Heckmet Joseph v Josephine E.E. Mac- Thompson (CIV APP 57 of 2005) [2008] SLCA 58 (11 July 2008)

CIV. APP. $7/2008 INTHE COURT OF APPEA: BETWEEN: ECKMET JOSEPH APPELLANTIAPPLICANT AND JOSEPHINE E. E- MAC-THOMPSON 1°? RESPONDENT AND MAMADU SAJOH BAH 2” RESPONDENT

Coram

ion. Justice S. Koroma, J.A. (Presiding) Hon. Justice S. Bash-Tagi, J.A Hon, Justice E. E. Roberts, J.A ‘Advocates CF Edwards Esq. and E. E. C Shears-Moses for the Appellant/Applicant ine ocimn Ut ostorsen RULING DELIVERED ON THE AY OF FANE S.BASH-TAQL JA? The Appellant‘ pplicant in this application ' seeking an Order fora say of Loageoen bale Judgment of the Court of Appeal dated (November 2007 vend ne 8 determination of an appeal against the sd ‘Judgment to the Supreme Co%! 5, is supported

The aplication, made pursuant to Rulle 28 of the Court of neal Rae 207 aed " the Aifidav 1 of Crispin Feio Edwards som ‘oa the 22° day 10 which are five exhibits namely: ls Exhibit CEF 1 - copy of the Certificate of the Orcer of the — ot Appeal Exhibit CER 2 _ copy of the Notice of Appel ‘6 the SUPREME ole Esa 10 CF wars: Exhibit CEF 30 - copy letter dated 7/1/07 from N_D: rn Ee Tea Cole: Exhibit CEF 3b - copy letter dated TOL /07 from CF. Bawa © cp edwards Exhibit CEF 3c - copy letter dated 13/1 1/07 from N. D- Tels!

“affidavit particularly on Counsel for the Applicant relies on the entire coments orn Air reot He submited Paragraphs 4 to 11, and more especially 0” paragraph Fespondents of te fruits of their ‘hat the purpose of the application 1S rot 10 beta rake it necessary FOF the Applicant to) iudgment bt hat special eicumstances: exit ic pply for the Stay.

| a se san AMtdavit in Opposition wom to meet exibg s Famer of pri dip bir dept Fra oh Rey of Appeal as Exhibit “B™; copy of the High Court Curae of Oe league of Seiering te ‘sale of the properly subject matter of this actoom at Exater °C Segrember 2003 yycKGROUND A ee background of the case is thatthe 1" Respondent. Mea Trompson, having been appointed sole Administratnx of the ee ne jen bare Toms, applied 10 the High Court by Notice of Matos ded 19" Seyeember 2001 ,r1 Meaned an Order to have the property at 21 ECOWAS Stes Freetown, (subject matter of Se application), sold by public auction or private Treaty parssank Te section 21 of the wa amstration of Estates Act Cap 45 of the Laws of Sta Leone ° atte 31” day of January 2003, the 1" Respondent innit as 009 the High Court against the Appellan/Application, seeking, inter alia, an Order for recovery of possession of the portion of the premises the "Applicant occupied at 21 ECOWAS Sweet. damages for trespass, arrears of rent and an Injunction “The AppellanU/Applicant in his defence adrmutted tp being in occupation of the premises Tand doing business thereon for the past 1S years, having been put there by one ‘Mackie. He has, therefore, dunng this ume established goodwill in his business and ‘employed about 20 workers: be ‘denied being in arrears of rent nd further asked to be given 5 (five years) within which to yseate the premises. In the ane said property had been sold and conveyed 10 "7" Respondent by the Master & Registrar by a Conveyance ‘dated 9 March 2004 pursuant 10 the Order of the High Court ‘ted 19” October 2001 referred t0 above. 0n 2" day of November 2004, the High Court (Nylander, 3) g8v€ judgment to the effect that the I" Respondent was entitled 10 possession ‘of the property at 21 ECOWAS Succi. cacon a in te event lof a sale of the property, A a shoal ey oben purchase of the property and be given first option tO Septal pend reputations for such a sale fell through thatthe appellanV Applicant was ordered 19 YE pact ie i ic out a motion seeking

(2) SPESS BI" December 2004 the Appellan/Applicant Le the 2 Respondent's Perfo WAS. Street, and cancellation 09 mance of the sale of 21 ECOWA: or dustice Nylander, Conveyance of 9* March 2004 (On 23° Septem 200%, at Gmeyance be cancels lvering the ruling of the Court ordered thst the 2 Response ty in compliance ‘with ie the Appellant/Applicant given First option to pure Order of 2" November 2004. i Judgment af to the Court of | bed Respondents, being dissatisfied with (he High beer peal the 78 Respondent, who was ‘pea. During the course of ents the Com of APE ave ote soined as party 3 pay to the aiginal ston 19 High Cour wm 2007, he COS ‘Appeal g2¥6 iat ‘was represented by Counsel. On the vr onde rod the Pil Respondent's Conveyanet {gent in favour ofthe Respondents and TUDE! CTT? Court of APPS further confirme rerinstated inthe record Books of CONVEYS

