Martin Michael v Albert Gomez & 2 Ors (CIV APP 63 of 2008) [2009] SLCA 31 (10 June 2009)

CIV. APP 63/2008 I E N THE SIERRA LEONE COURT OF APPEA BETWEEN: uf MARTIN MICHAEL ~ 3"°RESPONDENT/APPLICANT . AND ALBERT GOMEZ - 15 RESPONDENT AND - THE SHERIFF OF THE HIGH COURT- 2\DEFENDANT/RESPONDENT AND SIERRA LEONE NATIONAL SHIPPING co. LTD - APPELLANTS/APPLICANTS

Coram

HON MRS JUSTICE S BASH-TAQI, JSC (PRESIDING) HON MR JUSTICE P O HAMILTON, JSC HON MRS JUSTICE A SHOWERS, J Barristers CE Margai, Esq. for the Respondents/Applicants JB Jenkins-Johnston Esq. for the Appellants/Respondents RULING DELIVERED ON THE __DAY OF JUNE 2009 S.BASH-TAQI, JSC: On the 30" day of January this Court granted 2 Stay of Execution, on terms, of the Judgment of the High Court, dated 10" November 2098 and all subsequent proceedings pending the heering and determination of an appeal against the said judgment lodged by the Appellants/Respondents herein. In granting the Stay of Execution the Court of Appeal ordered as follows: ad ". “The stey of Execution of the Judgment 0: DB. Edwards, J dated 10 day of November 2008 and all subsequent proceedings pending the hearing and determination of the appeal is granted in the following terms: ’ iti i id execution of the 1 That the applicant be restored to the position before the issue an 0 wzits of Fis and Possession by the High Court Calaaeey the property situate and being at 2A and 4A Off Spur Road Wilberforce Freetown.

Uf 2, That in view of the nature of this acti A that the records be prepared by opty s be a speedy hearing of the appeal and date of this ruling. peal Registry within Four (4) weeks from the

3. That the Applicants/Appell; . oe ° 500,000.00." Ppellants pay the costs of this application agreed at Le 2, tis against this background that the Respondents/Appli ; ” March 2009 praying for the following orders: pplicants filed a motion on the 23% day of 1 “That this Hon. Court do clarify their Order dated 30 o Stay of Execution of the Judgment of the Hon. Justice DE bien Gated 10" . November 2008 and all subsequent proceedings pending the hearing and determination of the appeal on terms therein stated as it relates to the costs awarded 7 in the Judgment of Hon. Justice D. B. Edwards dated 10 November 2008. 2; Such further Orders to be made as the justice of the case may demand.

3. Costs in the cause”. The Motion is supported by the Affidavit of the 3" Respondent/Applicant, swom on the 23 day of March 2009. There are attached to the said Affidavit three exhibits, namely,"Ex. “RBK 1”, the Order of the Court of Appeal of 30" January 2009; “RBK 2”, the Respondents’ taxed | bill of costs in the High Court and Ex. “RBK3” an undertaking by the Solicitors for the ] 3"Respondent dated 3 March 2009, to refund the taxed costs should the appeal against the ] said Judgment succeed and a letter dated 3" March 2009 written by C. F. Margai, Esq. of Counsel for the Applicants to the firm of Betts & Berewa Solicitors for the Appellants/Respondents demanding payment of the taxed costs.. On 30° March 2009 the firm of Jenkins-Johnston & Co filed a Notice of Change of Solicitors having been appointed by the Appellants/Respondents to act as Solicitors on their behalf in place of Betts & Berewa, the original Solicitors. On 28" May 2009, when the application finally came before the Court after several adjournments, Mr. J. B. Jenkins-Johnston Johnston of Counsel for the Appellants/Respondents took a preliminary objection to the application being heard by the Court. He submitted that the application before us seeks a review of the Judgment/Order of 30°" January 2009 exhibited as “RBK1” to the Affidavit in Support; that the orders sought in the Notice of Motion if granted Would contravene Rule 33 of the Court of Appeal Rules PN No.29/1985 and for this reason he stressed that this Court canaot entertain the application; that such an exercise would amount to 2 review of its own decision/order of 30" January 2009. He further relies on Section ? 28 Gof the Constitution of Sierra Leone, Act No. 6/1991 to emphasis his point. He stressed that by Rule 33 of the Court of Appeal Rules, this Court is bound by its own provitlt decisionsorders, and therefore it cannot be seen to review such previous scope} that the invitati for the 3" Respondent for this Court to clarify the Order o! tion by Counsel for po! emt der or decision, an January 2009, is in fact an invitation for the Court to review its own on 3 via tas Sxercise which is prohibited by Rule 33 of the Court of Appeal Rules an a y Bee 120K, 1991 Constitution of Sierra Leone. He asked us to dismiss the Motion with costs.

