Fatme Mourtada v Fadel Mourtada (MISC APP 13 of 2017) [2017] SLCA 1225 (26 October 2017)

lear y 4 TOF A ONE CIVIL DIVISION

MISC. APP. 13/17 FATME MOURTADA APPLICANT | AND

| FADEL ABASS MOURTADA RESPONDENT | DAYOUB TRADING (SL) LTD

REPRESENTATION: C.F, MARGAL& ASSOCIATES COUNSEL FOR THE PLAINTIFF |

FORNAH-SESAY, CUMMINGS, SHOWERS CO. COUNSEL FOR THE DEFENDANT |

CORAM: | HON. MR. JUSTICE M.F. DEEN TARAWALLY Ja | HON. MR. JUSTICE R.S. FYNN JA | HON. MR. JUSTICE SENGU KOROMA JA

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RULING DELIVERED ON THE 26" OCTOBER, 2017

SENGU KOROMA JA

1. This is an application by Notice of Motion dated the 30" May, 2017 for the following orders:

1. That this Honourable Court do grant leave to the Defendants/Applicants herein to appeal against the Ruling of the Honourable Justice AB. Halloway dated the 15" day of February,

2. A stay of Execution of the Judgment dated/6" June, 2016 and all subsequent proceedings pending the hearing and determination of the Appeal.

3. Any further Order(s) that this Hondrable Courtymay deem'fit and just in the circumstances

4. Cost to be costs in the cause’

2. The Application was supported by'the Affidavit of Adewale Showers sworn to on the 30" day of May, 2017-fogether withthe exhibits annexed thereto.

3. The affidavit in support had seventeen exhibitsMr, A. Showers appearing for the Defendants/Applicants (hereinafter, referred to as “the Applicants”) relied on the entire Contents of his affidavit. He submitted that the proposed grounds#of Appeal were fot frivolous as they raised serious questions of law whieh, ought tolbe tried By this court.

4, Mr. Showers.also submitted that hewas applying to this Court for a Stay of Execution Of the Judgmentyof the High Court dated 16" June, 2017. In supportof this submission, he relied on the case of ABDUL KARIM WURIE ~ V- THE ATTORNEY-GENERAL & MINISTER OF JUSTICE delivered on the 28" January, 2016 and the €28@ of DAWNUS (SL) LTD -V- TIMIS MINING CORP. (2016) SLCA 18i(unreported)

5. Mr. C.F Margai acting for the Plaintiff/Respondent (hereinafter referred to as the “Respondent’) opposed the application and made the following

Submissions

6. Firstly, that in the Notice of Change of Solicitors, the firm of FORNA-SESAY, CUMMINGS AND SHOWERS was named as the new solicitors whilst in paragraph 7 of the affidavit in support reference was made to the firm of FORNA-SESAY as the solicitors retained by the Respondents.

7. Secondly, that there was nothing in the Order of the High Court dated the 15" day of February, 2017 to appeal against. Mr. Margai further submitted that as the Ruling dated 15" February, 2017 was interlocutory, an

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application for leave to appeal must be made within fourteen days ~ Rule 10 of the Court of Appeal Rules, 1985. The Ruling was delivered on the 15” February, 2017 and by virtue of Rule 64 of the Court of Appeal Rules, 1985, the Applicant ought to first apply to the Court below for leave. The Applicant failed to do so but instead filed a Notice of Motion in the High Court on the 17" May, 2017 seeking several other Orders.

8. Mr. Margai submitted that the only way open to the Applicant was an application for an extension of time. He referredsthis Court to the dissenting judgment of FYNN, JA in the matter of the Estate of KALILU JABBIE (Represented by Bockarie Engah as Court Administratof) -v- SKYE BANK (SL) LTD Misc. App. and the case of NIGERIAN NATIONAL SHIPPING LINES -V- ABDUL AZIZ (Trading as ABDUL AZIZ)ENTERPRISES).