rr vugh Court judgement regarding the 1" Respond | ae HA aL ECOWAS Street Freetown, The ‘Avvelan berated | ore of Appeal Judgment filed Applicant being Canetefied wu wicourt of Appeal Judgment file a Notice of appeal died 19" Nowember 2001 sme Court, ‘M01 w te supe ris against this background that the Applicant has now apphed to thes Court for an for stay of Execution. owe un. EC. Shears-Moses of Counsel for the Appellant Appicar. rena om Affideit om wr ot paicularly paragraphs 6,7, 8,9 and 12 ofthe ad ‘Affidavit t show that there are special circumstances why @ Stay should be granted. He submited that the Applicant has ‘rcupied and carried on business in the premises for over 1S years thus busiding an enormous mount of goodwill; that “a sudden movement ‘will cnpple his business and necessitate the moval of some 20 workers thereby increasing unempioy=en. He referred 10 the Applicant's Notice of appeal filed in the Supreme Com ‘which said would be rendered rugatory if a Stay is not granted. Referring to paragraph 12 of the Affidavit in support ry cubmited that that by the time the appeal is disposed of either way. the applicant would have made adequate arrangement for ‘alternative business premises i the wicimity $0 a to maintain goodwill and save the business from collapse; also that “should the appeal succeed, it will create difficulty for the parties to stat ‘moving out and in.” In called im avd the tneported cases of; African Tokeh Village ¥ John ‘Obey Development Co. Lid Mise. App. 2/94, C.A. Mr. Tejan-Cole referring t0 Rule 38 of the Court of Appeal Rules submitted that an appeal does not operate as a Stay of Execution: that from 9® March 2004 when the 2” Respondent | bought the premises, he became the wner/essor thereof and consequently entitled to rent | from the occupants. He referred to paragraph 6 of the “Affidavit in Opposition and submitted | atsince 2001 the Applicant Thas vecupied the premises rent free 1 SAE the Respondent | as not received any rents from the "Applicant for the premises He submitted further oo fmt een any ea Te of POPE Og bee Be et possession of it, He urged the Court to dismis® the application and 10 give he 88 pendent | Yacant possession of the premises #8 "9 special circumstances RAV been gi rant | Banting of a Stay of Execution. , here that the Court's powet Ithas been held in numerous eases in our jurssicuon parte a pasis for the exercise of hae 8 Stay of Execution 16 eotirely discret sh porn special or exceptional 3 bsereton is thatthe Taian rust estab MAT ciated hat he ning Steumstances justifying the Brant of a St, Ean no mater ROW meritorious the otice of Appeal does not operate 8s A Stay of ey Rules 1985) Wis left therefore for Sol of appeal may be (see Rule 28 Court of peer si to show special oF exceptional cesPany requiring a Stay SF Execution pending 2 APs ine onus is on the ‘Applicant to cumstances jus:ifying the Brant of a Stay. In this BR iat for the Cour 10 err its g{monstrate that such special oF ceptions ee USENET og by an apa for a Stay craton in his favour I eonsige the circum parted case of ORM ‘Michael v. Adnan Aba ceution, we call in aid the decision in the Unt po 5S Mise. App. 7/96 that,

“jp is for this Court to determine what cies facts and circumstances and decide ‘whether or nat aft special. B will look at all the rormal run of things (0 the extent of making it they are s0 far above the smal and tein the interest of justice to intervene and stay procestonge fatowing from the above, it now remains for us to conser w Piscase has shown the requisite evidence of special arama tyres anpes special circumstances im her Affidavit for dis Guunto be able to exercise its discretion in his favour, and im dong $0 we will ook at al fos and circumstances and decide whether or not they are to far above he aden un of things... Weare told that the Applicant has been doing business im the premises for over 1S years ant fesays a sudden move will cripple his business; meaning if» Stay «soe gran Be wll be Tred to close his business and give up the propery. We note from we Digrent of oe Cour of Appeal, Exhibit “B”, in the Affidavit in Opposition, that the action ving rae 10 ths application commenced by Writ of Summons dated 31" Janwary 2003, that 100 we ee recovery of possession of the property at 21 ECOWAS Steet Freciown. Since ist ry of pos time the Applicant must have known that there is a likelihood that he would be required t0 deliver up possession of the property, especially so inthe Light of the Judgment of the High ‘Court of 2" September 2004 declaring that the 1 Respondent is entitled to take possession af the property at 21 ECOWAS Street. The "Applicant's bass for occupying the Premuses has tot been disclosed in the Affidavit ‘evidence; the Affidavit is aa 6 ‘on this pornt. Suffice _ ‘ay that there is no dispute that the Applicant is still ‘occupying the premises. Furthermore Afidavit in support of the application has not stated wheter the Applicant - been ot " afer patton; and iso. to whom such Ten WEE OT Tienned bin ofhis Affidavit, Counsel for the Applicant merely deposed that the allegation that he “that he will pay all the rents demanded from him”, giVin8 has not been paying rent. ged hat when a party makes an Amida 9 is Cour has ona number of occ emphasise ip evan fat that Be PAY Lip ofan appa, te aici STMT Ss he Cou © coe 1 a fair 6n, including sufficient background informal i gayi in support this present case 1S sion of the matter before it- Regret ‘ague in the sali ‘stated above | sulient facts as stat cl forthe 2 Respondent wrote, git | Mecorera ecenty as November 2007 gee tern 11 ier | GFE3A, and CEF 3C, wo the Applica sponding answet FOR in At ens | Premises rent free, there was NO COTESPONT the premises Mad merely to prolong the Gy Whether or not the Applicany 6 paying ch ed eng eso \° a cannot be seen to grant & Say of Bee at he Applicant ha pee te egae | pruicant’s occupation of the premises. Te an he egy Ne laying off Ermiss for 15 years and the loss of 2000 nce, but notin ts a ed by hs ‘Court that | gut be considered as special circumstances 1s he aso he exerise | nosy Wofkers cannot amount 1 speci not and OUBM not 10 (or onset ‘of the Court @, ey Social, or political consideration ea stay of Execution % Couns discretion to grant oF tT —— ~—s—™—

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