(IZ Mr. Margai of Counsel for the Applicant ia his i a Court is misconceived and that Sec 128(3) of foo that the application before the on the ground that the Court is not being asked to devine Pac! relevance in the matter 30/01/09, but merely to clarify that decision. He submitted ‘het he Previous decision of application seeking clarification of a previous order of the Co is before the Court is an Rule 33 prohibits the Court from reviewing its previous deck He pointed out that while exception under which the Court can do this. H lecision, it goes on to state the feat 3 this. He submitted that the Applicant is not orev vm applied t of the Ruling; he is merely seeking clarification as to whether the f execution applied t js ae ion applied to the costs awarded to him and whether he was to be deprived of Mr. Jenkins-Johnston replied that the words of the Order are quite exact! . . clear and y what they say, therefore there is nothing for this Court to clarify bs explained. mess ? _ Rule 33 of the Court of Appeal Rules provides as follows: ~

33. The Court shall not review any judgment once given and delivered by it except in accordance with the practice of the Court.” And Section 128(3) of the Constitution Act No. 6 of 1991 states: “Subject to the provisions of subsection (1) and (2) of section 122 of this Constitution, the Court of Appeal shall be bound by its own previous decisions and all Courts inferior to the Court of Appeal shall be bound to follow the decisions of the Court of Appeal on questions of law”. From the quoted provisions above, the lew is settled that the Court of Appeal cannot review its own judgments/decisions, ‘except in accordance with the practice of the Court’. Leamed Counsel for the Applicant though relying on the exception to the Rule 33, remains silent as to what the practice of the Court is in this kind of situation. According to Part 1- Preliminary Section of the Court of Appeal Rules 1985 - . . “Judgment” includes a decree, crder, sentence or decision of the Court below or any Court, Judge or Judicial Officer and includes an award.” We have heard and considered what Counsel for the Appellant/Respondent had to say on his objection, and what Counsel for the Applicant/Respondent has argued in answer to the objection raised and also, considered the provisions of Rule 33 of the Court of Appeal Rules, and have come to the conclusion that that the Ruling/Order of this Court dated 30'° January 2009 is quite clear and needs no clarification. We agree with the submission of Leamed Counsel for the Appellant/Respondent that this is an attempt by Counsel for the Applicant we this Court to review its previous order contrary to the provisions of Rule 33 of the Court o: Appeal Rules. i ication i i . The objection of We find ourselves unable to hear this application in the circumstenee® tot Counsel for the “Appellant/Respondent is upheld. The Applicant’s application is dismissed. We make no order as to costs

ing, 1 wish to state that it is unf i is bei efore concluding sh | Ortunate that this matter is being prolonged unnecessarily by the Participants. Since the order granting a speedy hearing of the appeal as made on 30” January 2009, I believe the substantive appeal would have been disposed of by now if both parties had only made some efforts to co-operate with each other. The present situation is very unsatisfactory and portrays Counsels’ indifference to the interests of their clients. HON MRS JUSTICE S$ BASH-’ ‘QI, JSC | A | AP wl | HON MR. JUSCTICE P.O HAMILTON, JSC HON MRS JUSTICE A SHOWERS, J t