Mohamed M. King & Another v Arnold Bilson U. Nylander (MISC APP 2 of 2006) [2007] SLCA 19 (8 July 2007)

MISCAPP.2/2006 | INTHE COURT OF APPEAL OF SIERRA LEONE ' BETWEEN: 1 Mohamed Musa King : Applicant 2" Defendant Dr. Gershon B.O. Collier 1" Defendant/Respondent And |

Arnold Bilson Ulyses Nylander By His Attorney Lynton B.O.Nylander - —_ Plaintiff/Respondent | CORAM: ' Hon. Justice U.H. Tejan-Jalloh J.S.C. ) Hon. Justice S. Koroma J.A. Hon. Justice A.N.B. Stronge J.A. ] ‘Hearing Date: 6" March 2007 Ruling 2007 Advocates: 4 ND. Tejan-Cole Esq., For Applicant 2™ Defendant Dr. W.S. Marcus-Jones For Plaintiff/Respondent

Ruling

K Ruling delivered this me hd day ofan nary 2008 TEJAN-JALLOH JSC: By # Notice o7 Motion dated 1" November 2008 Mohamed Musa King, second Defendanv/Applican: applied to the Court for enlargement of time for leave within which to appeal and for eny other Order or Orders the Court may deem fit and just. The application is supported by the affidavit of the applicant swom to on the I" November 2006 and together witl eight

(8) Exhibits. The enlargement sought is 10 appeal against the Judgment of the Honourable Mr. Justice S.A. Ademosu, then High | Court Judge delivered on 5" March 1990.

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1 remind myself that pursuant to sub rule 4 of Rule 11 of the Court of Appeal Rules, 1985, Statutory Instrument 29 of 1985, the affidavit must set forth good and sufficient reasons for the application and by grounds of appeal which prima facie show good {ause. Lam not concerned with the merit or otherwise of the appeal ‘Te said Judgment is Exhibit MMA and inter alias, ordered property situate [ying and being at 70° Wilkinson Road, Freetown — Exhibit MM3 ~ recorded in Books of Conveyance kept in the Office of the Registrar-General be expunged. Paragraphs 5 and 6 of the said affidavit state that the applicant moved into Exhibit MM3 in 1999 and has been living there since and no one has ever challenged his claim to ownership. The deponent in paragraph 6 also deposes that he had to leave the jurisdiction during the rebel incursion in Sierra Leone. Dr, Marcus-Jones Counsel for the Plaintift/Respondent filed an affidavit on behalf of Lynton Bankole Onesimus Nylander swom to on the 21" day of November, 2006 in opposition to the Notice of Motion supported by 6 (six) exhibits. Exhibits LBON 1, LBON 2, and LBON $ are letters purportedly copied to the Applicant and LEON 6, dated 17" April, 1990 deals with the removal of a wall. Juxtapose the two, the second ddefendanvapplicant is concerned with the expunction of the Conveyance to his property ‘at 70° Wilkinson Road, Freetown, from the books of Conveyances kept in the office of the Administrator and Registrar-General, and the Plaintifi/Respondent is concerned | about a wall which according to paragraph 7 of the affidavit in opposition has been demolished. Nevertheless, Counsel for the Plaintifi/Respondent opposed the application because it was out of time. Dr. Marcus-Jones counsel for the Plaintiff/Respondent told the Court that his client is not laying any claim in respect of 70© Wilkinson Road, Freetown. Counsel addressed the court on subrule 6 of Rule 11 of the Court of Appeal Rules 1985, whether the subrule is mandatory or directory. N.D. Tejan-Cole Esq. for the applicant submitted that no universal rule can be laid for the construction of Statutes as to whether mandatory enactments are to be considered directory only or obligatory; that in each case one must look to the subject-matter, consider the importance of the provision that has been disregarded and the relation of the provision to the general object intended to be served by the Acts and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. He referred us to the case of Doyle v Stephenson, 1, West Indian Law Report 296 and at p. 298, Craies on Statute Law, 4" edition at 240 and Maxwell on the interpretation of Statutes 17" edition at p.

