Kora Sesay & 2Ors v Allie M. Kamara & 2 Others (MISC APP 6 of 1996) [1999] SLSC 12 (30 September 1999)

MISC. APP. 6/96 2k ZA. Go oo MAUR OF Stee Leos . KORA SESAY ABDUL SESAY DURACONTEH APPLICANTS/APPELLANTS +. AND 7 ALLIE M. KAMARA KONDO KAMARA SANTIGIE KAMARA RESPONDENTS

Coram

. HON. MR. JUSTICE D.E.F, LUKE > CHIEF sustice | : HON. MR. JUSTICE HLM. JOKO SMART ~ JSC. HON. MR. JUSTICEN.D. ALHADI ee AF. Serry Kamal Esq., for Applicants ‘i Rener-Thomas Esq., & 0.C. Nylander Esq., for Respondents | JOKOSMART J.S.c; .., This is an application for an enlargement of time to appeal against the ~ Mgment of the Court of Appeal dated the 2nd day of April 1996 made pursuant to %le 26 4) of the Supreme Court Rules (Public Notice No.1 of 1982) (the Rules).. Te Notice of Motion was dated the 31st day of July 1996 and was lodged atthe Renckas the Ist day of August 1996 but was listed for hearing on 22nd nn ber 1999, No reason has been adduced for the interim between the date o: |) ment andthe date of hearing. I seems 10 me that there was a serious Ati et lapse but itis my considered view thatthe lapse should in no way ithe computation of time in deciding whether or not the application should be fot refused. The application is supported by two affidavits; one by Kora Saye I Applicant dated the 31st day of July 1996, and the other by Me, gal Solicitor for the Applicants, dated the 24th day of September es bay heating of the application on 22nd September 1999, Mr. Kamal sough °F te Couto fle a Supplemental Afidavitand lave was pant,

_ THEISSUE 21 Y- ‘The Notice of Motion was taken out over sj echtaney three months sivery of the judgment against which itis after the date of pales provides: 818 Sought to appeal Rule 26 (1) of the . "Where an appeal lies as of right the oe appeal within three months from the dae ofthe leat bakeher aad unless the Supreme Court shall enlarge the time", appealed against This provision is mandatory, However, in order to allow a concession to Aj a fe \ppellants who do not fulfil the jrovisions of Rule 26 (1) but who have acceptable explanatory reasons for non= compliance, Rule 26 (4) stipulates, inter alia, that "No application for enlargement of time for appeal shall be made after the expiration of one month from the expiration of the time prescribed within . which an appeal may be brought, Every application for enlargement of time shall be by motion supported by an affidavit setting forth good and substantial reasons for the application and by Grounds of Appeal which * prima facie show good cause for leave to be granted”, The application is made within the time allowed by Rule 26 (4) but compliance with the time alone is not sufficient for the application to be granted. * “Rule 26 (4) explicitly imposes three conditions after the fulfillment of which the ) ‘imposes Court may exercise its discretion to enlarge the time for appeal. 1. _Anaffidavit in support of the application must be sworn. 2 The affidavit must set forth good and substantial reasons.

3. The proposed Grounds of Appeal must be good on the face of the application. THE APPLICANTS ~_ There are three Applicants but only one of them, the Ist Applicant, has filed anaffidavit. Paragraph 3 of the said affidavit mentions one Abdul Sesay as having bss en il sometime in June and was taken up county —— ied Ding ‘hearing of the application on the 22nd September, when aske Court whether that Abdul Sesay was the same as the 2nd Applicant, Mr. Kamal, Counsel for the Applicants replied that he was the same person. ‘When again Counsel was asked why he did not appeal within the time allowed by Rule 26 (1) his candid and correct reply was that he could not have done so without the authority of the Applicants. In my judgment, I find it inconceivable ee then Counsel could have made an application on behalf of the 2nd Applicant who tng tothe affidavit ofthe Ist Applica Was rot ANN oft jude of the of appeal ‘ad at the time of the Notice of Mo! larger: Stine, a fet cout val ty Counsel himself Therefore find -_ the application Sap zt Applian isnt prope Defoe OS, sopcant is dead (ste of ceoptmental Affidavit, Mr Kamal deposed that 1 a0 ae by the 3rd Unspecified), I cannot see how this application

