Mother And Child Reverie And Walid Yazbeck (CIV APP 8 of 2018) [2020] SLCA 37 (9 July 2020)

a — 133- - civ. APP 8/2018 INTHE COURT OF APPEAL OF SIERRA LEONE beTrWEEN: . MOTHER AND CHILD REVERIE MR. ABAQUA = APPELLANTS TUNDE THOMAS MICHAEL SHYLLON AND WALID YAZBECK = RESPONDENT

Coram

HON. MR, JUSTICE JOHN BOSCO ALLIEU = «L.A PRESIDING HON.JUSTICE MIATTA MARIA SAMBA = JA. HON. MR. JUSTICE KOMBA KAMANDA = L.A. REPRESENTATIONS: JENKINS-JOHNSTON & CO. FOR THE APPELLANTS KMK SOLICITORS FOR THE RESPONDENT supawencosuiveenonrue T makly 2020 HON. MR. JUSTICE JOHN BOSCO ALLIEU—J.A,

Judgment

“This is an Appeal against the Judgment of A, Showers,

1. S.C, (bat now eetied) dated February 2018 ~ Pages 348 10 370 ofthe Recous Ihe Appellants being dissatisfied withthe said Judgement of A. Showers, S.C. (tir levied 9 (nine) Grounds of Appeal in this Honorable Court as contained in panes S86 40 S88 ot te Recon

7 ca —134- uw

In ground Hof the Appeal, Counsel for the Appelats'submitted thatthe Learned Trial judge

“ ‘erroneously awarded more land to the Respondent in the total acreage of 22.083 Acres which is over and above 12.0843 acres which was claimed by the Appellants. Counsel for the Respondent replied that there was a mistake by the Learned ‘Trial Judge in reference to 22.0843 acres of land other than 12.0843 acres. ‘The said mistake, he submitted, \vas purely clerical and does not render the entire Judgment a nullity He further submitted that the Learned Trial Judge acknowledged, in her Judgment, that the Respondent's land comprised three (3) plots and those 3(three) plots amounts to 12.0843 Acres. “Therefore, it does not affect the evidence and reasoning leading to the conclusion that the Appellants herein trespassed on the Respondent's property Ie must be noted that Counsel forthe Respondent, in an Exparte Notice of Motion Application dated 5! February 2018 made in the Court below, had applied for an Order that the figure 22.0843 Acres appearing in the said Judgment of A. Showers J.C. is an err arising from an accidental slip and therefore be corrected by deleting the said figure of 22,0843 acres and replacing it with the Figure of 12.0843 acres and wherever it appears in the said Judgment an Onler. The Application was refused by the Judge who heard it, See pages 576-582 of the Records. However in the ponding: Appeal, itis observed thatthe Leamed Trial Judge, in her Judgment dated 1 February 2018 referred to a Writ of Summons instituted against the 1 and 2"! Appellants only for the recovery of 22.0843 acres of land. See pages 1-5 of the Records, ‘his was clearly erroneous on the part of the Trial Judge in that by er Order dated 17" April 2013 and effected on 14" May 2013, the 3" and 4" Appellants were added as parties tthe aetion sand farther an amendent was effected in the aeeage of and claimed by the Reypondents, that is, Plot L~ 9.9153 Acres, Blot 2~ LA738 Acres, Plot 30.6652 Actes, all of which totals to 120843 Aetes. See pages 56-59 ofthe Revords

= Had the Learned Trial Judge averred her mind to the Amended Writ of Summons peading before her for determination, then she could not have referred and awarded the Respondent 22.0843 acres of land,

e Having made an error in awarding 22.0843 acres of land tothe Respondent, to which they were far less entitled; I will now refer to Order 23 rule 10 ofthe High Court Rules 2007 which sates follows:

“Clerical mistakes in Judgments or Orders, or errors arising in the Judgments or Orders from any accidental slip or Omission, may at any time be corrected by the Court on ‘motion or Summons without an Appeal.” The effect ofthe above mentioned rule is well explained in paragraph 20/11/1 page 392 of The Supreme Court Practice, 1999, Vol. |, Sweet & Maxwell, as applying only in cases where there is a clerical mistake in a Judgment or Order or an error arising fom an accidental slip or ‘omission. Apart rom the rule, the Court HAS AN INHERENT POWER TO VARY ITS OWN ORDERS SO AS TO CARRY OUT ITS OWN MEANING and to make its meaning Plain (Thynne Vs. Thynne (1955) P.272.CA; ee. et). “Where an error of that kind has been committed, itis always within the competeney of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring i into harmony with the Order which the Judge obviously ‘meant to pronounce” (per Lord Watson in Hatten V. Haris (1892) A. C. 60, Furthermore, corrections have been mae under the rule or the inherent power of the Couet in the eases of Doswell V. Norton (1902) 18 T-L.R. 228, where an Onder giving costs on a higher scale was corrected and Amitage Vs. Parsons (1908) 2 K.P. 410 where a Judgment for excessive amount of casts was corrected. Inthe instant Appeal, the Respondent is elainning fa less acreage of kand, that is 12.0843 Actes 48 opposed 40 22.0845 aeres contained fn the Judgment, [fail to see any ineypetioney or inequitable effet if the correction ix made in the Jalyenient of 1 February 2018 to rellst ne 12.0843 acres insteanl of 22.0818 Actes.

¥ Based on all the foregoing, Ground | of the Amended Appeal dated 17" April 2018 fails. a In Ground 2 ofthe Appeal, Counsel forthe Appellants submited thatthe Leated Teal Judge 2 failed to consider the written closing address as prepared by them and thereby breached the Cardinal Principles of Natural Justice, Audi Alteram Partem. Counsel for the Respondent replied that the Learned Trial Judge was not bound by Law to consider the closing addres of the parties before drawing up her Judgment nor did her omission to consider same (at all) amount to breach of the Cardinal Principle of Natual Justice as claimed by the Appelant. According to him, the Appellants were given an opportunity to be heard throughout the trial and they were represented by Solicitors who prepared and filed their eae as contained in thie Pleadings. ‘The Appellants presented thie witnesses at the tril whose testimonies were ested under eros examination and that the Learned Trial Judge extensively refered tothe evidence and case forthe Appellants in her Judgment. In effect, the Appellants were informed of the fall nature and extent of the claims before the Honourable Court However, in the pending Appeal, it is observed that it was only the Appellant who submited writen closing address in the Court below. (See pages 426-431 of the Records). The Respondent did not present any writen closing address in the Court below. It is therefore inconceivable that the Learned Trial Judge filed to consider the only written closing aldeess belore her, which i the written closing address ofthe Appellants herein In effect, see nothing inthis limb ofthe Appeal argued by Counsel for the Appellants. In relation tothe other Limb ofthis Appel, thats, rach in the Cardinal Principle of Naural Justice of Au Alteram Porter, f wil fst ofall attempt to define the said tern According to “WIKIPEDIA”, “AUDLALTERAM PARTEM™ is a Latin phrase mcanng 1 isten tothe other se” oF “tthe other side be heard as well”

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