Brian Nelson-Williams NO v Jallohn-Williams and Another (CIV APP 69 of 2018) [2020] SLCA 6 (12 June 2020)

: CIV. APP. 69/2018 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: Brian Nelson -Williams Appellant/Respondent (Administrator of the Estate of John Arnold Nelson-Williams) And Mr Mohammed & Mrs Isatu Jalloh 1 Respondents Occupants and all Others 4 loff Spur Road {AKA 41 Derrick Drive}, Freetown Mr Brima Bah and alll other Occupants -24 Respondents/ Applicants 41 off Spur Road (AKA 41R Derrick Drive), Freetown

Coram

Hon. Ms. Justice Glenna Thompson JSC - Presiding Hon. Ms. Justice Miatta Samba JA Hon. Mr Justice Sulaiman Bah JA Mr E. T. Koroma for the. 2¢ Respondents/Applicants Mr S. B. Mondeh for the Appellant/Respondent w RULING DELIVERED ON THE) DAY OF JUNE 2020 Glenna Thompson JSC

1. The genesis of this matter has been elaborately explained in the judgement of this court delivered on the 21% January 2020. The second Respondent/Applicant has now applied to this court for a stay of Execution of that judgement. In support of his application, he relied on an affidavit sworn to by the 2*¢ Respondent/ Applicant (hereinafter the Applicant) on the 4 February, 2020 and the exhibits attached thereto. These art: + Exhibit BB1 ~ His Deed of Conveyance dated 23 February

+ Exhibit BB2 - The Writ of Summons dated 3*4 July 2015 + Exhibit BB3 - Judgment in Default of Appearance dated 3*¢ October 2015 + Exhibit BB4(1-6) - Medical reports

+ Exhibit BBS - Judgment dated 21 January 2020

* Exhibit BB6 ~ Notice of Appeal to the Supreme Court

+ Exhibit BB7 ~ Ruling of Alan Halloway JA (as he then was)

+ Exhibit BB8 ~ Notice of Appeal to the Court of Appeal

+ Exhibit BB9 ~ Ruling of the Court of Appeal

2. Itis regrettable that none of the certificates accompanying each exhibit

accurately describes the exhibit nor the exhibit numbers. We remind counsel of the need to ensure that documents should be identified and exhibited accurately. Failure to do so wastes valuable time and is likely to be reflected in costs.

3. The Appellant/Respondent (hereafter the Respondent) filed an affidavit in opposition sworn to on the 16% March 2020 by Brian Nelson- Williams. Attached to that affidavit are the following exhibits:

+ BNW1 - Affidavit of Service of the writ of summons

+ BNW2 (A-M) - Judgement in Default served on the Applicant

* BNWS (A-F) ~ Copy of title deed of Thomas Nelson-Williams

+ BNW4 - Report of Chaytor Committee (paragraph 11-14)

+ BNWS - Letter dated 3"! December 2013 from the Asset Commission.

4. On the 24% March, the day of the hearing, the Applicant served an Affidavit in Reply sworn to by Counsel Emmanuel Teddy Koroma on that same day. Attached to that affidavit are:

+ ETK1 ~The Affidavit of the Applicant Brima Bah (Although not referred to in the body of Counsel’s affidavit .

+ ETK 2 ~ Pictures said to be of the Applicant's belongin the day of execution,

5. Mr Mondeh, Counsel for the Respondent asked the court for leave to cross examine the deponent on that affidavit. This was refused on the basis that the contents and the issue on which he wanted to cross examine are irrelevant to the proceedings before us.

6. We find the contents of thd affidavit in reply irrelevant, ill-conceived and Objectionable because Counsel, Mr Koroma should know or ought to know that if he has legitimate points to raise of that nature, this hearing was certainly not listed for that and he should have advised his client | appropriately. With the exception of paragraph 10, nothing in that |

Affidavit was relevant to these proceedings. However, paragraph 4 is { instructive for reasons which we will discuss later.

