Ivan D. & 5 ORS v Ms Olabisi Barber (CIV APP 71 of 2020) [2021] SLCA 16 (26 January 2021)

¢ CIV. APP. 71/2020 | BETWEEN: | IVAN DAVIES & 5 ORS : APPLICANTS/APELLANTS | AND | MS OLABISI BARBER RESPONDENT

| CORAM: | HON. MRS. JUSTICE MUSU.D. KAMARA ~ JA (PRESIDNG) | HON. MRS. JUSTICE JAMESINA.E.L. KING — JA. HON. MR. JUSTICE SULAIMAN A. BAH - JA | ‘COUNSEL: SIM. Sesay for the Applicants/Appellants. F.AM. Carlton-Haneiles for the Respondent. ett RULING DELIVERED ON THE 26 DAY OF JANUARY 2021. ‘The Application

1. By a Notice of Motion dated the 17" April 2020, the Applicants/Appellants are seeking for four Orders, stated thereon as follows: “1. THAT AN INTERIM STAY of Execution of the Judgment of the High Court presided over by the Honourable Mr, Justice Komba Kamanda, J. dated the 16" day of December 2019 and all subsequent proceedings BE GRANTED pending the hearing and determination of this APPLICATION.

2. THAT A STAY of Execution of the Judgment of the High Court presided over by the Honourable Mr. Justice Komba Kamanda, J the same dated the 16" day of December 2019 and all subsequent proceedings BE GRANTED pending the hearing and determination of the Appellants’ appeal to the Court of Appeal for Sierra Leone.

3. THAT Leave BE GRANTED to the Appellants herein to Amend their Notice of Appeal filed in these proceedings the same dated the 17" day of January 2020 in the ‘manner underlined Red in their proposed Notice of Appeal to this application.

4. That the Costs of and incidental to this application BE Costs in the Cause.”

2. ‘The Motion is supported by the Affidavits of Ivan Davies the 1* Applican/Appellant herein and S.M. Sesay Esq, both sworn on the 17" April 2020, and together with the exhibits refered to in both Affidavits, fled herein, Submissions of Counsel for the Applicants/Appellants |

3. Counsel for the Applicants/Appellants, Sahid Mohamed Sesay Esq., commenced by | submitting that he relied on the entirety of both Affidavits, He further submitted that | the current application fora stay of execution isto strengthen the Restraining Order ~ that the Respondent should not sell the Res pending the outcome of the Appeal ~ | made by the Trial Judge on the 21* February 2020. He urged the Court to consider the | fact that since the Res is not perishable in nature, its preservation would be best consolidated with a grant of stay of execution in addition to the Restraining Order. He | went on to submit that the grounds of appeal filed raises triable or good grounds of | appeal, notwithstanding the apparent defect in the Notice of Motion already filed ~ the | non-compliance with Rule 9(2) of the Court of Appeal Rules 1985, Statutory Instrument 29 of 1985, (hereinafter referred to as ‘CAR 1985"). Further, Counsel | submitted that the Court is vested with the unfettered diseretion and power as if it | were a court of 1* instance, in granting leave to the Applicants/Appellants to amend the Original Notice of Appeal filed in this mater.

| ‘Submissions of Counsel for the Respondents/Respondents |

4. In opposing the application, Counsel for the Respondent, F. A. M. Carlton-Hanciles Esq., filed an Affidavit in Opposition swom to on the 6" day of May 2020. He relied on the entiety of the affidavit and more particularly on paragraphs 2, 6,7, 9, 12 and B. Counsel referred to Exhibits OB 6, OB 13"? and OB 14 and submitted that the Judgment of the High Court in favour of the Respondent herein, has been executed and perfected. He also submitted that on the 2" of January 2020, the Under Sheriff certified that he levied execution against the Applicants/Appellants herein and vacant Possession was handed over to the Respondent's representative. He then went on to state thatthe Court should not entertain an application to set aside an Order which has been perfected. Further, he submitted that there are no special circumstances being deposed to by the Applicants/Appellants. He concluded by submitting that the Respondent has no intention of selling the Res as itis intended to be passed on to her off-springs Issues and Findings 6 The questions or issues for determination in this application are: (@ Have the Applicants/Appellants shown special circumstances to warrant the grant ofa stay of execution?

| i) Is the Court of Appeal vested with an unfettered discretion and power pursuant to Rule 31 of the CAR 1985, in granting the Applicants/Appellants leave to amend the ‘grounds in a Notice of Appeal? In addressing these issues, the Court will deal with them seriatim.

