Moses Kondowa and Others v Aureol Tobacco Company Limited & Anor (MISC APP 7 of 1993) [1993] SLCA 11 (23 November 1993)

il : . ran : MISC. APP: 7/93 ° | IN THE COURT OF APPEAL FOR SIERRA LEONE

‘ BETWEEN * MOSES KONDOWA THE DIRECTOR SL/IDA 3° EDUCATION PROJECT -PLAINTIFFS/RESPONDENTS AND AUREOL TOBACCO COMPANY LIMITED ~- DEFENDANTS/APPLICANTS

0JO WILLIAMS CORAM:- HON. MR. JUSTICE M.O. ADOPHY J.A HON. MR. JUSTICE G. GELAGA-KING Rae HON. MR. JUSTICE A. B. TIMBO TA br. W. S. Marcus-Jones for the Applicants J.B. Jenkins~Johnston, Esq., for the Respondents Ruling delivered on the 25" day of November 1993 HON. MR. JUSTICE G. GELAGA-KING, J.A. By Notice of Motion dated 4? March 1893, the Applicants were about to move this Court for an order for leave to . eppeal against the Order of Alhadi J. made on the 19° day ° of February, 1993, refusing a stay of proceedings herein and for a further Order that the aiuit neaane le nagn vourt be stayed until the determination of a criminal action against the second defendant, Ojo Williams, or until further order, The Notice of Motion was Supported by the affidavit of Walter Sydney Marcus Jones containing several exhibits, When the case was called, Mr. J. B. Jenkins Johnston of counsel for the Plaintiffs/Respondents informed the court that he had a preliminary objection to the hearing of the Motion, fis objection was that the Notice of Motionwas filed out of time and could not therefore be entertained He stated that the Judge’s order in respect of which leave to appeal was being sought was made on the : 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 submitted

/ 1LS ri that the application herein was filed more than 14 days SP from the date rules and submitted that the application . herein was filed more than 14 days from the date of the : Judge's Order ‘and further that the applicants had not } id applied for and extension of time to appeal. He relied on. the case of Mohamed S$. Mustapha and another (executors of]]j //,. ‘the Estate of E. J. Speck deceased) Vs Gbessay Keister be 1963 SLUR vol 3 138 and asked that the application be struck out with costs. | Dr. ow. $, Marcus Jones of ~—scounsel_—s 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 registrar of the Court of Appeal who gave the date. I shall say something about this later. He was, therefore, asking for extension of time and for the papers already filed to 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 lower 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 for leave to appeal was made within the time allowed by law, i.e. within 14 days from the date of the decision from which leave to 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 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 on the court enlarges time” R 64 provides:- “Except where the otherwise provided in these rules or any other enactment, where any application may be made either to the court below or the court, it shall be + made in the first instance to the court below, but if the court below refuses the application, the applicant shall be entitled to have the application determined by the court”.

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see ree Procedure to be followed in the instant case under yy those two rules seems to be this, that where there is no oy contrary provision, the application for leave to appeal H mst be made in the first instance to the High Court within 14 days from the date of the decision against which leave + to appeal is sought but if and when that court refuses leave, then another application may be made to this court. What then happened in the instant case? The decision of the High Court against which leave to appeal is sought was made on February 19, 1993. The affidavit of pr. w. sg. Marcus Jones and exhibit “wsms 3” shows that the application for leave to appeal against the decision and order of February 19 1993 (which had refused a stay of the proceedings) was refused on 24 March 1993, The period between 19'" February 1993 and 2M March 1993 is eleven days. qt is clearly within the fourteen days period stipulated in r 10(1). mr. Jenkins Johnston in his preliminary objection » did not méntion the application for leave made to the High Court and the refusal by that court. If_he had,” he_ would . “Rave “beet const rained fo admit and” concede that the ~application to the High court for leave to appeal was made Hl ~-within. the -14_ daysas~tequired by r 10 (1). He, however, | | Maintained that the face of the notice cz motion bears a , | tubber stamp of the Court of Appeal with the date 15/3/93 and it is this date which is the pith and substance on which counsel for the respondents buttressed his objection, A fortiori, he submitted that the Applicants had not applied for enlargement of time within which to apply for leave to appeal to this court and that even if they had, this court would have been obliged to refuse it because of x 10(4) which provides that: “No application for enlargement of time within which fo apply for leave to appeal shall be made after the expiration of fourteen days from the expiration of the time prescribed within which an application for leave to appeal may be made”. Leave to appeal, as I said earlier, was 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 \ maintained, there Was no application for enlargement of time before us. so Eantpis, as the French would say, the motion must not be heard and must of necessity be thrown out hook, line and sinker! tn the light of these ¥ submissions it is Pertinent to scrutinize the motion ry .

