Mustapha T. Koroma v Lamrana Sow Alas Mohamed Lamrana Sow & Ors (CIV APP 28 of 2001) [2001] SLCA 20 (27 November 2001)

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P. 28/2! A ava : E COURT OF APP’ [ NTH EAL FOR SIERRA LEONE get WEEN MUSTAPHA T. KOROMA AS “KAMT\ TRADING OKO AFRICA TRADING LINKS - APPLIC ANT AND LAMRANA SOW ALAS MOHAMED LAMRANA SOW & ORS. - RESPONDENTS

Coram

HON.MRJUSTICE M.E. TOLLA THOMPSON —-J.A. HON.MR. JUSTICE A.N.B. STRONGE - LA. ’ HON.MR. JUSTICE A.B. RASCHID - EE.ROBERTS ESQ., FOR THE APPELLANT ND. TEJAN COLE ESQ., WITH HIM A.F. SERRY-KAMAL ESQ., FOR THE 1" DEFENDANT/RESPONDENT. RULING DELIVERED THIS 27™ DAY OF NOVEMBER, 2001 TOLLA THOMPSON J.A.

On the 7" of November, 2001 the Appeal — Civ.APP.28/ 2001 Mustapha Koroma Appellant v. Lamrana Sow Respondent came before the court for dismissal pursuant ‘o Rule '4() of the Court of Appeal Rules Public Notice No.29 of 1985 for failing to fulfill the

Hy fequirements Under Rule 13(4) and 14 respectively.

ASit happened this day was the day Learned Counsel for the Appellant Mr. E.E Roberts i continue his argument in Misc.App. 11/2001 for a stay of execution Pending the ermination of the above Appeal.

When the A, _ erts appears for the Apellant ans! Pl the Appeal was mentioned for dismissal Mr. Roberts appears 10% : fagy ith the court not to dismiss the appeal and ask the Court for an adjournment to

Tequirements.

bl } “Kamal who was also in Court appeared for the ; us Sem i mubmitted that the Appeal should be dis « Respondent and opposed the vent 0 Rule 16(3) of the Court of missed and that the Appell sf gain Under Rule ‘ourt of Appeal Rules. Ppellant ci come . A | spe application W2S granted. The Appeal was adjourned to the following day the matter came up the following day Mr.Roberts had filed an A . wai non-compliance and said he has now complied. sacs Renan me isin insisted that the Appeal ought to be dismissed and that the Affidavit filed relevant 10 Rule 16(1). It is more in tune with Rule 16(3) when there is an application for. peextention of time, after an Appeal has been dismissed under this Rule. And in this oe eres 00 application for extention. The Court heard further divergent argument, on the iperpretation om Rule 16(1) of the Court of Appeal Rules Public Notice No. 29 of 1985. Rule 16(1) states:- “If the Appellant has failed to comply with any of the requirement of f : Rules 13(4) and 14 respectively the Registrar certificate shall certify Such facts to the Court which may thereupon order that the Appea! | be dismissed with or without cost.” ' Ona close scrutiny of the above requirement the following can be gleaned

1. The Appellant must have failed to comply with Rules 13(4) and | 14 respectively. ]

2. The Registrar must have certified to the Court that the Apellant Bh : has not fulfilled the requirements stated in Rules 13(4) and 14

3. The Court may dismiss the Appeal. ltisnot in dispute that when the Appeal came before the Court of Appeal for dismissal the clan had not complied with Rule 13(4) and 14 of the Court of Appeal Rules within the i specified by the Registrar for compliance. The Appeal was ripe for dismissal. ‘owever I hasten to add that the Court ‘dismissal of the Appeal depends on the ; cumstances of the particular case. For instance where there is no application touching of Concerning the Appeal. I hasten to add further that in my view the action of the Court weet Under Rule 16(1) in dismissing the Appeal in akin to an administrative acon even a single judge could perform. ‘Tagree wi ; F applicant is with Mr. Serry- Y in the affidavits filed by the apphican” Nore gy; erry-Kamal, the averments 7 ay ofa ign for an application Under Rule 16(3) where an Appelian’ Lala Sexigs 92S for enlargement of time. See We unreported case Oy case Aaj Boskaie Kakayy camara of Civ.App. 37/76 and more recently the unreported <2 .Clementina Yambasu. Misc.App. 32/2000.

, . jnded to exercise my discretion in fe yen if | am min < | C in favour of the Appellant there are But TS in this particular case which have influenced me not to do so. They are - ett 1, The avernments in the affidavit filed have not shown sufficient And cogent reasons for me to agree that it was an overst ight on the Appellant.

2. Mr. Roberts the Appellant Counsel has not been candid to this Court as he continued to argue the application for a stay of Execution knowing that he has not fulfilled the requirements (For example the argument of the 1" November, 2001. But for the fact that the Registrar brought it to the notice of the court, the court would not have known that the appellant had not fulfilled the conditions. The application would have gone on and on and if a stay is granted, not only would it be a pytthic decision and exercise in futility, but worse still the court would have been embarrassed to know that an appeal is not before us 3. [have had the opportunity to peruse some of the decision of thr Court on this point. I was a member of the panel in one or two of them. I am hard press to see a case in which the court exercised his discretion in favour of the Appellant Under Rule

4, From my experience in this court, whenever the court has been called upon to exercise its discretion in this type of cases in favour of the appellant; it has done so under Rule 16(3) of the Court of Appeal Rules. I see no reason in this case to deviate from this position. Inthe result I shall dismiss the Appeal Pursuant t0 Rule 16(1) with cost. The cost is assessed at Le 100,000. (Sgd) Hon.Mr. Justice M.E.Tolla-Thompson-J.A- UAB. cscssseserensetnseeHlon Mr Justice A.B Raschid =!