Boblyn Augustin v Abdul Koroma (MISC APP 38 of 2004) [2005] SLCA 1 (25 January 2005)

. v [ec Y ry fs STR of GXecuT ion!

; MISC.APP.38/2004 ———

o IN THE COURT OF APPEAL OF SIERRA LEONE

RETWEEN: BOBLYN AUGUSTIN APPELLANT/APPLICANT AND ABDEL KOROMA RESPONDENT

Coram

— Hor. Justice Sir John Muria J.A (Presiding) Hon. Justice U.H. Tejan-Jalloh J.A Hon. Justice P.O. Hamilton J.& Hearing: — 19" January, 2005 Judyment: 28" January. 2005 Advocates: J.8. Jenkins-Johnston Esq.; for Appellant/Applicant . Y.H. Williams for Respondent

Judgment

Delivered this 2& a day of Tauary 2005. AN, . MURIA, TEJAN-JALLOH AND HAMILTON JJA: By his notice of motion, the appellant seeks a stay of execution of the judgient of this Curt delivered on 49h November 2094 pending his app::al to tor. Supseme Court. The respondent was : successful in the High Couft which ordered. inter alia, the appeilant to execute a conveyance of the property at No. 36 Sackville Street, Freetown in favour of the respondent Tne appellant appeuled to the Court of Appeal which dismissed the said appeal on 19" November 2004 The principles upon which the court acts in cases of stay of execution are well r sealed in this jurisdiction The applicant for a stay must establish “special

{el | , o¢ . ° circumstances. Justifying a Stay of execution In aadit'on, the court alsa bears in . Mind, the distinction between a Munetary and a non-monetary judgment, the real n [© of damages and costs not beirg refunded if the appeal succeeds constitutes | ‘special circumstances’ justifying a stay gin a non-monetary judgiieni, as that of a Judgment for delivery of Possession, of a iand, the ‘special circumstances’ that | the applicant for a Stay has to establish are those factors which make out a | strong cased for depriving the respondent of the benefit of the judgment obtained ! 9 his favour A further eo Isideration which me court will take into account in an : 4p, Cation for a stay especially in cases concerning land, is that of the nonper hable nature of the Property. The cases of Ernest Farmer and Another "(1945) Vol "3 Sora Leone Law Recorder 66, Bank of Sierra Leone v. Desmond Luke. (14 Jiny 2004) CA, Misc. App.22/24: and Yusuf Bundu vy Mohamed Bailor Jalioh (25 “July 2004) CA Mise Ane 9 9-904 have clearly established the principle that in cases where the judgments Sought tu be stayed are fo: recovery | i } Of possession of land, the Court uf Appeal will refuse to grant-a stay unless the applicant can establish 4 strong vase for depriving the respondent of the fruit of . the judgment Obtained in his favour. We are firmly of the view that Principles laid ‘ down in the cases referred to must also apply in the present.

H Mr. Jenkins-Johnston of Counsei for the anpellant relied On the case of Adama Mansaray Vv Ibrahim Mansaray (4th March 1982) CA Civ.App. NO.31/1981,. In the. case, the Court of Appeal said that i Cas@s involving conveyance of land or ‘ Sik Of land. And an appeai is pending before the court; a stay should not be readily refused because the land in question might have passed On to another Purchaser wh > is not aware of the Pevrdiny appeal. We appreciate the view taken by the Court in that case We ‘ze! he * that to adhere without more to the position stated in that case would likely to lead to a situation where a Presumption in favour of a stay may well develop, something whieh the case law -. authorities do not support. ! also unnecessarily throws the burden on the party in whose favour the Judgment of the Court having to show that he would not part . with the Property while the appeal is pending The Position in law in cases Of this

oe | a a 5 : ° nature is that ,he presumption, if there.) ene, must always be in favour of f the judgment of a competent court, and tbe_burden ds..on him who seeks ‘7 challenge that judgment to establish the grounds for doing so whether in we form of a stay or setting aside To hod oth > would also lead to the situation warmed against by Gaham Paul CJ in Ernest Farmer and another v Mohamed Labi (above) where His Lordship said: “If this application were granted it would be a precedent which would have the effect of making every appeal against a judgmr nt fof possession in this class of case ipso facto a Stay of execution.” This we re-iterite the Position which we feel Strongly that the courts in Sierra Leone shoulu take In cases of involving Fsoteny Of possession of land: an applicant for stay must @stablish-a-strong-case-for-depriving the respondent of ° the benefit of the judgment obtained in his favour. The grounds advanced on behalf of the appellart/applicant range from saying the the property was a family home and that he was sentimentally and emotionally att. shed to it; that he Was traumatized, confused and in great panic and fear at |! the time of the transaction in 1997 because of the AFRC Military Junta; that he was under too much pressure; and that his former solicitors poorly handied his . case. We co. sider the factual circumstances against the grounds or reasons advanced by the appellanvapplicant and we found tnat they cannot stand in the way of the judgment granted by the court to the respondent in this on 19" November 200} : For the reasons given, we are of the opinion that the-application for a stay in this _ “ case should be refused and we so refuse it

3b ‘ ae a . : We feei, however, that this court Ought to take account of the point expressed by ra the appellanvappilicant of the Possibitity of the respondent Passing the land

‘ to another hand in ‘the meantime. That in our view can be accommodated by an order that the respondent must Not dispose of the Property to another Person or

. whatsoever while the appeal is Pending before the Supreme Court, Mr. Williams acvepted that such an order can be Made in this case, The court accepts that a

I restraining order would be useful in the case before the court. We therefore

! make the order that the respondent be restrained from Selling or otherwise

: dis; osing the Property in 36 Sackville Street Freetuwn until the determination of

the appeal by the Supreme Court in this matter The order of the, Court therefore are

i 1 Application for Stay of Execution of the judgment of Court of Appeal

i dated 19" November 2004 ig refused, os

[

2. The respondent is restrained, from Selling or otherwise disposing of the

} : Property in 36 Sackville Street, Freetown until the appeal to the ! } Supreme Court is determined

3. Each Party to bear his own costs.

. MMe

i : BY THE COURT