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Raper! A papers. I find that the Notice of Motion is dated 4th aa March 1993. The affidavit in support was sworn to by Dr. | Marcus Jones on the 4°” March 1993, also. The Commissioner u ‘c/a vwme Sioned the affidavit as have heen suern f 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 15/3/93. "In MUStapha’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 Court 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, x 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

lilo . ey [Us ‘ ged fies AE ea . a valuable time? Who bears the costs thrown away? Why ay should an applicant be coerced into incurring and being oe mulcted in such unnecessary costs? Thirdly, the purpose of ey rr 10 and 64, surely, is not to create an injustice, but oy rather to ensure that applications for leave to appeal are we made promptly and dealt with expeditiously so that the y "trial in the lower court will not be unduly interrupted or delayed. Fourth, from what can be gleaned from the 3 to 2 majority decision in the Supreme Court in SC CIV APP: NO 3/88 Nigerian national Shipping Lines Ltd Vs Abdul Ahmed (trading as Abdul Aziz Enterprises) un reported, it is clear that on a proper construction of the aforesaid rules, one can say in this case as was said in that case, that “The High Court having refused the application for leave to appeal .. the Applicants were entitled to make a fresh application to the Court of Appeal,” per Warne, JSC, (Court), xr 66 (waiver of compliance with rules) not forgetting ©. 50 xr 1 of the High Court rules (noncompliance with rules not to render proceedings void) be read as a whole. As I said in this court in the unreported case Misc.App:35/86 African Container Express Ltd Vs Abdul Ahmed (Trading as Abdul Aziz Enterprises) it is only then ° that the sense, meaning and intention of the framers may be collected ex antecedentibus et consequentibus. In other words, every portion and every provision of the rules must : be brought into action in order to collect from the whole one uniform and consistent sense. As is enshrined in section 145 (2) of the Constitution of Sierra Leone, Act No. 6 of 1991, Rules of Court are for regulating the practice and procedure of all courts in Sterza “Leoné>——in my judgment the provisions or that section do not mean and cannot mean that the practice and procedure of the courts must be regulated in such a manner so as to defeat its ultimate purpose which is to ensure : that justice is dispensed in a fair, organized, simple, spfeedy, effective, civilized and just manner. Rules of Court were never meant and were never intended to be used as instruments of oppression and injustice. It is for this laudable reason that it has been the practice in \} Commonwealth jurisdictions that whenever the court is | satisfied that substantial justice requires its own | regulations to be waived, or any slip to be remedied, it \ will interfere for that purpose and dispense with the strictness of its rules, except where a matter is directly ix regulated by Act of Parliament or Decree, as the case may | ‘ be. Vide Smith Vs Baker (1864) 2 H & M 498 and Ferrand vs! i |

co v4 Le ' AG ee Lo cl * Ee Mayor of Bradford 8 De Gc. M.& G93. Por all these reasons | Ihave come to the conclusion Ehat the preliminary . Rot objection ought to be overruled and it is hereby overruled. yee OE over EULED # There is a matter of practice, which 1 said earlier on 3 ag would revert to later, I refer to the practice of ay . Solicitors lodging their motion papers with the Court ot 4 Appeal registry for the return date to be decided upon ana Q filed in by registry officials. This practice is palpably ; wrong. By leaving the return date blank, Solicitors are in fact presenting and filin inchoate motion. As was Saidby RUD, Marke J. Tn this-court in Mabtssis's oe: supra, no ene has been able to cite any authority justifying the habit of lodging and incomplete notice of motion which left the return date blank for the Registrar to fill in. ft is the duty and exclusive privilege of Solicitors and Applicants, after consultation with the Registrar, to £11] in the return date, paying due regard, of course, to the , length of notice required by law. If they fail to perform this duty then they will only have themselves to blame in future for the consequences, Sgd Hon. Mr. Justice G, Gelaga King, J.a Sgd Ilon. Mr. Justice M. 0, Adophy J.A (Presiding) Sgd Hon. Mr. Justice a. p, Timbo, J.A