Kabba v Muhleman v Another (CIV APP 46 of 2010) [2011] SLCA 14 (6 December 2011)

\\b CIV APP 46/2010 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: * ABU KABBA (ALIAS COACH) - APPELLANT AND MELISSA MUHLEMAN -RESPONDENTS HAMON KISI KAMARA CORAM: THE HON MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HON MRS JUSTICE A SHOWERS, JUSTICE OF APPEAL THE HON MR JUSTICE A S FOFANAH, HIGH COURT JUDGE COUNSEL: M LTARAWALLY ESQ A O JALLOH ESQ for the Respondents ELVIS KARGBO ESQ for the Appellant \ ^ j/. r\ * • imIm w 6 / < x / f JUDGMENT DELIVERED TH5^2 DAV-Qf-NOVEVr^^20il. V ' ' 1 1 . The Respondents in this appeal, have applied to this Court, by way of Notice of Motion dated 19 May,2011 for Security for Costs in the sum of Le50,500,000 to be given by the Appellant, Abu Kabba,,and that the Costs of the Application be borne by the Appellant. 2. The Application supported by the affidavit of Melissa Muhleman deposed and Sworn to by her on 19 May,2011. Exhibi+ed to that affidavit are "B", a copy of the Judgment and Order of this Court, SEY,J Presiding, dated 1 3 October^OlQ; "C" a copy of an affidavit deposed and sworn to by Musa Pious Sesay, Barrister and Solicitor on 5 June,2009 in an Application for Committal for Contempt made in the same action in the High Court; and "D", a copy of a Notice of Appeal dated 5 November,2010 but filed on 9 November,2010 according to this Court's stamp on its face, * 3. The 1 s t Respondent Mrs Muhleman, deposes that during the trial of the action, the Appellant was seldom in Court, due to the fact that he resides outside the jurisdiction of this Court. In her Judgment delivered on 1 3 0ctober,2010, SEY, J awarded Damages in the sum of Le20mi!lion, and Ill- Costs in the sum-of Le5million. These Costs remain unpaid by the Appellant. In Mr Sesay's affidavit deposed and sworn to on 5 May,2009, Mr Sesay deposed, inter alia, t h a tthe said defendant (i.e. the Appellant herein) who is ordinarily resident in the United States o f America but was in the jurisdiction when this proceedings (sic) commenced." The Respondents contend thatVsclear evidence that the N* v Appellant would be beyond the reach of this Court in the event that he loses his appeal, and Costs are again awarded against him. The . Respondents argue further, that this appeal is likely to generate additional Costs amounting to a total f igure of Le50,500,500 as itemised in paragraph 8 of the 1 s t Respondent's affidavit, 4. The Appellant opposes the Application He has filed two affidavits deposed and sworn to respectively on 1 6 November,2011 by one Faday Sesay, Office Assistant, Cemmats Group, who claims to be his brother, and the person taking care of Appellant's property at 66D Freetown Road, Lumley; and secondly, by one Bankole Khadara alias Frank W. liam s. In his affidavit, Mr Sesay deposes that he usually receives money to buy building materials, and ensures that construction work is done in the house and in its compound, On 7 February,2011 he was at his place of work when Bailiffs entered the compound. He could not gain access to the premises. All of Appellant's properties were kept in the'house including o car with registration number AEA 051, whose keys are with him . He * exhibits a list of the properties as “FS1." He deposes further, that since the execution, he has not been able to gain access to the premises, and he learnt that 'a / / the doors o f the house that were dosed containing properties and building materials o f M r Abu Kabba, are now opened'. Copies of photographs showing the house are exhibited as "FS2 1-4". 5. I shall now turn to the documents exhibited. 'FSl" is signed by the deponent, but it is undated, and there is no evidence as to when it came into existence. Normally, before the Bailiffs levy execution against the losing party's property, an inventory is done. This inventory tells us the quantity and nature of the property taken in execution. The list exhibited by Mr Sesay is unverified. We do not know by which power or authority, Mr Sesay has sworn to his affidavit. He is not an Attorney for the Appellant; if he had been one, surely he would have exhibited a duly executed Power of Attorney. In fact, we do not know who he is, other 115 than what he has deposed to in his affidavit. I think it would be extremely dangerous to rely on such evidence in support of the Appellant's position. But to go further, it is pertinent to examine closely, the pictures exhibited by Mr Sesay to his affidavit. He deposes, and he wants this Court to believe, that together, they constitute evidence that there are properties in the house sufficient to satisfy the Judgment of the Court below, and of this Court, in the event that Judgment is given against the Appellant. The pictures show a gated compound with house inside, partly finished. It appears to be occupied, due + o the presence of window and door curtains. A m an is shown in front of the