Junior J. Mansaray v Mr Joseph P. A. Koroma (CIV APP 68 of 2013) [2015] SLCA 1135 (1 December 2015)

CIV. APP. 68/2013 IN THE COURT OF APPEAL OF SIERRA LEONE {CIVIL APPELLATE JURISDICTION) BETWEEN: JUNIOR JOHN MANSARAY - APPELLANT AND MR. JOSEPH P.A. KOROMA — - RESPONDENT

Coram

HON. MR. JUSTICE P.O. HAMILTON J.S.C. HON. MRS. JUSTICE N.F. MATTURIE-JONES J.A. HON. MR. JUSTICE M.F. DEEN-TARAWALLY J.A. COUNSEL SS. THOMAS ESQ. FOR THE APPELLANT

0. JALLOH ESQ. FOR THE RESPONDENT avor D&e JUDGMENT DELIVERED THIS DAY OF LE. , 2015

HAMILTON J.S.C.

In this matter a preliminary objection dated 13" August, 2015 was taken by Counsel for the

Respondent that this Court lacks jurisdiction to hear this appeal on the ground that this

judgmenvorder dated 19" November, 2013 appealed against by Counsel for the Appellant is an

interlocutory judgmenvorder. Counsel submitted that leave of the High Court ought to have been sought and if refused then it can be sought in the Court of Appeal before filing the Appeal.

This was not done as such Counsel for the Respondent submitted that this failure renders the

Appeal a nullity.

Counsel referred to the notice of motion dated 9" October, 2013 which sought the following __ Orders:- : eee eee

|. That this Honourable Court do grant an interim stay of execution of the Default Judgment dated 15" January, 2003 and all subsequent proceedings pending the hearing and determination of this Application 2, That this Honourable Court do grant a stay of execution of the default judgment dated 15" January, 2003 and all subsequent proceedings pending the hearing and determination of this action on its merits.

3. That this Honourable Court do set aside the Default Judgment dated 15" January, 2003 and all subsequent proceedings ex debito Justicia.

4. This Honourable Court do grant the Defendanv/Applicant herein leave to file his Defence out of time.

5. Any further or other that this Honourable court may deem fit and just in the circumstances.

6. That the costs of this Application be costs in the cause. This application dated 9" October, 2015 was dismissed on 19" November, 2013 and Counsel submits that the appeal filed does not contain any leave nor was any leave sought by Counsel for the Appellant. The ruling dated 19" November, 2013 Counsel submits is an interlocutory ruling as it does not determine the rights of the parties citing Richard Zachanah v. Jama: Morowa SC 2/87 unreported and Steinway & Sons v. Broadhurst Clegg (1983) TLR, and then submitted that the Appellant failed to seek leave of the Court before filing his appeal. Counsel further cited Rules 10(1) and (2) of the Court of Appeal Rules 1985 as amended by Constitutional Instrument No.1 of 2003 and also Section 56(1)(b) the Courts Act, 1965 He then submitted that the papers filed are a nullity. t itted that the Order dated 19" November, 2013 was ~~ Counsel for the AppellanuRespondent submitted that the OWT SSNS : OO is no need to seek leave of the Court as all the issues a final Order/Judgment as such there = ing rights of the plaintiff as against the defendant has been appertaining to the pre-existing rig

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determined citing Rules 31 and 32 5 , Of the Court of Appeal Rules 1965. Counsel finally submitted that the order/judgment was final though ‘ 1 en igh made on an interlocutory application relying on worney-General v. Great East fui ditional | astern Railway Co. (1879) WLR 759 and that an Order made unconditior . refusing nal leave to defend is not an interlocutory order for purposes of an appeal but that the refusal determines the matter. Before proceeding into the merits of the preliminary objection raised by Counsel for the Respondent, let me briefly dispose of Rules 31 and 32 of the Court of Appeal Rules 1985 cited and relied upon by Counsel for the AppellanvRespondent which deals with the general powers of the Court to give any judgment and make any Order. These rules in my opinion applies where an appeal is being heard and determined not in a situation such as the present application which challenges the jurisdiction of the Court to even hear the appeal. Rules 31 and 32 of the Court of Appeal Rules 1985 does not apply in this application. The rules cited by Counsel for the Applicant reads: Rule 10(1) of the court of Appeal Rules 1985 as amended by Constitutional Instrument No.1 of 2003 provides: “10(1) Where an appeal lies by leave only, any person desiring to appeal shall apply to the Court below by notice of motion within fourteen days from the date of the decision against which leave to appeal is sought or, pursuant to rule 64, to the Court by notice of motion within fourteen days from the date of such refusal by the Court below, unless the Court below or the Court enlarges the time”. Also Rule 11(1) provides: pa ) iratie wrteen days in the case of an appeal “No appeal shall be brought after the expiration of fou lays ppes ision or of three months in the case of an appeal against a against an interlocutory decision a rhe time”. {final decision unless the Court enlarges We" Final naan 5677-0 er t9esteadss SSS —- 4 ‘om 5i Courts Act 1965 te > ened 260 iene ions of this Section, an appeal shall be (0 the Court of “56(1) subject to the provisions 2

