Frances Smith v Adam Smith (CIV APP 48 of 2017) [2020] SLCA 1 (6 February 2020)

CIV. APP. 48/2017 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: FRANCES SMITH APPELLANT AND ABRAHAM SMITH RESPONDENT

Coram

Mr Justice R S Fynn, JA (Presiding) Mr Justice M M Sesay, JA Mr Justice E Taylor-Camara, JA Representation: C Vandy Esq. for the Appellant F K Gerber Esq. for the Respondent JUDGMENT OF COURT, DELIVERED BY MR. JUSTICE E TAYLOR-CAMARA THE 6 TH DAY OF FEBRUARY 2020

Background

1. By its decision dated 29th July 2015, the High Court, presided over by Mr Justice A Sesay, JA (as he then was), granted an order (the “Adoption Order’) for the adoption of a child jointly by Mr and Mrs Smith, the Appellant and Respondent, respectively. By an Originating Motion, notice of which was dated 9 th November 2016, Mr Smith applied to the High Court for an order to set aside the said Adoption Order on the ground that the order was obtained by fraud. By its decision dated 29 May 2017, the High Court (Mr Justice A Sesay, JA) ruled in favour of Mr Smith and set aside the Adoption Order. Mrs Smith is now appealing that decision to set aside the Adoption Order.

Routes for challenging order obtained by fraud

2. The Appellant, Mrs Smith, argues that the ground upon which Mr Smith, the Respondent/Applicant, applied to set aside the Adoption Order was that it was obtained by fraud. She says that in such case, if the decision to grant the Adoption Order was to be challenged, then such challenge ought to have been either by way of appeal to the Court of Appeal, or by instituting a fresh action in the High Court to set aside the order. She says it was not open to the Respondent to go back to the High Court to ask it to set aside its own final judgment.

3. In reply, Counsel for the Respondent, accepts that where fraud is alleged, it was open to the aggrieved party to either appeal to the Court of Appeal, or to seek to set aside the decision by instituting a fresh action in the High Court. He says that he opted for the latter when issuing the originating motion.

4. It is well established in the English courts that a judgment obtained by fraud can be challenged either by means of a fresh action to set aside the judgment, or by appealing and seeking to adduce thereat, fresh evidence through which either the fraud is admitted or demonstrating that the evidence before the appeal court is incontrovertible. In the recent English Court of Appeal case of Terry v BCS Corporate Acceptances Ltd & Ors (2018) EWCA Civ 2422, Hamblen LJ (as he then was) said the primary means of challenging a judgment obtained by fraud is by bringing a fresh action seeking the equitable relief of setting aside the judgment.

5. The English Common Law has been developed over many centuries and is applicable in many Commonwealth jurisdictions the world over, including Sierra Leone. Indeed much of this country’s jurisprudence is based on the English Common Law. Neither party has drawn to this Court’s attention, any provision in the Constitution or any other law in Sierra Leone, which prohibits an aggrieved party, and in this case, the Appellant, from seeking to adopt the English routes for redress. In light of the above we are of view that, in the absence of any national authority to the contrary, the principles set out in Jonesco v Beard (1930) AC 298 and confirmed in Terry v BCS Corporate Acceptances Ltd, may be applied in Sierra Leone, and accordingly, we hold that the said principles can and do

apply in this case. In our view, the Respondent was entitled to commence a fresh action to set aside the judgment on the ground of fraud. Form of action where fraud is alleged

6. The above said however, the question then arises, how should such fresh action be commenced? More particularly, what form of action should such fresh action take? The Respondent commenced what he claims was a fresh action by originating motion. The Appellant says that where, as here, the allegations are based on fraud, the action ought to have been commenced by writ and not originating motion. She says that an originating motion should only be used where prescribed by law. Where fraud is alleged, then full pleadings should be used giving the other party an opportunity to counter the allegations made against them. This can only be done where an action is commenced by writ. Motions are heard on affidavit evidence and do not afford the defendant the best opportunity to present their case fully.

7. We agree. An originating motion, whilst clearly a legitimate originating process for commencing an action, is not the most appropriate process to use where allegations of fraud are involved.

8. In Jonesco v Beard, Lord Buckmaster said: “It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by an action in which, as in any other action based on fraud, the particulars of fraud must be exactly given and the allegation established by the strict proof such a charge requires.”

9. Further, in order to succeed in setting aside the judgment of the High Court, not only must a fraud be properly particularised and proved, it must also have involved “conscious and deliberate dishonesty”, and the evidence must be credible and material.

10. The rationale for this was stated by Smith LJ in Noble v Owens (2010) EWCA Civ 224, where he said:

“…the defendant should not lose his favourable judgment without clear evidence of fraud. He should not lose it merely on account of a plausible allegation of fraud. The interest in finality of litigation should hold sway unless and until the judgment is shown to have been obtained by fraud.”

11. It is clear from the words of Lord Buckmaster in Jonesco, that where fraud is alleged, ‘the particulars of fraud must be exactly given and the allegation established by the strict proof such a charge requires.’ Such action must set out in detail the particulars of fraud, which particulars must involve allegations of conscious and deliberate dishonesty, and must be strictly proved by evidence which must be credible, material, and must be shown to have probably have had an important influence on the result of the case. The party accused of such fraud should not only be given the opportunity to plead and advance their defence to such allegations in pleadings, but also be given the opportunity to challenge the allegations by cross examination of any witnesses. This cannot properly be done via the route of an originating motion where evidence is by affidavit.

