Clement Bankole Cox v Sunny Eduwu (CIV APP 32 of 2007) [2008] SLCA 4 (31 January 2008)

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. CIV. APP.32/2007

tt I IN THE COURT OF APPEAL FOR SIERRA LEONE al INTHE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: CLEMENT BANKOLE COX - APPELLANT/APPLICANT i AND .

SUNNY EDUWU - RESPONDENT/RESPONDENT

Coram

ss Hon. Mr, Justice P.O. Hamilton J.A. (Presiding) i ; i i Non. Mr. Justice N.C. Browne-Marke J.A. : Hon, Mr, Justice E.E. Roberts J. A. H SOLICITORS: t E.E.C. Sheurs-Moses Esq. and Mrs. M.A.P. Davies for Applicant oa R. Jonson Esq, for Respondent i ap rae i RULING DELIVERED ON THE 3 [DAY OF Jaw 2008 i i This is an application by Notice of Motion dated 5" October, 2007 for the following Orders:- a

(1) That there be an interim stay of execution of the Judgment dated 13" fen July, 2007 pending the hearing and determination of this application.

(2) That ther be a stay of execution of the Judgment dated 13" July, 2007 pending the hearing and determination of an appeal to the Court of Appeal os intituled Civ. App. 32/2007 lodged on the 2" August, 2007. 3) That this Honourable Court grant such further or other orders as it may : deem fit ‘The applicant herein filed an affidavit in support of this application sworn to on 5" October 2007 to which was attached eight (8) exhibits (CBC! to CBCs)}. The Respondent herein filed an affidavit in opposition sworn to on 10 October, 2007 by Patrick Lambert.

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F LAr fo 2 , Counsel for the applicant Mr. E.E.C. Shears-Moses submitted that there are two principles : to be considered thus:- ” : @) Looking at the appeal and the existence of success and * Gi) the existence of special circumstances to grant the stay. Counsel then submitted that if the respondent goes on to administer the estate he will be at liberty to do what he wishes relying on Exhibit CBCe. Counsel finally referred to the aftidavit in opposition especially paragraph 4 in which Exhibits CBC 1. fully satisfies it i Counsel for the Respondent Mr. R. Johnson opposes the application relying on the : entire affidavit in oppasition, He then submitted that paragraphs 5 ~ 7 discloses no special circumstances since the accounts in Exhibit CBCa ois disputed as a sham in that there are : no documents to support it.

Mr. Shears-Moses in his reply submitted that there is no locus to administer the Estate of Mabel Cox. He referred to Exhibits CBC2 and CBC? and submitted that the respondent has no fixed abode therefore enforcement of the appeal if it succeeds would be difficult as such a stay is necessary.

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Paragraphs 5, 6 and 7 of the affidavit in support of the application reads as follows:

“5S. That pursuant to the Judgment of the 13" July, 2007, several orders were made by the High Court inter alia that 1 give an account of all the properties, real and personal including rents and profits collected, and monies in the Bank which | received whilst acting us Administrator of the estate of Mabel Cox deceased 1 have complied with this order. Produced and shown to me is a copy of the

. account tendered and marked CBCs 1-6 s B-

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aan D> 3. 1 “6. That the matter pertains to a deceased person which if in the wrong hands could | lead to serious repercussions later on. H rill “7, That the Respondent was meddling with the estate of Mabe! Cox and selling 7 ! | properties belonging to it even before he purportedly obtained a grant for | Cynthia Eduwu which had several defects. Produced and shown to me is a copy a of the grant marked CBCs” q yj a Paragraph 4 of the affidavit in Opposition reads: ; . i F “4. That the Appellant/Applicant is occupying one of the properties forming part of A . the Estate of Mabel Cox situated at 4 Nurse Horton Drive Brookfields Freetown f } and has been solely collecting the rent from the other property situate at 3511 4 i Beckly Lane off Tengbeh Town Freetown since the death of Mabel Cox in q

| his clear that the principles to be applied in determining whether to grant or refuse a stay : H | of execution are well known and have been applied in numerous cases by the Courts in this (| Gur jurisdiction. The Applicant must show that he has a prima facie good grounds of appeal and also that there are special circumstances justifying a stay. The main reason for if Ibis is based on the fact that a successful litigant should not be deprived of the fruits of his 4 judgment; See Patrick Kororma v Sierra Leone Housing Corporation and Dolci¢ Beckley H : Mise.App.9/2004 C.A. (unreported). It will be wrong to grant a stay of execution where an appeal is frivolous or where a grant of a stay will create hardship on the successful litigant. Sec: Firetex_ International Co, Limited Vs, Sierra Leone External Communications and | Sierra Leone Telecommunications Mise.App.19/2002 C.A. The applicant therefore must | how that there are special circumstances to justify the granting of a stay of execution and f | : Hus tavalves a consideration of the need to balance the interest of the successful litigant P unt the Applicant’s claim for a stay - See Patrick Koroma v SALHOC Supra, , cia ad Hi /4- HH ie ~ i i j to dG

bo From the affidavit in support and especially paragraphs 5, 6, 7 and Exhibit CBC: and the submissions of Counsel for the Applicant the question to be determined is whether the i averments constitute special circumstances to warrant a stay of execution. Vhe Respondent has not stated in his affidavit evidence or show'that a stay of execution 4 me would cause him any hardship nor has he demonstrated that in case the appeal succeeds | ii i he would be in a position to restore the Applicant to his normal position |

{ have considered the submissions of both Counsels and carefully examined the avetments | ha in the Affidavits in support and opposition. 1 am satisfied that if a stay is not granted | i i extreme hardship would be caused to the Applicant. I am satisfied that the Applicant has H : shown that special circumstances do exist for this Court to exercise its unfettered discretion ! to grant a stay of the execution of the Judgment dated 13” July, 2007 pending the hearing ind determination of the Appeal to the Court of Appeal, and would therefore grant the stay. i | I shall make no order as to cost, An “ h ] t Q M h wesi i wR YUN Nee i Hon Justice PG. Hamilton, JA. A

Hon. Justice N. C. Browne-Marke, J.A ae" Noe Vy WDA, Hor. Justice E.E. Roberts, J.A. i

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