Lewis & Peat (Produce) Ltd v Pellizzari (Ruling) (MISC APP 30 of 2000; MISC APP 31 of 2000) [2001] SLCA 8 (24 January 2001)

ORF oo INTHE COURT OF ARBEAL OF SIERRA LEONE Eo peers Ve egInSSTLNOA © (RECIPROCAL ENFORCEMENT) +.” INTHE HIGH COURT OF JUSTICE (QUEENS BENCH DIVISION) -- ROYAL COURT. OF JUSTICE, TUESDAY 26" FEBRUARY, 1981 : Oyo MRR BELT, 0.C. Sitting as Deputy High Court Judge _ LEWIS & PEAT (PRODUCE) LTD. + Judgment Creditor aoe a ALMATU PROPERTIES LTD. - 1° Judgment Debtor SOCIETE ALMATU- AGENCIES LTD. - 2 Judgment Debtor MUSA-KALIL SUMA - 3 Judgment Debtor ~ SM@R HORST. + = 18 Gamishee EE AUGUSTINE KOUN ENHOVEN: - 2°! Gamishee . PAOLO BELLIZZART | = *3% Gamishee ; BETWEEN “LEWIS & PEATPRODUCE) LTD.. - _Plaintiff/Applicant . PAOLO PELEIZZARI : : -. Defendant/Respondent

Coram

ee . HON. JUSTICE TOLLA THOMPSON , J.A. wo, HON JUSTICE ANB. STRONGE, J.A. ee re ee .

|: Se ak wrgegogegee hie gee cies © Qt | pee : ar 2 ee MEM, FERRVEOR-THE APPLICANT MR. BANDA THOMAS FOR THE RESPONDEN + ~ RULING DELIVERED THIS 24™ DAY OF JANUARY, 2001 TOLLA. THOMPSON, JA: - This ruling is-on the two motions argued before.us: Misc.App.30/2001 and __- Mis.App.31/2001 respectively. . ¢:* The applicant-in the motions among others applies for the following orders: - 1, Variation of the orders of the 8" and 12" December, 2000 respecitvely. :

2. Leave to appeal to the Court of Appeal. . 3, Stay of proceedings relating to the hearing of the motion dated 7” July arid:7" Deceniber, 2000 respectively. :

- -. The application is supported by the affidavit of Dunstan Samuel Vincent ‘ sworn to on the 22" December, 2000 to which is annexed several exhibits. . Inzeply tothe affidavit.in Opposition, there are two more affidavits swom to

soa) onthe: of January; 2001 by Dunstan Samuel Vincent with exhibits attached. : 7 A short history‘of this case reveals tliat on the 26trh February, 1991, . judgment was given in the High.Court of Justice (Queens Bench Division) sy Englanid in favour. of the plaintiff Lewis and Peat, the applicant herein. “The -. *” judgment-was against three. defendants, Alimatu Properties Ltd., Alimatu pan ‘Agencies/Ltd- And Misa Kalil Sima for the sum “$800,000 together with * contractual: interest”. A memorial of this judgment was sealed in this ie jurisdiction. ooo The Court Below : Be Torsatisty tle, judigént or part tteréof Garnishee proceedings was instituted " by the applicant against the 3" Garnishee Paola Pellizzari a tenant of Musa

USE SEARS tat oe io | ERR ois Ea arya ook cede, 28 aS as dg :

Tags Kalit Suma the 3! defendant inthe original action in the U.K. Consequently

ue S E “a Gamishee-ofder absolute was made in the following words:

wee Oe “Unless sufficient cause:be shown to the contrary by the

eS defendant 3 Garnishee) the rent of $120,000 be made

_ by the defendant (3" Garnishee) to the plaintiff (judgment

creditor) in default execution might be issued” _ The above order was made on the 16™ June, 2000.

4 : On the 7" December, 2000 Mr. Banda Thomas learned counsel for the respondent proceeded to apply by way of motion for a stay of the above

Order

The application is still pending the court below. On the 28" November the . applicant-séaléd'a writ‘of fifa which he subsequently attempted to execute... against the respondent, . _ Mr. Banda Thomas, successfully applied for the said fifa to be stayed; and - . the learned Judge granted ‘the application in-these words. L o : “The writ on:the amount of US$120,000.00 is not one that : I can endorse and therefore no terms can be imposed on a Stay. +: The result is:that a stay of execution of the writ of fifa is granted x peniting the hearing and determination of the defendants As:a résult:6fthis.order, made by the learned Judge, Mr. Terry learned ge .counsel for'the applicant applied to this court for the orders earlier on stated.

