Fatme Mourtada v Fadel A.Mourtada And Another (CIV APP 13 of 2017) [2020] SLCA 30 (5 September 2020)

“ctv. app 13/2017 * INTHE COURT OF APPEAL OF SIERRA LEONE BETWEEN: FATME MOURTADA ~_ PLAINTIFF/APPLICANT é (ADMINISTRATcX OF THE ESTATE OF + FATHAL ABESS MOURTADA (DECEASED) INTESTATE SUING BY HER ATTORNEY NASSER BITTAR) 158" WILKINSON ROAD FREETOWN. AND FADEL ABASS MOURTADA ~ 18" DEFENDANT/RESPONDENT 63 HANGHA ROAD KENEMA DAYOUB TRADING -28® DEFENDANT/RESPONDENT (GIERRA LEONE LIMITED) 65 HANGHA ROAD KENEMA.

Coram

HON. MR. JUSTICEJ.B, ALLIEU,J.A. - PRESIDING HON. JUSTICE M. M. SAMBA J. A. HON. MR. JUSTICES. A. BAH, J. A il RULING DELIVERED THIS ' "DAY OF SEPTEMNER 7070 BY THE HON. MR, JUSTICE J.B. ALLIEU=J.A. COUNSEL: JABBI& ASSOCIATES FOR THE PLAINTIFF/APPLICANT FORNAH-SESAY, CUMMINGS, SHOWERS & CO. FOR THE DEFENDANTS! RESPONDENTS

Ruling

1. By Notice of Motion dated 25 March 2019, Counsel forthe Plaintift/Applicant, LE. Sawanch Esq applied to this Honourable Court, chiefly, as contained in paragraph | thereof ¥. “that this Honourable Court vacates the Ruling dated the 260 day of Qe! -ber 2017, in this action on the grounds et

- Non-compliance with Rule 10(5) of the Court of Appeal ~ Rules 1985"

2. In support of the Application is his Affidavit deposed to on the 25 day of March 2019 to which 10(ten) Exhibits are attached. .

3. The paragraphs contained in the Affidavit of Support of the Notice of Motion which I find very 7 relevant to this Application are 10,12 and 13.

4. Paragraph 10 states as follows: “That by an Affidavit dated the 18" day of May 2017 this Honourable Court on the 26" day of October 2017 granted leave to the Respondent to Appeal against the Orders of the High Court dated the 15" day of February 2017, and also granted an Interim Stay of Execution of the Judgment dated the 16" day of June 2016”

5. Paragraph 12 states as follows; “That on the 13® day of February 2019, I did search the proper Books kept in the office of the Registrar of the Court of Appeal to determine whether the Defendants/ Respondents have complied with the Order dated the 26" day of October 2017; my search revealed that no Appeal hhad been filed on behalf of the Respondent”

6. Paragraph 13 states as follows: “That since such leave was granted over a year ago to ‘Appeal the ruling dated the 15 day of February 2017, and an Interim Stay of the Judgment dated the 6* day ‘of June 2016, amongst other things, the Respondents have not complied with the said Order. 7. ‘The Exhibits attached to the Affidavit in Support of the Notice of Motion dated 25" March 2019 Which I consider germane to the Application are: “Ex LES. 4” Order ofthe High Court dated 6 June 2016 “Bx LES. 9° naling of the Court of Appeal = Dated 26! October 2017. “Ex. LES. 10" Affidavit of Search of the record Books

- of the Registry of the Court of Appeal with the * relevant search receipts attached.”

8. Counsel for the Plaintift/Applicant also filed a Supplemental A¥ffidavit deposed to on the 8" day of uly 2019 to which two

(2) Exhibits are attached, “Exs LF.S. 11 and LP.S. 12”.

