Alhassan P. Kargbo & Another v Brima Jalloh (SC CIV APP 3 of 2010) [2011] SLSC 22 (6 October 2011)

SC CLY APP NO.3/2010 NOTICE OF CIVIL APPEAL BETWEEN: ALHASSAN PAUL KARGBO =~ AN INTERESTED PARTY APPELLANT AND SANNOH VICTOR MUSTAPHA - APPELLANT AND BRIMA JALLOH - RESPONDENT

Coram

HON. JUSTICE P.O.HAMILTON = ~—‘JSC HON. JUSTICE V.A.D. WRIGHT - gsc HON. JUSTICE M.E.T. THOMPSON - JSC A.F, Serry-Kamal Esq. and S.M. Sesay for Appellant/Applicant D.G. Thompson Esq. for Respondent Ruling Delivered on the Any of 9 Coker , 2011 HON. JUSTICE P.O. HAMILTON - JSC This is an application on behalf of the Applicant for an Order that this Honourable Court do grant the Appellant leave to file the Appellant's case out of time and an enlargement of time as prescribed by Rule 41(b) and (c) of the Supreme Court Rules, 1982 ‘Stat:tory Instruments No.1 of 1992).

i f (10 This application is supported by the affidavit of Abdul Franklyn Serry- Kamal swom to on 7" February 2011 to which is attached Exh ASFKI.a | notice that the records of Appeal was ready for collection, Exh. ASFK2 8 notice that the Appeal is fixed for mentioning, Exh. ASFK3 a Statement of the Appellant’s case, ‘There was filed a further affidavit in support sworn to on 3% March, 2011 to which was attached Exhs. ASFK4 a certificate of the Order of the Court of ‘Appeal which I shall quote in full: “The notice dated the 3 day of November, 2009 coming up for hearing on the 9" day of February, 2010 before the Hon. Justice N.C. Browne-Marke Justice of the Appeal (Presiding), the Hon. Justice E.E. Roberts Justice of the Appeal, the Hon. Justice A. Showers Justice of Appeal, in the presence of S.M. Sesay Esq. Counsel for the Interested Party/Applicant and D.G. Thompson Esq. of Counsel for the Appellant/Respondent. 1 HEREBY CERTIFY THAT the following Order was made — “Appellant to file Appeal in the Supreme Court in view of Section 123 of the 1991 Constitution and so as not to prejudice his interest. Ruling Reserved”. (Emphasis mine)

Exh, ASFKS is a notice of appeal dated 22" February, 2011.

There was also filed a supplemental affidavit swom toon 12" April, 2011 by ‘Abdul Franklyn Serry-Kamal on behalf of the Applicant/Interested Party to which was attached the following Exhibits - Exh. ASFK6, ASFK?, ASFK8, ASFK9, ASFK10"” and ASFKII which are the Writ of Summons, the

ll” ,? aay

judgment delivered on 25" January, 2005, a Conveyance from Sannoh

Vandy Mustapha to Alhassan Paul Kargbo, a Judgment of the Court of

Appeal delivered on 7" July, 2009, special leave to appeal to the Supreme

Court filed in the Court of Appeal and an Order allowing an appeal pursuant

to Section 123 of the Constitution 1991.

There is filed a further supplemental affidavit sworn to by Abdul Franklyn

Serry-Kamal on 9" May 2011. The averment in this affidavit I will quote in

full:

1. “Iam a Senior Partner in the Law Firm Serry Kamal and Co. Solicitors for the Respondent and the Interested Party and I am authorized to make this affidavit on their behalf.

2. The Interested Party filed a motion dated 10" August, 2009 which is Exh. APL6"” to the affidavit of Alhassan Paul Kargbo sworn to on the 3 day of November, 2009 the same is also part of Exh. ASFK10" 7 in my affidavit sworn to on the 12" day of April, 2011.

3. The aforesaid application was heard on the 20" October, 2009 the Court gave a ruling dismissing our client's application with costs. A true copy of a certified true copy of the Order of the Court is now produced and shown to me marked “ASFKI2". As a result of that order another application was filed in the same Court out of caution

Jor special leave to appeal to the Supreme Court against the Court's

Decision

The said Court on the 9" February, 2010 ordered the

Applicant to file an appeal to the Supreme Court in view of Section

| Wz 123 of the 1991 Constitution so as not to prejudice the applicants interests. The aforesaid order is Exh, ASFK11 to my affidavit sworn (0 on the 12" day of April 2011.

4. In view of the provisions of Section 123(1)(a) of the 1991 the above application for special leave was wholly unnecessary as an appeal in ‘any civil cause or matter to the Supreme Court from an order of the Court of Appeal is as of right”.

5. The appeal was duly filed in the Supreme Court but owing to pressure of work and some lapses in my chambers we failed to file the case for the appellant on time. In paragraphs 3 and 4 of my affidavit in support of my application dated 7” February, 2011, I have exhibited the case for the appellant that we intend to, file which it is submitted is

meritorious. The Court of Appeal failed to consider the powers which ‘Rules 31 and 32 of the Court of Appeal Rules 198Sgives it to act as if in were the Court of first instance. Order 18 Rule 6(2)(b) of the High Court Rules, 2007 any stage of the proceedings empowers the High Court either of its own motion or on application to order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the case or matter may be effectually and completely determined and adjudicated upon to be joined in the said proceedings”. Paragraph 2 of this said affidavit makes interesting reading by stating thus: “The Interested Party.....” Does it mean that the applicant is not a party but an interested party? This will be dealt with later on in this ruling.

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