7. Have the applicants/appellants shown special circumstances to warrant the grant of a stay of execution? It is worth nothing that “ihe principles applicable in determining whether a stay should be granted or not are well known and have been applied in numerous cases by ‘the Courts in this jurisdiction” (per Muria JA in Patrick Koroma Vs Sierra Leone Housing Corporation and Doleis Beckley Mise App 9/2004). Fortunately, both Counsel for the Applicants/Appellants and the Respondent, are alive to these principles having referred this Court to the authorities establishing same. The authorities mentioned are inter alia: Rule 28 of the CAR 1985; Halsbury Laws of England Vol 16; Civ App 59/2006 Marco and Others Vs Alhaji Baba Allie & Others; Mise App 1/96 Betsy Rogers Parkinson and Others Vs Clarence Robinson and Others; Misc App 9/2004 Patrick Koroma Vs Sierra Leone Housing Corporation and Dolcis Beckley; Mise App 2/94 Africana Tokeh Village Limited Vs John Obey Development Investment Co. Ltd; and, Mise App 13/2002 Mrs Lucy Decker and Others Vs Goldstone Decker. Consequently, this Court would not venture into a “determining” | ‘excursion; but would rather adopt and affirm the existing principles regarding “stay of execution” That said, this Court will now consider the issue raised in this application = whether the Applicants/Appellants have in their Affidavit shown or established special circumstances.

8. This application is praying for the staying of the execution of the Judgment of Komba Kamanda J (now JA) of the 16" December 2019 - a ‘non-monetary judgment for the recovery of immediate possession’ of land. To that end, the case of Boblyn Augustine Vs Abdul Koroma (Misc App 38/2004 — hereinafter referred to as“ The Boblyn Case”), is very instructive, where Muria JA., inter alia stated: “4 [1]n a non-monetary judgment, as that of a judgment for delivery of possession, of a land, the ‘special circumstances’ that the applicant for a stay ‘has to establish are those factors which make out a strong case for depriving the respondent of the benefit of the judgment obtained in his favour. A further ‘consideration which the court will ake into account in an application for a ‘stay especially in cases concerning land, is that of the non-perishable nature of the property. The cases of Ernest Farmer and Another (1945) Vol. 3 Sierra Leone Recorder 66, Bank of Sierra Leone v. Desmond Luke (14 July 2004) CA, Mise App 22/2004; Yusuf Bundu v. Mohamed Bailor Jalloh (23 July 2004) CA Mise App 23/2004 have clearly established the principle that in cases where the judgments sought to be stayed are for recovery of possession of land, the Court of Appeal will refuse a stay unless the applicant can

| | establish a strong case for depriving the respondent of the fruit of the Judgment obtained in his. favour."

11. Counsel for the Applicants/Appellants relied on the Aflidavit of Ivan Davies to show special circumstances. Paragraphs 7-9 are most germane and are set out as follows:

7. That the Land the subject-matter of the action in the high court has been in the possession of our predecessors-in-tile for well over $0 (ffi) years. The DW 1 (our vendor) inthe High Court Mr Ina Ethelbert Wray led evidence to the effect that he alone had been in possession of the Land for well over 40 Gorty) years. That piece of evidence was before the Court. He also led evidence to the effect that his own Piece of Land is distinct and separate from ‘hat claimed by the plaintiff in this action when it was before the Court below.

8. That the said Ina Ethelbert Wray became seised in possession of the said Land by virtue of a Statutory Declaration, a copy of which was tendered in Court and copy whereof is now produced and shown 10 me marked exhibit ty gs

9. That the said Land have been part of the WRAY'S FAMILY Heritage. Their late Father and Mother together with their relatives I have been reliably ‘old and verily believe were carrying on FARMING work and other activities (on the said Land. In fact, proceeds from the sale of fruits harvested from crops ‘on the said Land have been used to educate some of their children. Their deceased parents were Farmers of Crops and Vegetables in the Area. There are facts I gatherered from Old people living in the area together with our Vendor hereof."

12, Garnering from the above quoted paragraphs ofthe said Affidavit of Ivan Davies, it is appropriate to hold that the said Affidavit expressed an emotional attachment to the said property ~ in highlighting the long possession of the Deponent's predecessors inctitle of well over 50 years; and, the property being ‘part of the WRAY'S FAMILY HERITAGE’.

13. It should be noted that this Court of Appeal has in an earlier decision - in the Boblyn Case - rejected a stay where ‘fiJhe grounds advanced on behalf of the ppellant/applicant range from saying the property was a family home and that he [the Applicart/Appeltant] was sentimentally and emotionally attached to [the roperty)." (Per Muria JA)

14, It ison record that this Court refused a stay of execution in respect of house claimed as an ancestral home in Evelyn Ayo Pratt Administratix of the Estate of Betsy Rogers Parkinson (Deceased) Intestate Vs Jacquiline Carew and Others - Mise App 7/05

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