Moria M. Slowe v Habib Salman And Another (MISC APP 1 of 2018) [2018] SLCA 1282 (17 July 2018)

i Mis.App 1/2018 r , IN_THE COURT OF APPEAL OF SIERRA LEONE BETWEEN MORIA MICIVER-SLOWE -PLAINTIFF/ APPLICANT 7 SANI ABACHA STREET FREETOWN AND HABIB SALMAN -FIRST RESPONDENT EKUNDAYO SAMUEL SHAW -SECOND RESPONDENT COUNSEL B.E. Jones Esq. for the Plaintiff A.M. Kamara Esq. for the Respondents RULING DELIVERED ON THE 17% DAY OF JULY 2018. BY. . He E MON! SESA\ By a Notice of Motion dated the 18% January, 2018, the Applicant applied to this Court for the following reliefs:

i, that this Honourable Court grants a stay of proceedings of the matter intituled CC 63/16 S No. 6 in the Court below pending the hearing and determination of this application

ii, that this Honourable Court grants a stay of proceedings of the matter intituled CC 63/16 S No. 6 in the Court below pending the hearing and determination of the interlocutory appeal if leave is granted to appeal.

iii, that the Honourable Court grants the Applicant herein leave to appeal

; to the Court of Appeal the Decision/Ruling of the Court below dated the 24% day of November, 2017. iv. Any further or other orders deemed necessary and fit. v. Cost be costs in the cause.

The Application is supported by three Affidavits all sworn to by Bernard

Eldred Jones on the 18t%, 30% and 31% January, 2018 respectively.

‘There is also filed an Affidavit in Opposition sworn to by Alhaji Mustapha

Kamara on the 30» January, 2018.

This matter first came up in this Court on Wednesday, the 31* January, . 2018 when Learned Counsel, B. E Jones Esq. for the Applicant commenced

moving the Court. I had cause to adjourn the matter to Monday, the 12% . February, 2018 as there was no representation for the Respondents. On the

12% February, 2018, I had cause to further adjourn the matter to Tuesday

the 20th February, 2018 when B.E. Jones Esq. completed moving the Court.

AM. Kamara Esq. who appeared for the First Respondent replied and I

reserved the Ruling which is what I am delivering now.

Background

The dispute in this matter arose over ownership of a piece or parcel of land

situate, lying and being at Freetown Road, Lumley in the Western Area of

Sierra Leone. The Plaintiff (the First Respondent herein) commenced an

action against the Applicant and Second Respondent herein by Writ of

Summons dated the 12% April, 2016. After close of pleadings, the trial

: proper commenced before Honourable Mr. Justice Komba Kamanda J in the : course of which proceedings, Justice Kamanda J reportedly ordered the case closed for the Defendant. This was on the 13th of November, 2017. The Applicant herein (Second Defendant therein) applied to the court (i.e. the High Court as presided over by Kamanda J) to set aside the Ruling of he 13% November, 2017 closing the case for the Defendants, that leave be granted the Defendants to reopen their defence and that the Learned trial Judge, Kamanda J. recuses himself from the matter. These reliefs were refused and the Court further ordered that a locus visit to the property be made on the 25t November, 2017. The Ruling was given on Friday, the 24 November, 2017. The Applicant (second Defendant therein) further applied to the same Court praying for a stay of the proceedings and leave for the Second Defendant : therein (The Applicant herein) to appeal to this Court against the Ruling of the 24th November 2017. These reliefs were refused in the Ruling of Kamanda J . dated the 15% January, 2018. The Court further ordered that matter was adjourned to the 20 January, 2018 for the locus visit. Itis after this last Ruling of the Court below that the Applicant has applied to the Court for stay and leave to appeal against the Ruling of Kamanda J dated the 24t November, 2017. I had already granted an interim stay of the proceedings of the matter in the Court below (i.e. CC 63/16 2016 S No. 6 pending the hearing and determination of this application.

i ‘THE LAW ON STAY OF PROCEEDINGS AND LEAVE TO APPEAL AGAINST AN INTERLOCUTORY DECISION/ORDER Learned Counsel for the Applicant, B.E. Jones Esq. in the course of his arguments, said the application was made pursuant to Rules 10 '!) and 28 of The Court of Appeal Rules, 1985, Public Notice No. 29 of 1985. I think that Rule 10 @) is also relevant for consideration in this matter. What do these Rules provide? Rule 10 !) and @ provide as follows: “10 Where an appeal lies by leave only any person desiring to appeal shall apply to the Court below or to the Court by notice of motion within fourteen days from the date of the decision against which leave to appeal is sought unless the Court below or the Court enlarges the time”. "i ®) Any application for leave to appeal or for enlargement of time within which an application for leave to appeal may be made, shall be supported by an - affidavit setting forth good and sufficient reasons for the application and by proposed grounds of appeal which prima face show good cause for leave to appeal, or enlargement of time within which to apply for such leave should be granted” (emphasis added by me). My reading of both sub-rules of Rule 10 reveal the following requirements for such an application. i. that when an appeal lie by leave only (not as of right); ii, _ that the applicant shall apply to the Court below or to the Court (ie. the Court of Appeal); iii. that the application shalll be by Notice of Motion;

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