Estate of Kalilu Jabbie v Skye Bank (Civ.APP 45/2014) [2016] SLCA 1186 (29 February 2016)

Civ. App. No.45/2014 IN THE COURT OF APPEAL FOR SIERRA LEONE (CIVIL JURISDICTION) Between: Estate of Khalilu Jabbie - Appellant/Applicant (Represented by Mr. Bockarie Enssah as Court-Appointed Administrator of The Estate of the Deceased Khalilu Jabbie) : And Skye Bank (SL) Limited - _ Respondent/Respondent orem: Hon. Justice V.M. Solomon - use Hon. Justice M. Deen Tarawally JA, Hon. Justice R.S. Fynn - JA Counsel Mr. M.P. Fofanah for the Appellant/Applicant Mr. R.S.V. Wright for the Respondent ag. feb 2016

Ruling

(1) The Appellant/Applicant by motion paper dated St October, 2015 is seeking the following orders to wit

1. That the full Court of the Justice of the Appeal Court sitting pursuant to Sections 128(2) and 130(b) of the Constitution of Sierra Leone, 1991 (Act No.6) do reverse or vary the ruling and order(s) therein of the Hon. a

Mrs. Justice Showers JA. sitting as a single Justice of the Appeal, in which the Learned Justice made the following Orders on the 15 June,

“The Notice of Appeal dated 25% August, 2014 is clearly filed in contravention of Rule 11(j) of the Court of Appeal Rules 1985 being out of time. The application is therefore granted and the Notice of Appeal dated 25! August, 2014 is hereby struck out. No order as to costs"

2. That a stay of execution of the said Ruling/Order(s) and of the : Judgment of the High Court dated 6 August, 2013 be granted pending the hearing/ determination of this application.

3 That a stay of execution of the said Ruling/Orderls) as well as the Judgment of the High Court dated 6” August, 2013 be granted pending the hearing and determination of the Appellant's Appeal if allowed to

. stand by this honourable Court.

4. That the costs of this Application be costs in the cause

5. Any other or further order(s) that this honourable Court may deem fit and just.

There are two affidavits in support both sworn to by Mohamed Pa-Momo Fofanah Esq. counsel for the applicant herein. There is an affidavit in opposition deposed to by Ailarah Hamid, a solicitor in the firm of solicitors working for the respondent

(2) The brief facts leading up to this present application are vital. A judgment was delivered on the 6 August, 2013, shortly thereafter solicitors for the respondent filed a motion paper for rectification of the judgment sum from Le515,913,488.25 to Le971,418,741.57. A ruling on that application was delivered on the 25 June, 2014. The appellant/applicant then filed his appeal in the Court of Appeal registry on the 25% August, 2014, An application was filed on 16 October, —_

2014 to strike out the appeal filed and the ruling was delivered on 15'* June, 2015 in which the said appeal was struck out. The present application is filed pursuant to Sections 128(2) and 130 of the Constitution of Sierra Leone 1991 (hereinafter called “The Constitution”) The notice of appeal was struck out by a single appellate judge and this Present application is before the full panel of three Justices. It is the duty of this court is to vary or reverse the ruling of the single appellate judge only in cases where it is based on wrong principles of law. In all applications for a stay of execution of a judgment special circumstances should be established and the appeal should have good grounds; as it is. settled law that a successful litigant is not to be deprived of the fruits of his judgment.

(3) The application of 9% September, 2013 seeking rectification of the judgment sum has necessitated all the subsequent applications. The appellant/applicant in the affidavit in support has deposed that he ‘was awaiting the outcome or ruling of that application and hence did not file an appeal as he was of the view that the matter was still in progress. That view was endorsed by Justice Showers JA. (as she was then) in her ruling and she had this to say:

“Counsel for the Appellant has indeed raised a plausible argument that he could not have filed his notice of appeal before the Court’s Ruling as he could not know the outcome of the application”. She went further:

“However, having known the Court's Ruling on 25t June, 2014 which was that the Court refused the application for a variation of its judgment of 6 August, 2013, Counsel then knew that the final judgment of the Court was that of 6" August, 2013”

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Mf indeed the ruling of the 25 June, 2014 merely confirmed the judgment of 6" August, 2013 then a question | pose is when did time start to run? How could counsel have known the outcome of the ruling before its delivery? How can an application be made to rectify a judgment sum by such a large quantum of about Le400 million? This is a substantial sum as the judgment is a monetary judgment, albeit, in respect of a mortgaged property at 65 Pademba Road, Freetown (herein after called “mortgage property”). In judgments relating to foreclosure of a Mortgage, the right of redemption arises and once the’ principal sum, interest, and all costs are paid. a mortgager has the right to redeem the mortgaged property. No mortgage agreement can take away that right. ‘The respondent has argued that the mortgaged property had been sold as the 24 hours period granted to the appellant/applicant has lapsed. A fortiori the mortgaged property had been sold but it was not duly conveyed to the purchaser till 2" June, 2015, a period of 22 months after the judgment was delivered. The evidence is that negotiations and part payment was made sometime between September, to October, 2013 and the purchaser was allowed to pay on an installment basis. Thé application was not for amendment of an error but rectification of the

Judgment

The rectification sought was so substantial that the Learned Trial Judge refused the application and confirmed his previous judgment of 6% August, 2013. I refer to the case of Civ.App 9/2012 Osman Sulaiman Mansaray vs. Alice Fatmata Kenny & ors $/C decision delivered on the 15'" May 2014 in which the court held that justice of the case demands that the appellant be heard even though his appeal was out of time. _ It was a dispute on title to a piece of land in Kissy, Freetown. ‘The appellant appealed to the Supreme Court on several grounds; that the Court of Appeal acted on wrong principles in law in holding that the high i

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