. Dead men do not tell tales. The eee ‘ eal representatives of the deceased, itany, ossdit® Would have been cart of substitution and then an application for pi edi of Pbepeen ot ° deceased Were abe at the date of the application but died subsequently. “ ule 37 of the rules makes this provision. It stipulates: . "An application for an Order for Rivivor or Substituti accompanied by an affidavit swom bythe Appian ae Applicant is represented by a legal practitioner the said affidavit shall be swom by such legal practitioner showing who is the proper person to be substituted, or entered, on the record in place of, or in addition to a party who has died or undergone a change of status". __ Om this ground too, I hold that the application of the 3rd Applicant is not propéiy before the Court, Before I leave the issue of competence let me deal with one connected matter which in my opinion needs mention, I observe from the two affidavits filed herein that the subject matter of the dispute between the parties is land. One siguficant question that requires an answer is whether the 1st Applicant as survivor of the other Applicants could have made this application without the intervention of the personal representatives of the two deceased parties. As a matter of law if there are more than one party to a dispute as either Plaintiffs or Defendants and judgment is given against one side and all but one of the losers choose not to appeal against + the judgment, the remainder can legitimately do so but it al depends on the interest of tat person in the subject matter of the case. As I have already mentioned ‘ownership of land is in issue in this case and the land is claimed by both the Applicants and the Respondents. It is not clear from the affidavits filed what was the interest that each of the Applicants held in the land. I can see however from Mr. Kamal’s affidavit that they were claiming a freehold estate in the land, but tothing more can be gathered from it whether they were claiming as tenants-incommon or as joint-tenants. If they held as tenants-in-common each party had a disinct fixed and undivided share in it and the 1st Applicant could appeal without the intervention of the personal representatives of the deceased and would therefore ¢onrectly have made this application alone. (See R.E. Megarry: A Manual of The Law of Real Property 2nd ed. p.241). But if they held as joint-tenants he could not 4o s0, The position with regard to joint tenancies is clearly stated in Blackstone's Commentaries Vol.2 (1766) at page 182 which I regard as the correct statement of ‘he lays it reads, "In all actions relating to their estate, one joint-enant cannot sue tbe sued without joining the others". AERIDAVIT OF 1ST APPLICANT .__Thave already stated that one of the conditions on which the Court will tite its discretion to enlarge the time is that the Affidavit in support of the tPacaton ‘must set forth good and substantial reasons for the application. T will Summarise the reasons proferred by the 1st Applicant as follows:-

1. The judgment in the Court of Appeal had been reserved for over two ae and he did not think that judgment would be given at the time that it was given

| 2, He went up country with a si, . elb . after the 40th day ceremony, * *"4 &¥ing man and stayed there until 3, If the 2nd Applicant had not died and the fot have stayed for the length of tine thane safe he would

4. He was not aware of the date of the jy ent until i ! solicitor ater he had retumed fre pais wat he went oi now dilate a otgod nd subtantal esas The Reads Dee ne este egsicmen . ‘ igest Universal Dictior defines "good reason” as a reason that is "genuine or n al” St at Dictionary, 1987 Dieéonry Vol Third Editon, sates that the adjective see ail mredirrres ; C is "a word of no fixed meaning, it is an unsatisfactory medium for carrying the idea of ascertainable pro-position of the whole (Terry's Motors, Ltd v. Rinder, 1984) S.A$.R. 167)" Goodness and substantiality are words of value judgment about which much ink has been spilt by relativist philosophers throughout the ages and I aminclined to agree with Ashurst J. who in delivering the judgment of te Cant in RY, Stubbs, 2 T.R. 395, said, "The word substantial is a relative term". In Palser -v.Griling [1948]1 ALL E.R. 1 Vicount Simon in the English House of Lorde -sid" One ofthe primary meanings of substantial is equivalent to considerable, solid or big; it is in tis sense that we speak of a substantial fortune, a substantial mca, a substantial man, a substantial argument or ground of defence" (see [1948] 1 ALL, ER latp. 11). In my judgment, for a reason to be good and substantial within the context in which I am dealing, it must not only be genuine on the face of it but it must also be reasonable and so convincing that a reasonable man can conclude that * the Applicant had done all that was possible to avoid the default. Evidence of a family tie between the 1st Applicant and the deceased, the death certificate of the deceased or an acceptable explanatory statement for its non Production, notification bythe Ist Applicant to his solicitor of his pending departure to the provinces and of his forwarding address, the time that elapsed between the date of the delivery of the judgment and the date that he left for the provinces, and the date of his return to Freetown are factors which might be in favour of the Ist Applicant.

Iwill now consider whether the Ist Applicant has provided the requisite Cvidence for this Court to be able to exercise its discretion in his favour. He has not ‘stablished any family tie between himself and the 2nd Applicant. I shall elaborate On this issue later in this ruling. He deposed that he went up country ‘without informing his solicitor and only got to know about the judgment on his return, Ghiguely, his reason for doing so was thatthe judgment had been reserved since (pout mid 1993", While I do not approve or disapprove of delays in the delivery

dement in these present times taking into consideration the conditions under iltch my brothers work, I apprehend that itis incumbent upon litigants to inform tt soictors oftheir movements and changes of addresses when they have cases oe the Courts, Failure to do so is at their peril. It 2 only in exceptional ‘time *i¢kness and deprivation of complete freedom of movement in ages that they se umable to contact a relative or fond or a wal cher to ‘heir solicitor of their dilemma that such failure becomes excusable,

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