Moses Kondowa And Another v Aureol Tobacco Company Limited And Another (MISC APP 7 of 1993) [1993] SLCA 12 (25 November 1993)

1e4 . MISC. APP: 7/93 in IN THE COURT OF APPEAL, FOR SIERRA LEONE 7 \ BETWEEN

Moses Kowpowa t THE DIRECTOR SL/IDA 3*° EDUCATION PROJECT ~PLAINTIFFS/RESPONDENTS ano AUREOL TOBACCO COMPANY LIMITED - DEFENDANTS/APPLICANTS ; i 090 WILLIAMS CORAM:~ HON. MR. JUSTICE M.0. ADOPHY J.A HON: WR. SUSTICE G. GELAGA-KING J.A HOW, MR! USTICE A. B. TINBO A Dr. W."8. Marcus-Jones for the Applicants J.B, Jenkins-Johnaton, Bsq., for the Respondents Ruling delivered on the 25" day of November 1993 HON. MR. JUSTICE G. GELAGA-KING, J.A. HON. MR. JUSTICE G. GELAGA-KING, J.A. By Notice of Motion dated 4 March 1993, the Applicants Were about to move this Court for an order tor feave ts i appeal against the Order of Alhadi J. made on the 19™ day of February, 1993, refusing @ stay of proceedings merit and for a further Order that the civil proceedings senere High Court be stayed until the determination of a crimes action against the second defendant, OJ Willies, senirat further order. The Notice of Motion was supported by the affidavit of Walter Sydney Marcus Jones containing several exhibits. When the case was called, Mee gs a? covers Johnston of counsel for the Plaintiffe/Respondente {ores the court that he had a preliminary objection to the hearing of the Motion. iis ‘oblection was phat whe “cottte of ime and could not ERereToee ee entertained. He stated that the Judge’s order in respect Gf,which leave to appeal was being scught was mate weet ra 19" day of February, 1993, and that the application to this . court was filed on the 15 day of March 1993. He referred to rr 10(1) and (4) of this court's rules and sumtcies

/ (bS y that the application herein was filed more than 14 days *f from the date rules and submitted that the application herein was filed more than 11 days from the date of ‘the Judge's Order ‘and further that ‘the applicants ‘had hee ; applied for and extension of time to appeals’ ie refed’ on the case of Mohamed S. Mustapha and aebthes (ceecsteee Cf $ the Estate of B,J” Speck deceased) Us shansae eet WE 1963_ SLUR vol 3438 and “asked thet the est Soe struck out with costs: Dr. w. S. Marcus Jones of counsel forthe Defendants/applicants complained that the Registrar of this court refused to give him a date for the hearing of the application as, according to him, it was the vegistesr ‘et the Court of Appeal who gave ‘the date. 1 Sheil ser sonething about this later. ile vas, therefore, asking iat extension of time and for the "papers already ring “2 stand. He then, as if he was confessing and avoiding: submitted that he was not out’ of time ‘because the application for’ leave to appeal was refused by the loses court on 2™ March, 1993, and that on the 4™ March, 1993, his motion papers were ready” Tt seems to me that the principal question which arises for determination is whether the application tor ‘ieeve “to appeal was made within the tine alloved by law. i.e. within 14 days from the date of the decision fron which less ncn appeal is sought. In resolving this issue, it is necessary to examine the provisions of rr 10(1) and (64) of the Court of Appeal rules, PN No.29 of 1985. R 10 (1) provides: — “Where an appeal lies by leave only any person desizing to appeal shall apply to the court befor or to the Court by notice of motion within fourteen dave from, the date of the decieion against, wien fewve ie appeal is sought unless the court below on the couse enlarges tine” R 64 provides: “Except where the otherwise provided in these rules or any other enactment, where any application may be sass either to the court below or the court, it shire nade in the first instance to the court ‘below, bet ie the court below refuses the application, the applicant shall be entitled to have the application derormined 7 by the court”,

