Nestor Cummings John v Conneth Cummings John (2 of 2012) [2015] SLSC 1209 (22 December 2015)

~ CIV. APP. 2/2012. ¢ . IN THE SUPREME COURT OF SIERRA LEONE } BETWEEN: NESTOR CUMMINGS-JOHN -APPELLANT AND CONNETH CUMMINGS-JOHN -RESPONDENT

Coram

The Hon. Mr. Justice V. V. Thomas, JSC.- Presiding The Hon. Mr. Justice N. C. Browne-Marke, JSC. The Hon. Mrs. Justice P. O. Hamilton, JSC. The Hon. Mrs. N. Matturi-Jones, JA. The Hon. Mr. Justice A. H. Charm, JA. COUNSEL: Appellant in person. E. E. C. Shears-Moses, Esq. for the Respondent JUDGMENT DELIVERED ON THE 22» DAY OF DECEMBER 2015 HONOURABLE MR. JUSTICE N.C. BROWNE-MARKE J.S.C ‘THE APPEAL

1. This is an appeal brought to this Court by the Appellant, by way of Notice of Appeal filed on 16% March,2012. It is an appeal against the Judgment of the Court of Appeal, dated 2¢ February,2012. The appeal is against the whole Judgment of the Court below. The parts of the Judgment appealed against are to be found at pages 1 - 7 of the Record = (hereafter, references to page numbers, shall be references to the said Record). The grounds of appeal are to be found at pages 7 -

12. These grounds are as follows: A. The Court of Appeal misdirected itself in holding as follows: “It would have been tidier if the Appellant had brought a separate action for that purpose rather than it would to continue under the Misc

App FJ 2/04 which was instituted for the registration of a foreign 7 judgment.” It is also my view that it would have been better if Ps separate proceedings were commenced rather than coming under the

Miscellaneous Application which was for principally the registration

and subsequently the setting aside of the registration of a foreign

judgment’, in that:

(A.1) Pursuant to the Foreign Judgment (Reciprocal Enforcement)

Ordinance Cap 21 of the Laws of Sierra Leone Sections 5, 6 & 7 and

in particular section 6(1)

“On an application in that behalf duly made by any party against

whom a registered judgment may be enforced, the registration of the

judgment ~

(a) Shall be set aside if the registering court is satisfied -

@ That the judgment is not a judgment to which this Part of the Ordinance applies or was registered in contravention of the foregoing provisions of this Ordinance.

And Section 5(1) provides:

“The power to make rules of court under section 24 of the Courts’ Ordinance shalll, subject to the provisions of this section, include the power to make rules for the {following purposes - (f) for prescribing any matter which under this Part of this Ordinance is to be prescribed; and Order 29 Rule 13 (Now Order 45 Rule 11) provides as follows:

“The judgment debtor may, at any time within the time limited by the order giving leave to register after service on him of the notice of the registration of the judgment, apply by summons to a judge to set aside the registration or to suspend execution on the judgment, and if the judge on such application, if satisfied that the case comes within one of the cases in which under

section 4(1) of the Ordinance no judgment can be . ordered to be registered or that it is not just or 7 convenient that the judgment should be enforced in Sierra Leone or for other sufficient reason, may order that the registration be set aside (or execution on the judgment suspended) either unconditionally or on such terms as he thinks fit and either altogether or until such time as he shall direct: Provided that the judge may allow the application to be made at any time after the expiration of the time herein mentioned.” The choice of the action or procedure and its powers is not a matter of procedure but a matter of legal (here statutory) provision. B. The Court of Appeal misdirected itself in holding: “It is my view that issue estoppel would not operate in the present circumstances of this case. The order of 2"¢ March, 2007 was irregular and void and the same ought not have been granted. With respect to counsel for the appellant the submission on issue estoppel could perhaps have been attractive or persuasive if the first order granted was valid.” I have read the case of HENDERSON v HENDERSON [1843] 3 HARE

100. I agree with the dictum of WIGRAM, V.C. in that case in which he stated: “Where a given matter becomes the subject of litigation in and of adjudication by a Court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to ‘open the same subject of litigation in respect of matters which have been brought forward as part of the subject in contest but which was Not.....only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was

actually required by the parties to form an opinion and pronounce a 7 judgment, but to every point which properly belonged to the subject of 7 litigation, and which the parties exercising reasonable due diligence, : might have brought forward at the time.” J In that (B.1) After the judgment of the 2¢ of March,2007, the Court was functus officio, it had exhausted its powers and come to the end of its remit - (see RE V G M Holdings [1941] 3 All ER 417) and had no jurisdiction to set the judgment aside as it purported to do by its ruling of the 16 May,2007. This is a fresh ground.” And in that: (B.2) Under Order 2 Rule 2 in the case of an irregularity and under its inherent jurisdiction in the case of a serious procedural irregularity, a procedural irregularity must be demonstrated rendering the judgment ineffective void, or a nullity. See CRAIG v KANSSSEN [1943] 1 K B 256; [1943] 1 All ER 108 (failure to serve process on defendant); see at pp 262, 113 respectively, per LORD GREENE, MR whose dictum was cited with approval in Chief Kofi Forfie v Barima Kwabena Seifah [1958] 1 All ER 289 P.C.. See also Woolfenden v Woolfenden [1948] p 27; [1947] 2 All ER 653 (decree absolute obtained on application of a party against whom a decree nisi had been pronounced without notice of such application to the other party and in disregard of statutory provisions); Marsh v Marsh [1945] A C 271 P.C. at page 284, criticised by DENNING, L.J. in WISEMAN v WISEMAN [1953] P 79, C.A. at page 92; [1953] 1 All ER 601 at p. 607 C. The Court of Appeal erred in Law in considering issue estoppel as follows: “It is my view therefore that issue estoppel would not operate in the present circumstances of this case. The order of 2«¢ March, 2007 was irregular and

The pages read for this report end here. The judgment continues in the PDF.