Amadu Kanu v Cyril W. Sawyerr And 2 Others (SC MISC APP 2 of 1993) [1993] SLSC 4 (16 March 1993)

IN THE SUP! REME COURT OF STERRA LEONE [55 » SC. MISC. APP. NO. 2/935 CORAM 3 = ee ; - Hon. Mr i + Justice S.M.F, Kutubu, C.J. - Presiding Hon. Mr. Justice S. Beccles Davies = dsc. fs ice ¥ ‘1 al Hon. Mrs. Justice V.a. Wright ~ Ihe BETWEEN s— AMADU | KANU - ‘— APPELLANT /APPLICANT vs. CYRIL WALTER SAWYERR - RESPONDENTS. SATDU. KAMARA ALHAJI WURIE JALLOH SOLICITORS: = R. AWOONOR-RENNER ESQ., with him SHEKU Me . TOURE ESQ., for Appellant/Applicant. a DR. H.M. JOKO-SMART, for Respondents. RULING DELIVERED THIS 16TH -DAY OF MARCH, 1993 BY , KUTUBU, CeJe ~ PRESIDING = 2

This is an application by R. Awoonor-Renner Esq-, counsel for Appellant/Applicant for stay of execution of the order contained in the Ruling of the Honourable Thompson-Davis J.S.C. delivered in the Court of Appeal of Sierra Leone on the 4th day of March, 1993 and for all subsequent proceedings to be stayed until the determination of Appeal in the Court of. Appeal. The application is supported by the Affidavit of Amadu Kanu Applicant herein, sworn at Freetown on 10th day of March, 1993 and filed. ; .

At the threshold of this application preliminary objection was taken by Dr. HM. Joko-Smart counsel for ‘Respondents on the ground of non-compliance py counsel for Applicant of the mandatory provisions of Rule 60 of the Rules of the Supreme Court, 1982 (P.N. No. 1 of 1982).«

Rule 60 (1) states?~ : . seeeee/2e ~ an meetin es

ae 154 ‘i ng civil appeal shall not operate as stay of execution

g or of proceedings under the judgment or decision ; appealed against except in so far as the Supreme Court or the Court of Appeal may otherwise order"s : Rule 60° (2)' states:- os "gubject to the provisions of these Tules and tO» any other enactment governing the somé, an application for stay of execution or proceedings shall first be made to the Court of Appeal and if that court refuses to grant f the application the Applicant shali be entitled to renew the application before tke Supreme sourt for determination. Eas counsel for Applicant complied with the mandatory provisions of the afore-mentioned Rules in the instant cpplication? If the answer is in the negative can the Supreme Court entertain this Application without causing violence to the Fales? Has the Court | “any discretion in the matter if it takes the view that the mandatory provisions have not been complied with? . H Counsel for Applicant with.candour conccied the point that ‘ resort was not had to theSupreme Court Rules in the instant f . ' syplication, but nevertheless, based his application on the grounds i of concurrent jurisdiction of both the Supre:. Court and the Court | of Appeal in this regard. Afortiori, that as time was ‘of the essence:

| he proceeded under the provisions of the Conzitution of Sierra

i Leone 1991 Act. No. 6 of 1991 namely, Sectior 1723 which overrides th: | Piles. What does the Section say?

' Section 123 (1) (a) states:- | "an appeal shall lie from a judgment, iecree or i order of the Court of Appeal to the -:preme Court i (a) as of right in any civil cause co: matter. :

i Section 123 (2) - : "Notwithstanding the provisions of cibsection (1) : the Supreme Court shall have power ‘o entertain q any application for special leave i» appeal in any cause or matter civil or crimin..1, to the - Supreme Court, and to grant such lc ve accordingly".

. Be aad xo : { m=

The purported application before this Court is . t stay of execution of the order contained in the Ruling of..., the Honourable Thompson-Davis delivered in the Court of , . ‘ Appeal piiSierts Leone on the 4th day of March, 1993.

It is not an appeal or an application for special leave ° to appeal. I cannot therefore see how this provision of the Constitution can avail counsel in this application.

Rule 60 ig of obvious advantege to an applicaatsin 8 stay of execution proceedings. The rationale behind it is to give an applicaht two chances, one in the Court below, the Appeal Court in this instance and another in the Supreme Court, should the Court of Appeal refuse to grant the

_. Application soughte Applicant will therefore have the is advantage of a second bite rather than jumping his gun: ‘ _to his éetrinent, or riske x

‘ _The order of the Court of Appeal was given on “th March to take effect oa the 15th March, 1993 eleven days . ; from the date of the said order. Counsel for Applicant : , depressed that since time was of the essence compliance with Rule 60 of the Supreme Court Rules would ngt hove been to his. advantage, as execution would have been effected,

: thereby making the proceedings nugasory. In our view eleven days Wee @ reasonable time within which an application for stay would have ‘been made to the Court of Appeal in the ¢icat instance. On refusal a second application would be made to the Supreme Court. :

In an application for stay of execution this Court has always taken the view that there should be no short cut to the procedure; the mandatory provisions should de complied with. Nothing has changed the view of this Honourable Court

“in that regard. , ecccseete te

» re . or eer 7 [S38 Now what are the consequences of failure to comply with J the mandatory provisions of Rule 60 of the Supreme Court Rules? : In the instance case has the proper foundation been - laid, a condition precedent for us to entertain this purported applicatic The answer is in the negative. In the circumstances the applicat ca is struck oute 4 Court =- Costs awarded Le30,000.00. : S.M.F. 'UBU — CHIEF JUSTICE . I agree cs ecccccccccccccecceeceeeeeeeSs BECCLES DAVIES - JSG. I agree en ee VeAe WRIGET - Jan

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