Donald Macaulay v Emmanuel Shallop (SC MISC APP 3 of 1984) [1984] SLSC 1 (17 May 1984)

a _ © oes 4S . ! IN THE SUPREMY COURT OF SIERRA LEONE - | CORAM: | The Hon, Mr, Justice C.A, liarding, J.S.C, - Presiding | The Hon. Mrs.Justice A.V.A, Awunor-Renner - J,S,C, ‘ The Hon, Mr, Justice S, Beccles Davies = J8.c, 1 S.C, Misc, App. 3/84 ' BETWEEN: | Donald Macaulay - Applicant vs. Emmanuel Shallop and Mirib Shallop - Respondents T.S, Johnson, Esq., for the Applicant | A.J.B. Gooding, Esq,, for the Respondents . RULING DELIVERED ON THE 17TH DAY OF MAY, 1984 HARDING, J.S.C.:- The respondents in proceedings instituted in : the High Court obtained judgment, with costs to be taxed, on | 3rd February, 1984 against the applicant for "the sum of U.S. | Dollars 129,566.15 or 1e323,915,38 plus interest thercon at the 1 rate of 18% from the 8th day of September, 1980 until the date of judgment", On 10th February, 1984, the applicant through his . solicitor, filed a Notice of Appeal against the said judgment in the Court of Appeal, and on the following day i.e., 11th February, he applied to the Court of Appeal for a stay of execution of the . 4 judgment of the High Court pending the hearing and determination of the appeal. On 27th February, 1984, the Court of Appeal | refused the application for a stay; likewise it turned down a {| subsequent application for leave to appeal to the Supreme Court , | against the order of refusal of stay. { The applicant has now applied to this Court for the following ) | orders:

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. | "(i) An Order granting the applicant special ‘ leave to appeal against the order of the y | Court of Appeal contained in its Ruling of 27th February, 1984; q (4i) An Order granting a stay of execution | and all further proceedings of the | Judgment and order of the High Court . } dated February 3, 1984 already appealed | against by Notice of Appeal filed in i the Registry of the Court of Appeal on j WOth February, 1984, pending the hearing j and determination of the said appeal;

(444) An Order that the costs of and j occasioned by this application may be sos | costs in the intended appeal,"

. i { T have listened carefully to the arguments of counsel on both sides and read the various affidavits and exhibits thereto filed herein, As regards the first order applied for, I do not think that this is a proper case calling for the exercise of my disere- 4 tion to grant Special leave; accordingly, I would refuse special leave to appeal to this Court. Special leave to appeal to this Court having been refused it necessarily follows that no order for a Stay ef execution of the judgment can be ordered by this Court, T would dismiss the application with costs to the respondents, ‘ Soh (lon, Mr. Justice ClAl Warding, J18l62°2 Presiding) To agree wee... eee, Ss Sgd (ton, Mr. Justice S. Beecles Davies ,I.S0)

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: i . | AWUNUR-RENNER, J.5.C,:- I have arrived at a different conclusion

.¥ | from that reached by my learned brothers on the question af

{granting special leave to appeal to this Court in this matter,

The applicant applied to this Court on the 24th day of March, | 1984 for the following Orders on a Notice of hotion dated the . 2th March, 1984,

(1) An Order granting the applicant special leave to appeal against the Order of the Court of Appeal contained in its wuling of the 27th February, 1984. }

(2) An Order granting a stay of exccution and all further proceedings of the judgment an order of the High Court ; | dated February 3, 1984 already 4 appealed against by Notice of Appeal : on 10th February, 1984, pending the hearing and determination of the said . appeal,

(3) An order that the costs of and occasioned by this application may be costs in the . | intended appeal, : | The said Notice of Motion contains the grounds upon which special leave to appeal is sought, A short history of this matter discloses that on the 3rd day of February, 1984, the High Court gave judgment and ordered the . applicant herein to pay the sum of Le.3234915.38 plus interest ' thereupon at the rate of 18% from the 8th day of September, 19650 i until the date of the said judgment to the Respondent herein, On the 11th February, 1984 the applicant applied to the Court of Appeal for a stay of execution of the said judgment of the liigh Gourt dated 3rd February, 1984, In a ruling delivered on Fobruary

27th 1984 the Court of Appeal refused the application for a stay,

1 think that it would be convenient for me at this stage to set out the ruling in question, TI quote, 1 . Tees i ‘

