Commerce & Mortgage Bank v A.J Jackson-Cole (MISC APP 18 of 2019) [2020] SLCA 28 (9 July 2020)

— We- ¥ IN THE COURT OF APPEAL OF SIERRA LEONE -MISC APP ‘18/2019 BETWEEN: COMMERCE & MORTGAGE BANK (SL) PLC (B5JGNES OF C/OYADA WILLIAMS & ASSOCIATE) - PLAINTIFF

ANID DR. J.AJ JACKSON-COLE, (A. SHERIFF OF TEJAN-COLE, YILLAH AND BANGURA) DEFENDANT

Coram

Hon. Justice M.D Kamara JA Presiding Hon. Justice J.B Alicu JA Hon. Justice $ A Bah JA Ruling Delivered 9* June, 2020 ‘Phe application dated 30° October, 2019 is for an enlargement of time within which to appeal against the ruling of Justice M.M. SambaJA dated 16" April, 2019. ‘The application is supported by allidavit and supplemental allidavit of Mr. Abdul Malik Koroma deposed to on the 30° October, 2019 and 18* day of November, 2019 respectively. Respondent/Applicant contends that the mling ef Hon, Justice M.M. Samba was final and not an interlocutory order, as such, they made their application to this court as they had no obligation to go to the court of first instance. Furthermore, respondent/apphicant contends that they have good grounds of appeal against the court order dated 16" April, 2019. A copy of their proposed notice and grounds of Appeal is hereby exhibited and marked Ex A.MLK.5. In sum, the respondent/applicant does not contest. her indebtedness to the plaintill/respondent herein, but vehemently challenge the quantum of money claimed by the plaintill/respondent herein. Respondent/applicant contends tat their request for entargement of time to appeal js in good time due to the nature of the application- which was ex-parte, and the outcome came to their knowledge al the time of execution ic. 14" October, 2019. Ry virtue of order 43 13 (2) of the High Court Rules, 2007, possession relating to mortgage property are-exeetied without service of the order on the occupants. As such; botlrtheoecupantsand counsel for the respondent/applicant herein only became aware of the existence of the Hon. Justice M. M. Samba’s order on the 16* April, 2019 alter execution (ic. 1 October, 2019) as they were not served copies of the jadgement/ruling before then

— IIa- € ‘That to grant culayement of time to appeal is a diséretion of this court to be exercised based of principles. Counsel canvassed that it would serve the best interest of justice and fairness if this applications is granted. In response, B. Jones, counsel for the phainiifl/respondent herein says he is opposed to the "application for the following reasons: m

1. That this application does not fall within what is prescribed is RH (6) of the Court ol Appeal Rules, that the application is brought alter six months has elapsed. That Hon. Justice Joko Smart had held a similar provision in the Supreme Court rules in an unreported matter: Sesay and others vs Kamara and others mise. Apyp6/96 delivered on the 30° September, 1999 that the provision is mandatory. ‘That the applicants hercin could have applied within a maximum of one monthg, that they had up to the 17" August, 2019 to have filed their application lor enlargement of time.

2. That the respondent / applicant has not given good and substantial reason for the delay.

3. On the issue of good grounds of appeal, that the issue raised in the appeal are issues they could have argued in the court below. ‘That they could have applied to set it aside and argue why. That the applicant is only trying to deprive the plaintiff/respondent 10 possess the mortgaged propertyawhich in his submission is an exercise of their legal right. The Court was referred to s12 of the Home Morigage Finance Act, Act No.4 of 2004. Furthennore, he refers to s 13(2) of the same Act, saying that, the right to sell is different from, the right to possess. Counsel B. Jones assured the court that they are not contemplating on the sale of the mortgaged property. And he made an undertaking that the mortgaged property will not be sold until alter the determination of this appeal. In reply, A. Sherill'says that the court of Appeal has always granted enlargement of time to appeal if there are good and sullicient reasons for the delay and he referred the court to exhibit A.M.K. 5 reiterating the chronology of the events from the date of the ruling in the ex-parte application 16" October 2019 to date of perfecting on the 2" July, 2019 and execution on the 14° October 2019 (the effective date of when the order came to their attention) In light of the narrative and authorities submitted by the respondent/applicant’s counsel, in the matter, Mabinty ‘Timbo & Wurroh Tinbo17/2015 SLCA 17 (10 September, 2015) where time was enlarged within which to file an appeal against a judgement of 29°. July, 2015 on 1° September, 2015 such time to run out on 30* January, 2016 R.A Fynn.JA hid this to say “Phat there can be no tailormade, template of what would constitute special circumstances that every set of facts must be evaluated separatcly and a decision reached as to whether in fact they would constitute good and sullicient reasons.” —— a . ‘The above reasoning was derived {vom the arguments advanced by Hon. Justice Gelaga King JA in the case of Africana Tokch Villaye Limited vs John Obey, Halsbury’s Laws of England 3° Edition vol.16 asd Hon. Justice John Maria JA in an unreported case: Desmond Luke vs Bank of Sierra x Leone Mise. App 22/2004,

