Hussein A. Musa v Mohamed A .Musa And Another (CIV APP 39 of 2008) [2009] SLCA 29 (29 September 2009)

a aw | y_ APP. 39) : IN THE COURT OF APPEAL oF BETWEEN: ; HUSSEIN ABESS . MUSA PLAINTIFF/APPELLANT AND MO! st HAMED ABESS MUSA- _15™ DEFENDANT/RESPONDENT KHALIL M.LAKISS = - ~——.2"” DEFENDANT/RESPONDENT

Coram

HON. MRS.JUSTICE S. BASH-TAQI - JSC HON. MR.JUSTICE S.A. ADEMOSU : JA | HON. MR. JUSTICE E. ROBERTS - JA

Ruling

This is a motion by Plaintiff/Applicant for an order of stay of execution of all subsequent ’ . yh proceedings of the judgment of the Honourable Mr. Justice A.B. Halloway dated 12° day of June 2008 be granted pending the hearing and determination of an appeal against the same in the Court of Appeal of Sierra Leone. 7 © day of July 'n support of the application is the affidavit of Hussein Abess Musa sworm on ‘i " at . inti’ te ae 2008 attached to it are exhibits HAM1-HAMIS. Mr. Ngakui for the pry ‘0 id — hs 5, 6, 7, 8, 9, 10 ans Court that the special circumstances relied upon are contained in paragrap’ A effect that the 2° '4 of the affidavit. The averments in the aforementioned paragraphs are es 1 of this action to - sh -aciatte DefendanvRespondent was negotiating to lease the property subject = vy the Court. Tha a ni . World Vision but the transaction only stalled by the es refused but the 2” *Policcion agas made for stay of execution of the cee in question by way of sale D . nosing of the ProP'

“fendanv/Respondent was restrained from a it AMI3. It is further averred that the 2° “Mtil the appeal is heard and determined. See exhibit damages. That such assessment ‘ill Defeng, on for assessment 0- "

‘anURespondent has filed a motion 10 pondent has fi 1

ied 10 monetary judgment and that it wil} be very gi ‘ery difficult to pefentant/Respondent the money the deponent would h Fecover from the 2 . lave parted wit uooeed. That if a stay is not granted and third party tight or with should his appeal Or interest though the conduct of the a Defendant/Respondent, it will be unj a vested in the property Unjust for that third tobe affected adversely should the appeal succeed, Mr. Ngaleui’ _ Party interest . . . * Ngakui’s contention is that there is a real probability that the appeal will succeed in the Court of Appeal. He urged the cm . Court it unfettered discretion to grant a stay of execution, The application is opposed by both Defendants/Respondents. The 2™ Defendant/Respondent filed an affidavit in opposition to which he attached several exhibits including the judgment of the lower Court. The two salient averments there are that the Deponent/2™ Defendant/Respondent had calculated the total loss incurred as a result of the injunction granted on the application of the PlaintifffAppellant. He averred that this application for a stay of PI execution is an attempt to deprive him of the use and occupation of the property which the Court has found that he bought lawfully and regularly. The law is well settled that if the application for a stay is opposed, the principle is that the ‘pplication should not be g-anted unless irreparable injury might be done by refusing it Chesler vPowell (1885) J T.LR. 390. lnmy view, this Court should confine itself to the issues properly raised before us ae A Qt ial circumstances have been on the judgment already delivered to determine whether or not specis! CHSTSS” TT ert shown, F is that the subject matter of this action is a property The sum total of acceptable evidence 1 dent was about to lease it Situate at No.45 Signal Hill, Freetown. That the 2*4 Defendant/Respon - ie oes the "9 the World Vision for a few years. The question (0 S| en eds as Mr. ° . if he succes . Plaintier? : ming nugatory if nies ‘Applicant stand the danger of his appeal beco! Ngakui relied on the ruling of this ha has contended? In support of this contention Mr. oie App. 31/81 delivered on 4" fanasaray, Civ. APP* - in the matter of Ibrahim Mansaray v Adama M ted, In that case there was an order y i J oa Nan, aia 1982 where a stay of a ae Conveyance. The Court said in such ate Real Property or an interest thereIn by ould not real refuse stay because the rt shoul F ry, ties appeal has Oe el Se inal determination of the Appeal might have "Y or right thereunder or therein before the © ;

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dS pst toa ponafide purchaser for value who has no notice of the Appeal pending relating 10 gnpropert With respect ‘ the teamed Counsel the facts and ci ofthe coe mes nosed from the ones 1n this application. It has to be borne in mind that the learned trial Judgs ss already indirectly granted a stay by the restraining order that the property should not be gsqosed of. Granting of the lease without more does not, in my opinion amount to alienation of the property. ip my settled view to stop the 2 Defendant/Respondent from leasing the property will cause oth economic and equitable waste att would be tantamount to depriving the 2 Defendent/Respondent of the fruit of his litigation if this Court were to grant the stayed prayed for. We do not have to be reminded that it has never been the practice of Courts to deprive 2 successful litigant of the fruit of his litigation (Monk v Bartram 1891) 1Q.B.346 C.A. The Court will as a rule only grant a stay of execution if there are special circumstances which must be deposed to on affidavit unless the application is made at the hearing. See Halsbury's Laws of England 3 edition. Volume 16 at page 35 paragraph

56. As far as | am concerned the issue about assessment of damages which would become monetary cudgment is not yet before us and so the question of whether or not the Respondents would be in position to repay it if the appeal is successful or what should happen in that case is not before usin ‘he strict sense of it and I so rule. Tems under which a stay is ordered are also jn the discretion of the Court but in regard to >nyment of costs under the judament or order appealed HON» they are usually thatthe costs Be Paid to the Solicitor on the other side on his undertaking to return them if appeal is successful see Swymy v Harland (1894) 19.B. 707 per hopes LJ. at page 709. ig feregoing reasons, I am in full agrees! ve tm ecuti tha: the burden of showing special TT ot The result is that the application is | wleet ann not been discharged by the a“ : ith zosts to the Defendants/Respon lens. Cuela te Ha f= deft mm ge Lelo pd — MLS | 29/4 /oé |

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HON. MR. JUSTICES. A.ADEMOSU AL i i

AGREE HON. MRS.JUSTICES.BASHTAQl «SSC. i | AGREE HON. MR. JUSTICE E. ROBERTS a i

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