Firetex International Company Limited v Sierra Leone External Communications And Another (MISC APP 19 of 2002) [2004] SLCA 17 (25 June 2004)

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ae aa AVR at MISC. APP. 19/2002 iy . IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: FIRETEXIVTERNATIONALCO.LTD = ruawriremesronoerr i avo SIERRA LEONE EXTERNAL TELECOMMUNICATIONS SIERRA LEONETELECOMMUNICATIONCO.LTD, = _DFFENDANT/ARFLICANTS

Coram

HON. MR. JUSTICE ME. TOLLATHOMPSON. = J HON. MR. JUSTICE A.N.B. STRONGE as : HON. MRS. PATRICIA MACAULAY 5K Mr. C.CN, Taylor forthe Applicant Mr. A.R. Serry-Kamal for the Respondent

Ruling delivered the Wiale». SA day Of sssa Heese cee 2008 TOLLA THOMPSON JA. My Lords: A brief background to this application indicates that following an ation for damages f : breach of contrac etc, the High Court presided over by Mr. Justice JF Masala on th 16% September 2002 delivered a judgment in favour of the planttrespornlent > thereafter Mr. Justice Mazallay let the jurisdiction on officiat business,

ie’ ee 113 Car) On the 24" of September 2002 the defendanVapplicant applied to the High Cew presided over by Mr. Justice L.B.O. Nylander for a stay of execution of the sail Jedgment. The Leamed Judge gave a ruling cn the 21" October 2002 3 Its against this background that the applicant moved this Court for a stay of execution of the judgment pending the hearing and determination of: 1, This Application. 2, The Civil Appeal No. 25/2002 now pending in the Court of Appeai ‘The application is made pursuant to rules 28 and 64 respectively of the Court uf Appea Rules of 1985. The applicant's motion is supported by the affidavit of Ransford Dennis Wright sworn :> . on the 25" September 2002 and filed herein with exhibits attached. A supplementsi affidavit swom on the 2 December 2002 by Chukumeka Charles Valentine Faylor cx filed herein with exhibits attached. AAs against these affidavits there are the affidavits of Serry-Kamal sworn to on the 12 November 2002 and the 2“ December 2002 respectively with exhibits attached RULE 28 STATES: "An Appeal shall not operate as a stay of execution of the proceedinys under th judgment of decision appealed from except in so far as the Court below ort: ‘ ‘Court_ may order, and_no intermediate act or proceeding shall be invalidated except so far as the Court below or the Court may direct’ RULE 64 STATES: "Except where otherwise provided in these rules or by any other enactment where ‘any application may be made either to the Court below of the Court it shall >: made in the first instance to the Court below but if the Court below refuses 1. application the applicant shall be entitled to ave the application deve:rained b the Court” On a AeeF scrutiny of rule 28 the following can be gleaned: 1, That an Appeal to the Court of Appeal does not operate as a stay execution of the judgment or decision.

2. That an Order for a stay must be specifically obtained fiom tic Court » Appeal. As regards rule 64, itis plain and clear to me that this rule is « procedutal rule ty % illustrates the normal manner in which proceedings under the rule should tne comnductex ‘The applicant must first apply to the Court below i.e., the High Court snd i! tix application is refused, he can then apply to this Court if he so desires.

: wee \\4 In my view therefore an application for a stay execution of a judgment in this Court mus have the combined effect of rules 28 and 64 of the Court of Appeal Rules, It is beyond : doubt that these are the ruics, which the applicant has invoked to comé t6 this Court; as a : result of the ruling of Mr. Justice L.B.O. Nylander. For the sake of clarity I shall hereunder reproduce the ruling in extenso, and it reads:

; "Upon reading the Affidavit of Samuel Boston Griffiths sworn to on the 23 October 2002 and upon listening to the submission and arguments from both sides. Ihave considered the authorities relied on both sides. The issue, which weighs heavily on my mind, is that a Court must not deprive a successful litigant the fruit of his judgment. But the successful litigant capability to make a refund in case of the appeal succeeding play deterrent to making an all out order for the total execution of the aggrieved judgment. Counsel for the applicant pointed ovt to the Court that a previous court order has been made against the responden fo a refund and this refund had not been made.

