Ibrahim A.H Basma v Adnan Youseff Wanza & Ors (CIV APP 4 of 2007) [2007] SLSC 4 (13 June 2007)

y The TITLE on the Interlocutory application is: CIV.APP. 5/2005 IN THE SUPREME COURT OF SIERRA LEONE

BETWEEN: EVELYN AYO PRATT (ADMINISTRATRIX OF THE ESTATE OF BETSYROGERS PARKINSON (DECEASED) - APPLCIANT AND JACQUILINE CAREW & ORS. - RESPODNENTS Hl ' AND ISHEKA DEEN SESAY - INTERVENER There has been no application for a substitution of parties pursuant to Rule 37 Rules of the Supreme Court No.1 of 1982 neither does the affidavit of Elizabeth Parkinson sworn to on 30" day of March 2006 aver that she had authority to y Ayan bes } swear to the affidavit on behalf of 'déverat persons named therein nor exhibited : S the death certificate of the parties who had died. To coinpound the efect in the application, ere is no Letters of vedi teed Wed flene bel Foods etre ae | Adminiscrtion established-as being.the Administrtrix of the estate of Betsy Rogers ! Parkinson, in my opinion, there is no merit in the application and it must needs * = 7 jet ' . H dismissed and 1 dismiss it with costs assessed at de Be, eae be pee Pe cn apilecw nl Li Lite om [Sor earns [PCO Mpe le 4 _- 1 ! oo 7 ays eter ALENT f \ f fs: gee SN y ~ Lhy ie MS eke Bou h, as 4 4 rani (Gon. ces une ) q ad ‘NS. Neti a Sg Shh ee

: (by Civ. App. 4/2009 7 IN THE SUPREME COURT OF SIERRA LEONE BETWEEN:

IBRAHIM A.H, BASMA - APPLICANT

AND ADNAN YOUSSEF WANZA - RESPONDENT,

‘ AND

BASSAM IBRAHIM BASMA . APPLICANT AND

ADNAN YOUSSEF WANZA - RESPONDEN

Coram

HON, MR. JUSTICE M.E.TOLLA THOMPSON, JSC(PRESIDING) HON. MR. JUSTICE G. SEMEGA-JANNEH, JSC. HON. MR. JUSTICE N.C. BROWNE-MARKE, JA.

Mr. S, Sesay for the Applicant Mr. Yada H. Williams and Mr. O, Jalloh for the Respondent

Ruling

HON. MR. JUSTICE M.E. TOLLA-THOMPSON JISC, My Lords the applicant by motion applies for the following Orders:

1, Leave to deposit title deeds Pursuant to the Orders of the Court of Appeal dated 7th March 2008 and an extension of time within which to deposit same.

2. Applicant be allowed to file certified true Copies thereof and in the alternative.

3. That this court grants a stay of execution of the Court of Appeal Judgment dated the 7th day of March 2008 and all subsequent Proceedings thereto pending the hearing and determination of the appellant appeal to the Supreme Court,

. 4, Such further or other Order as the Court shall deem fit,

The application for the above orders is supported by the affidavit of Bassam {brahim Basma:- the application sworn to on the 27th October 2008 w ith several Exhibits annexed.

Background

A short history of this case as far as it is relevant to this application is that on the 24th May 2007 the Court of Appeal gave judgment for the respondent and sometime thereafler the appellant moved the Court of Appea! for a stay of execution of the judgment. The stay of execution was granted in the fllowing terms: “The stay of execution of the judgment of the Court of Appeal dated 24th May 2007 is granted. It is further ordered that: because of the special circumstances of this matter the applicanyresponcent deposit the title Deeds to the properties listed in the ffidavit of ‘brahim Abdul Hussen Basma sworn to on 21st June 2007 to the Registrar of the Court of Appeal until final determination of the appeal. The title deed to be deposited within 30 days of this Order,” fis the non compliance of the above order which has precipitated this application to this Court.

The Argument

When the motion came up for hearing Mr. Williams learned counsel for the respondent raised the issue of the courts jurisdiction to entertain the Motion in view of rule 60(2) of the Supreme Court Rules. We overruled his objection ind allowed learned counsel for the applicant Mr. Sesay to move his Motion. In moving the motion Mr. Sesay referred us to the affidavit in support of the motion and the various exhibits annexed thereto and submitted that he refied on the affidavits in its entirety.

.0e

He also referred us to rule 34 of the Supreme Court Rules and submitted that he is invoking the said rule to support his application. He urged the court to grant . the application, and submitted that if the application is not granted, it will render the appeal which is now before the Supreme Court nugatory. It will be of tite value. Mr. Williams in reply said that he does not wish to go into the merit of the application, but to repeat and rely on his earlier submission, that the court lacks jurisdiction to entertain the application, he said that there is no basis in law for the application. An application for stay can only be made pursuant to rule 60(2) of the Supreme Court Rules.

