Genevieve Sherman v Haresh Budhwani (SC MISC APP 2 of 2015) [2016] SLSC 1172 (11 February 2016)

SUP CT Mise Appl 2/2015 EK Cr IN THE SUPREME COURT OF STERRA LEONE (SUPERVISORY JURISDICTION) IN THE MATTER OF SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE 1991 ‘AND IN THE MATTER OF THE UNDERMENTIONED MATTERS IN THE HIGH COURT OF STERRA LEONE @ ¢c.265/2010 2010 S No. 31 IN THE HIGH COURT OF SIERRA LEONE (LAND AND PROPERTY DIVISION) BETWEEN. GENEVIEVE SHERMAN ~ PLAINTTIFF (As Administratrix of the estate of Mrs Gladys Abioseh Juah Newman-Samuels (deceased) ‘AND MR HARESH BUDHWANI ~ DEFENDANT (&) cc. 337/10 2010 I No. 25 IN THE HIGH COURT OF STERRA LEONE (LAND AND PROPERTY DIVISION) IN THE MATTER OF THE RESPECTIVE ESTATES OF MADAM MARY BROWNE (DECEASED INTESTATE) AND MRS GLADYS A NEWMAN-SAMUELS (Nee WESLEY) (DECEASED) ‘AND IN THE MATTER OF THE ADMINISTRATION OF ESTATES ACT CHAPTER 45 OF THE LAWS OF SIERRA LEONE 1960 & THE DEVOLUTION OF ESTATES ACT,2007 BETWEEN: MRS AYODELE THERESA JOHN (Nee WESLEY) - PLAINTIFF/RESPONDENT (Suing as Administratrix of the intestate estate of MADAM MARY BROWNE

Deceased intestate through the Plaintiff's lawful Attorney Mr Jenkins Nyka Williams) AND MADAM GENEVIEVE SHERMAN - DEFENDANT/APPLICANT (Sued as the Administratrix of the testate estate of MRS GLADYS A NEWMAN-SAMUELS (Nee WESLEY)

Coram

THE HONOURABLE MR JUSTICE NC BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS JUSTICE OF THE SUPREME COURT THE HONOURABLE MS JUSTICE V M SOLOMON JUSTICE OF THE SUPREME COURT COUNSEL: J.B JENKINS-JOHNSTON ESQ for the Applicant MMP FOFANAH ES@Q for the Respondent JUDGMENT DELIVERED THE bey OF FEBRUARY, 2016. ‘THE SUBSTANTIVE APPLICATION 1, By Notice of Motion dated 29" January,2015, the Applicant applied to this Court for the following Orders pursuant to Section 125 of the Constitution of Sierra Leone,1991. i, That this Honourable Court do issue an order of certiorari, quashing the order of the Honourable Mr Justice A D Konoyima, J dated the 10" day of March,2014 in the action intitled CC 337/10 2010 J No. 25 between MRS AYODELE THERESA JOHN vs GENEVIEVE SHERMAN currently pending in the High Court of Sierra Leone in so far as it purports to restrain the Bailiffs of the High Court from doing their lawful duty. ji, That this Honourable Court do issue an order directed to the Under Sheriff of the Republic of Sierra Leone authorizing him to execute the judgment of the Honourable Mr Justice A H Charm dated 14"" day of January,2014 in the action intitled C.C. 25/2010 2010 S$ no. 31 Between GENEVIEVE SHERMAN vs MR HARESH BUDHWANT. ili, Any further or other reliefs as this Honourable Court may deem just

iv, That the costs of this application be borne by the Respondent.

