Ejatu Jalloh v Abdul Turay (CIV APP 27 of 2005) [2010] SLCA 21 (21 May 2010)

; CIV.APP. 27/2005 \ S { | IN THE COURT OF APPEAL FOR SIF . BETWEEN: EJATU JALLOH APPELLANT/APPLICANT AND ABDUL TURAY RESPONDENT CORAM; Hon, Mrs. Justice S, Bash-Taqi, JSC (Presiding) Hon. Mr. Justice E. E. Roberts, JA Hon. Mrs. Justice V. M. Solomon, JA Barristers J.B. Jenkins-Johnston Esq. for the Appellant/Applicant D. G. Thompson, Esq. for the Respondent RULING DELIVERED ON THE _21ST_ DAY OF MAY 2010 S. BASH-TAQIL, JSC: On the 26" day of January 2010, the Court of Appeal gave Judgment in favour of the Respondent, Mr. Abdul Turay, ordering that the Appellant/Applicant deliver up possession of the property at 16 Betham Lane Freetown to the Respondent. The Appellant/Applicant being aggrieved by the decision filed a Notice of appeal against the

Judgment

She now comes before us seeking a stay of execution of the said Judgment. The background of the case can be found in the Records of the proceedings and in the Judgments of the High Court and of this Court dated 26" January 2010. The Appellant/Applicant referred to certain facts deposed in her Affidavit in Support of the Application sworn to on 10™ March 2010 as evidence of the special circumstances she is relying on in this case. I shall refer to some of these facts later in this Ruling. Mr. Thompson for the Respondent vehemently opposed the application. He filed an Affidavit in Opposition sworn to by the Respondent on 18" March 2010. He submitted that no special circumstances have been shown to warrant this Court exercising its discretion in favour of the Appellant/Applicant. yurt to ta stay of execution is discretionary and it must be ssacicel eoodeatega penmipl The legal principle for the exercise of the Court’s discretion has always been that the applicant must establish that there are special or exceptional circumstances justifying the grant of a stay of. execution. This is so because in a contested case the successful party should not be deprived of the fruits of a judgment

; given in his favour (See Firetex Internati 152

: Telecommunications Ltd. Misc, App. 1902 Gant Sierra Leone External

4 In the case of Africana Tokey Villa Development Co. Ltd. Mise, App. a4 tn Ltd. vs. John Obey Investment unfettered discretion to grant a stay ef Gis ne it was held that this Court has an Court that special circumstances do exist to Water the applicant can satisfy the same principle has been expressed in a number of a the grant ofa stay of execution. The Alhaji Abdul Wahid (Jr.) vs. Fatmata Floode and Orme oon ciction, namely: Misc. App. 7/03; Betsy Rogers Parkinson aa Others (11" November 2003) CA others a3" February 2002) CA Mise. Ap ey omee vs. Clarence Robinson and Leone Housing Corp. and Dolcis Beckley (26" Mas ae Patrick Koroma vs. Sierra Although the principles governing the grant of a stay p feta Mise. App. arpa cases cited above, each . n were expressed in

ch of those cases depended on their own circumstances. It seems to me that in arriving at a decision, wh: " Seva , What we hi ide is wheth pa pmraricd sabia in this case has shown special amend coable 7 om ie stay of execution she is seeking. The onus is thus on th Ay i

denciateeie te reds 1 e ppellant/Applicant to pa ein this application, that such special or exceptional circumstances exist in her To oe the burden, as I stated earlier, the Appellant/Applicant has referred to certain facts deposed in her Affidavit in Support as constituting special circumstances. I shall endeavour to refer to some of the pertinent ones here. These are:

(1) That the premises in question is the matrimonial home of the parties and their son;

(2) That the premises are jointly owned by the parties and that she contributed to the construction thereof although the legal title to the property is in the name

of the Respondent; 4

(3) That since the commencement of this action the Respondent has not supported her and their 23 year old son;

(4) That according to Fullah custom she ‘always preferred to have the man in front with her behind supporting him’, and this is the reason she did not object to the Conveyance being made in the Respondent's name;

:

(5) That she has no where else to live and she would be destitute and homeless;

(6) That she has dedicated her life to the Respondent for the past 20 years and she has a claim of 50% in the property; and

(7) That she has an appeal against the Judgment pending;

. . i Appellant/Applicant’s Affidavit as

caving j aarp a ae aap Teermtine whether these facts constitute ituting specii J pare ing of a stay of execution of the special or exceptional circumstances to justify the granting oF 2 Siay