On the application for a stay of Execution))Mr. Mafgainargued that this was granted by Hon. Justice“Kammanda.J. on, the 24 May, 2017 which was still in force. There was thefefore nolifieed.for an application for such an application to be’made to this\Gourt.

9. Mr. Showers in reply firstly admitted that clericaljerror was made in respect of the name of the firm of Solicitors imparagraph 7 of the affidavit in support but argued that itwould not prejudice,the Respondent's case.

With regards to compliance with)Rules 10’and 64 of the Court of Appeal Rules,

1985, he referred this Court to Exhibit AS 5 of the affidavit in support.

Issues for Determination

10. There are tWo issues here for determination to wit:-

1. Whether the Applicant herein complied with Rules 10 and 64 of the GOurt oPAppeal Rules, 1985; and

2dWhether the Applicatioh for a stay of Execution is necessary in view of the)Ruling!fKamanda, J dated 17" May, 2017.

11. Before determination these issues, it will be necessary to review the authorities cited, by counsel

12. In the case of ABDUL KARIM SESAY WURIE -V- ATTORNEY-GENERAL AND MINISTER OF JUSTICE cited by A. Showers Esq., Fyn, JA granted leave to appeal on the ground that the proposed grounds of appeal “being raised purely on an application based on law and not on facts ... I find that, the seriousness of the legal question raised provide enough good cause on which an application for leave can be granted”. His Lordship also granted a stay of execution of the Ruling appealed against on the ground that it

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would be absurd if leave to appeal was granted while the trial would proceed in the Court below.

13. In DAWNUS (SL) LIMITED AND TIMIS MINING CORP, Fynn JA adopted the meaning given to special circumstances by Gelaga-King JA in the case of AFRICANA TOKEH VILLAGE LTD VS. JOHN OBEY MIS. APP. 2/94 (Unreported) and exercised his discretion to grant a stay of proceedings.

14, The Respondents relied on the case of NIGERIAN NATIONAL SHIPPING LINES -V- ABDUL AZIZ (Trading as ABDUL AZIZ ENTERPRISES). In this matter, the application was to the Supreme Court séeking special leave to appeal against the Ruling of the Court of Appeal refusing leayé to appeal on the ground that the Applicant was out of time, which deprivedithe Court of jurisdiction to hear the application. The ‘Supreme Court in determining the issues in the Appeal dealt extensively with the constfuction of Rules 10(1), 10(4) and 64 of the Court of AppeallRules, 1985. Kutubu C) had this to say “By virtue of Rule 10(1) both the High Court ind the Court of Appeal have concurrent jurisdiction in the matter of applications to these Court for leave to appeal an enlargement of time. The application must be made within 14 days. Where tie application ishrefused after the 14 days period specified in Rule 10(1)an,applicant must apply for enlargement of time together with an application)to the Court of Appeal for leave to appeal, in view of the provisions of Rule 19(4), whieh taken together with Rule 10(1) gives the Applicant 28 days for tim@to’run out’,

15. Kutubu,“C) in, his lea tuling held that the words of Rule 10(1) are plain and unambiguous and must be strictly applied. In doing so he relied ‘on the dictum of Lord,Esher MR in R-V- JUDGE OF THE CITY OF LONDON COURT (1892) 1 Q8.27 If the words of an Act are clear, you must follow them @ven/though, they may lead to manifest absurdity’. He accordingly upheld the ruling of the Court of Appeal

16. Ihave dealt with this case extensively because it is the leading authority on this subject in Sierra Leone.

17. _ In the case of estate of KALILU JABBE -V- SKYE BANK (SL) LTD, Fyn JA in his dissenting judgment stated as follows:-

“This applicant did not ask the single judge to enlarge time nor has he asked

this panel to do so (neither in his papers nor in his viva voce submissions). To

grant enlargement of time sotto motto will in my opinion bring an outcome which was not prayed for to bear on the parties. This in my opinion will significantly undermine the time limits fixed by the Rules...”

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