Amadu Kanu v Cyril Walter Sawyerr & Ors (SC MISC APP 2 of 1993) [1993] SLSC 2 (16 March 1993)

Re “h \ ae IN THE SUPREME COURT OF SIERRA LEONE eed 3 . SC. MISC. APP. NC. 2/93 a : a CORAM: = ‘ : . 4 Hon. Mr. Justice S.M.F. Kutubu, C.J. ~ Presiding at : Hon. Mr. Justice S. Beccles Davies - Jsc.

= Hon. Mrs. Justice Vea. Wright - The a BETWEEN: - a AMADU KANU - ‘= APPELLAND /APPLICANT % vs. a CYRIL WALTER SAWYERR - RESPONDENTS. SATDU» KAMARA i ALHAJI WURIE JALLOH a SOLICITORS: ae , a a” R. AWOONOR-RENNER ESQ., with him SHEKU M. . a a TOURE ESQ., for Appellant/Applicant. . Ba DR. H.M. JOKO-SMART, for Respondents. a BS “RULING DELIVERED THIS 16TH DAY OF MARCH, 1993 BY , A a KUTUBU, C.J. - PRESIDING = ‘a : Ay 3 . Bi This is an application by R. Awoonor—Renner Esq., counsel R for Appellant/Applicant for stey of execution of the order ee a contained in the Ruling of the Honourable Thompson-Davis J.S.C. ee if delivered in the Court of Appeal of Sierra Leone on the 4th a day of March, 1993 and for ‘all subsequent proceedings to be Bis stayed until the determination of Appeal in the Court of Apoeal. oe The application is supported by the Affidavit of smadu Kenu RC Bi | Applicant herein, sworn at Freetown on 710th day of March, 1993 we and filed. he : a At the threshold of this application preliminary objection a was taken by Dr. H-M. Joko-Smart counsel for Respondents on SS the ground of non-compliance by counsel for Applicant of the a nandatory provisions of Rule 60 of the Rules of the Supreme i Court, 1982 (P.N. No. 1 of 1982). Bex Rule 60 (1) states:~ Bas i a: oe seeee(2e

gy a 20 : feb ive tg civil appeal shall not operate as stay of execution a? em or of proceedings under the judgment or decision =. appealed against except in so far as the Supreme Court Ea ‘or the Court of Appeal may otherwise order". Bi Rule 60’ (2)' states:~ vee i "Subject to the provisions of these tules and tov» 3 any other enactment governing the sume, an application - for stay of execution or proceedings shall first be made 4 to the Court of Appeal and if that Sourt refuses to grant gh the application the Applicant shali be entitled to renew + the application before the Supreme court for determination.' 4 Eas counsel for Applicant complied with the mandatory provisions @ of the afore-mentioned Rules in the instant <pplication? If the et auger is in the negative can the Supreme Court entertsin this a Application without causing violence to the ?:les? Has the Court M fF any discretion in the matter if it takes the -iew that the mandatory “ =©,rovisions have not been complied with? & Counsel for Applicant with.candour concc ied the point that q q resort was not had to theSupreme Court Rules in the instant ie application, but nevertheless, based his app? cation on the grounds “@ of concurrent jurisdiction of both the Supre:. Court and the Court i of Appeal in this regard. Afortiori, that as bime was ‘of the essence a he proceeded under the provisions of the Con.‘itution of Sierra Leone 1991 Act. No. 6 of 1991 namely, Sectio: 723 which overrides the a Bules. What does the Section say? ce Section 123 (1) (a) states:- BE "an appeal shall lie from a judgment, iccree or "§ order of the Court of Appeal to the ~:preme Court 8 (a) as of right in any civil cause «matter. 4a Section 123 (2) - a "Notwithstanding the provisions of ©.bsection (1) . re | the Supreme Court shall have power “9 entertain 4 any application for special leave 1 appeal in q any cause or matter civil or crimir ., to the - a Supreme Court, and to grant such 1. ve accordingly",

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y af ; The purported application before this Court is for “4 a stay of: execution of the order contained in the Ruling of . .. i the Honourable Thompson-Davis delivered in the Court of 3 Appeal of Sierra Leone on the 4th day of March, 1993. J It is not an appeal or an application for special leave = to appeal. I cannot therefore see how this provision of a the Constitution can avail counsel in this application. a. Rule 60 i8 of obvious advantece to an applicant’in =” -" stay of execution proceedings. The rationale behind it is : 4 to give an applicant two chances, one in the Court below, . a the Appeal Court in this instence and another in the Supreme E | Court, should the Court of Appeal refuse to grant the ay Application sought. Applicant will therefore have the a . advantage of a second bite rather than jumping his gun E to his @etriment or risk. : = The order of the Court of Appexl was given on 4th = March to take effect on the 15th March, 1993 eleven days a 4 __ from the date of the said order. Counsel for Applicant a i depressed that since time was of the essence compliance a q with Rule 60 of the Supreme Court Rules would ngt have a been to his. advantage, as execution would have been effected, 44 E thereby making the proceedings nugatory. In our view eleven a days was a reasonable time within which an application for a 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. . a a In an application for stay of execution this Court has ee 3 always taken the view that there should be no short cut 2 3 to the procedure; the mendatory provisions should de complied 4 with. Nothing has changed the view of this Honourable Court “a E in that regard. :

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cS ae : Now what are the consequences of failure to comply with ae the mandatory provisions of Rule 60 of the Supreme Court Rules? ax: In the instance case has the proper foundation been . laid, a a 3 condition precedent for us to entertain this purported application a

og The answer is in the negative. In the circumstances the applicati ie F

Bs a is struck out. ,

Bs 2 Court - Costs awarded Le30,000.00.

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