International Construction Company v Zakhem International Company (MISC APP 1 of 2014) [2014] SLSC 8 (15 December 2014)

MISC. APP. 1/2014. v IN THE SUPREME COURT OF SIERRA LEONE . ° (SUPERVISORY JURISDICTION) IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE ACT NO.6 OF 1991 rN ‘ IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR CERTIORARI TO SET ASIDE A RULING DELIVERED ON THE 67! DAY OF AUGUST 2014 BY. THE HON. JUSTICE A. SHOWERS J.A. INTHE MATTER ENTITLED _ . “CC.38/14 I. NO8 INTERNATIONAL CONSTRUCTION COMPANY -PLAINTIFF/APPLICANT 68 WILKINSON ROAD FREETOWN . . AND ' ZAKHEM INTERNATIONAL CONSTRUCTION -DEFENDANT/ RESPONDENT COMPANY LTD. *

Coram

The Hon. Mr. Justice V. V. Thomas, JSC. - Presiding The Hon. Mr. Justice P. O. Hamilton, JSC. The Hon. Ms. Justice V. M. Solomon, JA. COUNSEL: A. E. Manly-Spain Esq., and S. Katta Esq., for the Plaintiff/Applicant. J. B. Jenkins-Johnston Esq., for the Defendant/Respondent. RULING DELIVERED ON THE | ¢ DAY OF be cembe, 2014 The Applicant, by Notice of Motion dated 11 August 2014, has applied to this Court in the exercise of its supervisory jurisdiction pursuant to section 125 of the Constitution of Sierra Leone, Act No. 6 of 1991 (the 1991 Constitution) for the following relicfs:-

1. That all proceedings in the High Court matter entitled “CC:38/14 | NOS International Construction Company Ltd. VS Zakhem International Construction . Limited” be stayed pending the hearing and determination of the application ~ herein.

2. That this Honourable Court do issue an Order of Certiorari for the selling aside - of the ruling delivered on the G® day of August, 2014 in the aforementianed High . Court matter on the following grounds:- (a). The said decision contained in the said Ruling was per incuriam in that (i) The judgment in Default of Defence dated 23% May, 2014 that was set 4y aside in the said Ruling was a regular judgment and the Defendant failed to show in his application that he was deprived af an opportunity to put forward 4 defence on the merits as no such defence was exhibited in the said application. (ii) There*is no rule of law which stipulates that a money judgment must first be served on the Judgment Debtor before the Judgement/Creditor can apply for a garnishee Order Nisi to enforce the said Judgement (iii) The Learned Justice having cited in her Ruling the correct principle to be applied in setting aside a Judgement in Default to wit, “the primary consideration in exercising the discretion is whether the Defendant has merits towwhich the court should pay heed, not as a rule but as a matter of common Sense, since there is no point in setting aside a judgement if the Defendant has no defence” failed to apply the same in reaching a decision in the application before her where the Applicant failed to show that it had a defence on the merits. (b). That one of the Orders contained in the said Ruling was made in excess of the jurisdiction of the Honourable Justice who delivered the same in that the Learned Justice was wrong in law and exceeded her jurisdiction when she ordered that the Notice of Motion dated 21% March, 2014 which had been struck out by a court of competent jurisdiction for want of Prosecution should be re-listed by the Applicant within a time limited by the Court because purportedly the application which was struck out raised the issue of the jurisdiction of the court hearing the matter y . Section 125 of the 1991 Constitution under which the application is made to this Caurt is in the fallowing terms - ‘ on

*2b i) “The Supreme court shall have supervisory jurisdiction over all other Courts in 7 Sierra Leone and over any adjudicating authority; and in exercise of its . supervisory, jurisdiction shall have power to issue such directions, orders or writs including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or 4 securing the enforcement of its supervisory powers.” The Court has been asked to exercise its constitutional jurisdiction or duty to supervise all other courts in the country, (which obviously inchides the High Court) | and to issue an order of certiorari setting aside the Ruling of the High Court | delivered by the Honourable Mrs. Justice A Showers J.A., {sitting as a High Court Judge) on the 6 August 2014. The Ruling and consequential orders which she made together with the drawn-up Order of the Court are exhibited as Exhibits B & C to the affidavit’in support of the Motion sworn to on the 11% August 2014, In that affidavit, paragraphs 5 to § inclusive summarise the basis or reasons for the application filed by the Applicant for an order of certiorari to set aside the said

Ruling

These paragraphs are as follows: “5. That the application for the issue of a writ of certiorari is being made as I verily believe that the said Justice Showers acted in excess of the jurisdiction of the High Court.

6. That the’ learned Judge ought not to have set aside the said judgment in default in the absence of an affidavit showing a defence on the merits having heid in her ruling as follows, “it is indeed settled law that if a judgment is regular, then it-is an almost inflexible rule that there must be an affidavit stating facts showing a defence on the merits”.

