Cornelius A. Harding v Mustapha A.B. Tarraf & Another (MISC APP 7 of 2007) [2008] SLCA 66 (11 July 2008)

MISC. APP. 7/2007 INTHE COURT OF APPEAL FOR SIERRA LEONE Tes... BETWEEN: CORNELIUS AUGUSTINE HARDING PLAINTIFF/RESPONDENT AND MUSTAPHA ALLIE ABOU TARRAF 1" DEFENDANT/APPLICANT AND NASSER AYOUB 2° DEFENDANT/APPLICANT

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Hon, Mrs. Justice S. Bash-Taqi, JSC (Presiding) Hon. Ms Justice S. Koroma, JA Hon. Mr. Justice E. E. Roberts, JA Barristers P. Lambert, Esq, forthe Defendants/Applicants N. D. Tejan-Cole, Esq, for the Plaintiff/Respondent « Tuly RULING DELIVERED ON THE _/ DAY OF JUNE 2008 BASH-TAQL JSC “The Delendants/Applicants who were the Defendants in the High Court, have appealed saguinst the Ruling of Kamanda, JA (as he then was sitting as Judge of the High Court) dated 2" May 2007, in which he upheld the objection of the Plaintiff/Respondent und struck out the Applicant's Notice of Motion dated 10" May 2007 By that Motion, the Defendants/Applicants were applying, 1) For leave to be granted to them (0 appeal against the Ruling of the Learned Trial Judge of 2™ May 2007, 2) an interim stay of execution pending the hearing and determination of that application, aid 3) for a similar order as in (2) above pending the hearing and determination of the proposed appeal 0 be filed if the application on the Notice of Motion was granted. ts alleged that while Counsel for the Defendants/Applicants was moving the Court on his ‘ypplication, but before completing his submissions, Counsel for the Respondent took an “objection to its further hearing. The Judge after hearing Counsel upheld the objection an struck out the Defendants/Applicants” Notice of Motion, 1 ix against this Ruling that the Defendants/Applicants have applied to this Court by 3 Notice of Motion ded 22" June 2007 seckiny the Following Oners

1. “That leave be granted to the Defendants/Applicants herein to appeal against the Ruling/Decision of the Hon, Mr. Justice Jon Kamanda, Learned Trial Judge( in this matter which is dated the 2" May 2007 in the High Court matter intituled

tee ‘CC460/05 2005 H. NO. 9 Between Cornelius Augustine Harding (Plaintiff) ancl Mustapha Allie Abou Tarraf (I Defendant) and Nasser Ayoub (2™ Defendant).

2. That this Honourable Court orders an Interim Stay of proceedings in the High Court matter intituled CC460/05 2005 H NO 9 Between Comelius Augustine Harding (Plaintiff) and Mustapha Allie Abou Tarraf (1° Defendant) and Nasser Ayoub (2" Defendant) pending the hearing and determination of this application,

3. That this Honourable Court orders a Stay of Proceedings in the High Court matter imiuled CC 460105 2005 H. NO. 9 Between Comelius Augustine Harding (Plaintiff) and Mustapha Allie Abou Tarraf (1** Defendant) and Nasser Ayoub (2' Defendant) pending the hearing and determination of the proposed appeal to be | filed pursuant to an order made by the Court under Order I sought on the face of this motion.”

‘The application is supported by the Alfidavit of Patrick Lambert sworn on the 22 day of June 2007 and a Supplemental Affidavit sworn on 21" day of May 2008 together with the exhibits attached thereto,

Background

A brief background is necessary at this stage before going into the substance of the application before us.

The Plaintf/Respondent herein had instituted proceedings in the High Court by Writ of ‘Summons on 2 May 2005 for possession of premises at No $ Spur Road Freetown ‘occupied by the Defendants/Applicants under a Lease, and for damages upon forfeiture for alleged breaches of covenants. On 12" May 2005, the Defendants/Applicants delivered a Statement of Defence and Counterclaimed for relief against forfeiture. On 18" May 2005, the Plaimtift/Respondent then filed a Reply and Defence to the ‘Counterclaim

On the 17" October 2006, the Defendants/Applicants. served interrogatories on the Plaintft/Respondent pursuant to Order XX © (1) seeking answers to the following, questions:

