Amadu Kanu v Cyril W Sawyerr,Saidu Kamara,Alhagi W.Jalloh (SC MISC APP 2 of 1993) [1993] SLSC 3 (16 March 1993)

a 4 Be b4 Ps IN THE SUPREME COURT OF SIERRA LEONE {25

«gi? ; SC. NISC. APP. NO. 2/93 a CORAM: = ' : “4 q Hon. Mr. Justice S.M.F. Kutubu, C.J. - Presiding a Hone Mr. Justice S. Beccles Davies ~ JSC. J cal Ey Hon. Mrs. Justice VeA. Wright - Je q BETWEEN: - a AMADU KANU) - - APPELLANT /APPLICANT a Vs. : i CYRIL WALTER SAWYERR - RESPONDENTS. - SATDU: KAMARA 3 _ ALHAJI WURIE JALLOH a SOLICITORS :+ ig i‘ ae R. AWOONOR-RENNER ESQ., with him SHEKU M. : : i TOURE ESQ., for Appellant/Applicant. i Ba DR. H.M. JOKO-SMART, for Respondents. fo 4 . : . | -SRULING. DELIVERED THIS 16TH-DAY OF MARCH, 1993 BY , bo KUTUBU, C.J. ~ PRESIDING = : Bh. & ‘ : a) This is an application by R. Awoorior-Renner Esq-, counsel ie for Appellant/Applicant for stay of execution of the order mF a a contained in the Ruling ofthe Honourable Thompson-Davis J.S.C. 4 delivered in the Court of Appeal of Sierra Leone on the 4th Be day of March, 1993 and for all subsequent proceedings to be Ried stayed until the determination of Appeal in the Court of Appeal. a The application is supported by the Affidavit of Amadu Kanu ae a Applicant herein, sworn at Freetown on 10th day of March, 1993 ag and filed. j ag At the threshold of this application preliminary objection Be! was taken by Dr. H.M. Joko-Smart counsel for ‘Respondents on a 4 the: ground of non-compliance by counsel for Applicant of the Ee mandatory provisions of Rude 60 of the Rules of the Supreme fe a a Court, 1982 (P.N. No. 1 of 1982). ae Rule 60 (1) states:- ae : : : ips asc siea fer eis ed

= / 260 f 24 land "A civil appeal shall not operate as stay of execution

-_— a or of proceedings under the judgment or decision

4 appealed against except in so far as the Supreme Court

q or the Court of Appeal may otherwise order".

a Rule 60° (2)' states: ~~

¥ "Subject to the provisions of these tules and to ,

a any other enactment governing the same, an application

‘ for stay of execution or proceedings shall first be made

a, . to the Court of Appeal and if that Court refuses to grant

a the application the Applicant shali be entitled to renew

; the application before the Supreme court for determination.' a Eas counsel for Applicant complied with the mandatory provisions = of the afore-mentioned Rules in the instant upplication? If the

a enswer is in the negative can the Supreme Court entertain this

a Application without causing violence to the *xles? Has the Court a ‘any discretion in the matter if it takes the view that the mandatory a provisions have not been complied with? .

ed Counsel for Applicant with.candour concc:ied the point that resort was not had to theSupreme Court Rules ‘n the instant

a fF application, put nevertheless, based his application on the grounds % of concurrent jurisdiction of both the Supre:. Court ‘and the Court i of Appeal in this regard. Afortiori, that as time was ‘of the essence “@’ he proceeded under the provisions of the Conz‘:itution of Sierra

“A teone 1991 Act. No. 6 of 1991 namely, Sectio: 125 which overrides the a h Rules. What does the Section say?

a : .

= Section 123 (1) (a) states:-

a "an- appeal shall lie from a judgment, Jecree or

a order of the Court of Appeal to the Supreme Court

ef (a) as of right in any civil cause c” matter. :

4 Section 123 (2) -

a "Notwithstanding the provisions of subsection (1) ~

Bs | the Supreme Court shall have power “o entertain

“4 any application for special leave ~ appeal in

4 any cause or matter civil or crimin?, to thet a Supreme Court, and to grant such l« ve accordingly".

S _ | 360 [2s me a 7 The purported application before this Court is for ‘ stay of: execution of the order contained in the Ruling of ..., ‘ the Honourable Thompson-Davis delivered in the Court of : Appeal of Sierra Leone on the 4th day of March, 1993. ~4 It is not an appeal or an application for special leave * a to appeal. I cannot therefore see how this provis#on of, q the Constitution can avail counsel in this application. 4 i Rule 60 is of obvious advantege to an applicant in ae a stay of execution proceedings. The rationale behind it is . 4 to give an applicaht two chances, one in the Court below, _ aq the Appeal Court in this instance and another in the Supreme a Court, should the Court of Appeal refuse to grant the a _ Application sought. Applicant will therefore have the a . advantage of a second bite rather than jumping his. gun a 7 _ ,to his detriment. or risk. ki a _The order of the Court of Appésl was given on 4th oa March to take effect on the 15th March, 1993 eleven days a 4 ; ; : from the date of the said order. Counsel for Applicant | depressed that since time was of the essence compliance a with Rule 60 of the Supreme Court Rules would not have 3 4 _ been to his. adyantage, as execution would have been effected, ay thereby making the proceedings nugetory. In our view’ eleven a days was a reasonable time within which an application for 4 : stay would have been made to the Court of Appeal in the a first instance. On refusal a second application would be a made to the Supreme Court. ay In an application for stay of execution this Court has a j always taken the view that there should be no short cut a to the procedure; the mandatory provisions should de complied a 9 with. Nothing has changed the view of this Honourable Court - ‘ss E “in that regard. a = siete ta

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eae Now what are the consequences of failure to comply with

ak the mandatory provisions of Rule 60 of the Supreme Court Rules? i

alle In the instance case has the proper foundation been . -laid, a

ce 3 condition precedent for us to entertain this purported application “sq 5 The answer is in the negative. In the circumstances the applicati Be: 3

4 is struck out. 3 7

ae Court - Costs awarded Le30,000.00. :

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a i i S.M.F. 'UBU - CHIEF JUSTICE a :

ae

a 7 I agree ove ceccencccceccccereccceeeeSe BECCLES DAVIES - JSC» oo a ie ae. t agree eee eceeee Vode WRIGHT — Td.”

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