7. That the Learned Judge ought not to have ordered that “The Defendant/ Respondent is to file a fresh notice of motion seeking the reliefs sct out in the rlotice of motion dated 21s" March 2014 within 7 days of the date hereof” after having found that the notice of motion dated 21" March 2014 was , indeed struck out and not dismissed as alleged by the Defendant/ Respondent : or at all having held that the Plaintiff/ Applicant Solicitor has, “correctly submitted i, was for the Defendant to file a fresh, notice of motion”

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8. That the'Learned Judge's discretimony (discretionary) Powers do not extend . to the setting aside of a regular judgment in the absence of an affidavit exhibiting a defence or even a proposed defence on the merits.”

1. The first issue for determination is whether this Court has jurisdiction to issue an order of certiorari setting aside the Ruling and one of the orders of the High Court as requested by the Applicant. J. B. Jenkins-Johnston Esq., Counsel for the Respondent has strenuously argued (relying on English authorities) both orally before the Court and in his written submissions, that certiorari cannot issue “to the High Court which is part of the Superior Court

: of Judicature, and a Superior Court of Record itself”, After Counsel was informed of several authorities of this Court within this jurisdiction that his position was not the law in this country, he virtually abandoned that position, On a subsequent occasion, Counsel himself referred the Court to the case of Governor Bank of Sierra Leone_vy The Court of Appeal of Sierra Leone and Others (Unreported) S.C, No.3/2007 (Ruling delivered on 11" July 2008) This decision of the Supreme Court was consequent on the Bank’s dissatisfaction with the judgment of the Court of Appeal. That Court had affirmed the decision of the High Court in winding-up proceedings which was challenged on the ground that High Court had no jurisdiction to make the order of the 4% July 2005. The reliefs prayed for in the Originating Motion were under’ Section 125 of the 1991 Constitution and was essentially for an order of certiorari to quash one of the orders of the Court of Appeal on the ground that the Court did not have jurisdiction to make the particular order for the payment of US$11,304,899.79. The decision of the Court of Appeal was sct aside pursuant to the supervisory powers of the Supreme Court

conferred by Section 125 of the 1991 Constitution. In the earlier case of Alhaji Abdulai Bangura v ‘the Court of Appeal of Sierra r Leone_and_ Others (Unreported) S.C. No.4/2006 (Ruling delivered on 23"

: November 2006) the Applicant had applicd by Notice of Motion for an order of

certiorari pursuant to section 125 of the 1991 Constitution to remove to the

. 27 Le , Supreme Court the Order of the Court of Appeal for the same to be quashed. 4, Counsel for one of the Respondents in that case had argued by way of a . preliminary objection that the Court of Appeal is a superior court and not subject to an order of certiorari. In the Ruling by the full Court rejecting the preliminary objection that the Supreme Court does not have supervisory ‘a jurisdiction over the Court of Appeal, the Court ruled that Section 125 of the 1991 Constitution provides a further jurisdiction for the Court to supervise all other courts in the country. Warne JSC said, “The Supreme Court has supervisory jurisdiction over the Court of Appeal. . Section 125 ts clear and unequivocal. The fact that the matter is appealable does not detract from the powers conferred on the Court.” My understanding of what the Learned Justice was saying is that the appeal machinery open to litigants is separate and distinct from the supervisory Jurisdiction of the court. An occasion when this Court exercised its supervisory jurisdiction pursuant to Section 125 of the 1991 Constitution and quashed a ruling of the High Court {Hon Mr, Justice A. B. Halloway, presiding) and set aside an order of another High Court judge in the same case is Hussein Abess Musa _v. Mohamed Abess Musa & Anor, (Unreported) S.C. Misc. App.4/2008 (Ruling delivered on 22"! May

The position in this Court is no different from that in Ghana. The supervisory jurisdiction of the Supreme Court of Ghana as provided for in the section 132 of the 1992 Constitution of the Republic of Ghana provides as follows: “132. The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.” owas held by the Ghana Supreme Court relying finter alia) on the above provision in Une exercise of its supervisory jurisdiction in the case of British , Airways & Anor. v Attorney-General [1996-97] SCGLR 547 that the Court’s : supervisory jurisdiction ought to be exercised in appropriate and deserving cases in the interest-of justice. The court ardered a circuit trial tribunal (a superior

: court headed by a chairman of the rank of a High Court judge) sitting in Acera to ) discontinue the trial of the plaintiffs and struck out the case before the tribunal . because it had no jurisdiction to try the case as there was no written law defining the offence charged or providing punishment for the same

. In view of the clear constitutional provision in Section 125 of the 1991 Constitution and the previous decisions of the Court, | opine that this Court has a constitutional duty to supervise all courts and adjudicating authorities in Sierra Leone and consequently, I hold that this court has supervisory jurisdiction to hear the application filed by the Applicant

