International Construction Company v Zakhem International Construction Company Limited (MISC APP 1 of 2014) [2014] SLSC 12 (15 December 2014)

Cbt MISC. APP, 1/2014 ta IN THE SUPREME COURT OF SIERRA LEONE: (SUPERVISORY JURISDICTION, INTHE MATTER OF AN APPLICATION PURSUANT TO SECTION 125 OF THE . CONSTITUTION OF SIERRA LEONE ACT NO.6 OF 1991 IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR CERTIORARI TO, SET ASIDE A RULING DELIVERED ON THE 6" DAY OF AUGUST 2014 BY. THE HON. JUSTICE A. SHOWERS J.A. IN THE MATTER ENTITLED : *CC.38/14

1. 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. Kata Esq., for the Plaintiff/Applicant. J.B, Jenkins-Johnston Esq, for the Defendant/Respondent. RULING DELIVERED on THE 1C* pay orherembex 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 reliefs:- 1, That all proceedings in the High Court matter entitled “CC:38/14 1 NOB International Construction Company Ltd. VS Zakhem International Construction a 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 setting aside + of the ruling delivered on the 6" day of August, 2014 in the aforementioned High Court matter on the following grounds (a). The said decision contained in the said Ruling was per incuriam in that . () The judgment in Default of Defence dated 23% May, 2014 that was set * aside in the said Ruling was a regular judgment and the Defendant failed to show in his application that he was deprived of an opportunity to put forward q defence on the merits as no such defence was exhibited in the said application. (i) There'is no rule of law which stipulates that a money judgment must first be sérved on the Judgment Debtor before the Judgement/Creditor can apply for @ 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 to-which 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. (0). 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. x . Section 125 of the 1991 Constitution under which the application is made to this Court is in the following terms:

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F2bq The Supreme court shall have supervisory jurisdiction over all other Courts in o 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 4 prohibition us it may consider appropriate for the purposes of enforcing or securing thé enforcement ofits supervisory powers.” The Court has been asked to exercise its constitutional jurisdiction or duty to supervise all other courts in the country, (which obviously includes 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 6M 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 8 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 held 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 set out in the riotice of motion dated 21% 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 it, was Jor the Defendant to file a fresh, notice of motion”: . a 3 a

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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.”

Issues

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 county, he virtually abandoned that position. On a subsequent occasion, Counsel himself referred the Court to the case of Governor Bank of Sierra Leone v The Court of Appeal of Sierra Leone and Others (Unreported) 8.C. No.3/2007 (Ruling delivered on 11" July 2008). This decision of the Supreme Court was consequent on the Rank’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 14% 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 set 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 nad Leone _and Others (Unreported) S.C. No.4/2006 (Ruling delivered on 23"! . November 2006) the Applicant had applied by Notice of Motion for an order of certiorari pursuant to section 125 of the 1991 Constitution to remove to the

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