International Construction Company v Zakhem International Construction (MISC APP 1 of 2014) [2014] SLSC 7 (15 December 2014)

MI SC APP 1/2014. IN TH E SUPREME COURT OF SIERRA LEONE • (SUPERVISORY JURISDICTION! IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 125 OF THE CONSTITUTION OF SIERRA LEONE ACT N O .6 OF 1991' IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR CERTIORARI TO SET ASIDE A RULING DELIVERED ON TH E 6th DAY OF AUGUST 2 0 14 BY THE HON. JUSTICE A. SHOWERS J.A. IN THE MATTER ENTITLED • - “CC.38/14 I. NOS 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. M anly-Spain Esq., and S. Katta Esq., for the Plaintiff/Applicant. J B. Jenkins-Johnston Esq., for the Defendant/Respondent. RULING DELIVERED ON THE t DAY O F )W e > ~ < W 2014

The Applicant, by Notice of Motion dated 11 August 2014, has applied to this Court in thr exercise of its supervisory jurisdiction pursuant to section 125 of the Constitution of Sierra Leone, Act No. 6 of 1991 (the 1991 Constitution) for :he following reliefs:- ■

1. That all proceedings in the High Court matter entitled “CC:38/14 I NO.8 International Construction Company Ltd. VS Zakhcm International Construction • t Limited” be stayed pending the hearing and determination of the application

herein.

* • * * . . ‘ I , •

2. That this Honourable Court do issue an Order of Certiorari for the setting aside of the ruling delivered on the 6th 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: (i) The judgment in Default of Defence dated 23rd 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 tc put forward a 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 irst be served on the -Judgment Debtor before the Judgement/Creditor can apply for a garnishee Order Nisi to enforce the said Judgement. • ' - • i _ . u . . . . (iii) The Learned Justice having cited in her Ruling the correct principle to oe applied in setting aside a Judgement in Default to wit, “the primary consideration in exercising the discretion s 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 f 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 thalt the Notice of Motion dated 21s t March, 2014 which had been struck out hy a court of competent jurisdiction for want of Prosecu tion 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. Section 125 of the 1991 Constitution under which the application is made to this Court is in the following terms: ‘ , , . t - . • . ' ■ -

"The Supreme covri shall have supervisory jurisdiction over all other Courts in% ' . ■ 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 o f habeas corpus, orders o f certiorari, mandamus and prohibition as it may consider appropriate fo r the purposes o f enforcing or securing thd enforcement o f 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 includes the High Court). and to issue an order of certiorari setting aside the Ruling of he High Court delivered by the Honourable Mrs. Justice A Showers J.A.., (sitting as a High Court Judge) on the 6th - 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 11th August 2014. In that affidavit, paragraphs 5 to 3 inclusive summarise the basis or reasons for the application filed by the Applicant for an order of certiorari to set aside the said■ V

Ruling

These paragraphs are as follows: "5. That the, application fo r the issue o f a writ o f certiorari s being made as I verily believe that the said Justice Shoivers acted in excess o f 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 o f 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 ah 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 afresh notice o f motion seeking the reliefs set out in the notice o f motion dated 21st March 2014 within 7 days o f the date hereof' after having found that the notice o f motion dated 21s t 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 fo r the Defendant to file a fresh, notice o f motion”.

8. That the Learned Judge’s discretimony (discretionary) Powers do not extend to the setting aside o f a regular judgment in the absence o f 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 C6urt as requested by the Applicant. J, B. Jenkins-Jobnston Esq., Counsel r or the Respondent has strenuously argued (relying on English ■ t . . 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 o f Governor Bank of Sierra Leone v The Court of Appeal of Sierra Leone and Others (Unreported) S.C. No.3/2007 (Ruling delivered on 11th July • i ■ 2008). This decision of the Supreme Court was consequent on the Bank’s dissatisfaction with ^he 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 14th jy ly 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 I 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 Leone and Others (Unreported) S,C. No.4/2006 (Ruling delivered on 23r c i November 2006) the Applicant had applied by Notice of Motion for an order of certiorari pursuant to section 125 of the 1991 Constitution t< remove to the

Supreme Coui"t the Order ol the Court of Appeal for the same to be quashed. 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 un order of certiorari. In the Ruling, by the full Court rejecting the preliminary objection that the Supreme Court does not have supervisory 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 . i . other courts in the country. Warne JSC said, • "2 he Supreme Court has supervisory jurisdiction Over the Court o f Appeal. Section 125 is clear and unequivocal. The fact that ihe matter is appealable does hot 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 T . ’ . . 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 ol 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 22n d 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 cowls and over any ddjudicating authority and may, in exercise of that supervisory jurisdiction, issue orders and directions fo r the purpose o f enforcing or securing f , ■ • . the enforcement of its supervisory power ” It was held by the Ghana Supreme Court relying (inter alia) on the above provision in the exercise of its supervisory jurisdiction in the case of British Airways & Anpr. y Attorney-General [1996-97] SCGLR 547 that the Court's supervisory jurisdiction ought to be exercised i appropriate and deserving cases ‘ in the interest' of justice. The court ordered a circuit trial tribunal fa superior

; U ck; court headed by a chairman of the rank of a High Court judge) sitting in Accra 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, I opine thaL 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 thd Court to exercise its supervisory jurisdiction and set aside the said Ruling ana Order of the learned justice sitting as a High Court judge, The first ground upon which the application -s made is that the decision oi 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 arguments and submissions before +he 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” irieans “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, l/ide 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 ih 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 on 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' t . have bee,n decided per incuriam, must in our judgment, consistently With

. «iS . the stare decisis rule which is an essential part of our law, be of the rarest occurrence”. It is 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 corhplaints by litigants who are not satisfied v s th 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 v. 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 rigntly 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 arc mutually exclusive is stated in Obeng v. Ampofo (1958) C.A.” In Republic v. J High Court. Accra ex parte Industrialization fund for Developing Countries.ft; Arior. [2003-2004] SCGLR 348, a case in which the Supreme Court of Ghana exercised its supervisory jurisdiction over all courts in Ghana and x ' ' 1 , 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 remedy to correct judgments or rulings made per incuriam , assuming one can establish that they were so made.

What were the errors o f law on the face of the record identified to the Court in 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. * i . . . _ . . ’ ■

2. In the 3rd order prayed for> the complaint is that th^ Ruling and Order of the ■ Court was qiade 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 of 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 i . * . 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 garriishee proceedings following the order to set aside the default judgment in the Ruling of the learned justice. Counsel stressed that the default judgment of the 23rd May 2014 should not have been set aside because che 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 13th May 2014 which struck out the Respondent’s application. He finally submitted that in doing so, the learned justice was “judging Kamara J.” ’ • Counsel for the Respondent submitted that the application is unmeritorious . and ought to be dismissed with C 0vsts. 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 11 of the High Court Rules, 2007 and