Desmond Luke v Bank of Sierra Leone (MISC APP 22 of 2004) [2004] SLCA 15 (14 July 2004)

ppeny ‘ on (0) ‘ote. aH ue) 4 Misc. App. 2212004 INTHE COURT OF APPEAL OF SIERRA LEONE: i BETWEEN: DESMOND LUKE _ APPLICANTIAPPELLANT AND : BANK OF SIERRA LEONE - RESPONDENT

Coram

Hon. Sir. John Muria JA Hearing: 13" July 2004

Ruling

. 14th July 2004 f Advocates: Applicant/Appellant: J.B. Jenkins-Johnston Esq., Respondent: Dr. Ade Renner-Thomas Dolivered the 1" aay of Lh, 2004. Af. MURIA JA: On the 7" of June 2004 the High Court (Doherty J) gave judgment in favour of the complainant, Bank of Sierra Leone, the respondent in this application ordering that the applicant deliver up possession of the property in question to the respondent. A Warrant of Ejectment, was issued against the applicant pursuant to Section 9 of the Summary Ejectment Act (Cap.49) on 8° June 2004. An application to the High Court to stay execution of the Order of 7" June 2004 and EjecBent Warrant wg refiised on 14" June 2004 and the applicant now comes to this Court secking to stay execution of the same. a

RSS SoS ae pista ; Ee (oz - ries Background ste brief background {© this ease is that the applicant, then Chief Justice of Siem™ Leone * sy 1998, was accommodated at the Leone Lodge, Signal vail, Freetown under Government ‘arrangement as no residence WaS available to the Chief Justice duc [0 the rebel wat. The Government's obligation t provide suitable accommodation to the applicant was statutory one DEINE obliged under Statutess namely the Judges’ Conditions of Service ‘Act, 1983 (No.1? of 1983) and the Judges’ Conditions of Service Regulations 1986 (Public Notice No3 of 1986). The relevant provision 18 regulation 11 which provides, inter atia, that the Goverment shall provide each judge with a rent-free, gally-furnished residence or housing allowance of Le.300.00 (three nundred Leones) Pet month, and to maintain and up-keeP that residence. TRE applicant, on the evidence before the High Court and this Courts ceased to be Chief Justice in 2002 but has continued to oceupy the property to this present moment. In the meantime, the said property had been conveyed to the respondent by @ Conveyance dated 25" July 2002 by the Government of sierra Leone. Since July 2003, written requests were given (0 the applicant to leave the premises and deliver up possession. The applicant failed or refused to vacate the premises and hence, the proceedings in the High Court and jn this Court. Notice of Appet! !° the Court Of Appeat Being aggrieved OY the decision of the High Court, the applicant filed his Notice of ‘Appeal to the Court of Appeal. Three grounds of Appeal were advanced, namely: : (yy That the earned Trial Judge was wrong to have assured Jurisdiction in 4 shatter which had been commenced in the Magistrate Court under the SUMMARY E ECTMENT ACT cap49 OF THEL AWS OF SIERRA LEONE, whieh vests exclusive Jurisdiction in such matters in the Magistrates Court, thereby making the “gbole trial in the High Court

- Anullity

2) That the learned Trial Judge WS wrong to have ordered Af Bjectment Warrant to issue forthwith, contrary to the express provision of Section 7 of

‘ Be jos the Act which provides that such a warrant may be issued “.....WITHIN A pERIOD NAMED THEREIN..." [AND NOT EORTHWITH as the Learned Trial Judge seemed to think she was obliged to do. 3) That the leamed ‘Trial Judge was wrong to have found that the Appellant was Tenant-at-will, their being n° such evidence before the Court. ‘The applicant contends in paragraph 11 of his affidavit that there is an important question of law involved in this case, namely, whether a statutory tenancy can be avoided by & Conveyance to a wholly ‘owned subsidiary. The suggestion is that a stay of execution IS necessary to have this legal issue first determined by the Court of Appeal. Basis for grant of stay of execution ‘The Court’s power to grant a stay of execution is discretionary and it must be exercised based on legal principles. Moral, social, or political considerations are often raised in arguments by an aggrieved party to support his or her plea for stay of execution of an order of the Court. Such considerations, however, do not and ought not to form the basis for the exercise of the Court’s discretion to grant or refuse a stay of execution of the Order of the Court. ‘The legal basis for the exercise of the Court’s discretion in a case such as this, is that the applicant must establish that there are special or exceptional cireumstances justifying the grant of a stay of execution. This is because in a contested case the successful party ought not to be deprived of the fruit of a judgment given in his favour: Firetex International Company Limited v Sierra Leone External Telecommunications and Sierra Leone Telecommunications Company Limited (26 June 2003) Court of Appeal, Misc.ApP 19/02 (Unreported). Xn the same vein, the lodgment of a notice of appeal does not ‘operate as a stay of execution. See r 28, Court of Appeal Rules, 1985. Hence the party seeking a stay of execution pending appeal must show % special or exceptional circumstances justifying the grant of stay of execution. The onus ison the applicant in the present ease to demonstrate that such circumstances exist in his favour.