; Counsel for the applicant urged the Court to grant a stay of execution of the mentioned judgment. Having carefully considered the total facts before me 20: forgetting the quantum of sum claimed noting that there would be an Appeal. feel it will be equitable and just for the applicant to make a down payment o! Le100 million to the respondent pending the outcome of the intended appeal to the Court”.

From the affidavit evidence it appears to me that the applicant and the respondent hav. placed a different interpretation on the Leamed Judge's ruling, see "CCVT2: PP! unt

: CCVT2 Pg2. For my part I prefer the interpretation of the ruling in CCVT2 Ped

Before turning to the affidavit evidence, let me make a slight comment on the affidavits

filed by both sides. Affidavits are designed to place facts whether disputed or otherwise

before the Court for whose help they are prepared. They are not designed to be used as a

vehicle for legal arguments. Legal argument should come from Counsel in the matte

and not in the form of an affidavit. Consequently I shall confine myselt to the relov9n

averments dealing with the facts in the affidavit. Having said this | shall now procecs

It scems to me the relevant averments prayed in aid of the motion are contains! »

paragraphs 2, 3, 4,5, 6 and 7 ofthe affidavit of Ransord Dennis Wright and paragraphs ¢

7, 8, 10 and 14 ofthe affidavit of Chukumeka Charles Valentine Taylor

They read as follows:

2. That on the 16" September 2002 the High Court presided over by the Hon. Mr Justice J.B. Masallay delivered judgment on this matter in favour of the

* plaintifrespondent herein. A copy of the said judgment is now produced shown

to me and marked "RDWI"

ene i@& {20

3. That I am dissatisfied with the decision of the said High Court and I have instructed my Solicitor Mr. C.C.V. Taylor to lodge an appeal on our behalf in the Court of Appeal. The said notice dated 19” Septemiber is now produced shown to

3 me and marked "RDW2"

4, That the company solicitor reliably informs me and I verily believe that the defendant/applicant have a good grounds of appeal with reasonable prospect of suozess.

5, Thet should the said order of the High Coun’ be complied with the defendant/applicants liability to the plaintifrespondent herein may exceed 1Le710,000.000 (Seven Hundred and Ten Thousand Leones)

6. That should the Court of Appeal allow our appeal it is unlikely that the applica herein would ever recover from the plaintiffespondent in satisfaction of the sais

Judgment

7. That I believe the forgoing would be the case in the plaintif/respondent have noi satisfied the order of the Court of Appeal dated 11" day of October 2002 i.e Le61,400,000.00 already paid to the plaintiff/respondert by the defendant/applicant be repaid in the joint names of the Solicitor or both parties into an interest bearing account. A copy of the said order is now produced shown to me and marked "DW3".

‘Tuming to the affidavit of Chukumeka Charles Valentine Taylor.

6. Thave read the affidavit of Mr. Ransford Dennis Wright the secon! defenan Acting Managing Director sown to on 25" September 2002 in support of av application filed by me on the same date seeking an order stayiny execution of the judgment of this Honourable Court and I here confirm the truth and authenticity of the acts deposed to therein.

7. In suppor: of the averment deposed to in paragraphs 5, 6 and 7 0° Mr. Wrigh affidavit there is now produced and shown to me as bundle of docuinenis marke "CCVT3 Pages 1-24.

8. Pages 1-4 of Exhibit "CCVT3" are a copy of an affidavit sworn 10 by ‘th plaintifrespondent Managing Director Samuel Boston Griffiths on the 25 October 2002 in opposition to an interlocutory application filed by the defendan in the Court of Appeal.

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10. In Paragraph 11, Mr. Boston Griffiths deposed to the same state of affatrs of th Company when’he deposes that the effect of the order will virtually te put nv Company and other business ventures in which I have a stake 0 yo out « business” (and) will spell disaster for my Compaary and myself and earlier bs

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