Boblyn Augustin v Abdul koroma (MISC APP 38 of 2004) [2005] SLCA 4 (28 January 2005)

Y [bc ial! STAI Of CxXecuTion! ; 3 MISC.APP.38/2004 =a

IN THE COURT OF APPEAL OF SIERRA LEONE * RETWEEN: BOBLYN AUGUSTIN APPELLANT/APPLICANT AND ABDUL KOROMA RESPONDENT

Coram

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

Judgment

Delivered this 2 * day of Tawary 2008. A, MURIA, TEJAN-JALLOH AND HAMILTON JJA: By his notice of motion, the appellant seeks a stay of execution of the judginent of this Curt delivered on 19” November 204 pending his app::al to the. Supieme Court. The respondent was successful in the High Coutt which ordered, inter alia, the appellant to execute a ¢ conveyance of the property at No. 36 Sackville Street, Fréétown in favour of the respondent. The appellant appealed to the Court of Appeal which dismissed the said appeal on 19" November 2004. "5 The principles upon which the court acts in cases of stay of execution are well . se.ded in this jurisdiction. . The applicant for a stay must establish “special

(el

tg circumstances: Justifying a stay of execution In aadition, the court also bears in mind, the distinction between a Monetary and a non-monetary judgment, the real , risk of damages and costs not being refunded if the appeal succeeds constitutes. e ‘special circumstances’ justifying a Stayyina non-monetary judgiieni, as that of 2 ‘a judgment for delivery of Possession, of a land, 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 in his favour. A further Consideration which the Court will take into account in an Ap, ication 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 (1948) Vol-3Siprra Leone Law Recorder, 66, Bank of Sierra Leone v. Desmond Luke. (14" Juny 2004) CA, Misc. App.22004: ang Yusuf Bundu v Mohamed Bailor Jalloh (23 July 2004) CA. Misc Apr 904 have clearly established the Principle that in cases where the judgments sought tu be Stayed are fo; recovery } of possession of land, the Court uf Appeal will refuse to grani-a Stay unless the: applicant can establish a strong «ase 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. : Mr. Jenkins-Johnston of Counsel for the anpellant relied on the case of Adama Mansaray v Ibrahim Mansaray (4th March 1982) CA Civ.App.No.31/1981, In the. case, the Court of Appeal said that in Cases involving conveyance of land or Sil Of land. And an appeal is pending before the court; a stay should not be readily refused because the land in question might have passed on to another purchaser wr is not aware of the pending appeal. We appreciate. the view taken by the court in that case. We !2e!, ha © . 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. tfalso 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

or al ‘ is nature is that the presumption, if there « 6ne, must always be in favour of 4 the judgment of a competent court, and the_burden.is_on him who seeks . challenge that judgment to establish the grounds for doing so whether in tive form © of a stay oF setting aside. To baud oth 2 would also lead to the situation warned against by Gaham Paul Cu in Ernest Farmer and another y Mohamed Labi (above) where His Lordship said; “If this application were granted it would be a precedent which would have the effect of makir.g every appeal against ( a judgment fof possession in this class of case ipso facto a stay of execution.” | This we re-iterate the Position which we feel strongly that the courts in Sierra Leone shoulu take fn cases -of involving fecateny of possession of land: an . applicant for stay must establish-2-strong-case-for-depriving- the respondent of : the benefit of the judthent obtained in his favour. The grounds advanced on behalf of the appellant/applicant range from saying the the property was a family home and that he was sentimentally and emotionally | alt. shed to it; that ha, 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, fressure; and that his former solicitors Poorly handled his . case. We consider 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 } ve For the reasons given, we are Of the opinion that the application for a stay in this___ case should be refused.and.we s9 refuse it

ait We feel. however, that this court Ought to take account of the point expressed by the appellanvapplicant of the Possibility of the respondent Passing the land 7 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 accepted that such an order can be Made in this case. The court accepts that a 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;. »sing the Property in 36 Sackville Street Freetown until the determination of the appeal by the Supreme Court in this. matter, — ~ ‘ The order of the court therefore are 1 Application for Stay of Execution of the judgment of Court of Appeal dated 19" November 2004 is refused, ae ee 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. 3h Each Party to bear his Own costs. AN . BY THE COURT

EE Aaa} oe, | aaa