APPLICANT'S AFFIDAVIT

2. The Application is supported by the affidavit of Genevieve Sherman deposed and sworn to 29" January ,2015. The Applicant's case as deposed to inher affidavit, is as follows: On 14™ January,2014 after a fully contested trial in the action in which she is Plaintiff, CHARM, JA now (CHARM, C3) gave judgment in her favour, and Ordered that she immediately recovers possession of the property situate at, and known as 22 Krootown Road, Freetown. A copy of the Judgment is exhibited as "651". On 4" February,2014 the Learned Justice granted her leave to issue a writ of possession. The Order of Court is exhibited as "“GS2" Pursuant to such leave, she sued out a writ of possession and fieri facias on 10" February,2014, exhibited as "6S3". She also obtained a Writ of Assistance, exhibited as "GS5" pursuant to an Order of Court dated 5™ March,2014 - exhibit "6S4*. On 10" March,2014 she was served with an Order of Court made by KONOYIMA, J. exhibited as "6S6". The Order granted an Injunction to the Plaintiff in the AYODELE THERESA JOHN matter against the Applicant herein, It restrained anyone from interfering with, entering upon, dealing in, leasing, letting or in any way disposing of the properties at 22 Krootown Road, Freetown and 18 Victoria Street, Freetown pending the determination of the action therein. The deponent deposes further that that was a separate and distinct action from that in which she had been granted possession of the Krootown Road property. She deposes further that the last mentioned Order purports to stop the Under-Sheriff and his Bailiffs from executing their lawful and constitutional duties pursuant to a judgment of @ Court of competent jurisdiction, since, among other things, there has been no appeal against the Judgment of CHARM, JA (now CHARM, CJ). The writ of possession and fieri facias combined, has since not been executed. She therefore asks this Court to quash by way of an Order of Certiorari, the Order made by KONOYIMA, J on 10"* March,2014, and to direct the Under-Sheriff to execute the Judgment of the Court presided over by CHARM, JA (now CHARM, CJ)

RESPONDENT'S NOTICE OF PRELIMINARY OBJECTIONS,

3. Before the Applicant's Motion could be heard by this Court, on 3 ‘March,2015, the Respondent's Solicitor, Mr M P Fofanah, filed a Notice

of Intention to raise and to rely on preliminary objections to the Applicant's Motion, Several objections are set out on the face of the Notice. Primarily, what Mr Fofanch is saying is that the Appligant's Solicitors have not come to this Court by the proper method. In asking this Court to issue an Order of Certiorari, (and in effect, as far as the Order sought against the Under-Sheriff is concerned, an Order of ‘Mandamus, though it is not so stated explicitly in the Applicant's Application), the Applicant is really asking for Judicial Review of KONOYIMA, J's Interlocutory Order. An application for an Order of Certiorari is an Application for Judicial Review. It seeks to invoke the supervisory powers this Court has over subordinate Courts. And as there is no specific provision in the Supreme Court Rules,1982 - SCR,1982 - enabling this Court to do so, the procedure to be adopted is that to be found in Order 52 of the High Court Rules,2007 - HCR,2007. This is the effect of Rule 98 of the SCR,1982. He is saying also, that the Applicant did file in the High Court, an application dated 18 June,2014 to set aside ‘the Order made by KONOYIMA,J on 10" March,2014, But the Applicant's Solicitors or Counsel have failed to move that Motion in the High Court up to and until the date of filing the Respondent's Notice of Intention to raise preliminary objections. The other issues raised by Counsel in that Notice, are not, in my view, preliminary objections, but rather, reasons why this Court should not accede to the Applicant's Application herein, Whether or not the Respondent has filed an application in the High Court to set aside the Judgment of CHARM, JA as he then was, and whether or not the Applicant's Solicitors filed an affidavit in opposition to that application, and did vigorously argue against it, does not constitute, in my view, a preliminary or technical objection to the Applicant's Application herein, being heard. That is an issue that should and would be considered where we to decide these preliminary objections in favour of the Applicant. Those are issues dealing with whether or not the Applicant's Application herein has merit. SECTION 125 CONSTITUTION OF SIERRA LEONE, 1991

4. We shall now turn our attention to the merits of these objections. The ‘Applicant has invoked the provisions of, and in Section 125 of the Constitution as the basis of her Application. It reads as follows: * The Supreme Court shall have supervisory jurisdiction over all other Courts in Sierra Leone and over any adjudicating authorities: and in

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