Hon Kapindi Jamiru & Another v Dr John Kerefa-Smart (SC 3 of 1997) [2000] SLSC 23 (16 February 2000)

TV TES SUPRE COURT oF STERRA LEONE 24 flecadantiog OF AN APPLICATTON BY HON. KAKPIIDI JAMIRD MP. AND mamas pega CONSE MP FOR LEAVE 10 APPLY FOR ORDERS OF CERTIORART,

PROEIBITITION AND FOR DECLARATIONS» in ‘HR MATTER OF A DECISION oR ORDER DATED 2ND APRIL 1997 MADE BY HON. ‘ pare ABs RASHID,JULGE OF THE HIGH COURT OF JUSTICE OF STERRA IN THE MATTER OF AN APFLICATION BY DR. JOHN KAREPA-SWART 2D 10 THE HIG COURT FOR AN INTERLOCUORY INJUNCTION IN RESPECT OF AN AcTTON PENDING THEREIN BETWEEN THE SATD OR. JOHN KARSFA-QURT 1D (PLALYTIFF) aND saves SULAIMAN BANGURA AND 13 OTHERS (DEFEATS), BSING CIVIL SUIT HO0660.149/ 97 Ke NOs 22 ALSO PENDING IN THE SATD ETCH COURT.

HONe KAXPINDI JAMTHD MP = 1S? APPLICANT 20D Off Pratt Street, New England, Freezown HON.JOSHPH SALLU CONTEE MP - 2ND APPLICANT 2 Off Aberdeen Road, Lumley Freetowns a aD Dre JOHN KAREFA-SMART 1D 20 Pipe Line, Juba Hill, Lumley, Freetom.

Coram

© Hone Mr. Justice D-2.F+ Luke = Ose Hon-Mr-Justice As3+ Timbo - TS. Honelir. Justice HeM» Joko-Snart - 3S.c. Hon.Mr.Justice S.C-B. Warne ~ T6S2Ce Honelir. Justice B-C- Thompson-Davis - J.S.c. Dre Bu-Buakei Jabbi for the Applicants the Respondent. N.D. Tejan Cole Esae, for oF 2000

Ruling Delivered Thb Dal

tice of motion dated the TMG, J8c.; This is an application by no oceedings in the action Imown as 4th day of February 2000 that the P? Tbrahim Bashiru Kanu MP. as the first 803/97 be contimued between Hone the 1st applicant Hon-Kakpindi Jamiru (Deceased) Applicant in the place of the ch Sallu Conteh MP. therein on the one pert and the ond applicant Hon-JoseF. , oree/2e

ané the respondent herein on the other Parts ‘The substantive S¢.3/97 seeks anong other things, an onder for Cortiorarittenove into the Suprene Court and to quash the decision or order of the Honelir. Justice A.B. Rashid High Court Judge made on tne 20nd day of April 1997 to the effect that the High Court has jurisdiction to hear and determine an application for interlocutory injunction Pursuant to order 37 rule 10 of the High Court Rules 1960 and sub-section (3) of section 78 of the Constitution of Sierra Leone 1991 in respect of the action titled 06:149/97 Ke Nos 22 Penling before the said High court. The application has been nocessiated ‘by the death of Hon «Kakpindi Yariza the 1st applicant in the substantive applications At first, coumsel informed the court that the application was made in pursuance of Rule 98 of the Supreme Court Rules 1982. (P.No.1 of 1982) and the High Court Rules Order 13 rules 2& 4 and order 24 rule

6. It was only after he had been reminded by the Bench of Rule 37 of our zules that he hesitatingly referred to that rule. The first question that arises for determination therefore is, which Tule governs this application - is it rule 37 or rule 987 Rule 37 provides thats "an application for an order for Revi¥or or Substitution shall be accompained by an ‘affidavit sworn by the applicant or where the applicant is represented ty a legal Practitioner the said affidavit shall be sworn by such legal prectitioner showing who is the Broper person to be substituted or entered on the record in the place of or in addition to a party yho has died or undergone @ change of status", oe0e/30

Rule 96 which is ever so fanitiar, on its part reads: . “there no provision is expressly made in these wules relating to the Original and Supervisory Jurisdiction of the Supreme Court the practice and procedure for the tine being of the High Court shall apply "mutatis mitandi".

The fact that rule 37 falls under the rubric "Civil Appeals Generally" does not in my opinion, preclute, in any mamer, its application to circumstances other than appeals in the Supreme Court. The rule is quite explicit. It delibrately uses the word "Applicant". It is intended to deal with the kind of situation that has arisen here. :

Having thus held that, it is mile 37 that is applicable, has counsel fulfilled the prescriptions of that rule?

In the present application, Dr. Bu Buakei Jabbi has failed to show any where in his supporting affidavit, as is required by rule 37, that the

Hon-Ibrahim Bashiru Kanu MP is the proper person to be substituted in the Place of the deceased 1st applicant except to describe him vaguely in Paragraph 5 thereof as the_successor in interest to the late HonsKakpindi. Jamiru and filing his consent to so acte The only interes+ it would appear that is common between the proposed 1st applicant and the deceased he seeks to replace is that at one time they were both Mesbers of Parlianent together. This application can be contrasted with that made in the Supreme Court not so long ago in Civil Appeal 1043/87 celal - APPLICANT AUGUSTA KAI MUNA 1 ‘AND | JLA BRODER GRANT | eoee/he

J 246 AND FOR Aas ~ —_ RESPoyDEWrs , There, while the @ppeal was still Pending in the Supreme Court and before the actual Commencenent of the Proceedings, all two respondents ede Dre Ade Remer Thomas, Gowmsel for the relatives of both Pospondents applied to the court by Notice of Motion datea 22/5/99 to have the deceased Tespondents Substituted by their Personal Tepresentatives. The application was brought under rule 37+ The order for Substitution was Granted readily by the Supreme Courts | Unlike what Dr. Bu Buakei Jabbi has doney Dr. Ade Renner Thoms | deposed in very clear language in Paragraph 3 of his affidavit; "3 that the High Court of Sierra Leone (Probate Jurisdiction) granted Probate of the Will of the First respondent herein to Weabah Smith on the ne day of April 1992 and also granted Letters of Administretion.of the estate of the second respondent to Francis Bannerman (alias Adama) on the 26th day of April 1992+ ] Copies of the said Probate and Letters of Administration were also Produced and marked ART1 and ART2 respectively. oe jashiru Kanu 0 act is a naa) ee capacity to contimie with || Rot sufficient to cloth him with the nece af vee a d ist applicante [cw the proceedings begun by the decease . | OE fe gO ty Bye soee/5e

-5- CAL In the cirounstances, I will accontingly refuse the application, and it is so refusede Costs ass, vee essed at Soe to be paid personally ty counsel. | a>. Sa! see Ku No A.Be TIMBO JSCe I agree une Hon.Justice D.E-Pe Luke, CJ- I agree soccccecs WA le Hon.Justice HM.Joko-Smart, JSC I sew ahs gE Benn Hon.Justice S+C.E+ Wame,JSC I seo leptin. Hon.Justice B-C-Thompson-Davis,