Firetex International & ORS v SL Telecommunications Ltd (19 of 2002) [2003] SLCA 18 (26 June 2003)

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MISC. APP. 19/2002 y ¥ IN THE COURT OF APPEAL OF SIERRA LEONE VETWEEN: —RRETEX TERNATIONAL cO.TD ~ Sxanmmnioenin w STERRA LEON EXTERNAL TELECoMMUNIcaTONs pat SERA LEONE THLECONMONIEATIONCO.LTD. —-—_pxrrspannaretacary

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HON. MR. JUSTICE M.E. TOLLA. THOMPSON - JA HON. MR. JUSTICE A.N.B. STRONGE - JA HON. MRS. PATRICIA MACAULAY. ery Mr. C.C.V. Taylor for the Applicant Mr. A.F. Serry-Kamal for the Respondent

Ruling delivered the a6... ROT hay Of wae APS 2008 TOLLA THOMPSON J.A. My Lords: A brief background to this application indicates that following an action for damages fi * breach of contract etc., the High Court presided over by Mr. Justice J.B. Masallay on the 16" September 2002 delivered a judgment in fovour of the plaintifMrespondent soon thereaiter Mr. Justice Masallay left the jurisdiction on official business,

mel (Sz wo On the 24" of September 2002 the defendanvapplicant applied to the High Cour presided over by Mr, Justice L.B.O. Nylander for a stay of execution of the sac! ~ judgment. The Leamed Judge guve a ruling on the 21" October 2002 ¥ {tis against this background that the applicant moved this Court for a stay of exccution 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 Appeal The application is made pursuant to rules 28 and 64 respectively of the Court of Appeal Rules of 1985, ‘The applicant's motion is supported by the affidavit of Ransford Dennis Wright sworn to on the 25" September 2002 and filed herein with exhibits attached. A supplementa affidavit swom on the 2° December 2002 by Chukumeka Charles Valentine Taylor and filed herein with exhibits attached, As against these affidavits there are the affidavits of Serry-Kamal sworn to om 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 proceedings under the idgment of decision appealed from except in so far as the Court below ot Uh 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 or the Court it shall I ‘made in the first instance to the Court below but if the Court below reluises In application the applicant shall be entitled to have the application determinesl b the Court”, On 2'SehF scrutiny of rule 28 the following can be gleaned:

1. That an Appeal to the Court of Appeal docs not operate ass a stay’ execution of the judgment or decision,

2. That an Order for a stay must be specifically obtained from tiie Cout « Appeal. As regards rule 64, it is plain and clear to me that this rule is a procedural rule i * illustrates the normal manner in which proceedings under the rule shoul be conductex ‘The applicant must first apply to the Court below i.e, the High Court and i the application is refused, he can then »ply to this Court if he so desires

. (S53 In my view therefore an application for a stay execution of a judgment in this Court must hhave the combined effect of rules 28 and 64 of the Court =f Appeal Rules. It is beyond doubt that these are the rules, which the applicant has invoked to come to this Court, as 14 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 swom to on the 23" October 2002 and upon listening to the submission and arguments trom bath sides. I have considered the authorities relied on both sides. ‘The issue, which weighs heavily on my mind, is that a Court must not deprive a successtul 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! ou to the Court that a previous court order has been made against the resident fi 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 not forgetting the quantum of sum claimed noting that there would be an Appeal, i 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} ami CCVT2 Pg2. For my part I prefer the interpretation of the ruling in CCVT2 Pek 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 ure not designed to he usec! as 0 vehicle for legal arguments. Legal argument should come from Counsel in the matter and not in the form of an affidavit. Consequently I shall confine myselt to the relevan averments dealing with the facts in the affidavit. Having said this I shall now procecs! Ik seems to me the relevant averments prayed in aid of the motion are contained + paragraphs 2, 3, 4, 5, 6 and 7 of the affidavit of Ransord Dennis Wright and paragraph ¢ 7, 8, 10 and 14 of the 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.E. Masallay delivered judgment on this matter in favour of the . plaintif/respondent herein. A copy of the said judgment is now produced shown to me and marked "RDW1"

3. That I am dissatisfied with the decision of the said High Court and | have ._ instructed my Solicitor Mr. C.C.V. Taylor to lodge an appeal on our behalf in sin “Court of Appeal. The said notice dated 19" September is now produced shown tt» me and marked "RDW2"

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

5. That should the said order of the High Coun be complied with the defendanvapplicants liability to the plaintifVrespondent herein may excoed 1Le710,000.000 (Seven Hundred and Ten Thousand Leones).

6 That should the Court of Appeal allow our appeal itis unlikely that the applic! herein would ever recover from the plaintifffrespondent in satisfaction vf the sa

Judgment

7. That I believe the forgoing would be the case in the plaintiW/respondent have not satisfied the order of the Court of Appeal dated 11" day of October 2002 i.e. 1L261,400,000.00 already paid to the plaintiffirespondem by the defendanvapplicant 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",

‘Turing to the affidavit of Chukumeka Charles Valentine Taylor. 6 Thave read the affidavit of Mr. Ransford Dennis Wright the second defendan\ Acting Managing Director sown to on 25" September 2002 in support of ai application filed by me on the same date seeking an order staying exceustion of the judgment of this Honourable Court and I here confirm the truth and authenticity of the acts deposed to therein,

7. In support of the averment deposed to in paragraphs 5, 6 and 7 of Me, Wrish affidavit there is now produced and shown to me as bundle of documents marke. "CCVTS Pages 1-24,

8. Pages 1-4 of Exhibit "CCVT3" are a copy of an affidavit sworn to by she plaintiffirespondent Managing Director Samuel Boston Griffiths on the 23 ‘October 2002 in opposition to an interlocutory application filed by the defendant in the Court of Appeal. 10, In Paragraph 11, Mr. Boston Griffiths deposed to the same state of affairs of th + Company when he deposes that the effect of the order will virtually t put ni Company and other business ventures in. which 1 have a stake to yo ut « “business (and) will spell disaster for my Company and myself a! casi

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