Benjamin Juxon Smith v Vincent Lamin Kanu (JR) (C.C App 52/22) [2024] SLCA 6 (13 June 2024)

ADVOCATE: fl. KUTUBU Esq FOR THE APPELLANT/APPLICANT By Notice of Motion dated the 6" day of February, 2024, the Appellant/Applicant seeks a stay of execution of the Judgement of the High Court dated the 7" day of October, 2022 pending the hearing and determination of the appeal to the Court che

‘An appearance was entered on his behalf and a defence and counter-claim were also filed on his behalf, That after the defence and counter-claim had been filed, an application for ‘termination on a point of law dated 2! November, 2022 was made by the Respondent/Respondent. That the ruling dated 7" October, 2022 was delivered in favour ofthe Respondent/Respondent by the tral Judge granting him an order for the recovery of possession of the disputed res at Sir Samuel Lewis Road, Aberdeen, Freetown in the Western Area of the Republic of Sierra Leone.

Being aggrieved with that ruling, the Appellan/Applicant filed an appeal ‘against the said, Judgement and also filed an application for a stay of execution in the High Court but same was refused.

Under the said High Court Judgement, the Respondent/Respondent (as Administrator of the estate of Vincent Kanu) had been granted an order for the ‘scovery of possession of all that piece and parce of land situate lying and being at Sir Samuel Lewis Road aforesaid the portion dimensions and boundaries elineated on survey plan No. LS 3710/ 2000 measuring 0.8788 acres, same having been declared to form part ofthe estate of Vincent Kanu (deceased) on the 22 January 2024,

He now applies to this Court fora stay of execution of same and argues tha if this Court were to allow the RespondenRespondent to execute, that in the event his appeal succeeds, he would have suffered grave injustice and ieparable damage thereby rendering his appeal mugatory. In his affidavit in support, the Appellan/Applicant main reasons for seeking a sty of execution are; his long stay for over two decades on the land including development he has undertaken ‘onthe land. He further alluded tothe deceased having a special relationship with

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a his sister etc, as special circumstances to be considered, Furthermore, that his workers will lose their source of earning and that he deals with very expensive vehicles and machinery that cannot be easly relocated. He expressed his fear to incure significant and crippling amounts of money to find alternative location for the expensive vehicles kept at his garage during the subsistence of the appeal Which by his status is unachievable, That he ean only maintain the payment of salaries of his workers ifthe garage is operational and execution will render his workers unemployed.

This Court has repeatedly emphasized that for it to order a stay of execution of a regular judgment, the rules require that the Applicant must . show that there are special circumstances in the ease and that the grounds of appeal proffered are primafacie strong grounds of appeal: (Firetex International Co. Lid. vs, Sierra Leone External Telecommunications Ltd. Mise. App. 19/02) is, illustrative of these principles: "The general rule is that a stay of execution will be granted upon Proof ofprima facie good ground of appeal and the existence of special ‘or exceptional circumstances. The onus is on the applicant to show by affidavit evidence that the two requirements do exist. “The legal principle for the exercise of the Court's diseretion has ‘always been that the applicant must establish that there are special or exceptional circumstances justifying the grant of a stay of execution. This is 0 because ina contested case the successful party should not be | deprived of the fruits of a judgment given in his favor" (see also Yusuf Bundu v. Mohamed Bailor Jalioh MisApp 23/2004(Unreported) and Bindora & Others v. Emerica & Others Civ App 58/2013(Unreported)

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The Court has not found the averments relating to the business arrangements of the Appellant/Applicant convincing, As these may be merely economical on the one hand and sentimental on the other. On their own the difficulties of removing, the garage to another location together with the employment challenges which such a move may result in cannot support an application such as this one.

The Court however recalls its ruling in Lucy Decker Et al v. Goldstone Decker Civ App, 11/2002 (unreported) cited by the Appellant/Applicant and in particular the dictum of G, Gelaga-King JA where his Lordship had this to say:

"This family relationship is distinet from the great majority ofthe usual

cases where the litigants are strangers in the sense that they are not

related either by marriage, consanguinity or at all” ‘The Appellant/Applicant has alluded to a very close family-like relationship with the deceased and his family. The affidavit in support has averments, inter earlier as follows (and itis important to note that this is not controverted):

“That 1 was so frequent in the household of the deceased intestate that even the Respondent/Respondent would always award me the greatest respect as his elder in the family. That I am well known and accepted as part of the deceased intestate's family and the deceased trusted me with more affairs of his life than even many other members of his family"

It is worth reiterating that the above evidence remains uncontroverted. It is also worth noting, and for the avoidance of any doubt, that the Court does not wish to convey, as of right any ofthe interests which can only acerue toa family member to a non-family member. The Court however does hold for the limited purposes of special circumstances relating to a stay of execution, as in the present application, that a relationship such as the one which the Appellant/Applicant has described will be sufficient when uncontroverted to bring a person under the

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