Ibrahim Kamara v Mrs Seray J. Kandeh (CIV APP 63 of 2005) [2008] SLCA 60 (14 October 2008)

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CIV, APP. 63/2005 . IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN:- (AN INFANT) IBRAHIM KAMARA - APPELLANT (By Alpha Bundu) His Guardian Ad. Litem AND MRS. SERAY JABBIE KAMDEH - RESPONDENT CORAM.- : | HON.MISS JUSTICE S.KOROMA JA HON. MR JUSTICE E.E ROBERTS -1A HON.MR JUSTICE .S.AADEMOSU ——-J.A. ADPMOSU J.A. Tadgmexk deli vored a (ctober 2008

Background

By a Writ of Summons dated the 28" July, 2003 the plaintit¥ claimed against the defendant the following reliefs 1 Declaration that she is the Owner and/or person entitled to a possession of a piece or parcel of land situate at 96 Blackhall Road Kissy 2 Damages for trespass ‘ 3 Possession of the said land } 4 An injunction restraining the defendant from interfering with the said land

5. An Order setting aside the conveyance

6. Costs By a Notice of Motion dated 1" September, 2003 the plaintiff applied for an order for substituted service of the Writ on the defendant. An Order for substituted service was made on 16" September, 2003. ‘The action proceeded to trial on the | 1" February, 2004 with the defendant being absent and unrepresented. Judgment in default of appearance was entered in favour of the plaintiff on 1" October, 2004.

Ist Co ppeteyrn he Tha plaintiff/proceeded to enforce the judgment by applying for leave to issue a writ of possession which was granted on the 24" February, 2005 On the 19" of April, 2005 #8 conditional appearance was entered on behalf of the defendant by Messrs Serry-Kamal & Co and also filed consent by one Alpha Bundu to act as Guardian ad litem for the defendant. By a Notice of Motion dated 19" April, 2005 the defendant applied to set aside the judgment in default oftl" October, 2004 and all subsequent proceedings on the grounds of irregularity. Mr. Shears-Moses applied to cross-examine Alpha Bundu on his affidavit and did cross-examine him but not without any objection being raised by AF Serry-Kamal Esq. This despite the fact that Mr. Serry-Kamal’s submission that the defendant was a minor and even that there were triable issues and that the | defendant had a defence, the learned tril judge upheld Mr. Shears-Moses submission and entered judgment in favour of the plaintiff. The Ruling was in these terms. | “" Having entertained all these submissions and or | arguments on both sides of this motion. The court is still | not satisfied thatthe said Ibrahim Kamara whose address is | at No.1], Leicester Road, Freetown is the same person now | held to be at 71, Leicester Road a minor. More is desired than what has been said in these arguments. How come that Ibrahim Kamara-now held to be @ minor entered the legal transaction held in Exhibit "AB2" isthe same person who executed the conveyance as portrayed in Exhibit ABI" { In Exhibit "AB3" a plan was attached not to an empty vacant land ie. without structure? Not don’t think so” lam not satisfied that the deponent has been fair and helpful to the court in this matter. Unless and until the | person holding himself out as Ibrahim Kamara is clarified | as the Defendant in this Motion, the motion must fail” | Being dissatisfied with the ruling of the court the Grrer grounds of appeal were fled on behalf of the defendant/appellant. The ounds are as follows.

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' ™ learned trial judge failed to consider that it has an unfettered discretion to set aside a judgment in default where the defendant shows that he has a defence on the merits.

2. The decision is against the weight of the evidence 3. a3 learned trial judge erred in law when she went into matters not yet 2 _Safee'To her for decision. *

4. The learned trial judge considered extraneous matters which were not within the province of the matters before her for a decision Jenkins-Johnston Esq., for the Appellant informed the court that he was relying substantially on the synopsis he had already filed but drew-oxt a" attention to the important point that this matter on appeal was a default judgment and that the judgment had been taken against an infant even though no Guardian ad.litem was appointed or joined.Mr. Jenkins- Johnston’s contention is that such irregularity is very crucial.

Having perused the record I agree that there wa Birth Certificate and affidavit evidence before the court showing the circumstances surrounding the purchase of the property in question in the name of an infant, The law is not in doubt that ifjudgment by default is signed against an infant without knowledge of infandfthe court will setgit aside whether the past the disability or not (Leaver . Torres(1899) 43 S.J 778 but it is noted that such irregularity may be waived. _

Mr, Shears-Moses’ strong point which he emphasized is that the irregularity must be proved and perhaps be investigated as he apneared to have led the trial judge 1° do, Inmy considered opinion; the discretionary power to set aside @ default judgment which has been entered regularly : unconditional and the court should not lay down “gid rules that my Feu It in depriving it of jurisdiction The primary consideration 7 nea discretion is whether the defendant shows that there is an issue to be trie on the meri d clearly demonstrates that the court was In the court below the revo"

ii ons given for the defence and went on to engaged in scrutizing the reas gi

oe Recut, ofa Deponent onthe affidavit ied ntitled to take into the account the explanation of the defendant as to how the default occurred (Alphine Bulk Transport Co Inc.v.Saudi Eagle (1986) 2 Lloyds Report 221 at

223. C.A.). With due respect to the learned trial judge she had no duty or right to decide on the objection without allowing the defendant’s side to say what they want to say to the action. I hold firmly to the view that regardless of the reason given for disputing the claim the learned trial judge’s duty was to hear the suit and not to question the validity of the reasons given for defending. There is established by a long line of decisions of which the correctness has so far as I know, never been seriously challenged among them is Evans V. Barthlam (1937) 2 ALL E.R.

646. I note that Mr. Shears-Moses placed great reliance on Kabia v. Conteh (1964-66) AL.R.S.L.354 but that authority says that a judgment in default may be set aside without affidavit showing defence on the merits if to obviate clear injustice. In Grimshaw v Dunbar(1953) 1.Q B.408 at P.416 Jenkins L.J. said that the court should seldom, if ever, refuse to set aside a judgment merely on the ground that the defendant’s case appears to be a weak one. BK vehat ay ‘The practice of the court is generally to grant rather arefusatof application to set aside a default judgment. This is clearly illustrated in Berthan Macaulay v. Diamantopoulos (1962) 2 S.L.L.R 14 where it was held that even though the defendant treated the court with contempt by not appearing to the writ even when the plaintiff wrote to tell him that he would sign judgment within @ certain time yet the court held that yet this is not necessarily good ground for refusing to set aside the judgment if there ig disclosed a defence on the merits and the circumstances warrant it Tam satisfied that sufficient issues have been raised to take this matter to Inthis an the learned trial judge has given the reasons which will enable this court to know the considerations which have weighed with her.

re ~~ —— a lbo The question is in what the circumstances in-wehich the Court of Appeal can interfere with the discretion of the judge? In Ward v. James (1966) 1 QB. 293 at 294 (1965) 1 ALL E.R. $70 at $71. It has since be settled that the court can, and will interfere, if satisfied that the judge was wrong. 1 am satisfied that these proceedings are ill-advised. I am of the opinion that justice would be done if the action went on trial. I am unable to say for reasons already stated, that the judgment in this case should stand as it is. The result is that the appeal is upheld. The judgment dated the 17" day of October, 2005 is hereby set aside. I order that the matter should go for trial = Cyst vp Le Zod & 1 Byler. ASE (Sgd) Hon Mr.Justice S.A. Ademosu-J I agree ELA hm Miss Justice S. Koroma -J.A A Dia/t ~ ccsseeHon. Mr. Justice EE. Roberts-J. A. Lagree neepreiatanaseed N