building in the first picture. The left back portion of a car could be seen in the second picture. Its registration number is obscured, but the first letter, 'A' . could clearly be seen. Since the registration numbers of the vast majority of cars in Sierra Leone begin with the letter ‘A’, this does not really take us anywhere. This picture certainly is not proof that that car is the one referred to in paragraph 4 of Mr Sesay’s affidavit. Why Mr Sesay, or, for that matter, Mr ICargbo, Appellant's Counsel, chose to exhibit this particular picture is beyond my ken. v 6. Mr Khadara's affidavit deposes to the events Of 7 February,2011 when execution was levied against the property belonging to Appellant. He claims that his personal properties were taken by the Bailiffs as part of the execution. He deposes further that "...at that time the Bailiff met me, the caretaker o f M r Abu Kabba, Foday Sesay was not around, The other apartments in the ground floor and the entire top floor were closed. That in my presence the bailiff handed the keys o f my flat to the Respondent/Applicant and told them to take the house. That all the • properties o f the Appellant were in the house and were not removed up to the time the bailiff left," Well, Mr Khadara has not stated his status in this property; i.e. whether he was a caretaker-on-site, a tenant or licensee, a trespasser or a visitor who had stayed longer than he ought to. So, we do not know whether he truthfully knows anything about Appellant's properties. All we can say for certain, is that his properties were removed. 7. The importance of this issue of whether Appellant had or has personal properties on or in the premises, or in the house in those premises, is that it bears on the related issue of whether the Appellant has sufficient ua property within the jurisdiction to satisfy the Judgment of the High Court, and the likely Costs of this -Appeal. In a case in the High Court in which Mr Kargbo was Counsel for the Defendants, and n which I gave . Interlocutory Judgment in his favour, I explained the importance of both issues. In that case, ALCON CONSTRUCTION ENTERPRISES v MR A MRS ABDALLAH Interlocutory Judgment delivered 4 November,2009 I said at paragraph 5; "Order 23 o f the English Supreme Court Rules,1999 is in the same terms as our Order 26. The notes to Rule 3 o f that Order at page 432 under the rubric " , Foreign Plaintiff with property in England\ state, inter alia, that ‘'security for costs will not be required from a person permanently residing out o f the jurisdiction, i f he has substantial property, whether real or personal, within it....but... the property must be o f a fixed and permanent nature which can certainly be available for costs.' Several cases are cited by the Editors o f that work in support o f that proposition, including the case o f KERVOKIAN v GURNEY [1937] 4 AH ER 468, in which the subject matter was a Greek statue o f • considerable value. Here, the property involved is a house constructed by * the Plaintiffs situate at Babadorie, Lumley I should think that the house would be o f considerably more value than the sum o f Le56m+ plus interest claimed by the Plaintiff company, since that sum represents in the Plaintiffs estimation, quantum meruit for work done" In that case, there was no dispute as to who owned the house. The dispute was about whether the owners were indebted to the Plaintiff company for work done in building the house. 8. If the Appellant in this case has substantial assets within the jurisdiction, it would be fool-hardy of this Court to Order that he should provide security for costs. But, as has been made to appear to us by the documents filed by both sides, it would seem that the Appellant has no intention to satisfy any judgment which may be given against him, so long as he remains safely out of the jurisdiction, and out of |he long reach of our Courts. 9: Now, Mr Kargbo has rightly argued that the Appellant has complied fully with the requirements of Rule 14 of this Court's Rules,1985; He has given security as determined by the Registrar. As such, his appeal cannot be dismissed pursuant to Rule 16(1). That Rule provides that: " I f the appellant has failed to comply with the requirements o f rules 13(4) and 12-0 14, the Registrar shall certify such facts to the Court,'which may thereupon order that the appeal be dismissed with or without costs" Mr Kargbo argues further, that Rule 1 6 (1 ) does not apply to Rule 15, under which Respondents have applied. Rule 1 5 provides that: " The Court, may; where necessary; require security for costs or for performance o f the orders to be made on appeal, in addition to the sum determined under rule 14!' Clearly, this means, additional powers are given to this Court, In Banc . or In Curia, to Order an Appellant, in certain circumstances, to provide security over and above that determined by the Registrar. Express provision has