< Similarly, in the matter of Onyvhuvhi ltochhu, Gilbert Nwachul.wu of diemselves and as representing the chief’ and people of Avokwn Theku Appellants AND “ Richard Okowordu Tobias Nwubani (for themselves and as representing the chiels and people of Eruete Ibeku) respondents. In this matter the delay was occasioned by counsel being caught in the booby diflicult points of procedure, they held that the delay which derived from those difliculties, cannot be visited on the applicants. In dhe same vein I hold that the applicants’ application hercin is in good time, as it came to their knowledge only at the time of execution, it being an ex-parte application for which the ruling was delivered on the 16° April, 2019, the court order perfected on the July, 2019 and same executed on the 14* October, 2019. The delay in the perfection and service of the order cannot be visited on the applicants herein. And the application for the enlargement of time is dated 30" October, 2019, filed on the same day. Furthermore, I hold the view that it raises a serious question as to when does time begin to run in aan inter-party’s application when inordinate delay occu in perfecting and serving same. Is iton the date of the judgement or worse still immediately alter perfection and service of the order? Whilst in the case of ex-parte applications, could it be said that time strictly begins to run immediately the order is granted or perlected and brought to the absent party's attention? his is one such case, the latter seems plausible. ‘This Honourable Court do hold that this application was made in good time in consequence whereof I hereby grant an enlargement of time to appeal the ruling of Hon, Justice M.M. Samba JA dated 16" April, 2019, such time to run out within two weeks alier the delivery of this rulings ‘The Plaintiff/Respondent who has undertaken not to sell is hereby-restrained from offering for salejselling the possessed mortage property until alter the determination of this appeal Cost occasioned by this application shall be cost_ in the eause ff, “ Hon. Justice M.D Kamara JA Mec t2 ens Fon, Justice J.B Alien JA 2s. SARIN Sennen Tagree Hon. Justice $A Bah JA sss nb. festa’ agree

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< IN ‘THE COURT OF APPEAL OF SIERRA LEONE -MISC APP ‘18/2019 BETWEEN:

Commerce & Mortgage Bank (sl) Plc

(B. JONES OF C/OYADA Wi1i.1AMS & ASSOCIATE) - PLAINTIFF

AND DR. J.AJ JACKSON-COLE (A. SHERIFF OF TEJAN-COLK, YILLAH AND BANGURA) DEFENDANT Hon. Justice M.D Kamara JA Presiding Hon, Justice J. B Alicu JA Hon. Justice § A Bah JA Ruling Delivered 9" June, 2020 ‘The application dated 30* October;2019 is for an enlargement of time within which to appeal against the ruling of Justice M.M. SambaJA dated 16* April, 2019. Phe application is supported by allidavit and supplemental affidavit of Mr. Abdul Malik Koroma deposed to on the 30" October, 2019 and 18* day of November, 2019 respectively. Respondent/Applicant contends that the rulings of Hon. Justice M.M. Samba was final and not an interlocutory order, as such, they made their application to this court as they hiad no obligation to go to the cout of first instance Furthermore, respondent/appheant contends that they have good grounds of appeal aginst the court order dated 16° April, 2019. 4 copy of their proposed notice and grounds of Appeal is hereby exhibited and marked Ex A.M.K.5. In sum, the respondent/applicant docs not contest her indebtedsiess to the phiinill/espondent herein, but vehemently challenge the quantum of money Gained by he phiniiif responder: herein Respondeavapplicant contends that their request for enlargement of time fo appea! 3 in good time dae to the sature of the application: whiel was e-parte, and the outcome came tu their knowledye atthe tine of exeentiog Le. LT October, 2019. by nue of order J 13 (2) of te Hsgls Court Rules, 2007. possession rektting to sues gage property ate etwettion whhent series te | deron the occupants, such, both the cecic wuts and counsel forthe res adent applicant hen i only heeame amare cf the existence of tis HE a. fustice MM Saatha'sorderem the 16 Ape vt safer execution Ge. 21 Oetoher, 201M) oo. vere iad served comes of the judgement ruling belee then