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wy hell giving Mada Me cl meen ee y nese two rules sens to be this, that where these vet i contrary provision, the application for’ tecve ot appeal y Treg Made in the tirst instance to the liigh Coust afpeat + tg “aye from the date of the decision against wnich Ienn * Ravenna 4s sought but 1£ and when that court tenes iat enett™ another application my be made to thie ence the neantpMMuPened in the instant case? the deotshen ts made “co” Court against which leave to appeal is sosehe wot Marcus” gobruary 19, 1993. the affidavit of pean, “2 arptiat mes, and exhibit vusuy 3” shows that” ees armarcation for leave to appeal against the decieien 2° procecasneeertazy 19 1993 (which had refused a stay ot ond Proceedings) was refused on 2% March 1993, The period between 19% February 1993 and 24 March 1993 is eleven days. P 1Or aay Within the fourteen days period stipuister aa E101). Me. “Jenkins Johnston in his preliminary objection ~Gid_not_méntion the application for deave made to the High ~ fount and “the “refusal by that court. re he had, he would “have “beeil—constrained to admit and “cece Ge the | aapen ication to the High Court for leave to acme et nade’ TRatntaised Cpe Va aE Eequired by y 10 (i). Phe, pesemae® [ \ maintained ‘that the face of The netic GP motley NOM” i inate “RANE Of the Court of Appeal with the aaey Terese which apiece Mate Milan ta te ples and ackrecne ee a gorteenget fOr the Lespondents buttressed his ohjnion’ appLiesecee’ be submitted that the Applicants peyton: applied for enlargement of time within Tpit apply for tfaye to appeal to this court and that even io they had, barr Posen Amd pclrege Ben ra ase tt oes Mg ¥ 10(4) which provides that: to epapbiication for enlargement of time within which sepaPPly fOr leave to appeal shall be made steer ice tae Tien Of fourteen days from the expiration “re ieee ime ,breseribed within which an applicecian £02 leave to appeal may be made” Court co SuPtele 96 2 said enciter, wen refused by the High Court on 2™ March 1993, Fourteen days from that date would be 16 March 1993, The matter came before us for hearing on the 23" March, 1993 and even then, Mr. Jenkins Johnston Eine been CDSE MAS no application for eninge mane Defore us. So. tantets, as the Preneh foaT: say, the Sar ne Rk OS Sere ee oe. a cogent eta . out hook, line and sinker! In the light of these mubaiasions it is pertifiant to sorutinise the motion

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ag papers I find that the Notice of Motion is dated 4th ty March 1993. ‘The affidavit in support was sworn to by Dr. & Marcus Jones on the 4" March 1993, also. The Commissioner * for Oaths who signed the affidavit as have been sworn w before her on the 4" March 1993, is Mrs. A. Showers, the Master & Registrar, High Court, and I take judicial notice + of her signature. Each and every one of the 5 exhibits referred to in the affidavit and exhibited were all proved before Mrs. Showers on 4 March 1993. Yet, Mr. Jenkins Johnston submits that because of the date 15/3/93 on the rubber stamp on the fact- of the motion. Mohamed S. Mustapha’s case, supra, ought to be applied and the motion struck out. It seems to me, however, that that case is easily distinguishable. In Mustapha’s case, counsel for the Respondents had filed an affidavit in opposition, part of which reads as follows:- “2, The application of the Appellants herein for leave to appeal to Her Majesty's Privy Council herein dated March 29, 1962, was entered and filed herein on April 30, 1962, and made returnable the same day.” In the instant case there is no affidavit in opposition. No sworn evidence that the motion herein was filed only on “13/3/93. —In-MUBtapha’S case the Court of Appeal held that ~the-application to appeal to the then Privy Council was made on April 30 1962, 52 days after the Order to be appealed against (instead of within 42 days). In the present case application for leave to appeal was made to the High Coutt within the period of 14 days stipulated in r 10(1) of our rules. for all these reasons I hold that Mustapha’s case is inapplicable. It has been mooted that the way to comply with the provisions of r 10(1) and ensure that one is not caught out of time with the application for leave to appeal is not only to file the motion papers in the High Court, but to file them as well in the Court of Appeal within ‘the 14 days, regardless of whether or not leave has been refused by the court below I reject this contention for several reasons. First, r 64 makes it clear that it is when the court below refuses the application that the Applicant is entitled to have the application determined by this court. Second, why should an Applicant be put to the expense and trouble of filing papers in this ‘ court only to discover later that the court below had : granted leave? And that the filing of papers in this court had subsequently proved unnecessary and a waste of

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