Continuing he submitted that it is quite clear that a stay of execution was granted by the Court of Appeal and therelore an application for a stay in the Supreme Court can only be made, afier a refusal by the Court of Appual. Therefore he argued the court is not competent to grant the application. Ir support of this submission, he cites the Supreme Court case Aiah Momoh y Sahr Samuel Nyandemore Civ.App.6/2006 unreported: in particular the dictum of Rhodes Vivour JSC.

Also submitted that the court is not competent to grant the Ist and 2nd

Orders

Finally he said if there is a failure to comply with the terms of the stay the applicants should apply to the Court of Appeal. oe

Presumably the lack of jurisdiction raised here by Mr. Williams relates to the absence, of the practice and procedure adopted by the applicant, and not one which relates to the status of the application. In order words this court has no power to grant the orders prayed for, because the applicaat has not followed the practice and

procedure laid down by the rules, to bring such a matter before the Supreme Court.

Mr. Williams refers to rule 60(2) of the Supreme Court Rules r.60 (2) states: subject to the provision of these Rules and * to any other enactment governing the

same an application for stay of execution

. or proceedings shall first be made to the Court of Appeal and if hat court refuses to grant the application the applicant shall be entitled to renew the application to the Supreme Court for determination

This rule is identical to rule 64 of the Court of Appeal rules which is also a procedural rule.

Procedural Rule

The Court of Appeal granted a stay of execution of the judgment on terms, which, obviously the applicant was unable to fulfill and misguidedly came to this court asking for a variation of the terms of the stay or a stay of execution of the judgment by this court; presumably with modify condition

It is the usual practice that in seeking a variation of any order, the application must first be made to the court which granted the original order, in this instant the Court of Appeal, if the application fails, then to a higher court Supreme Court.

In the case of an application for a stay of execution of a judgment, in the Supreme Court, such application is made pursuant to rule 60 (2) of the Supreme Court Rules, supra. It is a procedural rule which illustrates the manner in which proceedings for a stay of execution of a judgment under the rule should be conducted. Thus the applicant must first apply to the Court of Appeal and if refused the applicant “s/al/ be entitled to renew the application™ wo this court

When I perused the application, my initial thought was that the applicant is

desperate, and eager to {ulfill the condition of the stay, not because he was keen to . prosecute the appeal but merely to forestall the writ of fifa and prevent the sale of

the applicant’s property

JURISDICTION

Mr. Williams sole ground of objection to the application ts the courts lack of

jurisdiction to entertain the application, and if the objection is upheld it is enough

tu put an end to the application.

Tagree with Mr. Williams, this court cannot entertain this application as itis. However this is not always the case. There is a settled principle of law that a court ought not to decline jurisdiction if it can assume discretionary powers which will not umount to a violation or usurpation of the courts jurisdiction. Such power is usually described as an adjunct or incidental to the courts jurisdiction under which it operates. | am persuaded by the above principle, and it is wortii considering in this application.

During the argument and submission certain issues emerged which though unconnected with the application proper, are germane and incidental to it, which, in iy considered opinion, this court ought to deal with under its diseretionary powers.

It is a known fact that the substantive appeal is before the Supreme Court. Indeed the Supreme Court, sometime ago granted an order for substitution of the deceased appellant by the applicant herein.

Again, it is well known that there are legal moves by the respondent for the

. sale of the properties of the applicant to satisfy the judgment debt. lt is my view that any sale of the properties, when the Supreme Court is already svised of the appeal will destroy the substratum of the appeal and render it nugatory

Therefore, in my judgment, I shall rely on the principle that “chere must be an end to litigation” coupled with the axiom that “procedural rules are intended to serve , as hand maiden of justice and not to defeat it,” and invoke the court's discretionary power to waive the strict application of the rules, in order to ensure that the parties herein have a fair opportunity to argue their respective case in the Supreme Court.

Conclusion

In all the circumstances I think this is a case in which the respondent can be adequately compensated with cost, for the tardiness on the part of the applicant. Accordingly I order that the appeal in the Supreme Court be heard, within 4 weeks from today 11/12/08, In the meantime the sale of the applicant’s property by both parties is put on hold, subject to further orders of the court. T assess cost at to the respondent. VAR Wage Hon, Justice ME, Tolla Thompson, ISC. (Presiding) 4 Sent pereteretee Biter eseeeseeeiesceceritearseseesdd AQFEE Hon. Justicd G. Semega-Janneh, JSC ce Ihe, agree Hon. Justice N. C. Browne-Marke, J.A. CERTIFIED TRUE Cor oy Zhe Se (Supxeme cour)