Raymond Coker v Alpha Kamara (CIV APP 16 of 2017) [2022] SLCA 22 (9 June 2022)

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| INTHE C L OF SIE! iE | CIV. APP. 16/2017 | RAYMOND COKER PIPELINE, JUBA HILLS | | FREETOWN APPELLANT | AND |

| ALPHA KAMARA ( SUING BY HIS ATTORNEY, ABDUL 0 CONTEH) | 18B PIPELINE, JUBA HILLS | | FREETOWN. RESPONDENT | REPRESENTATION: | ALEX M MUSA ESQ. COUNSEL FOR THE APPELLANT | ROLAND A NYLANDER COUNSEL FOR THE RESPONDENT CORAM: | HON. MR. JUSTICE SENGU M KOROMA: JSC (PRESIDING) HON. MRS. JUSTICE MUSU D. KAMARA JA HON. MR. JUSTICE JOHN-BOSCO ALLIEU Ja | ott is, RI ea — ROE ae |

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JUDGMENT DELIVERED BY HON. JUSTICI INGU M.

KOROMA JSC ON THE JUNE, 2022

1. This is an appeal from the decision of the High Court dated the 1* day of July, 2014 on the following grounds:

1) That the Learned Trial Judge erred in law by delivering Judgement against a Defendant who is permanently resident out of the Jurisdiction and who has not been served in accordance with the established rules of Order 11 of the High Court Rules, 2007.

2) That the Learned Trial Judge erred in law by not upholding a fundamental principle of natural justice (i.e. giving the other party a fair hearing).

3) That the Judgment is against the weight of evidence.

4) That there shall be an application for leave to file further grounds.

2. The relief sought by the Appellant is that the decision of the High Court dated 1 July, 2014 and all subsequent proceedings be set aside and a proper trial be ordered.

Background

3. The Plaintiff (the Respondent herein) filed a Writ of Summons witnessed ‘on the 10" day of October, 2013 claiming the following:

1) Declaration that the Plaintiff is the owner of all that property situate, lying and being at Off Pipeline Road, Juba hill Freetown in Western Area of the Republic of Sierra Leone

2) Declaration that the Defendant has no title to any portion of the Plaintiff's Land

3) Damages for Trespass and wrongfully entering upon the said land.

4) Recovery of possession of the Plaintiff's land which is being claimed by the Defendant.

5) An injunction to restrain the Defendant whether by himself or his Servant or Servants ,Workmen, agents, privies and any person claiming right of entry upon the said land or otherwise from doing an act upon the said land or any part thereof inconsistent with the rights of the Plaintiff.

6) Delivering up and cancellation of any conflicting deeds, Instruments, plans and other documents and consequential rectification of all appropriate registers.

7) Any further order or relief that the Honourable court may seem just.

8) Costs

4, By order of the High Court dated 30" January, 2014, leave was granted to the Plaintiff, to serve the Defendant by publication of the Writ of Summons herein in two editions of a widely circulated newspaper. The said

publication was made in the Standard Times newspaper.

5. The Plaintiff filed a Notice of Motion dated 16" day of April, 2014 praying that Judgement be entered for all the relief claimed in the Writ of Summons

on the ground that the Defendant had failed to enter appearance in accordance

with the Rules.

6. In the affidavit in support of the application sworn to on the 16" April, 2014 by Abdul Conteh (Attorney of the Plaintiff), it is deposed at paragraphs 7 and 8 that the Defendant was served by a Notice in two editions of the Standard Times Newspaper but failed to enter an appearance

7. The Application was granted by the Hon, Justice A. Dworzark J by an Order dated 1* July, 2014.

8. By order of Dworzark J dated the 10" July, 2014, the Plaintiff was granted leave to issue a Writ of Possession and a Writ of Assistance.

9. The Defendant entered appearance on the 6" January, 2015.

10. The Defendant filed a Notice of motion dated the 23" January, 2015 seeking the following relief:

1) That the Judgement in the matter herein dated 1* July, 2014 before the Hon Justice A. Dworzark J and proceedings leading to this Judgment BE SET ASIDE on the grounds that it infringes Order 11 Rule 1 sub-Rule 1(g) of the High court Rules, 2007.

2) That the Judgement in the matter herein dated 1* July, 2014 before the Hon. Justice A. Dworzark J BE SET ASIDE and the entire proceedings be declared a nullity on the ground that it infringes the natural justice principle of Audi alteram patem” (give the other party a fair hearing).

3) A restitution of the Defendants’ right to the property before the Judgement was obtained.

4) Any Order or further Orders that may seem just to this Honourable Court. 5) Costs.

11, By order of the Hon, “Mrs, Musu D. Kamara J (as she then was) dated Tuesday 22" December, 2015, the Application dated the 23" day of January, 2015 was refused on the ground that the reliefs prayed for would Amount to an appeal and since she had concurrent jurisdiction with Dworzark J, the matter could best be determined by the Court of Appeal.

She further held that the situation would have been totally different if the

Applicant had asked for the Judgement to BE SET ASIDE on the grounds that

the Defendant intended to proceed with the matter so that it would be

determined on its merits.

12. On the 14" April, 2016 following an Application filed by the Defendant dated 30" March, 2016, Hon Mrs. Justice Musu D. Kamara J (as she then ‘was) granted the Defendant an enlargement of time within which to appeal and leave to Appeal.

The Appeal

13. Both Counsel, Alex M. Musa Esq for the Appellants and Roland A. Nylander Esq. for the Respondent filed and relied on written synopses.

THE APPELLANT

14. Mr, Musa argues that the default Judgement dated 1* July, 2014 and all process as leading to that Judgment here flawed for the following reasons:

i. the procedural steps prescribed in the High Court Rules, Order 11,

Rule I Sub Rule! (9) have not been complied with in that the Plaintiff

and the Attomey were aware that the Defendant did not live in the “pan body” structure at Pipeline Juba nor does he live in Sierra Leone.

ii. that the Plaintiff's Solicitor was aware that Alex M. Musa Esq. was the Solicitor for the Defendant since he acted for the caretakers of the Defendant during an ejectment action in the Magistrates Court.

15. Mr. Musa argues further that the Plaintif?’s claim of right to the property is obviously questionable in the light paragraph 3 of his particulars of claim. Little wonder then that the principal order he prays for is vague. He ‘submits that this matter should not have even got a full blown trial in the

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