Dankay Kabia v Alahaji Issa Kamara (CIV APP 13/2023) [2023] SLCA 8 (1 June 2023)

CIV. APP.13/23

IN THE COURT OF APPEAL OF SIERRA LEONE. BETWEEN:- DANKAY KABIA & 6 OTHERS - APPELLANTS/APPLICANTS NO. 55 ADOLPHUS STREET, KISSY, FREETOWN.

AND

ALHAJI ISSA KAMARA & ANOR NO. 146 OFF BAI BUREH ROAD KISSY MESS MESS FREETOWN = RESPONDENTS/RESPONDENTS B.E.T. CUMMINGS (MS) - For the Appellants/Applicants J.M. JENGO ESQ ~ For the Respondents/Respondents Delivered by The Honourable S.O. Taylor JA. DATED THE DAY OF JUNE 2023 BACKGROUND OF THE CASE:- This matter was instituted by way of An Originating Summons dated the 28" day of November 2022 for and on behalf of the Respondents/Respondents herein (one of which happened to be the Proposed Intervener/Applicant therein) at the High Court of Sierra Leone with the Honourable

Mr. Justice K. Kamanda JA. presiding, for inter alia, Joinder of the Proposed Intervener/Applicant and Judicial Review of the order of Magistrate His Worship |.K. Kamara dated the 22" day of November 2022 ~ which led to the eviction of the Respondent/Applicant herein and his brother ~ the Proposed Intervener (though the latter is not within the Jurisdiction). On the 1* day of February 2023, the Honourable Mr. Justice K. Kamanda JA found in favour of the Respondents/Respondents herein, ‘consequent upon which the Appeliants/Applicants herein Appealed to the Court of Appeal and as per law Applied to the court below for a Stay of Execution. This Application for stay was refused and as a result the Appeliants/Applicants herein have applied to this court for inter alia a Stay of Execution of the Judgment of the Honourable Mr. Justice K. Kamanda JA dated the 1* day of February 2023.

This is what precipitated the present application which is an application by way of Notice of Motion dated the 31* day of March 2023 made for and on behalf of the Appeliants/Applicants herein for the following orders reproduced hereunder for ease of reference; to wit:

4. That this Honourable Court grants leave for this Application to be heard notwithstanding that two clear days’ notice had not been given to the Respondents/Respondents.

2. That this Honourable Court do grant an Interim Stay of Execution of the Judgment of the High Court dated the 1* day of February 2023, pending the Hearing and determination of this Application.

3. That this Honourable Court do grant a Stay of Execution of the Judgment of the High Court dated 1* day of February 2023 pending the hearing and determination of the Appeal,

4. Any further or other orders that this Honourable Court may deem fit and just in the Circumstances.

5. Costs in the cause. On file is an Affidavit-in-Support containing 25 paragraphs with 9 exhibits attached thereto, same swom to by Dankay Kabia on the 31% day of March 2023; A ‘Supplemental Affidavit swom to by Dankay Kabia on the 5" of April 2013 containing 7 paragraphs with 3 exhibits attached thereto; plus, An Affidavit-in-Reply swom to Brima Kabia on the 6" day of April 2023, containing 14 paragraphs with 2 exhibits attached thereto. The court is also aware that on file for and on behalf of the Respondents/Respondents is an Affidavitin-Opposition sworn to by Alhaji Issa Kamara on the 5" day pf April 2023; containing 21 paragraphs with 5 exhibits attached thereto.

PITH AND SUBSTANCE OF THE PAPERS FILED FOR AND ON BEHALF OF ‘THE APPELLANTS/APPLICANTS HEREIN

In the Papers filed for and on behalf of the Appellants herein the following issues are raised/deposed to: That the Deponent in duly authorized to make the said Affidavit and that she is one of the Applicants in this matter, coupled with a Genesis of the status of the ‘Application and action taken thus far was revealed and the said Affidavit contained the following exhibits: Exhibit A — which is a copy of an Originating Notice of Motion dated the 28" day of November 2022

Respondents/Respondents in their Affidavit had succeeded in proving that the Applicants have not shown any special circumstances to warrant the court granting ‘Stay in their behalf? Though | must hasten to state that such onus is not on the Respondents/Respondents at all.

ORAL SUBMISSIONS ON BEHALF OF THE PARTIES. This would be an attempt to summarize the argument/submission of Counsel for the Appellants B.E.T. Cummings (Ms) by focusing on what's, to the court’s mind are the salient issues raised in them. One of such is the issues raised is about the possibility of the Appeal succeeding. This court is aware that upon perusal of the Notice of Appeal it is clear that several Jurisdictional issues were raised therein — all being questions about the court below’s Jurisdiction to hear the Application by Originating Notice of Motion in the first place. Also on the Appeal was an issue raised that the Appeliants claimed was fundamental to such Applications - which according to them was completely ignored by the Presiding Judge - that of the absence of the Applicants’ Statement of Case, which is mandatory in Application of such nature and ‘one to which this court cannot turn a blind eye to. Counsel for the Respondents inter alia in his oral arguments/submissions narrated the different stages or sequence of events leading to the present application before this court. He also gave detailed list of perceived and actual infractions that the Respondents/Respondents claimed the Appellants/Applicants perpetrated and cited them as reasons why the court should not grant a stay of Execution or the Judgment of the Court below. And of course among his submissions is the one where he claimed that the Applicants have not shown any special circumstances to warrant a Stay being granted in their favour. Though the court has been made aware of these

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