1. Whether the plaintiff declared to the Income ‘Tax Department/The National Revenue Authority the amount of rent he had received from the I and 2"! Defendants for the years 2002-2005;

2. Whether the declared rental value (if at all dectared) was the same as provided For in the lease agreement between the parties:

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3. Whether plaintiff did receive from the 1* and 2 Defendants, rental payments in excess ofthat provided in the said lease agreement;

4. If there was an excess, the plaintiff to state the amount of excess for the years

oy 2002 - 2005;

5. Whether plaintiff did sign a supplemental agreement in which the rental value for the demised premises was different from that in the initial agreement. Upon receipt of the above interrogatories, the Plaintff/Respondent applied to the Court by Motion seeking an Order that the interrogatories of 17" October 2006 served on him be within-drawn. On the 2" day of May 2007, the Learned Trial Judge Kamanda, J.A, then gave a detailed Ruling, part of which is reproduced hereunder as appears at paragraph 3 of Mr. Lambert’s Affidavit in Support of his application. It states i) “L will here attempt to the Central issue in the instant case as I see it. It is whether in a case for the possession of the premises resulting from breaches by a tenant of covenants relating to use of the demised premises, the tenant can raise issues of (or) serve interrogatories relating to what declaration the landlord had made about rent to the Income Tax or the Internal Revenue Authorities”

ii) “Interrogatories are not made to provide details which are within the knowledge of the person issuing them.

iii) “Further it is my view that the issuing of interrogatories in this matter, fails to satisty the test laid down in the Foundation in that the Foundation of this case rests on alleged breach of covenant by the Defendants who are tenants of the Plaintiff. To hold in these circumstances. that interrogatories pending to raise taxations issues are relevant would be to over stretch the tests for the applicability of interrogatories. I fal to sce their relevance in this case, and will Order that they be withdrawn, and he matter continue to the next stage.”

“Thereafter Counsel drew up and filed the Judge's Order, which reads as follows: DATED THE 2” DAY OF MAY 2007"

“UPON READING the Notice of Motion dated 27" day of October 2006 together with the affidavits in support and opposition thereto AND UPON HEARING N. D. TEJAN-COLE ESQ. of Counsel for the Plaintift/Applicant and P. LAMBER ESQ. of Counsel for the Defendanis/Applicants IE LS HEREBY ORDERED as follows:

% 1. ‘That the interrogatories be withdrawa

ror

2. That the Costs of this application be costs in the cause”

o On the 10" day of May 2007, being dissatisfied with the said uling, the Defendants/Applicant applied by Notice of Motion for leave to appeal against the same and for an Interim Stay of proceedings pending the hearing and determination of the proposed appeal to be filed if the application succeeds.

The Motion came up for hearing before Kamanda, JA, on 15 May 2007. During the course of Mr. Lambert's arguments before the Learned Trial Judge, and according to him, before he had completed his submissions on his Motion, Counsel for the Plaintff/Respondent, Mr. N. D. Tejan-Cole, objected to the Defendants/Applicants’ application on the grounds that the full Ruling/Decision, the subject matter of the application, had not been exhibited with the Motion papers. The Learned Trial Judge heard the arguments of both Counsel on the objection and thereafter adjourned for

Ruling

‘On 8" June 2007, the Learned Judge gave the Ruling below, which { have found necessary a this point to reproduce in full as it appears in the Judge's handwritten notes supplied to the Court at our request, by Mr. Lambert and attached as exhibit “I” to his Supplemental Affidavit sworn on 21st May 2008. The Ruling/Decision reads “RULING” “Phe background to this application will help to make this Ruling clearer. As part of the process in bringing this matter through its preliminary stages to trial, Mr. Lambert issued interrogatories on the Plaintiffs. On 2" June (2 May) 2007, 1 ruled against the interrogatories being issued (see pages 29 to 33 of these Records), and ordered that they be withdrawn, “Consequent upon this order Mr. Lambert has moved this Court on a notice of motion dated 10" May 2007 for the following orders.

1. That leave be granted to the Defendants to appeal against the Ruling/Decision of the Learned trial Judge in this matter dated 2" May

2. ‘That this Hon Court Orders an interim stay of proceedings in this matter pending the hearing and determination of this application

3. That this Court orders a Stay of proceedings pending the hearing and determination of the proposed appeal to be filed pursuant to an order aude by this Court under Order fj

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