7. In view of the issue raised in paragraph 10 and the arguments as to whether execution had been completed, we granted leave to the Respondent to file an affidavit addressing only the issue of whether execution had been completed.

The Law

8. Itis settled law that the court has an absolute and unfettered discretion in deciding whether or not to grant a stay. In considering whether to grant a stay of execution, the court must ensure that its processes are not being used inappropriately to keep a successful litigant from the fruits of his victory. A stay will only be granted upon proof of a prima facie good ground of appeal and the existence of special circumstances. The onus is on the applicant to show by affidavit evidence that the two requirements are met. Where the dissatisfied appellant can show on the balance of probabilities by way of affidavit evidence, special and/or exceptional circumstances, the court is likely to tip the balance in his favour. The need for special circumstances was explored in Winchester Cigarette Machinery Ltd v Payne & Anr (No2] The Times Law Reports. December 15, 1993. Hobhouse L.J said as follows: ‘the appellant had to show some special circumstances which took the case out of the

ordinary. ‘In Linotyle-Hall Finance Limited v Baker [1992] 4 All E.R.887 Staughton LJ stated as follows: ‘It seems to me that if a defendant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospects of success, that is legitimate ground for granting a stay of execution.’ Also in Africana Tokeh Village Limited v John Obey Development Investment Company Limited Misc App 2/94 (unreported) Justice G. Gelaga-King stated that “where the court is shown special circumstances, it will use its discretion in favour of a stay. It is for the applicant to bring before the court those facts on which he relies as constituting special circumstances.” ‘The Arguments

9. Atthe hearing Counsel for the Applicant, Mr E. T. Koroma, relied on his affidavit in its entirety. He relied on the case of Rader v Jaber (1950-56) ALR SL 115, to argue that a stay of execution should be granted in

exceptional circumstances and is discretionary. This discretion should be exercised only after considering all the facts. Counsel submitted that part of the special circumstances in this case includes the fact that the Applicant has a legal interest in the property by virtue of exhibit BB1 which is the conveyance dated 23" February 1995. He further submitted that the Applicant has been in undisturbed and quiet possession of this property since 1995, save for the action instituted by the Respondent for declaration of title and possession with respect to the property which the Respondent claims ig part of the property of John Nelson-Williams (Deceased). Counsel asked the court to consider the physical challenges that this Applicant is going through. He asked the court to consider the medical report BB4 (1-6) and that part of the property has been specifically adapted for the Applicant. He stated that though the medical report is dated 2007 and the projection was only for one year, the Applicant is still suffering from a disability. The Applicant, he said has spent all his life savings and he will suffer undue hardship if a stay is not granted. He referred the court to the Africana

‘Tokeh case supra. This court, he submitted has a discretion to grant a

stay on terms. In view of the peculiar circumstances of this matter he implored the court to grant a stay. He further submitted that the appeal filed has a reasonable prospect of success because this court had wrongly upheld the appeal and he asked that in the interest of justice and fair play that this application be allowed, which he made pursuant

to Rule 28 of the Court of Appeal Rules 1985.

10. In reply, Mr Mondeh, Counsel for the Respondent similarly relied on his affidavit in its entirety. He submitted that the Notice of motion dated 4th February 2020 is untenable as it is an abuse of process of the court. For the following reasons:

(a) That it does not show the grounds in which the application is made. He referred to Order 8 (4)(2) of the High Court Rules 2007 - which states that on the face of it the motion must give clear grounds on which the application is made.

(b) That the application does not show special circumstances that have a reasonable prospect of success if this court is going to entertain such application for a stay in this particular case.

(c) A stay of execution is an equitable remedy. Therefore, it is imperative that an,affidavit in support must be made in good faith.

(4) Contrary to paragraph 3 of the Applicant's affidavit, it is clear the Applicant was served with the Writ of Summons.

(¢) On the 30% October 2015, the Applicant and his privies were duly served the judgment that was entered in default of appearance.

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