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That to grant culayement of ine to appeal is a discretion of this court to be exercised based o11 i. principles. Counsel canvassed that it would serve the best interest of justice and fairness if this applications is granted. In response, B. Jones, counsel for the plainiili/respondent herein says he is opposed £0 the application for the following reasons: s “® 1. ‘Thatthis application docs not fall within what is prescribed in K 11 (6) of dae Courtol Appeal Rules, that the application is brought afier six months has elapsed. ‘That Hon. Justice Joko Smart. had held a similar provision in the Supreme Court rules in an unreported matter: Sesay and others vs Kanara and others mise. App6/96 delivered on the 30° September, 1999 that the provision is mandatory. ‘That the applicants herein could have applied within a maximum of one monthy, that they had up to the 17* August, 2019 to have filed their application for enlargement of time. 2. ‘That the respondent / applicant has not given good and substantial reason for the delay.

3. On the issue of good grounds of appeal, that the issue raised in the appeal are issues they could have armed in the court below. ‘That they could have applied to set it aside and argue why. ‘That. the applicant is only trying to deprive the plaintili/respondent to possess the mortgaged property-which in his submission is an exercise of their legal gight. The Court was referred to s12 of the Home Mor tyage Finance Act, Act No.4 of 2004. Furthermore, he refers to s 13(2) of the same Act, saying that, the right to sell is different from the right to possess Counsel B, Jones assured the court that they are not contemplating on the sale of the mortgaged property. And he made an undertaking thal the mortgaged property will not be sold until alier the determination of this appeal In reply, A. Sherill’says that the court of Appeal has always granted enlargement of time to appeal il there are good and sufficient reasons for the delay and he referred the court to exhibit A.M.K. 5 reiterating the chronology of the events from the date of the ruling in the ex-parte application 16" October 2019 to date of perfecting on the 2" July, 2019 and execution on the 14" October 2019 (the effective date of when the order came to their attention) Tn Tight of the narraive and aniioritiey submitted by the respondent/applicant’s counsel, iss the matter, Mabinty Timbo & Wurreh Vinbol 72015 SLOAN 17 0 September, 2015) where time was enlarged within which to file an appeal angtinst a judgement of 20° July, 2015 on 1° September. 2015 such time to run out on 30" January, 2016 R.A Fynn).\ nad this to say “hat there can be no tailoranide, template of what would consiiste special circumstances that every set of frets ist be evaluated separately and a decision reached as to whether in fact they would constitute good and sufficient seusens.” “The above scasoning was derived fe ite arcamten’s wdsuneed by Hos, Justice Gohuge Nine Pie the case of Mricana Tokeh Viliag Listed vs join Qhev. Halsburv's Laws of England 3 Edruon vol.16 ae? Hox. Justice John M JA in an umrepost ease: Desmond Luke vs Bark os Stier: ge Leone Mio App 22 2004

a Similarly, in the matter of Onyrhuvhi Horhbu, Gillest Nwachukwu of Giemselves and as representing the chicfs and people of Avokwu Theku Appellants AND x Richard Okowordu ‘Tobias Nwubani (for themselves and as representing the chiefs and people of Fructe Ibeku) respondents In this matter the delay was occasioned by counsel being caught in the booby dillicult points of procedure, they held that the delay which derived from those difficulties, cannot be visited on the applicants. Jn the same vein J hold that the applicants’ application herein is in good time, as it came to theit Knowledge only at the time of execution, it being an ex-parte application for which the ruling was delivered on the 16* April, 2019, the court order perfected on the 2” July, 2019 and same executed on the 14° October, 2019. The delay in the perfection and service of the order cannot be visited on the applicants herein. And the application for the enlargement of time is dated 30* October, 2019, filed on the same day Furthermore, 1 hold the view dhat it raises a serious question as to when does time begin to run in an inter-party’s application when inordinate delay oceurs in perfecting and serving same. Ts iton the date of the judgement or worse still immediately aller perfection and service of the order? Whilst in the case of ex-parte applications, could it be said that time stricly begins to man immediately the order is granted or perfected and brought to the absent party's attention? ‘his is one such case, the hater seems plausible. ‘Phis Honourable Court do hold that this application wax made in good time in consequence whereo! 1 hereby grant an enkurgement of time to appeal the ruling of Hon. Justice M.M, Samba JA dated 16* April, 2019, such time to ran out within two weeks after the delivery of this ruling. ‘The Plaintill Respondent who has undertaken not to sell is hereby-restrained from olfering for sale/selling the possessed mortgage property fintlalier the determination of this appeal Cos ocvasioned by this ae be cost in the cause. Hom, Justice MID Kamara JA Ab CMO + Hon. Justice J. B Alien JA ce a : Tagree Hon. dustice SA Bal DA cccccue Are bl . agree

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