Mohamed Sesay & Another v Mayanie Sesay (MISC 98 of 2020) [2022] SLHC (20 June 2022)

MOHAMED SESAY AND HANNAH WILLIAMS v MAYANIE SESAY MISC 98/2020 High Court of Sierra Leone (Land, Property and Environmental Division), Freetown Ruling on a preliminary objection, 20 June 2022

Judges: Hon. Dr. Justice Abou B. M. Binneh-Kamara J. Counsel: A. Boyzie Kamara and J. T. Mansaray for the plaintiffs/applicants; S. A. Conteh for the defendant/respondent.

Facts

Mohamed Sesay and Hannah Williams, of Madina Community, Back of Cockrill, off Wilkinson Road, Freetown, filed a notice of motion dated 13 February 2020 in the Land, Property and Environmental Division of the High Court, supported by an affidavit of J. T. Mansaray. They sought a stay of execution of an order of Magistrate Cowan (deceased) of 10 February 2020 and all later proceedings; the setting aside of Magistrate Cowan's orders of 1 July 2019 and 10 February 2020; and a declaration that the 1st applicant, named in a Letter of Offer dated 16 January 2019 and survey plan LOA 12568 dated 17 October 2019 from the Ministry of Lands, Housing and Country Planning, was the lawful lessee entitled to possession of the property at the Back of Cockrill. On 24 March 2020, counsel for the respondent, Mayanie Sesay, raised a preliminary objection.

ISSUE Was the application properly before the High Court when it was begun by a notice of motion, and could defects in the supporting affidavit and the originating process be cured under Order 2 Rule 2, Order 23 Rule 7 or Order 31 Rule 4 of the High Court Rules 2007?

Held

The preliminary objection was upheld and the application dismissed for procedural incongruity and nullity. The action had been begun by a notice of motion, which is not one of the modes of beginning proceedings in the High Court under Order 5 Rule 1 of the High Court Rules 2007. No order was made as to costs.

REASONING

1. A preliminary objection must rest on a point of law, not on facts whose weight can only be decided during the proceedings. It may be decided at once, or deferred where its determination will affect the outcome. This one could be decided at once.

2. Jurisdiction: under sections 132 and 134 of the Constitution of Sierra Leone 1991 and sections 18 and 21 and the Third Schedule of the Courts Act 1965, the High Court could grant the orders sought (stay, setting aside the Magistrate's orders and a declaration as to a leasehold in Freetown). The objection was therefore not strictly jurisdictional, but it was still meritorious because it went to how proceedings are begun.

3. Mode of commencement: Order 5 Rule 1 of the High Court Rules 2007 allows civil proceedings to be begun only by writ, originating summons, originating motion or petition. This action was begun by a notice of motion dated 13 February 2020. Notices of motion are for interlocutory applications in proceedings already begun by one of those modes.

4. The affidavit: it did not state who filed it, on whose behalf, or the filing date, contrary to Order 31 Rule 9(1). Contrary to the objection, its 20 paragraphs were numbered. The court would have accepted it in its defective form under Order 31 Rule 4.

5. Copying in the Master and Registrar and the Assistant Deputy Registrar: the objection on this point was correct, and no reason was given for it.

6. Order 2 Rule 2 (non-compliance) could not override the mandatory Order 5 Rule

1. Order 23 Rule 7 covers amending documents that were rightly filed but irregular, not documents filed in contravention of the rules. The oral request for leave to amend was not an application made by motion and affidavit, and was refused.

7. Section 9 of the Summary Ejectment Ordinance, Cap. 49: an aggrieved person may appeal to the High Court within eight days; an appeal is not a stay, and a stay for an ejected tenant requires security for costs. The ex parte stay sought before the Magistrate was made without security, and no appeal had been filed, so a stay would be in futility. The applicants could seek leave to appeal out of time or apply for certiorari to quash the Magistrate's orders.

Key Principles

Civil proceedings in the High Court may be begun only by writ, originating summons, originating motion or petition (Order 5 Rule 1, High Court Rules 2007). A notice of motion is for interlocutory applications in proceedings already begun; an action begun by one is a nullity that Order 2 Rule 2 and Order 23 Rule 7 cannot save.

Why It Matters in Sierra Leone

A Land, Property and Environmental Division ruling on how High Court proceedings must be begun, the nature of preliminary objections, and the route of appeal from summary ejectment orders under section 9 of the Summary Ejectment Ordinance, Cap. 49.

Cases Cited

Taakor Tropical Hardware Co Ltd v Republic of Sierra Leone (ECOWAS Court, 24 January 2019); Zaria Amira Amina Mara v Managing Director Standard Chartered Bank & Others (FTCC 237 of 2018) [2019] SLHC 47; Yaya v Obur & Others (Civil Appeal 81 of 2010) [2020] UGHC 165; Kassam Kousa v Alie Basma (CC 215/2019); Lovetta Bomah & Others v PMDC (CC 306 of 2018); S v Joseph Saidu Mans & Another (CC 31 of 2018).

Legislation Cited

Constitution of Sierra Leone, Act No. 6 of 1991, ss 132 and 134; Courts Act No. 31 of 1965, ss 18 and 21 and Third Schedule; High Court Rules 2007, Order 2 Rule 2, Order 5 Rule 1, Order 23 Rules 5-7, Order 31 Rules 1(6), 4 and 9(1); Summary Ejectment Ordinance, Cap. 49, s 9; Provinces Land Act, Cap. 122.