/ Judgment. It has been noted that “Moral, Social, or Politi P 1S% raised in arguments by an applicant to support afer, litical considerations are often of the Judgment or Order of the Court. Such consid i kooranan for a stay of exoceton of rym te basis ofthe exercise ofthe Courts ee eee to pation”. (See Desmond Luke vs, Bank faire Lec mas Age tame (Muria JA as he then was) (unreported). ne, Misc. App. 22/2004 The legal principle, as already stated in this Ruli . 5 discretion, has always been that the applicant sie part abie of the Court's exceptional circumstances justifying the grant of a sta fe t there are special oF fodgement of a Notice of Appeal does not operate as roe ie the same vein the the Court of Appeal Rules 1985), hence the party peas aa acgiae 18 of appeal must not only show special or exceptional Tireomstances "os ust als pea prima facie good or substantial grounds of appeal to justify the grant of a stay. Mr. Jenkins-Johnston in his oral submissions before us has not added i 7 what the Appellant/Applicant has deposed to in her Affidavit; he ea capeacioad the moral and social aspect of the situation and the relationship between the parties, and we have already stated that the moral and social considerations cannot be special circumstances for the purpose of this application. It is our considered view that most of the matters referred to in the Appellant/Applicant in her Affidavit in Support and by Mr. Jenkins-J johnston in his oral submissions, as special circumstances, were issues that had been dealt with in the trial in the Court below and the Court of Appeal and they will no doubt be argued again in the substantive appeal. It would therefore be best for the Appellan/Applicant to bring them up when the appeal is being argued. They are not, in our opinion, special or exceptional circumstances in the context of a stay of execution. In coming to the above conclusion we have reminded ourselves of two fundamental principles of law, namely, that neither the lower Court nor this Court will grant a stay unless satistied that there are good reasons for doing so and, that the Court will not make a practice of depriving @ successful litigant of the fruits of his Judgment. This principle of law was enunciated in THE ANNOT LYLE (1886) 11 p- 114 p.116. We are not convinced that the special circumstances :n this particular case relied on by the Appellant/Applicant are “beyond the usual circumstances’: or that ‘the situation is uncommon and distinct from the general run of things” (See Lucy Decker and Others ve, Goldstone Decker Mise. App. 13/2002 (Gudgment of G. Gelaga-King, JA (as he then was).

; F i i jonship between herself The Appellant/Applicant has relied heavily on the previous relationship ; I and opkeupondent. In our judgment, the relationship stemming from the marriage which she is emphasising and relying on, does not exist. While not going into the merits of the appeal, we can however comment on the evidence before us. The parties, from the evidence, are ‘divorced’ and have been so for the pas: 7 years. The property was bought after their first ‘divorce’ in 1988; the Respondent said he bought it on 23" October 1995, and this is not disputed. The parties’ Som is now 23 years old. att ee oon on can no doubt take care of himself. There is therefore no family roe _ in the real sense of the word. Furthermore, it is not clear from the et ie Ib astng that she was ‘Appellant/Applicant is still on the property- In her alice Ss ie ee

OO ———————— i thrown out of the property together with her son, 1S | ign support as No 16 Betham Lane Freetown, tata Bave her address on the affidavit property, thereby implying that she is not living on the ¢ is asking us to restore her on the what means she was removed from the property, M; pla We are not told the by seem to know his client’s present circumstances fi » Zenkins- Johnston himself does not 1 from his answers to our questions. On the other hand, we are told that the Re: i 7 with his son, (who we are told is eanployech harks ibotapsad living on the property following Showers’ J, (as she then was)’s Rulin 7 + forced to vacate the premises consequence of an application for a Stay of easel 7 pay 2008 given asa been disputed. The property is a solid structure which will oor ae Court. This has not 7 the Appellant/Applicant’s appeal succeeds, it will be quite within tha Cours poet order possession of the premises to be given to the Appellant/Appli ene, 's power to In the light of the findings of facts and the conclusio1 2 by ns of both the trial Judge and the Court of Appeal on the issues and the status of the premises, it would ve difficult for us to __ find what special circumstances there are to justify depriving the Respondent of the fruits of his Judgment. This is a case where we think that the Appellant/Applicant has no legal or equitable right over the property according to the findings of both the Trial Judge and the Court of Appeal. In view of the authorities on the topic, we cannot convincingly grant the Appellant/Applicant’s request. The applicant for a stay must therefore be refused and we make the following orders. ] i The Application for a Stay of Execution of the Order of the Court of. Appeal dated 26 January 2010 is refused. |

2. Cost of this application assessed at Le 1,000, 000.00 (One Million Leones) to be paid by the Appellant/Applicant to the Respondent. _ Seat JSC. T agretown "Fron. Mr. Justice E. E. Roberts, JA Tg vs. V. M- Solomon, JA |