Mira Huballah & Another v Alimamy Fofanah And Others (MISC APP 10 of 2022) [2023] SLCA 6 (20 July 2023)

MISC. APP 10/22 2022 IN THE COURT OF APPEAL OF SIERRA LEONE (CIVIL DIVISION) BETWEEN: MIRA HUBALLAH -18T APPLICANT ZINA HUBALLAH -2ND APPLICANT (Both jointly as Trustees for the Beneficiaries of the estate of MALIK HUBALLAH(DECEASED) 15 LUMLEY STREET FREETOWN AND ALIMAMY FOFANAH - 1ST RESPONDENT SHEKOU KAMARA. - 28D DEFENDANT 11 Lumley Street Freetown ms ALHAJI MOHAMED BOBO BAH gaz RESPONDENT Regent Road Freetown

+ pT. KOROMA -COUNSEJFOR ‘THE APPLICANTS A. MARAH -COUNSEL FOR THE 47 RESPONDENT RULINGM#SELIVERED BY THE COURT OF APPEAL ON THE 207 JULY

th€Asplicant approatited this court by notice of motion dated 26% May 2022 praying felgthe following;

1. That thiQgoufS grants an interim stay of proceedings and execution of the rulingp@ated 224 February 2022 delivered by the Honourable Justice “N.C. Browne-Marke JSC pending the hearing and determination of this application.

2. That this honourable court enlarges the time within which to seek leave to appeal against the ruling dated 224 February 2022 delivered by the Honourable Justice N.C. Browne-Marke JSC to the court of appeal.

3. That this honourable court grants leave to the Applicant herein to appeal against the ruling dated 224 February 2022 delivered by the Honourable Justice N.C. Browne-Marke JSC to the Court of Appeal.

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4. That if orde grants a diay of pees, are also granted, that this honourable court the hearing and determineaen or execution of the said ruling pending 5S. Any Hon of the said appeal.

6. That the palin that this honourable court may deem fit and just. beac: is application be cost on the cause. edaeal dee a Ena moved the court on his application. In the process, Preliminary objectign oon indicated that he wishes to raise and rely on a pats Sry objection on the basis that this court lack jurisdiction to hear this s nt application. Counsel for the Respondent objected on the ground that the ruling sought to "© appealed against was not a final judgement. As such appeal is not as of right. The leave of the High court needs to be sought before the expiration of 14 days before any such appeal could be filed pursuant to Rule 10 (1) of the Court of Appeal Rules 1985. Where the said f 14 days lapses without such application being made in the High Cgffrt, the Applicant is at liberty to approach the Court of Appeal within a r ped of 14 (fourteen) days for an enlargement of time within which to ‘appidach, ‘igh Court for the said Lars Ww appeal agaituse cite cuiing of tne Hignsggurt pursuant to Rule 10 (4) of the Court of Appeal Rules 1985. Counsel sub at “both 14 day periods for leave to appeal and for an enlargement of time ih which to seek leave to appeal have lapsed without the leave or enlargempnt of time within which to_se@k Icave being sought. That in view of these lapses in time, this court latks jurisdiction to eng6t@Mb, this application of 26% May 2022. Counsel argues tha tito approach the Court of Appeal is only triggered by a refusal by tHeWjgh Cofrt. He submitted that even when the Applicants are out of time, they SQpulé“irsiipprgath the High Court for an. enlargement of Ume and oniy whenggbe High court retuses this applicauon can the applicant approach a enlargement of time. Counsel referred this court e case of Nigerian National Shipping lines vy Abdul Ahmed (Trading as Abdul Aziz Enterprise) S.C Civ. App. No. 3, (88 pg. 55-97 and the ratio of Lord Atkin in the Privy Council in the case of Ohene Moore v Akessch Tayee (1993) A.C. 972 cited by Kutubu JSC where the learned Judge held; “itis quite true that their Lordships as every other Court attempt to do substantial justicia and. to avoid technicalities but their Lordships like any other Court are bound by the Statute law, and ifthe Statute k Naas ike the learned Kutubu JSC, I must also Evthority waa delivered not onthe exttre > me ture Troe, State that this requirement requisite for the purposes of an appeal. W° *© fulfil certain