« OSM De he ae ; “The Argument Before Us’ ; +78 s Mei Tenty in Higsubmission acknowledged the point that it is within the ae idge’s discretion to-graht a stay, but submitted it should have been granted ©. | “onteris. He refitted ‘us'to the Supreme Court case of BANK OF CREDIT AND. COMMERCE yv_ THE CHARGE. D’ AFFAIRES OF IVORY COAST EMBASSY IN SIERRA LEONE Misc. App. 8/82. . He therefore is asking for a variation of the order for a stay on terms. On the point of leave to appeal to the Court of Appeal, he submitted that the : proposed ground of appeal disclosed a prima facie good grounds of appeal. . On the point of the order of the 16" June,2000, he submitted that the order is a final order and that the fifa was in place. Mr, Banda Thomas in reply referred us to Exhibit DSVI the order of the 16" June, 2000 exhibited to-the affidavit of Dunstan Samuel Vincent and submitted:-that thé order is not a final order and that he had taken steps by : a YW2 to-show sufficient cause why execution should not be levied. The motion: is.still. pending before the learned judge in thé court below, when the "applicant proceéded to execute a fifa for the recovery of the sum in DSV1. a This is the gist of-the argument before us. . The Order-of.the 46" June, 2000 : Tn my humble.opinion:the heart of the application before us is what : interpretation is to be put on the-order-of the 16" June, 2000. Mr. Banda Thomas ifvinterpréting thé order contended that the order is not a final order. ye Mr. Terry off the other haind ‘said-that the order is final. To resolve these two te contending positions, I shall start by giving the definition and the 2 authoritative interpretation’ by eminent jurists of a final judgment or order > and intetlocutory jildgmient or order.

wie nee ; ra) ee hh ete ‘According to a “dictionary ‘of law’ — final judgment or order means a judgment or order when:an action is ended and interlocutory judgment of order means one which does not finally determine the rights of the parties. + Tn interpreting final. judgment Lord Fry L.J. in RE RIDDEL 1888 20 QBS P.517 said: . . “ Nothing can be a final judgment or order by which there is not a final and conclusive adjudication between the parties 5 of the matter in controversy in the action.” Again in RE FAITHFUL, EX PARTE MOORE. 1885 14 9BD, 627, LORD - SHELBORNE, LORD CHANCELLOR said: . “To constitute an order a final judgment nothing more is necessary . than there should be a proper litis contestatio and a final adjudication is between the parties to it on the merits. That his order (for the : payment.of cost) was.ajudgment is plain and it is equally plain : it was a-final, judement we? ; IN THE MATTER OF THE GOLD COAST PROPERTY COMPANY oy AND ‘ IN THE MATTER OF CERTAIN LEASES AT KISSY BYE PASS ROAD, KISSY VILLAGE 2SLER 1962 P.179. . The: Court.of Appeal teferied to in the tests applied by Lord Alverstone C.J. in. BOZSON _v, ALTRUNCHAM UBAN DISTRICT COUNCIL 1903 E/C . Fara.547 at Paige 548 in the determination of final judgment or order. He said: - : * : “Tt Seems io.ine that ‘the real test for determining the question ought to ; be this. Does-.the judgment or order as made finally dispose of the i rights.of the parties”. ~ mo, | es

— St ©“ 999 consider this (est most apprOptiate id I shall adopt and apply it to determine whether the order of the 16" June, 2000 is final or not. In the Oxford Dictionary the word “unless” means “except or on condition” aa On this meaning'the order of the 16" June, 2000 will read thus except or on condition sufficient cause is shown. In my view, it presupposes that the respondent is given another opportunity to do something with respect to the order before execution. In deed it is significant to observe that at the time the applicant attempted to execute the fifa, Mr. Banda Thomas had already moved the court below on the order of the 16 June. - In expressing this. view, I derive additional strength from the decision of KABBA v YOUNG 1937-49 ALR (SL) 245 in which Kingdom C.J. said: cy, . “The learned trial judge after giving an interlocutory judgmeni . 6 on the 2" of November, 1942 containing his findings of fact and:decisions on points. of law; delivered on January, 25" 1943 . the following further ‘judgment which the parties have regarded as final though in fact it is still only interlocutory since it does not finally determine the rights of the parties but gives direction | for the working out those rights one step still remaining to mo perfect the judemene”. T entirely agree with Mr. Banda Thomas. There is no doubt that the order of the 146" June, 2000 was not a final order; and clearly attempted execution of : the order'by: issuing. a wtit of fifa was irregular. Thé learned judge was right we to order a-stay- of execution without imposing terms. ee

ae ee er z | Mibiaion othe Order foraSiax : Ag ‘tegatds this order Tam imable to grant the order sought in the light of what I have said with respect to the order of the 16" June. The application aad for variation is refused. Leave to Appeal The relevant paragraphs of the affidavit in support of Dunstan Samuel 7 Vincent filed on the 14° December, 2000 are: 3,. That the plaintiff/applicant is aggrieved by the aforesaid ruling ; teferred to as Exhibit DSV1 and seek.leave of this honourable Court of. Appeal against the ruling (order) tothe Court of Appeal on the proposed or intended grounds of appeal exhibited hereto and numbered Exhibit DSV2. : 8.. That the proposed grounds of appeal show not only prima facie good : **’ cause for léave to.appeal-but also discloses substantial grounds of : : appeal tothe Court of Appeal. , Against the above averments there is the affidavit of Yada Williams.

