Alison S. Kanu v Demba A. Barrie (CIV APP 59 of 2008) [2009] SLCA 22 (3 March 2009)

au CIV, APP.59/2008 IN THE COURT OF APPEAL FOR SIERRA LEONE : BETWEEN: ALISON SHEKA KANU - APPELLANT/ (A.K.A. ALISON SHEKA KANU) APPLICANT AND DEMBA ABDULAI BARRIE - RESPONDENT/ (A.K.A. ABDULAI BARRIE) RESPONDENT

Coram

HON. MR. JUSTICE P.O. HAMILTON J.S.C. Presiding HON. MR. JUSTICE S.A. ADEMOSU J.A. ’ HON. MRS. JUSTICE C.L. TAYLOR J. . RULING DELIVERED ON THE 3°“Day oF Mees 2009. This is an application by Notice of Motion dated 28" January, 2009 for the following Orders:-

1. That this Honourable Court grants a Stay of Execution of the “Judgment dated 21% October, 2008 and all subsequent proceedings pending the hearing and determination of this application.

2. That this Honourable Court do grant a Stay of Execution of the Judgment dated 21" October, 2008 and all subsequent +. proceedings pending the Appeal

The supporting affidavit is sworn to by Alison Sheka Kanu and attached to it are several exhibits including Exhibit ASK, the Judgment dated 21" October, 2008, Exhibit ASK7;.2 the Notice of Appeal and Amended Grounds of Appeal against the said Judgment | to the Court of Appeal and Exh. ASK;. the Order of the High Court refusing to grant a Stay of Execution of the said Judgment Itis against this brief background that the Appellant/Applicant has applied to this Court for a Stay of Execution pursuant to Rule 64 of the Court of Appeal Rules 1985 (Public Notice No.29 of 1985). In support of the application Elvis Kargbo Esq. of Counsel for the Appellant/Applicant relied on the contents of the supporting affidavit especially paragraphs 4 to

18. He relied on them to highlight the special circumstances justifying the grant of a Stay of Execution. Counsel relied heavily on paragraphs 7, 13, 15 and 16 as enough special circumstances. Similarly that if the stay is not granted irreparable damage and high financial loss would be cause to the Appellant/Applicant sifce he relies on the rent from the building in support of himself and his family. Counsel further submitted that Exhibit ASK 7,.12 of the Notice of Appeal discloses substantial good grounds of appeal with prospects of succeeding. M.P. Fofana, Esq, of Counsel for the Respondent did file an affidavit in opposition in which he relied on the entire affidavit. Counsel relied on paragraphs 5, 6 and 7 and submitted that the res which is the

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Subject matter is different in that all documents of the applicant relates to No.

73 and the judgment upon which execution is levied is No.73°

Counsel further submitted that Exhibit SA, is between the Applicant

and Sahid Gibril Kargbo and it speaks of premises situate lying and

being at No. 73 Siaka Stevens Street and not 73° and referred to

Paragraph 10 of the affidavit in opposition. Counsel further submitted

that on damages resulting in hardship paragraphs 8 and 9 of the

affidavit in opposition is clear.

Counsel finally submitted that paragraphs 4 to 18 of the Supporting

Affidavit does not disclose special circumstances but rather raises

issues to re-open the case and they are more for the substantive

appeal.

Paragraphs 7, 13, 15 and 16 of the supporting affidavit reads as

follows:-

“7, That | have a valid defence on the merits in this matter The said land belongs to the Government of Sierra Leone made an offer of lease to me through the Ministry of Lands and-| have accepted same. That since 2002 the said Ministry encouraged me to develop same and | used * my resources to build che shop in question.

13. That | have been in occupation of the same shop for over eight years and | let same to one Annie Yae a Chinese national doing business and that any eviction to be carried out will affect third party right

15. That the property in question is out upon which | rely on and | have spent high amount of money in developing and constructing same and that for any execution to be carried out, it will cause serious financial ruin and hardship on my past and my family as a whole

16. That on 20" November 2008, the Respondent together with certain persons went and demolished the basement of my garage and on Saturday the 13" day of December the said Respondent took certain persons and causes destruction on my building and he is confirming to cause further damage on my property.”

Paragraphs 5, 6; 7, 8, 9 and 10 of the affidavit in opposition

“reads:

“5. That, | haye carefully read the affidavit filed by the Appellant/Applicant dated 28h January, 2009 and | verily

4 believe that it lacks merit, in the sense that firstly, the

reliefs sought in the application are spent as execution of the Judgment dated 21" October 2008; secondly, that the

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