peas understand counsel to be arguing that since the statutory has lapeed eave 2h for enlargement of time within which to seek leave an enlargem is court therefore lacks jurisdiction to hear any application for 8 diam eement in this regard. He submitted that this court cannot exerelet iiscretlontai to enlarge time because there is no rule for the exercise of such and that even when the applicant is out of time, the High Court has the power to enlarge time but that power to enlarge time cannot be exercised by the Court of Appeal unless there has been an application and a refusal by — the High Court. Counsel for the Applicat opposed the objection and maintains that this court does have jurisdiction to hear and determine the present application. He maintains that contrary to the argument of counsel for the Respondent, when it comes to applications for enlargement of time, be they interlocutory or final, it is the court of appeal that has jurisdiction t the High Court. As such considering that the time for seeking the ‘SPthe court to appeal has lapsed, the application for the enlargemesof time can only be made before the court of appeal. oN Counsel ius tive appiicant turtner admits that .¢ limited within which to make an application for enlargement of time DeQye this court has elapsed. However, he argues that this notwithstanding, thisyteftrt is not deprived of jurisdiction to hear and determine and application {gy enlargement of time. A number of cases were referred to in this regard to show that the where there pid. lapse in the time lgSf8Qythin which to seek leave for time to be enlarged, ‘the doors are not reffered Sfiut in the face of the applicant. That this court in such an instang&must tage the interest of justice into consideration. For this assertion cofinS ielied{omthe case.of Santigie Fofanah v Isatu Fofanah | (2015) SLCA 16 datedegO™ November 2016 and Mohamed Musa King v 0 i Arnold BilsonllNylande¥€Mlisc. App. 2 of 2006 among others. That in the preseniftase, t@Qapplicifsghave approached this court basing their app] ores, st Qfjustice. In Santigie Fofanah v Isatu Fofanah 2OTSIESLCA 16 dated| 30% November 2016 this court cited and relied on the casS@hDevenaux#v Kamara (2014) (unreported) where the supreme court app! Shey a fed the dictum of Tholla-Thompson in Ibrahim A.N. Basma v Adnam6useff Wansa (unreported) where he stated; not to defeat it, and invoke the court’s discretionary power to waive strict & pplication of the rules, in order to ensure that the parties have a fair 2pportunity to arque their case in the Supreme Court”. ee the respondent argued that the authorities cited by the were niade pseoen A sl amet of Santigie Fofanah v Isatu Fofanah (2015) cannot be applied pa the le 11 (6) of the Court of Appeal Rules and therefore Jasclibine avo sick bepec 4 Present instance. Further he argued that the voked the jurisdiction of this court pursuant to Rule 10

a of the Court of Appeal Rules and that a discretion based on the interest of Justice cannot be exercised outside the law. fae = ae that the Applicant ought to have approached the High but that this tim 2S fom the date ofthe ruling sought to be appealed against israiae ae < lapsed and the applicant did not file the application. There ean question that where there is failure to make the said application within 14 days thereof, the Applicant can seek for an enlargement of time within which to Approach the court. The question at this stage is which court Should the applicant make the application for enlargement of time. The Respondent by this preliminary objection maintain that Zhe Applicant must approach the High Court in that circumstance. That upiées Mt application is refused by the high court, this court lacks jurisdi hear the present application. The Applicant argues otherwise. Thitffssuets we know it has been settled and there are a number of authorities this }WQisdiction on the issue. In the case of Alice Kenny and Others v Osman Man: iv. App. 18/2004 this court a ae | “Where for any reason a person is desirous to appeal to the Court of HH Appeal runs out of the statutory period of doing so, only the Court of | Appeal can extend the timé id grant him leave to do so. The High court ft nomore® This clearly brings into perspectiv positigy? of the law on this issue. Strictly speaking, the jurisdiction of te high cOurt effluxes after judgment or where it is not final, after a ruling on that specific issue. All other authority it exercises subsequently on the mater Phe issue has to be a creature of statute which must be interpreted striétly. The role of the High court with respect to ieaygsto appeal and enlargement of time is purely statutory. Where the perigAgrantedlby statute expires, it takes with it all subsequent authority it migif@have exercigel during the statutory period granted. Cofinse)or the appligant have approached this court because as he puts it, the timeMhited for seeking the leave of the high court to appeal has lapsed. He cannot BQproachfthe high court on the issue any longer because it has become functlufrere he seeks a remedy of whatever sort in that matter, he can only approgth this court. I also place heavy reliance on the dictum of Justice M.E. Tolla-Thompson (cited above) read together with the decision of oe ‘re/edpe atk or Alice Kenny and Others v Osman Mansaray Civ. App. 18/206 fe esc sie that the applicant could only have approached this nie lingly this court is cloaked with jurisdiction to hear and determine the present application. The Sheet ik eae ee ee that defendant's land is bounded on one side by the access road as stated in his schedule to his conveyance of 1994.

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