Osman S Mansaray v Alice Fatmata Kenny & 2 Others (CIV APP 9 of 2012) [2014] SLSC 14 (15 May 2014)

to CIV. APP. 9/2012 IN THE SUPREME COURT OF SIERRA. LEONE (CIVIL DIVISION) BETWEEN: OSMAN SULAIMAN MANSARAY - APPELLANT AND ALICE FATMATA KENNY - RESPONDENTS ISATU BANGURA ELIZABETH BANGURA

Coram

HON. JUSTICE U.H. TEJAN-JALLOH - cs HON. JUSTICE V.V. THOMAS - JSC HON. JUSTICE V.A.D. WRIGHT - JSC HON. JUSTICE E.E. ROBERTS - JA HON. JUSTICE N.F. MATTURI-JONES - JA COUNSEL: S.M. SESAY ESQ. for the Appellant . M.P. FOFANAH ESQ. for the Respondents JUDGMENT DELIVERED ON THE. lst DAY OF MAY, 2014 This is an appeal from the judgment of the Court of Appeal dated 8" July, 2009, allowing the appeal against the Ruling of the High Court (Hon. Mr. Justice L.B.O. Nylander) dated the 26" May, 2007. This appeal came up before the Court on the 16" December, 2013 when Counsel on both sides stated that they were relying on the case that they have respectively filed for the parties herein and that they have 7 nothing further to say by way of arguments before the Court. The Court ordered that the appeal succeeds, that the reasons for that decision will be given later and that notices will be sent to the parties. : q r \ Zien ea ONY aX *) . re

iT

Background

Two appeals were filed in the Court of appeal in respect of the dispute between the parties herein with regard to property situated at By-Pass Road, Granville Brook, Kissy in Freetown following the High Court Judgment dated 11° July, 2002 of the late Mr. Justice L.B.O, Nylander (the Trial Judge). The action was instituted by the Respondents as Plaintiffs against the Appellant as Defendant. The drawn up judgment states in its opening paragraph that the judgment was delivered in circumstances where the Defendant was “absent and unrepresented throughout the trial”. Subsequent to the said Judgment, appearance was entered for the Appellant on the 18" July, 2002 and a motion was, filed on his behalf supported by an affidavit which averred that he was never served with the writ of summons in the action and only came to know of the action against him when a copy of the Judgment was served on him. Unfortunately from that stage, the Solicitors and Counsel who represented him did not pursue his case in a timely manner. The said + + motion that was filed on his behalf to set aside the default judgment was struck out on the 17 January, 2003 for want of prosecution as the Solicitor and Counsel who originally represented him, the Appellant, in the High Court withdrfw his representation. The records do not indicate whether any notice of this fact was sent to the Appellant. On an application dated the 20" October, 2003, the Appellant by his new Solicitor applied for an extension of time within which to file an appeal in the Court of Appeal against the said judgment dated the 11" July, 2002 and for leave to file that appeal. The application was heard by the Trial Judge who granted the said orders on the 26" May, 2004. It is this Order of the High Court granting extension of time and leave to appeal which is the basis for the two appeals that were filed in the Court of Appeal numbered Civ. App. 18/2004 and Civ. App. 19/2004 respectively. In the appeal numbered Civ. App. 18/2004, the Respondents

who were the Appellants contend that the Trial Judge acted on wrong principles of law in granting an extension of time within which to appeal the High Court Judgment of 11" July, 2002 and prayed for the Order of the 26" May, 2004 to be set aside. In the appeal numbered Civ. App. 19/2004, the Appellant herein, relying on the Order of the 26 May, 2004, appealed the judgment of the Trial Judge of the 18" July, 2002, contending that he failed to properly evaluate the evidence that was before him and prayed for his judgment to be set aside and a retrial ordered. It is against the aforesaid background that the appeal numbered Civ. App. 18/2004 was heard by the Court of Appeal which allowed the appeal of the Respondent herein and adjudged that Civ. App. 19/2004 would not have been filed “if the Order granting the extension of time to appeal was refused”. Consequently the Court did not hear the latter appeal. ‘The grounds of appeal in this Court challenging that decision are as follows:

1. The Learned Justices of Appeal acted on wrong principles of Law in holding that the High Court had no jurisdiction in granting leave to the Appellant to

- appeal against the Judgment of the Honourable Mr. Justice L.B.O. Nylander, Judge dated 11" July, 2002 by the Order of 26" May, 2004.

2 That the Learned Justices of Appeal misdirected themselves in holding that the leave granted to the Appellant by the High Court on the 26" May, 2004 renders nugatory a mandatory rule of the Court of Appeal 1985 (Public Notice No.29 of 1985).

Particulars of Misdirection

“The High Court is only empowered to grant leave within the statutory time period allowed for Appeals. Both the Application for leave to Appeal and the granting of leave must be within the statutory period but not otherwise Now there can be no question that when time to appeal has been fixed by statute and leave to appeal is required the intending Appellant ought to file his appeal within such a period fixed, unless of course he obtains an appropriate order for an extension‘of time at the proper forum”.

3. That the 3% Justice of Appeal did not sign the Judgment of the Court of Appeal of 8" July, 2009 as required by Law and or Practice of the Court of Appeal.

4. That the Learned 2 (two) Justices of Appeal erred in Law in holding that the ruling of the High Court dated 26" May, 2004 granting the Respondent/Appellant leave to appeal out of time is a nullity and is given without jurisdiction.

PARTICULARS OF ERROR : “Where for any reasons a person is desirous to appeal to the Court of Appeal runs out of the statutory period of doing so, only the Court of Appeal can extend the time and grant leave to do so. The High Court is only empowered to grant leave to appeal within the statutory period allowed for appealing and no more”.

5. That the judgment is against the weight of the evidence.

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