14. That in the light of all the circumstances of this matter I verily believe that the propose appeal does not disclose any substantial ground and ee that thete-8 so likélitiood that:the:plaintiff/applicant can succeed on : - "such: frivoloiis grounds: : On penisal if the affidavit evidence and in the light of my pronouncement When dealing with the order of the 16" June 2000, it is my considered view . thatthe applicant bas not shown good reasons why leave to appeal should be : granted. ‘Leave.is-accordingly réfused. im s

«. 2, StawopPuseeedings: : Wiha comie:t6 the érdér:for.a Stay, of proceedings. The application for a stay ; is supported by affidavit of Dunstan Samuel Vincent sworn to on the 14" . + December, 2000. Paragraphs.4,5,6 and 7 in particular aver as follows: 4.. That I know for a fact that this is a proper case warranting the ; »granting of a stay of all proceedings relating to hearing of the : "motions dated 7® July, 2000, 25" July, 2000 and 7 December, 2000 _ + Fespectively without their affidavit are exhibited hereto marked : Exhibits DSV3, DSV4, DSVS respectively. 5, That unless a’stay of proceedings referred to in the immediate hearing and determination of the contemplated leave to appeal ~ - in. réspect.of which leave to appeal is now being sought the - continued hearing of these motions and any determination in the interim period in favour of the defendant/respondent may : : :! very:-well: render nugatory the contemplated appeal to the Court a of ‘Appeal ih this-court is‘iiclined to grant the said leave to appeal : . against the.ruling and order of the Honourable Mr. Justice S.A. : . Ademosu dated 12" day of December, 2000. |

6. That the.matters.réferred to in the foregoing paragraph in this ree; affidavit-cleatly disclose special and.exceptional circuinstances : . for the pranting of astay of proceedings relating to the aforesaid motion. ” a 7. ‘That the iriterest of justice and the circumstances of the case also . o ' ‘warrant'the granting of.a stay of proceedings relating to the hearing and-determination .of the contemplated leave to appeal in respect of + which feave-is being'sought before this honourable court.’ oe 7

: “As-Against these averments there.is the affidavit of Yada Williams. The _ofelevant paragraphs are, pata, 7, 11 and 13.

7. That thé.motion dated 330 July 2000 referred to in paragraph 4 of the + affidavit of Dunstan Samuel Vincent was listed before the vacation court and that on:the-8" of December, 2000 that court presided over by the Hon. Justice Massally judge ruled that the application ought to be propeily made to. the Original court ard that the status quo was to be oe maintained until sich application is made to the original judge. A copy of the said order is produced shown to me and marked YW4. : 11.That the motion dated the 7" December, 2000 and referred to in paragraph 4 of the said affidavit was an application inter alia to set aside ._, the writ of fifa —a copy of the said notice of motion is produced shown to me and marked YW6. 13.That I have been informed by counsel representing the defendant/ respondent at the hearing of various applications in the High Court and : +. verily believe thatthe motions referred to in paragraph 4 of the aforesaid Py affidavit‘ave not been heard partly because of the plaintiff/applicant counsel’s preliminary objections and partly because of his confrontational approach in court. Fhe-general: fiile is-that a stay. of proceedings will bé granted upon proof of a prima:facie. Good ground of appeal.and the existencé of special or exceptional circumstances. . The onus is on the applicant to show by affidavit ‘ éviderice-that the two requirements do exist. See AFRICANA TOKEH ‘ MIELLAGE:LED: V_JOHN.OBEY DEVELOPMENT. INVESTMENT . 1 $66.» ‘Misé. App. 2/94 unreported. CHERNOR SESAY_& ANOR v ©" ABDUL JALIL AND ANOR. 18/94 unreported. iF .

ee LeBow wage a ee : 7 OE SET oat 1 . “ abi. . paar ~“Phavé colisiderea-thie affidavit evidence in support and in opposition to the : order prayed for. Fhe two requirements mentioned have not been satisfied ; for the to: grant‘a stay of proceedings. + In any case, I am. of tlie view that the motion of the 7" December must be allowed to go on in the court below as it touches and concerns the order of : the 16" June, 2000: : The application for a stay is refused. . For the foregoing reasons the application is dismissed with cost to be taxed in favour of the respondent. Hon. Mr. Justice M.E.T. Thompson, Justice of Appeal (Presiding) ro -@Agree)“ Hon. Mr. Justice A.N.B. Stronge “2° Sustice of Appeal -. @ Agree) Hon. Mr. Justice B.K. Cowan - oA 2 Justice of Appeal

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