fg in {om Special Circumstances There ate abundant authorities in this area of the law, both in this jurisdiction and elsewhere. I need only to refer to few of the cases decided by our Courts here including . the ease of African Tokeh Village Limited v John Obey Development Investment Company Limited (26" April 1994) Court of Appeal, Mis.App.2/94 (unreported) where it was held that this Court has unfettered discretion to grant a stay of execution provided the applicant can satisfy the Court that special circumstances do exist to warrant the grant of astay, See also Alhaji Abdul Wahid (Jr) v Fatmata Floode and others (1 1 November 2003) Court of Appeal, Mis.App.7/03, and Betsy Rogers Parkinson and others v Clarence’ Robinson and others (13 February 2002), Court of Appeal, Miss.App.1/96 where the same position was expressed after referring fo Halsbury Laws of England ( 3rd edition) volume 16 paragraph 51 at page

35. Recently this Court had to deal with this issue gain in Firetex International Company Limited v Sierra Leone External Telecommunications (SLET) and Sierra Leone Telecommunications Company Limited above and more recently in the case of Parrick Koroma v, Sierra Leone Housing Corporation and Dolcis Beckley (26" May 2004) Court of Appeal, Misc.App.9/2004. ‘Although the principles governing the grant of a stay of execution were expressed in the cases cited, each of those cases had their own circumstances. Mut a distinction in the application of the principles governing proceedings for a stay of execution must be drawn between those involving monetary (Firetex v Sierra Leone External Telecommunications) non-monetary (Patrick Koroma v Sierra Leone Housing Corporation) judgments. he To the authorities cited, I need add one more: Ernest Farmer and Another v Mohamed Labi; 2 1945 case, reported in the Sierra Leone Law Recorder Vol.3, page

66. This is a case where the Plaintiff obtained judgment against the defendant in the High Court. The Defendant filed a Notice of Appeal and applied for stay of execution, The trial judge granted a stay for a limited time to allow the defendant to find alternative accommodation pending the hearing of his appeal. ‘The defendant later applied to the Court of Appeal to 23 grant a further stay pending appeal which was yet to be heard some months away. The Court of Appeal in refusing a further stay of execution, was clearly of the opinion that the

2p (ole present case is between the respondent bank and the applicant and it is not related to the terms and conditions of service of the applicant. The dispute here is over the property owned by the respondent and occupied by the applicant. There is no dispute that the . property in question belongs to the respondent, conveyed to it by the Governn.ent in or about 25" July 2002. The High Court confirmed that this was the case. That the applicant continues to occupy the said property to date is also not disputed. Decision and Order In the light of finding of facts and conclusion of the trial judge on the status of premises here concerned, it would be difficult to see what special circumstances are there to justify a stay of execution after 1* July 2004. As Counsel for the respondent submitted, the applicant has no legal or equitable right over the property in view of the finding of the trial judge. See Patrick Koroma v Sierra Leone Housing Company and Another (above). On the evidence before this Court, in this application, no special. circumstances have been shown. ‘This Court’s hands are tied in view of the authorities cited and consequently, the application for stay must be refused. As justice must be tempered with mercy, and having the power to do, so I shall extend the period within which the Ejectment Warrant not to be executed to 31 July 2004. Iso order.

Order

1. Application for stay of execution of the order of the High Court dated 7 June 2004 and Bject ment Warrant issued on 8" June 2004 is refused.

2. Period within which not to execute the said Ejectment Warrant is extended to 31" July 2004, x Hon. Justice Sir John Muria JA

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