John S. Yambasu & 3 Ors v Hon Mr. Ernest Bai Koroma &5 Ors (SC 3 of 2002) [2003] SLSC 2 (30 April 2003)

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SC. NO. 3/2002 i IN THE SUPREME COURT OF SIERRA LEONE JOHN SAHR YAMBASU & 3 ORS. - Plaintiffs/Respondents AND HON. MR. ERNEST BAI KOROMA & 5 ORS. - Defendants/Applicants

Coram

HON. JUSTICE DR. A. B. TIMBO - C.J. HON. JUSTICE V. A. D. WRIGHT - JSC. HON JUSTICE S. C. E. WARNE - JSC. HON. JUSTICE E. C. THOMPSON-DAVIS - JSC. HON. JUSTICE M.

0. ADOPHY - JSC. Dr. Bu-buakei Jabbi - For the Plaintiffs/Respondents Mr. T. M. Terry - For the Defendants/Applicants 4e A RULING DELIVERED ON THE 30 DAY OF Pop XX 2003 | TIMBO, C. J. RULING | This application was made by counsel for the defendants/applicants in pursuance to rule 92(1) of the Supreme Court rules 1982 and the inherent jurisdiction of the court. The application was supported by several affidavits to which were also attached a number of exhibits. . By rule 92 (1), “A defendant upon whom a notice of motion and a statement of the plaintiffs case are served shall, if he wishes to contest the case, within ten days of such service or

; Bb within such time as the court upon terms may direct file a statement of the defendants’ case which shall be signed by the defendant or his counsel.” The first solicitor for the defendants/applicants had failed to file the statement of defendants’ case within the prescribed period; hence the present application by Mr. Terrence Terry for extension of time within which to file his clients’ case. = Dr. Bu Buakei Jabbie for the respondents/plaintiffs vehemently opposed the application and contended that

(i) There are various defects in each of the Affidavits whether supporting, supplementary or additional sworn to severally by the defendants/applicants and their solicitors.

(ii) There had been willful no-compliance by the defendants/applicants with rule

(iii) There had been substantial and in-ordinate delay by the defendants/applicants to seek leave to extend time within rule 92 (1) which delay had not been satisfactorily explained or indeed by the arguments of counsel.

(iv) Granting the leave sought will be tantamount to an abuse of the process of the court.

Dr. Jabbie further referred us to the cases of Ratnan V. Cumarasamy (1964) 3 All E.R.

933 and Revici V. Prentice Hall Incorporated And Others (1969) 1 All E.R. 772 to

buttress his submissions.

In answer to the first contention of Dr. Bu Buakie Jabbie, Mr. Terry submitted that the

objection to the alleged defects in the various affidavits filed by defendants/applicants

had been taken too late in the day. He said Dr. Jabbie ought to have taken the objection at | the time he sought to put them in. This would have given him the opportunity to invoke the provisions of Order 22 Rule 12 of the High Court Rules in order to use these

affidavits. Having failed to take the objection at the appropriate time he must not now be heard to be objecting to the several affidavits filed by the defendants/applicants.

According to Mr. Terry the objection is even more unpardonable because Dr. Jabbie

himself had extensively relied in his argument upon the facts deposed in the supplemented affidavit of Osman Foday Yansaneh sworn to on the 9" day of December

2002 at 4.00 O’ Clock in the afternoon which said affidavit in all its essentials had

constituted the pith and substance of the defendants/applicants’ application for leave to

file their case pursuant to the second limb of rule 92 (1). By so doing, Mr. Terry said

3 counsel had waived any right he had to raise such objections.

Assuming without conceding that we are minded to reject the impugned affidavits Mr.

Terry again submitted that the reasons advanced by Dr. Jabbie for asking that the

affidavits be rejected are devoid of any merit whatsoever because such defects if they

rs existed at all only went to the form and not to the substance. Consequently their admission cannot properly be described as an abuse of the process of the Court. We have considered the several arguments and submissions of counsel on both sides. We agree with Mr. Terry that once the affidavits complained of had been admitted without objection, Dr. Bu Buakei Jabbie is deemed to have waived his right to challenge their admission. In any case, we hold the view that Dr. Jabbie’s complaints went only to the

si form and not to the substance of the affidavits. Secondly, the cases of Ratnan and Revici cited by Dr. Jabbie, we believe, were merely restating a rule of law that where there had been non-compliance within the rules, such non-compliance must be explained and there must be material upon which the Court can exercise its discretion. The only material before the Court of Appeal in Ratnan was the appellants’ affidavit in which he gave the reason for the delay as the hope for a compromise. Similarly, in the recent unreported case of Alhaji Bockarie Kakay, V. Clementina Yambasu, S.C. Misc.App. 3/2002, we refused to extend the period in which to file his client’s case because the explanation which counsel gave for failing to comply with the rules, we found, was rather flimsy. He simply said it was due to pressure of work in his chambers. Unlike Ratman and Kakay, in the instant case, the defendants/applicants have in our opinion given sufficient reasons in their several affidavits for the cause of delay which was due to their first solicitor’s negligence in failing to file their case within the stipulated period. We do not think either that the negligence of their solicitor should be | visited on them. They acted, in our estimation with reasonable promptness in seeking the services of another solicitor when they discovered the previous one had failed to file their case on time. The application is therefore allowed. The defendants/applicants shall file their case within seven days. Costs in-the-oatse.

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