Appeal:

(6) By leave of the Judge making the Order or of the Court of Appeal. from an interlocutory judgment, Order or other decision given or made in the exercise of any such jurisdiction as aforesaid”. The distinction between interlocutory and final judgment was considered in Blay v. Solomon (1947) 12 WACA

175. In this case the trial judge ordered that an account as between the respondent and the appellant be filed and that the property be sold by auction. The Court held that for the reasons given in the judgment this was an interlocutory decision. From a long line of cases bordering on the distinction between interlocutory and final judgment such as Coker v. Coker (1950-56) ALR S.L. 130, Elijah J. Speck v. Ghassay Kiester (1962) S.1.R. 126 and Amoa Ababio & Anr. v. John Edmund Turkson (1950) 13 WACA 35 itis clear that 9 final decision is one that brings the action to an end in contradiction to an interlocutory decision which does not completely dispose of the matter. In Seven Up Bottling Co. v. Abiola and Sons Botting Co. Lid. (2001) 38 W.R.N. 55 at 59 the Supreme Court of Nigeria adopted the applicable test emaciated in Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547 at 548 in which Fry LJ. said: ““T think that the true definition is this. I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event, the action will be determined”. Lord Alverstone C.J in the same Bozson'scase (Supra) farther observed: “It seems to me that the real test for determining the question ought to be this: Does the judgment or Order as made, finally dispose of the rights of the paris? yi does then I interlocutory order”.

i Inthe Seven Up Bottling Company's case (Supra) at page 65 Karibi-Whyte JSC delivering the } lead judgment examined the issue of the applicable test and then opined that | “The ideal approach is 10 consider both the nature of the application and the nature of the order made in determining whether an order or judgmen is interlocutory or final in respect of the isues before it, as between the parties to the litigation. Thus where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties, but only deals with an issue, both the application and the order or judgment must be interlocutory ...... However, where an application has the effect by the order therefore of finally determining the claim before the Court, the order or judgment may properly be regarded as final”. The circumstances from which this appeal crises can be gleaned from the motion dated 9” October, 2013 and the Order/judgment dated 19" November, 2013 contained at pages 35 and 79 to 85 of the records.

| The Order of Rashid J. (of blessed Memory) dated 15% January, 2003 which the application dated 9” October, 2013 seeks to set aside with leave to file defence out of time cumulated in the order/judgment of 19" November, 2013. We are of the considered view that by the nature of the application and the order/judgment made by the Court was interlocutory since the rights of the parties have not be finally determined, There is nowhere in the records that special leave to appeal was sought and refused by the Court below or even in this Court. If special leave had been granted this Court could have properly n entertained this appeal but this is not the case. Let me note in closing that this application touches on the jurisdiction of the Court to entertain | this appeal. Jurisdiction is a fundamental issue touching and concerning the power of the Court | to act. Where the Court has no jurisdiction to entertain a matter any proceedings and decision ‘——siven thereon is a nullity no matter how well conducted the proceedings were. Judicial poweris | inextricably tied up with jurisdiction and justiciability. A Court can only exercise its power to entertain a matter where it has jurisdiction.

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Se The preliminary objection rai : , _ s , mn raised by Counsel for the respondent is upheld and the appeal is therefore struct out witl . cost to the respondent in the sum of Le.23 EM EDR d ane SS HON. MR. JUSTICE P.O. HAMILTON J.S.C 1 en ee HON. MRS. JUSTICE NF. MATTURIE-JONES J.A. 1 ae HON. MR. JUSTICE M.F. DEEN-TARAWALLY J.A. I _ —— -_

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