Kora Sesay And Another v Allie Kamara And Another (MISC APP 6 of 1996) [1999] SLSC 10 (30 September 1999)

Skins Mise, APP. 6/96 [31 a SU) 20U) e /E N BETWEEN: . KORA SESAY “ ABDUL SESAY DURACONTEH - APPLICANTS/APPELLANTS +. AND ALLIE M. KAMARA oe KONDO KAMARA SANTIGIE KAMARA RESPONDENTS

Coram

BONE EDEL LUKE coupe susnice © FON-MR JUSTICE HLM. JoKo smart - SUE HON.MRJUSTICEND.AtHADE | $4 A-F. Serry Kamal Esq., for Applicants ‘AD Rener-Thomas Esq., & O.C. Nylander Esq., for Respondents JOKO SMART J.5.c. tof ae eaten for an calagement of time to appeal asin he = Herma ofthe Court of Appeal dated the 2nd day oh ao 1996 made pursuant to Rule 26 (4) of the ‘Supreme Court: Rules (Public Notice ‘No.1 of 1982) (the Rules)... Roi on ih dated the 3 day of Sly 1956 ans oe Registry on the Ist day of August 1996 but was listed for hearing on 29nd ‘September 1999. No reason has been adduced for ‘the interim between the date of lodgement and the date of hearing. It scems 10 me that there was a serious sect cae cn ve at seo yay affect the computation of time in deciding whether or not the application should be granted or refused. The application is ‘supported by two. affidavits; one by Kora Seat Is Applicant dated the 31st day of July 1996, and the other by Mr.

Y Serry Kamal solicitor for the Applicants, dated the 24th day of September 1999, leaf Sh aon on Zn Sepemba 198 Ne Pa leave of the Court to file a ‘Supplemental. Affidavit and leave ‘Was granted,

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F THE ISSUE (B32 x The Notice of Motion was taken out over three months after the date of B delivery of the judgment against which itis sought to appeal Rule 26 (1) of the Rules provides: "Where an appeal lies as of right the Appellant shall lodge his notice of appeal within three months from the date of the judgment appealed against x unless the Supreme Court shall enlarge the time”. ‘This provision is mandatory.

However, in order to allow.a concession to Appellants who do not fulfil the provisions of Rule 26 (1) but who have acceptable explanatory reasons for noncompliance, 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 seting 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 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 an affidavit. Paragraph 3 of the said affidavit mentions one Abdul Sesay as having ‘been taken ill some time in June and was taken up country where he died. During the hearing of the application on the 22nd September, 1999 when asked by the 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 how then ‘Counsel could have made an application on behalf of the 2nd Applicant who “3 according to the affidavit of the Ist Applicant was not aware of the judgment of the Court of appeal and was dead at the time of the Notice of Motion for enlargement of time, a fact confirmed by Counsel himself. I therefore find that the application of the 2nd Applicant is not property before the Court. Similarly, in his ‘Supplemental Affidavit, Mr Kamal deposed that the 3rd Applicant is dead (date of death unspecified). I cannot see how this application can be made by the 3rd _ -

(3B © + Applicant too. Dead men do not tell ales. The correct procedure would have been for the personal representatives of the deceased, if any, to make an application for « an order of substitution and then an application for enlargement of time provided the deceased were alive atthe date ofthe application but died subsequently Rule 37 of the rules makes this provision. It stipulates: “An application for an Order for Rivivor or Substitution shall be « accompanied by an affidavit sworn by the Applicant or where the 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”. __ On this ground too, Iho that the application of the 3rd Applicant is not properly 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 significant question that requires an answer is whether the Ist 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 all depends on the interest of that 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 frechold estate in the land, but nothing more can be gathered from it whether they were claiming as tenants-in- ‘common or as joint-tenants. If they held as tenants-in-common each party had a distinct 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 iS correctly have made this application alone. (Sce 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 do so, 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 the law; it reads. “In all actions relating to their estate, one joint-tenant cannot sue or be sued without joining the others". AEEIDAVIT OF 1ST APPLICANT Ihave already stated that one of the conditions on which the Court will exercise its discretion to enlarge the time is that the Affidavit in support of the Application must set forth good and substantial reasons for the application. I will now summarise the reasons proferred by the Ist Applicant as follows:- L ‘The judgment in the Court of Appeal had been rescrved for over ‘two years and he did not think that judgment would be given at the time that it was given ty

% He went up country with a sick and dying man and stayed these an yoo after the 40th day ceremony,

‘ 3 M'the 2nd Applicant had not died and the roads were safe he would

not have stayed for the length of time that he took 4 He was not aware of the date of the judgment until he went to his +: solicitor after he had retumed from tip country.

J will now dilate on these reasons to see whether they meet the requirement, of good and substantial reasons. The Reader's Digest Universal Dictionary, 1987 Paats "200d reason” as a reason that is “genuine or real” Stroud’ Tudieed Dictionary Vol Third Edition, states thatthe adjective “substantial” word of 20 Sted mcaning, itis an unsaistsctory medium forcarying the ides of ween Sag i ty Proposition ofthe whole (Terry's Motors, Lidv. Rindes, 11984) SA$.R. 167)" Goodness and substantialiy are words of value judgerodt og

Which much ink has been spilt by relativst philosophers throughout the ages and I Bev gine to sree with Ashurst J. who in delivering the judgment of he Canta F Sanbs 2.R. 39, std, “The word ‘substantial isa relative term” In Pasen “¥,Grinlng (1948)! ALL E.R. 1 Vicount Simon in the English House of Lene “said” One of the primary meanings of substantial is equivalent to considerable, solid 1 bigs itis in this sense that we speak of a substantial fortune, 2 substantial meal, a ERT ary aty 8 substantial argument or ground of defence* (sce (1948) 1 ALL esa tP ID. In my judgment, fora reason to be good and substantial wince the context in which Iam dealing, it must not only be genuine onthe face oft it The hagas reasonable and so convincing that a reasonable man can conclude that * fae Apolicant had done all that was possible to avoid the default: Evideme a {Anil te between the Ist Applicant and the deceased, the death certfiewe oe ihe So anatadr an acceptable explanatory statement for its non production, neiifceton BY ie Ist Applicant to his slcior of his pending departure tothe provinces naa his forwarding address, the time that elapsed between the date of the delivery of the Hpdemment and the date that he left forthe provinces, and the date of his tenes Freetown are factors which might be in favour of the Ist Applicant,

{il mow consider whether the 1st Applicant has provided the requisite idence for this Court to be able to exercise its discretion in his favour, fe hes not Sstablished any family te between himself and the 2nd Applicant. Tehall cabs:

gn this ive later inthis rating. He deposed that he weat up county Hae

informing his solicitor and only got to know about te judgment on his tena,

Obliquely, his reason for doing so was that the judgment had been reserved since “about mid 1993". While I do not approve or disapprove of delays in the delivery Of udement in these present times taking nto consideration the conditions uanter (nuich my brothers work, I apprchend tat itis incumbent upon litigants fo nferia heir solicitors of theit movements and changes of addresses when they have conc, Pending inthe Cours, Faure to do sos at their peri, Its only in exceptional cases like sickness and deprivation of complete freedom of movement in gifpumstances that they are unable to contact a relative or fiend ora well-nisher to

"inform their solicitor oftheir dilemma tat such failure Becomes orca

AS

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