Judgment

delivered by HON. MR. JUSTICE ABDULAI H. CHARM J (as 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 entiled to possession of all that piece or parcel of land and hereditaments situate lying and being at Off Wikinson Road, Lokott, Freetown in the Wester Area of Sierra Leone measuring an area of 0.1012 Acre.

2. Recovery of Possession of the said piece or parcel of land and hereditaments situate, iying and being at Off Wilkinson Road, Lokott, Freetown in the Westem 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 Million Sierra Leone Leones (SLL 10,000,000/00).

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 piace or parcel of land or any portion thereof in any way whatsoever and for any reason whatsoever.

5. That the costs ofthe application assessed at Two Mion Five Hundred Thousand Sierra Leone Leones (SLL 2,500,000/00) be borne by the Appellant herein.

6. Liberty to apply.

The Orders aforesaid were granted pursuant to an application made for and on behalf of

ISTIASACO ENTERPRESISES, the Respondents herein, by way of a Judges Summons dated the

“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

HIGH COURT RULES 2007, for the reliefs as set out in the Statement of Caim accompanying the

© Writ of summons in the action herein, issued on the 3+ June 2011, the said reliefs prayed for being as follows:

1. A Deciaration that the Respondents herein, are the owners and persons entitled fo 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 0.1012 Acres.

2. Recovery of Possession of the said piece or parcel of land and hereditaments, situate lying and being at Off Wilkinson Road, Lokotti, 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 parce! 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.

5. Any further reliefs) that this Honourable Court may deem fit and just.

6. Costs.

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 applies, 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 of the claim, except as to the amount of

damages claimed’.

Without any doubt, the application aforesaid concems an action in which the Appellant herein was

‘served with a Statement of Claim, the said Appellant who entered an Appearance dated 21" 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 the Statement of Claim

a accompanies. As seen from the said Statement of Claim, the reliefs prayed for, contained above, are claims which Order 16 Rule 1(1) aforesaid would apply to, being other than an action which includes a claim by the Plaintiff for Libel, Slander, Malicious Prosecution, False Imprisonment or

@ ‘eduction and an Admiralty Action in Rem, exempted as contained in Order 16 Rule 1(2) of the tules 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 to 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 application 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 208 January 2012, the said afidavit 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 ocompanying the Writ of Summons issued on the 3* June 2011 aforesaid and verily believes that the Appellants Defence is a sham and does not show any legal tite or right ofthe said Appellant to the property at Off Wikinson Road, Lokott, Freetown aforesaid, subject matter ofthe 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 satisfies 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 Defendant or part as may be just, having regard to the nature of the remedy or relief claimed’. Cleariy, 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). It cannot be disputed that the Learned Trail Judge indeed gave Judgment for the Respondent herein against the Appeliant herein, the said Decision/Judgment dated 10% January 2013, outlined above which is sought to be appealed herein. This Court holds the view that, what it needs to initially determine is whether the said Decision/Judgment dated 10" January 2013, was given because the Appellant herein was unable to satisfy the Learned 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 other reason, to be trial ofthat claim, The

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