Commerce & Mortgage Bank v Augustine M.Fallay (CIV APP 24 of 2019) [2019] SLCA 18 (6 June 2019)

. CIV APPEAL 24/2019 O IN THE COURT OF APPEAL OF SIERRA LEONE (CIVIL APPELLATE JURISDICTION BETWEEN:

COMMERCE AND MORTGAGE BANK FORMERLY HPC = PLAINTIFF/RESPONDENT MORTGAGE AND SAVIGNS (SL) AND AUGUSTINE MORRAY FALLAY - APPELLANT/APPLICANT F. K. GARBER FOR APPELLANT/APPLICANT BERNARD JONES FOR THE PLAINTIFF/RESPONDENT

Ruling

By Notice of Motion dated 25» March 2019 the Appellant/Applicant has applied for the following Orders:-

1. That the Court grants an interim stay of execution of the Judgment/Ruling of the High Court of the Honourable Mr Justice Abdul Rahman Mansaray J granted on the 13 day of March 2019 and all subsequent proceedings pending the hearing and determination of this application. z. That the Court do grant a stay of Execution o* tne Judgment of the High Court of ihe Honourable Mr Justice Abdu Ranman Monsaray J granted on the 13% day of March 2019 and all subsequent oroceedings pending the hearing and deter nation of the Civ Aop 24/2014 filed in the Court of Appeal on the 22°> day of March 2019 for the Appellant/Applicant & Jnai ine Defendant be restored oack inio posession of the property situate lying and being at Off Regent Road. > Station, Freetown in the Western Area of the Republic of Sierra Leors < 4 Ary further Order/Order(s) tha! this Honeurat = court may deem fit i and just

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=9 5, That the cost of this application be cost in the cause. The Appellant/Applicant is relying on the affidavit of Augustine Morray Fallay sworn to on the 25!" day of March 2019. There are exhibits attached

$ to the affidavil. Exhibit AMI 1, is a photocopy of the Ex parte Originating

Notice of Motion, AMF 2, is the Memorandum and Notice of Appearance. AMF 3, is photocopy of the Judgment, AMF 4, is a photocopy of a Mortgage Deed dated 15! October 2015. AMF 5, is a photocopy of Plan with LS No 1987/96. AMF 6 is a photocopy of a Demand Note AMF 7 is a copy of the Motion to set aside the Judgment in the High Court. AMF 8, 1-9 is a photocopy of the Ruling of Mansaray J, AMF 9 is a copy of the Notice of Appeal. The Appellant/Applicant is relying on the entire content of the said affidavit. The application is made pursuant to Rule 28 of the Court of Appeal Rules P.N. No 29 of 1985. Counsel for the Appellant submits that there are special circumstances which the Court ought to consider, he refers the Court to paragraph 13 which he submits is exhaustive in the affidavit in support. There are very good grounds of appeal which the Appellant believes has a real chance of success. F IX Garber Esq emphasized on the issue that the Plaintiff/Respondent is desperate to dispose of the property and if same is sold the Applicant. will not be ina position to exercise his right to redemption. Counsel submits that the Judgmeni cbiained in the Court below was by an —x parte application, the Appeliant was never given the opportunity to be heard. The property is question is tne only property of the Appeliant/applicant. According 10 Counsel for ihe Appellant/Applicant tne righ’ *c be heard isa fundamen! principle of the Rule of Law. Tne Court may consider it as a special cicumstance where there is a fundamental! brecch of the Rule. Order 41{2Z) under the Rubric Judgment by Default mc, oe sei aside”. Enables c party who was not heard to apply to set as2e a Judgment obiaines cy Defcul

i 134 Counsel refers the Court to the case of Samati Bibharati and Kumar * Ramendla Naradan Bay (Ho.L.) Privy Counsel decision from the High Court. ‘ The principle of Law stated is that a violation of some principle of law or procedure must be such, as erroneous proposition of law for which ought to “pe corrected. Counsel submits thai seiying on Order 35/2/1 of the Annua: + Practice 1999 “Effect of the Rule" , the right to set aside for the other side to be heard justifies special circumstance. In summary this is the argument of Counsel for the Appellant/Applicant. In opposing the application B Jones Esq for the Respondent stated. Firstly that there are no special circumstance for grant of stay. He refereed this Court to the Home Mortgage Finance Act 2009 Act No 4 which gives the exclusive right of the Mortgagor to institute an action to recover the amount on the Mortgage Deed. Counsel submits that the Appellant/applicant has not paid a single cent towards the amount owed to the Respondent Bank. The right to sell and the tight to equity of redemption are granted by the Act. Exhibit AMF 4 the Mortgage Deed represents the contract between the parties. Clause 5.3 gives the Mortgagor the right to re-enter and sell. He urged the Court to respectfully look at the contract agreement entered into. The application for determination is for a stay of execution of the Judgment of Abdul Rahman Mansaray J dated 13'' day of March 2019, pending an appeal to the Court of Appeal. The Appellant has clecdy appealed lo Ihe Courl of Appeal. | hove gleaned the grounds o* cppeai, if discloses very arguable grounds. The crux of the issue is that :~e Respondent had proceeded to enter judgment Ex parte. Counsel! for the Respondent has argued that ne Home Mortgage Act 2009 gives excius'.s right to the Mortgage to enter ond se". | coves that it is the positon unc=’ the Act. However, the right of the mortgagee *o be heard cannot also b= taken away from the mortgage. The applicat-an of a provision in c States ough! not to be restrictive and oppressive.

per 133 . There are a plathord of cases in our jurisdiction with respect to stay of = execution. Are there special circumstances in this application? Counsel has ; referred me to paragraph 13(i) to (vi) of the affidavit of Augustine Morray Fallay the Appellant/Applicant. Indeed it discloses special circumstances, in my view if constitutes s¢ cial circumstances. The applicant init <ieposed in * paragraph 8 that he was making frantic effort to pay the debt. It is not in dispute that the Appellant has been evicted from his premises. In the Africana Tokeh v. John Obey Court of Appeal (unreported) the Court did not only grant a stay of execution but ordered that the Appellant should be put back into possession of the property (status quo ante). | have considered the submissions of Counsel in this matter. | hold that the Applicant has made a case for the granting of a stay of execution of the judgment of Justice Abdul Rahman Mansaray J pending the hearing and determination of the appeal to the Court of Appeal. | shall make the following Orders:-

1. A stay of execution of the Judgment of the High Court of the Honourable Mr Justice Abdul Rahman Mansaray J granted on the 13!» of March 2019 and all subsequent proceedings pending the hearing and determination of the Civ App 24/2019 field in the Court of Appeal is hereby granted.

2. That the Respondent Solicitor shall have the cost of the application it not agreed to be taxed.

3. | further order the Under Sheriff to remove the security personnel from the premises of the Appeliant/Applicant and to put into possession the Appelian!/Applicani pencing this hearing and determination of Civ App 234/2019 filed in the Court of Appeal.

Daye Dated at Freetown inis E™ — Gay 2 Spy, 2019.

« son. Justice Alusine Sesay JSC Pa