2. The next question for determination is whether the Applicant has made out a case for thé Court to exercise its supervisory jurisdiction and set aside the said Ruling and Order of the learned justice sitting as a High Court judge. The first ground upon which the application is made is that the decision of the learned justice was made per incuriam. The particulars for this ground of complaint are as stated supra. Although neither Counsel for the Applicant nor that for, the Respondent referred to this ground in their argurnents and submissions before the Court, it is necessary to deal with this ground for the sake of completeness as it is stated in the motion filed. The expression “per incuriam” micans “through want of care”. A decision or dictum of a judge which clearly is the result of some oversight is said to have been given per incuriam. Vide Dictionary of English Law, Vol. 2 (1959 edition}. In Black's Dictionary (de luxe edition) at page 1254, the learned authors quoting Cross and Harris in Precedent in English Law state as follows: “As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding 6n the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily ; exhaustive, but cases not strictly within it which can properly be held to : have been decided per incuriam, must in our judgment, consistently with

the stare decisis rule which is an essential part of our law, be of the rarest ¥ occurrence”, [Cis trite law that an order of certiorari is a discretionary remedy that is granted to applicants only in appropriate cases as the normal and usual avenue for % redressing complaints by litigants who are not satisfied with decisions of adjudicating authorities, including the High Court and the Court of Appeal, is by way of appeal to the next higher level. In my judgment, certiorari is reserved for cases where there are clear errors of law on the face of the ruling of the court or an error which amounts to lack of jurisdiction in the court so as to make the decision a nullity. In the Ghana Court of Appeal case of Republic vy. Accra Circuit Court ex parte Appiah [1982-83] GLR 129 at 143, C.A,, Francois JA stated a useful guide for all common law jurisdictions in this area of the Law when he said: * “A court of competent jurisdiction may decide questions before it rightly or wrongly. Procedures for correcting wrong decisions exist. The procedure for appeal is one such avenue for redress. But the remedies of appeal And certiorari are different and must not be blurred. That certiorari and appeals . are not alternative remedies but are mutually exclusive is stated in Obeng v. Ampofo (1958) C.A.” In Republic v. ‘High Court, Accra ex parte Industrialization fund for Developing Countries & Anor. [2003-2004] SCGLR 348, a case in which the Supreme Court of Ghana exercised its supervisory jurisdiction over all courts in Ghana and dismissed an ‘application for an order of certiorari, Bamford-Addo JSC in delivering the leading judgment of the Court said; “When the High Court, a Superior Court, is acting within its jurisdiction, its erroneous decision is normally corrected on appeal whether the error is one of fact or law.” In my judgment, an order of certiorari pursuant to section 125 of the 1991 Constitution is’not the appropriate renicdy to correct judgments or rulings made per incuriam, assuming one can establish that they were so made. a

What were the crrors of law on the face of the record identified to the Court in 4 the said Ruling of the learned justice which are the basis for this application? ~ As mentioned in the motion paper and supporting affidavit, they are as follows:

1. That the decision in the Ruling was made per incuriam in that it set aside a . regular judgment on the ground that the Defendant (Respondent herein) . failed to show that it was deprived of an opportunity to put forward a defence on the merits. Further, that the learned justice failed to apply the primary consideration for a judge in an application to set aside a regular judgment which has been awarded in default of defence.

2. In the 3'¢ order prayed for, the complaint is that the Ruling and Order of the Court was made in excess of jurisdiction when the Court granted the order to file a fresh notice of motion seeking the reliefs in an earlier motion filed by the Respondent herein, within 7 days of the Ruling af the learned justice. The reason given for this contention is to be found in paragraph 7 of the Affidavit in support of the application quoted supra. Paragraph 8 of the said Affidavit contends that the learned justice’s discretionary powers do not allow her to set aside a regular judgment “in the absence of an affidavit exhibiting a defence or even a purported defence on the merits.” In oral arguments before the Court, Counsel for the Applicant submitted that the application was made bona fide and not merely to hold on to the Respondent's monies which had been withdrawn from its bank account by way of garnishee proceedings following the order to set aside the default judgment in the Ruling of the jearned justice. Counsel stressed that the default judgment of the 23 May 2014 should not have been set aside because the explanation proffered by the Defendant as to how the default occurred was inadequate and the effect of granting the application to set aside the default judgment was to strike out the earlier order of Kamara J dated the 13" May 2014 which struck out the Respondent’s applicatian, He finally submitted that in doing so, the learned justice was “judging Kamara J” . 1 Counsel for'the Respondent submitted that the application is unmeritorious and ought to be dismissed with costs. He argued that the orders made by the . learned justice in setting aside the default judgment were clearly within her jurisdiction relying on Order 22 rule 1) of the High Court Rules, 2007 and