not been made for the consequences of failure to comply with an Order made pursuant to Rule 15, as is the case with Rule 14, but that does not leave this Court powerless to ensure compliance with any Order it may make. 10. But let us first examine the circumstances in which an Order foe Security for Costs could be made under Rule 15.1 shall refer to the English Supreme Court Pr<^tice,1999. At paragraph 59/10/32 under the rubric, Security for the costs of an appeal, the Learned Editors state,'-" Security for the costs o f an appeal may be ordered where there are special circumstances which, in the opinion o f the Court, render it just to order security, or on any statutory grounds..... The categories o f special circumstances are not dosed.....In deciding whether to award security for the costs o f an appeal to the Court o f Appeal, the Court takes into account the fact that the appellant has already haa the issue concerned determined in the Court below, and it is prima facie an injustice to a respondent to allow an appeal to the Court o f Appeal to proceed without security for costs being furnished in circumstances where the respondent will be unable to enforce against the appellant any order for costs made by the Court o f Appeal; but the Courts retain a discretion whether to award security and is not bound to do so in all cases where 'special circumstances' are established" At paragraph 59/10/35 it is stated; "It has long been the practice o f the Court o f Appeal to order provision o f security where the appellant is resident abroad....The rationale is undue delay or expense in enforcing the costs order abroad.“ These notes are of course based on the English Order 59 Rule 10(5) which provides that: “ The Court o f Appeal may, in special circumstances, * order that such security be given for the costs o f an appeal as may be ' 1 2 -1 just" See also Order3 Rule 1 1 Nigerian Court of Appeal Rules,1981 as cited in NWADIALO's CIVIL PROCEDURE IN NIGERIA 2n d Edition (2000) where it is said at page 844:" Additional security for Costs or otherwise may be required where necessary," 1 1 . Here, we have an Appellant who has failed and, or, deliberately refused to comply with the Costs Order made by the Court below. Should we in justice, allow him to continue with litigation in this Court, notwithstanding that default? I should think not. 1 2 . Rules 31 and 32 respectively of the Rules of this Court, confer general powers on this Court. The Court is empowered to make any interim Order " The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs!...." We therefore, in my respectful opinion, have the means at hand to ensure that an Order made under Rule 1 5 is enforced, notwithstanding the absence of any express sanction for its defiance. An Order in the terms suggested r s paragraph 59/10/42 of the White Book,1999 might be appropriate. There, it is stated: “ The time provided for giving security is usually 28 days; it is also provided by the order that the appeal be stayed meanwhile and that in default o f the appellant giving security within the time limited, the appeal do stand dismissed with costs without further order." 13.1 find firstly, that the Appe lant ordinarily resides out of the jurisdiction of our Courts. Secondly, that there is no evidence before this Court that he has assets, or sufficient assets within the jurisdiction, to satisfy any Order for Costs w h :h may be made against him, in the event that he loses his appeal. The Respondents are thus entitled to Security for Costs n this Appeal. The Respondents are asking for a total sum of Le50,500t 0QQ. This sum is composed in the main, of Solicitors' and Counsel's fees in the event of the Respondents succeeding in this Court. Sitting here, I cannot say what the Taxing Master w ill allow on Taxation if the Respondents were to succeed in this appeal. But I do believe Le5Q.500,000 is rather on the high side. I think Le25million would be more appropriate in the circumstances. 1 4 . In the premises,.the Order of this Court is as follows: The Appellant shall provide security for the costs of his appeal in the sum of Le25million, the same to be secured by a Bank Guarantee provided or issued in the same 1 T -'Z " • amount by any reputable Bank in Sierra Leone, within 2 1 days of the date of this Order, inclusive of today's date. The appeal shall be stayed until the said Appellant has complied with this Order. If the Appellant fails to so comply with this Order, in exercise of the powers conferred on this Court by Rules 15, 3 1 and 32 of the Com "; ^f Appeal Rujes,1985, the appeal shall stand dismissed as ofM3~P ^ m c ar^fer f ^ ^ Costs of this Application, shall be Costs in the appeal. There shall be liberty to apply. THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MRS JUSTICE A SHOWERS, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE A S FOFANAH, JUDGE OF THE HIGH COURT. , M u , jo $~, Tfci ,