. “o- an Hy ; "SHORT, Ja. | This is an application by T.S, Johnson Esq., ¥ j of Counsel for the Appellant/Applicant herein i for an order granting a stay of exvcution of i the judgment and order of the High Court contained in the decision of Mr. Justice William 4.0, Johnson Judge, dated the 3ra . day of February, 1984, The judgment referred fo amounts to the paymont of the sum of U.S, dollars 129,566.15 or Le.323,915.38, | Rule 28 of the Appeal Court Rules is bare. Order 42 rure 19(1) of the white Book states { inter alia “where a judgment is given or an i order made for the payment of money by any i person and the Court or judge is satisfied } an application made at the time of the j Judgment or order or at any time theroafter | by the judgment debtor or other party liable : i to execution that there are special circum- { Stances which renders it inexpedient to enforce | the judgment or order or that the judgment | debtor is unable from any cause to pay the 1 money, then the Court or judge may order stay | of execution of the judgment or order by Writ j of Fieri Facias etc," | it would appear that the only grounds on which ] : under the above rule the Court can stay . | execution on a judgment debt or order for i Payment of money are either that thore are : Special circumstances which render it i inexpedicnt to enforce the judgment or order H ; or that the judgment debtor is unable from : ; any cause to repay the money. Neither the 1 affidavit of Thomas Sigismund Johnson Sworn } to on the 11th day of February nor the | affidavit of Donald Marius Alison Macaulay | Sworn to on the 2ist day of February, 198h i H Giseloses any special circumstances which > } misht render it inexpedient to enforce the { Judgment or order or that the judgment debtor i is unable from any cause to pay the money,

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' 92 U2 . { In our view there are no supporting i grounds and the application for a stay of » 4 | execution is refused with costs assessed ' i at Le.100 to be paid by the appellant/applicant to the Respondent," On the 5th March, 1984 a notice of Motien was filed in the . Court of Appeal for leave to appeal against the order contained in the ruling of the 27th February, 1984,

The application for leave to appeal was refused on the 19th

March, 1984, It was against that refusal for leave to appeal thet . the applicant has now applied inter alia, to this Court for ‘ special leave to appeal.

The rules applicable to an application for special leave to appeal and which ought to be considered are contained in Rules 6(2) of the Supreme Court Rules 1982, Rules 7 and 8 also of the Supreme Court Rules 1982 and Sections 103 Sub-section (1)e and 103 sub-sec (2) of the Constitution of Siorra Leone Act No.12 of 1978,

Counsel for the applicant in his argument for special lcave to appeal urged this Court to consider the question of granting special leave, He claimed that his reasons are contained in his notice of motion and further stated that apart from that the Gecisions of the Court of Appeal are binding on itself and that was one reasou why he was asking that the ruling of the Court of

: Appeal of 27th February, 1984 should net be allowed to stand, : | Mr. Gooding on the other hand contended tit before special j; leave is granted there must be a substantial guestion of law which | must be a serious question of law and cited several cases to Support his proposition, He also referred us to the Supreme Court Rules and the Constitution as regards the powors of the Supreme a. Court to grant special leave to appeal. See. 5(1)e of the Supreme Court Rules states as follows - { L9B cece , i .

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"An appeal sliall lie from the judgment decree ‘ i er order of the Court of Appeal to the Supreme ‘ Court with leave of the Court of Appeal in any other cause or matter, civil or criminal where : the Court of Appeal is satisfied that the case i involves a substantial question of law or is of public importance," ° t i Section 6(2) of the Supreme Court Rules states as follows -

1 "Notwithstanding the provisions of the i preceeding sub rules (as contained in Rule 6 { sub rule 1, a, b, c, d, e and 6) the Supreme : Court shall have power to entertain any

i application for Special leave to appeal in any i i cause or matter civil or criminal to the Supreme ! Court and to grant such leave accordingly." i Apart from tho fact that Rule 6(1)e states under what i i conditions leave can be granted to appeal to the Supreme Court. } In no part of Rule 6(2) can 1 find what conditions should be

j Satisfied before special Leave to appeal can be granted by the

" 1 Supreme Courty To me it appears as if the powers conferred by : ! this section to the Supreme Court to grant special leave is quite ' an extensive one, : i : tn my view I think that as regards the question of special } leave to eppeal to this Court the trouble arose from the ruling of

| the Court of Appoal on the 27th day of March, 1984 when it refused » €© Brant the stay of execution applied for, Counsel for the applicant is contending that it was made under the wrong rule, } order 42 rule 19 of the English Rules when it should have been

H i | made under Order 58 rule 12, He further statod that Order 42 ‘ {rule 19 does not apply in this instance, In my opinion it is a | short point but one of importance and I think that in such cases , H » ff is extremely desirable for this Court to make some sort of "pronouncement on the issue of granting special leave for the 1 guidance of applicants, so as to inform them as to what the proper

¢ yardstick is. . [Dees

Ele : Ybe ruling of Short J.a, on the 27th March, 1984, contains . | the refusal to grant a stay of execution and there is no doubt that he was influenced by the provisions of Order 42 rule 19 of the English Rules this in my opinion is a prime facie case that an error hus been made on a question of law which is likely to - affect other members of the public until it is cither set aside or reversed, I would therefore hold that this is a propur ease | for which special leave to appeal ought to be granted. ' In my opinion if I am wrong in the view I have expressed os ‘ regards the question of special leave to appesl then it is the way Yo see it and nothing more. { As regards the application for a Stay of Lxecution I express | no opinion as to whether this order ought to be granted or { otherwise, | I would allow the application for special leave to appeal | and make no order as to coats,

| Syd (hon. tes. Justice ALVA. humor coancn, 51816)

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