Hussein A. Musa v Mohamed A. Musa & Another (SC MISC APP 4 of 2008) [2009] SLSC 11 (22 May 2009)

S.C. MISC. APP, 4/2008 a INTHE SUPREME COURT OF SIERRA LEONE (SUPERVISORY JURISDICTION) IN THE MATTER CF SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE ACT NO.6 OF 1991 IN THE MATTER OF RULE 98 OF THE SUPREME COURT RULES PUBLIC NOTICE. NO.1 OF 1982 AND IN THE MATTER OF ORDER 52 OF THE HIGH COURT RULES CONSTITUTIONAL INSTRUMENT NO.8 OF 2007 AND IN THE MATTER OF AN APPLICATION FOR A JUDICIAL REVIEW FOR AN ORDER OF CERTIORARI TO REMOVE THE SUPREME COURT THE ORDER OF THE HIGH COURT DATED THE 5™ DAY OF NOVEMBER 2008 IN THE MATTER ENTTITLED CC. 745/06 IN NO.33 BETWEEN: 7 HUSSIEN ABESS MUSA (FOR AN ON BEHALF OF THE BENEFICIARY OF THE ESTATE OF MUSA ABESS MUSA) (DECEASED) IN. ESYATE + @LAINTIFFRESPONDENT) AND - (1 DEFENDANT/RESPONDENT) MOHAMED ABESS MUSA ) AND :

q2 |ALIL M. L, KH ‘AKIss > 2%” DEFENDANT/APPLICANT) FOR SAME TO BE QUASHED M:

CORA HON. MS. JUSTICE g, KOROMA Jsc

HON. MRS. JUSTICE V, WRIGHT JSC

HON. MR. JUSTICE M.E, TOLLA THOMPSON JSC

HON. MR. JUSTICE 6.B, SEMEGA-JANNEH JSC

HON. MR. JUSTICE P.O, HAMILTON JSC ND-TEJAN-COLE ESQ. AND E.N.B. NGAKWI ESQ. FOR THE APPLICANT BE. SHEARS MOSES ESQ. AND MS, V. SOLOMON FOR THE 1° RESPONDENT 4B. JENKINS-JOHNSON ESQ. AND L. JENKINS-JOHNSTON ESQ. FOR THE 2° RESPONDENT RULING DELIVERED ON THE 22° DAY OF MAY 2009 SALIMATU KOROMA JSC. My Lords this is an application brought by Hussein Abess Musa (Acting for and on behalf of the beneficiaries of the estate of Musa Abess Moussa (deceased) intestate and seeks amongst other things an order of certiorari to quash the orders of the High Court contained in the ruling dated 5 November 2008 by the Honourable Justice A.B. Halloway J. The facts of the case can be stated briefly: Hussein Abess Moussa died intestate and a Grant of Letters of Administration was made to his eldest son the 1" defendant inthe High Court (hereinafter referred to as the 1" respondent) by the High Court of Sierra Leone in 2005 and thereafter the 1* respondent as administrator of the estate sold property situate at

real sei 45 Signal Hill Road Freetown to Khalil M. Lakiss the 2 “defendant (hereinafter referted to 88 the 2" respondent).

Q3 The applicant (the plaintiff in the High Court) brought an action in the High Court asking for several reliefs including an injunction against the 2" respondent, his servants and agents from erecting a building on the property pending the hearing and determination of the action. The learned Trial Judge Justice A.B. Halloway J. on the ex parte application of the applicant ordered amongst other things on the 22" day of January 2007 as follows: “That an injunction restraining the 2™ defendant/respondent whether by himself his servants, agents, privies howsoever called from continuing the construction of a dwelling house or doing any unlawful act or further interfering with the piece or parcel of land situate lying and being at 45 Signal Hili Road Wilberforce Freetown in the Western Area of the Republic of Sierra Leone is hereby granted pending the hearing and determination of the action herein on terms that the plaintiff/application gives an undertaking 10 pay damages to the said 2 defendant/respondent for any loss sustained by reason of the injunction if it should turn out at the trial that the 2" defendant/respondent ought not to have been restrained aforesaid”. The application pursuant to Order 35 Rule 9 of the High Court Rules, 2007 gave an undertaking dated 28" February 2007 as follows: “1 Hussein Abess Musa of No.4 Siaka Stevens Street Freetown in the Western Area of the Republic of Sierra Leone Plaintiff in this action hereby pursuant to paragraph 1 of the Order of Mr. Justice A.B. Halloway Judge dated Thursday 22 day of February 2007 give an undertaking in damages to indemnify the 2% Defendant wherein should the interlocutory injunction granted on Thursday 22"4 day of February 2007, pending the hearing and determination of this action ought not to have been granted”. Atthe else of the hearing of the action judgment was given against the application and the 2 respondent succeeded in his counter-claim on the 12" June 2008. As a result the court Made the following order:

That the Plaintify's undertaking made on the 28°* February 2007 to pay damages (0 the 2 defendant for any loss sustained by reason of this injunction, it now having turned out that the 2© defendant ought not to have been so restrained, BE ENFORCED, such damages to be assessed ‘by this Court”. The applicant's application for a stay of execution and all subsequent orders of the j " judgment of 12" June 2008 was refused by the Leamed Trial Judge. On the 3" July 2008

the 2" respondent move the Court by an ex parte application for an assessment of damages due on the enforcement of the applicant's undertaking to pay damages dated 28 February 2007. The Court ruled on the 14" July 2008 that the applicant was liable to pay damages to the 2" respondent assessed by the Court at ‘Le592,712,240/00 (Five Hundred and Ninety- Two Million Seven Hundred and Twelve Thousand Two Hundred and Forty Leones). The applicant on the 18" July 2008 applied for a stay of execution of the order of 14” July 2008 which dealt with the assessment of damages, and all subsequent proceedings and for the order to be set aside on the ground of irregularity in that the application was made ex arte, ‘The application was heard by vacation judge Mr. Justice A.S. Fofanah and at the close of the hearing he made the flowing orders:

1. “That the order of the Honourable Justice A.B. Halloway dated 14" day of July 2008 is hereby set aside for irregularity.

2. The assessment of damages in the judgment of 12" June 2008 to be done after the hearing and determination of the appeal in this judgment by the Sierra Leone Court of Appeal” i Ay u . T must point out that the applicant had filed a ae “ ate the 7 June 2008 a i lower an application for st Aeainst the judgment of 12% June. This was followed by an app stay of that proceedings on the 3” July 2008 a day before the Judgment, and a stay of all subsequent f the judgment and all ion of the judgment an tefusal of an application for a stay of execution of the JuSgny all subsequent

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