9. He averred in paragraphs 23-26 as follows: . “Paragraph 23 — that it took me over two weeks searching the record Books kept at the Registry of the Court of Appeal to ascertain whether a Notice of Appeal was filed by the Defendanis/Respondents, but for all these times the Registrar indicated to me that no such Notice of Appeal ‘was filed by the said parties Paragraph 24 — That I went further to enquire from the Registrar, Mr. Fayia, who was with the Panel of Justices that presided and detivered the Ruling dated 26! October 2017; my enquiry revealed that no such Notice of Appeal was filed by the Defendants/Respondents herein. Paragraph 25 — That it was about three weeks after I had filed the Notice of Motion herein that the Registrar of the Appeal Court indicated to me that a Notice of Appeal was filed by the Defendants/Respondents herein. Paragraph 26 ~ That I was in a state of shock and disbelief to have heard the Registrar saying a Notice of Appeal was filed after I had searched the records and found no evidence ofsame.”

10. [note that the Ruling of the High Court dated 15 February 2017 which could have been important to this Application by Counsel for the Plaintift/Applicant was not exhibited but I am comforted in that the same was determined by the Court of Appeal, albeit a different panel, which resulted to its Ruling dated 26" October 2017 and which is Exhibited as “IFS9”.

11. In his arguments, Counsel for the Plaintiff7Applicant submitted that the Respondents herein are in breach of Rule 10(5) of the Court of Appeal Rules 1985 and that such breach is so fundamental that

" it renders the Ruling dated 26! October 2017 a nullity

12. He further submitted that the Respondents herein did not file the Notice of Appeal for which leave = was granted in the Ruling of 26% October 2017 and that such non-compliance on the part of the Respondents deprive this Honourable Court Jurisdiction to adjudicate on any Appeal

13. Even if the Notice of Appeal was filed in accordance with the Ruling dated 26" October 2017, yet,

according to him, the same was filed out of time without the Respondents having recourse to Rules . 11 (1) (2) and (3) of the Court of Appeal Rules 1985,

14, He submitted that the Ruling of 26% October 2017 which granted leave to the Respondent to fle a Notice of Appeal was an Interlocutory Ruling and that the Respondent should have filed the said Notice of Appeal within 14 (fourteen) days from the date ofthe said Order as required inthe relevant provisions of the Court of Appeal Rules 1985,

15. He pointed out that according to “Ex IFS9” attached to the Affidavit in Support of the Notice of Motion dated 25! March 2019, leave was granted to the Respondents to file theit Notice of Appeal within a period of 14 (fourteen) days from the date ofthe Ruling on 26" October 2017.

16, Rather, according to “Ex JGI” atached to the Affidavit in Opposition of the said Notice of Motion, the Notice of Appeal was filed on 16 November 2017,

17, Referring to his Supplemental Affidavit deposed to on 8* July 2019, Counsel for the Plaintff/Applicant submitted that as at the time he searched the records on 13" February 2019, the Notice of Appeal filed inthis matter was not found in the Register of the Court of Appeal

18. He maintained that he was informed by one of the Registra in the Court of Appeal that a Notice of Appeal had been filed in respect of this matter.

19. According to him, the Notice of Appeal filed on 16 November 2017 exhibited as “JGI" attached to the Affidavit in Opposition is at variance with his Affidavit of Search conducted on 138 February 2019 exhibited as “IFS10” attached to the Affidavit in Support.

20, He submitted thatthe acts ofthe Respondents in the instant case are very grave to render the ruling dated 26" October 2017 a nullity

21. The acts of the Respondents, he further submitted, are attempts to deny the PlainifApplicant the rights to enjoy the fruits of his Judgment.

22. Counsel for the PlaintifVApplicant, in support of his submissions quoted and relied upon the following cases: (a) Re Pritchard (1963) 1 AIL ER 873 (b) Bin Rafaah Vs Precious Minerals Marketing Company (Sietra Leone Limited [Civ. App.1/99]

7 {1998} SCA 223! October 1998) ~a reported case

(6) Anew Mitchell MP Vs. News Ciroup Newspapers Limited {2013} EWCA Civ. 1537

The pages read for this report end here. The judgment continues in the PDF.