316. He also drew the attention of the Court to the case of B v B 1941 2AER p. 396 at 397 where Scarman J., said that prior authority on other statutes is not of great assistance to the Court in determining the intention of the legislature when the section was enacted.

| ggg rata me | | | Mr. Tejan-Cole also referred to the case of Al it v t Yambasu a decision of the Court of Appeal aren sod delivered on tn ay of June, 1999 - Misc.App.3/98. He pointed out to the Court that enlargement of time + | within which to file an appeal against the judgment in the High Court was granted. ‘As regards the submission that applicant was kept abreast of the proceedings Mr. Tejan- Cole referred to the case of De Stempel v Dunkels 1938 A.E.R. (Anotated) Vol. | at P. 238 at 255G where quoting from Taylor on Evidence 12* edition, p.551, it said: “There is in general no duty cast upon the recipient of a letter to answer and his omission 10 do so does not amount to any admission of the truth of the statements contained in it”. Mr, Tejan-Cole, argued that the applicant in this case does not fall within the } interpretation of “Appellant” in Rule 1 of the Court of Appeal Rules. He urged that we | exercise our inherent jurisdiction. He referred the Court to the case of Sierra Leone | Oxygen Factory Limited v P.B. Pyne-Bailey, a decision of the Supreme Court of Sierra Leone, unreported and delivered on the 10" May 1974. He made available the case of =| Thyane (Marchioness of Batton) v Thynne (Marquess of Bath) 1955 3 A.E.R. 129 and ‘Attab-Quarshie v Okpote, 1977 1 Ghana Law Report p.59 at p.65. I In the case of Meier v Meier 1948 P cited in Thynne’s case Lord Evershed said he would prefer not to atterspt a definition of the extent of the Courts jurisdiction to vary, modify or extend its own orders if, in its view, the purpose of Justice requires that it should do so and it is my view that Rule 32 of the Court of Appeal Rules enables this Coust to make an order that the lower Court ought to have made. Similar view was expressed by Lord Justice Lindley and Lord Justice Morris in the case of the Swire 30 Ca. Dat pages 246 and 146 respectively. Similarly, in the case of Attoh-Quashie v Okpote 1977 1 Ghana Law Report $7 the Court indicated that tradition has sanctioned three areas where the Court generally invokes its inherent powers. They include powers to prevent wrong or injury being inflicted by its own acts ot orders or Judgment including the power of vacating Judgments entered by mistake and of reviewing Judgments procured by fraud and a power to undo what it had no authority to do originally. At page 65 of the Judgment Hayford - Benjamin J said as follows: 7 “Having found that the provisions of order 9 Rule 17 are ‘mandatory it is now necessary to consider whether or not the submissions of Counsel that the Court has an inherent power 10 vacate its own valid orders is well ‘founded, Inherent power is an authority not derived from any external source, possessed by a

| af — uy Court. Where jurisdiction is con inherent powers are those ited in Courts by Constitutions and statutes, exercise of the jurisdiction already conferred (ony sae and efficient pm ney ftw Te, wh rac spring not from legislation but from the nature and Cop ein ee | Fopare inherent inthe Cou 9 ie tare and Constiation of he ow tse pparties before it. The scope of inherent Of its duty to do justice between the beyond its legitimate circumscribed sphere The coarse ne eet sphere. The safest guide lies in precedents”. ly Dr. Marcus-Jon ee i Mate end the pase arate that foot is no difference between Applicant and Tr at ei te ce i a es Pre of Rule 11 of the Court of Appeal Rules apple Ne cied Mnceall on the : ieee . interpretation of Statutes 10" edition at page 379 and opined that sub rule 6 of rule 11 is mandatory. Counsel reminded the Cour that it has power to correct wrongs complained of and that | the applicant should go to the lower Court, where the mistake was made. He did not think that there is any room for the invocation of the doctrine of inherent jurisdiction. ) The Court of Appeal did not make the Order and the jurisdiction of this Court is to comtect erors. He said that there are many decisions of the Court in respect of sub rule 6 of Rule 11 and one cannot come to this Court after the period prescribed and to grant theapplication will be opening flood gates. Even if it has been a day of non compliance, the applicant cannot come to this Court, he concluded. Ihave considered the arguments on both sides. For the Plaintiff/Respondent there has e 4 been a non-compliance with the provision of sub rule 6 of Rule 11 of the Court of Appeal Rules. Counsel for the applicant has canvassed non-compliance as well as in application of the sub rule. In the case of Re Coles and Ravershear 1907 IK.B. Lord Collins said: " i cedure the ‘Although a Court cannot conduct its business without a Code of Proc relation of the Rules of Practice to the work of justice is intended to be ~ ofa hand maid rather than mistress and the Court ough nat fo bese far bound and tied By rules of procedure, as 10 be compelled 10 do what will cause SNSAGS Wi the particular case”. , ; the purpose of punishing bad Furthermore, it has been said that courts do 00 ch ones page 818, said as "te, and Bowen L.J. in Copper v Smith ( follows:

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