12. We are of the strong view that a fresh action alleging fraud can only be commenced by writ. We look no further for confirmation of this view than Ord.5 R2 High Court Rules (HCRs) which expressly requires that where a claim is based on an allegation of fraud, it must be commenced by writ. This was not done in this case, nor did the judge terminate the proceedings or convert the action commenced by originating motion into an action by writ. To that extent, the process was flawed.

13. This said however, Ord. 2 R1(3) HCR, prohibits the Court from wholly setting aside: “any proceedings, or the writ or any originating process by which they were begun on the ground that the proceedings were required to have been begun by an originating process other than the one employed.” As such, though the procedure was flawed, that of itself, is no ground for setting the judgment aside. Fresh action or interlocutory application?

14. The more fundamental question it seems to me, is whether the Respondent’s application by way of originating motion dated 9 November 2016 (even assuming it was properly

commenced by writ), did in fact constitute a fresh action for the purposes of challenging the High Court’s decision of 29 July 2015?

15. The Appellant says that the application to set aside the Adoption Order purported to be a fresh and separate action commenced by originating motion, but was in fact in the nature of an interlocutory application made in the original matter in which the Adoption Order was granted, the case number of which was Misc. App 321/15 S No.

40. She supports her claim that the application was an interlocutory application by pointing out that the application was made by originating motion in the matter which bears the same case number as the original matter in which the court made the Adoption Order i.e. Misc. App 321/15 S No. 40.

16. Counsel for the Appellant drew the Court’s attention to the fact that the case number of the originating motion to set aside the Adoption Order was identical with that of the matter in which the Court originally granted the Adoption Order. Counsel argues that the originating motion was filed and issued in 2016, yet bears a case number identical with the matter commenced in 2015. This he says, demonstrates that the matter was not issued out of the Master’s Office and is therefore irregular and renders the notice and application null and void. Whilst we do not agree with the reasoning behind this assertion, or the conclusion counsel draws therefrom, we do however think it raises a significant issue that calls to be addressed.

17. The originating motion was filed on 9 November 2016, yet it bears the case number of the earlier originating summons which was filed in 2015. The parties in both cases are the same. This would indicate that either the originating motion was erroneously given the wrong case number, or that the application was intended to be proceeded with as an interlocutory application in the 2015 Adoption Order proceedings. If the application had been intended as an originating process, then the matter ought to have had a separate and distinguishable case number to that of the original Adoption Order matter. That new case number would have included the year in which the action was commenced, i.e. 2016 and not the year 2015.

18. We do not think it was an error on the part of the Master’s Office or indeed, the solicitor for the Respondent that the originating motion bears the same case number as the

earlier originating summons. The fact is that the Notice of Originating Motion was drawn up by the Respondent’s solicitors, which solicitors were fully aware of the fact that their client had previously applied for and been granted the Adoption Order in the earlier application. The Respondent’s solicitors were fully aware, or at least must be deemed to have been fully aware of the case number of the previous matter, given they referred to and exhibited copies of the court proceedings and order from those proceedings in the Affidavit in Support. Indeed it was the order of the Court in that earlier matter (the Adoption Order) that was the subject matter of their application. The solicitors nonetheless proceeded to apply the same title to their papers rather than filing a fresh application in the Master’s Office calling for a new file number to be allocated to the new notice. It seems a reasonable conclusion to draw from the course of action adopted by the Respondent’s solicitors that they were either indifferent in their preparation of their papers or, as we believe to be the case, they fully intended that their application to set aside the Adoption Order should be heard as part of the same proceedings and before the same Court and judge in which the Adoption Order was granted. It is also noticed that the matter did indeed come up for hearing before the same judge who made the Adoption Order.

19. During the course of the hearing to set aside the Adoption Order, the Appellant filed a motion dated 26 January 2017, pursuant to which she applied that the Respondent’s application to set aside the Adoption Order, itself be set aside, one of the grounds being, as here, that the case number indicates that the application was an interlocutory application to set aside the Adoption Order and was not an originating process instituting a fresh action. In his Ruling of 13 January 2017, Sesay A, JA held that the originating motion was an originating process initiating a fresh action. The judge restated this view in his ruling of 22 May 2017.

20. Although the application was commenced by originating process, it is clear that it was treated as an interlocutory application. The fact the matter was assigned to the same judge that made the original Adoption Order, indicates that the matter was regarded and treated as an interlocutory application to set aside the order made by that judge. The question is, ought the judge to have heard the matter given that he made the original order?

Jurisdiction to set aside Court’s final order

21. The Appellant says that the Court, in granting the Adoption Order, described it as being a ‘final’ order. She argues therefore, that the order having been a final order, the Court ought not to have entertained the application to set it aside as it had no jurisdiction to revisit the issue. She says that once the judgment had been delivered and perfected, the Court became functus officio by virtue of its having made the Adoption Order final. As such the Court became bereft of jurisdiction and could not revisit the matter. Accordingly, she argues, that the Court’s order of 29 May 2017, is without legitimacy and should therefore be set aside and the Adoption Order be restored.

22. The judge does not appear to have asked himself whether, having made a final order, he could now revisit the matter and make an order which effectively set aside that final order? There is no issue here whether the Adoption Order was a final or interlocutory