S.M. Saccoh v Ibrahim A.H & sons (MISC APP 16 of 1993) [1993] SLCA 13 (17 June 1993)

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| af IN THE COURT CF APPEAL FOR SIERRA LEONE

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5.M. SACCOW i APPLICANT /DEFENDANT AND i IBRAHIM AH. DrtatikLA & . SONS. mole RESPONDENTS /PLAINTI FP

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HON. MR. MR. JUSTICE M.0. ADOPHY, J.A. HON. MR. JUSTICE G. GELAGA KING, J.A. HON. MR,. JUSTICE A.B. TIMBO, J.A. J.0.D. COLE, ESQ., FOR THE APPLICANT E, LABIB MICHAEL, ESQ., FOR THE RESPONDENTS. om he RULING DELIVERED ON THE aa DAY OF JUNE, 1993. G. GELAGA KING, J.A.: By Notice’ of Moticn dated 27th ‘May, 1993,the applicant moved this Court principally for + 6 An Order for a stay of proteedings in the action: C.C. 12/93 (§) 1993 D No.1 in the High Court between the above-named parties, pending the ras hearing and determination of the appeal y contained in the Notice of Appeal herein dated 7 2and May, 199%.

2. An Order for a stay of execution of the Order of A,B. Rashid, J., dated 6th May, 1993,

v requesting the applicant to pay to the respondents costs assessed at Le.1,500,000/00 as costs shrown away. ‘The motion was supported by th affidavit of Joseph Omodele Dominic Cole sw to on 27th May, 1993 and filed hercin with

bg exhibits annexed. An affidavit in opposit sworn to on 79th May, 1993, by Ch#irles Franci Margad with one exhibit war filed

Say a Sees Co i bo ey ae is ares id Briefly the facts are that the respondents had “ instituted action in the High Court, Bo, claiming against . 2 the applicant the sum of Le. 15,.£%, 984 ,020/00 and interest R at 59% per annum from 6/6/92 until payment, as meney due and owing. The respondents took out a Judge's Summons : apparently under 0.X1- of the High Court Rules and upon reading the affidavit of service on S.A, Conteh Fsqe, who - wag stated to be solicitor for the applicant but who failed to appear at the hearing of the summons, final judgement was eritered for the said sum against the applicants with costs on 31.3293 ~ See Ex. "JODC3". de The applicant then moved High Court, presided over by Rashid J., far an Order to set aside the Judgenien® on the grounds that the applicant has a good defence and tnat the Order for Judgement was made per_incuriam. He also applied for unconditional leave to defend the acticn. The learned Judge on the 6th day of May, 1993, ordered that "upon being told that both sides are agreed that the Judgement dated the 31st day of March;- 1993, be set aside. on terms", made certain consequential orders. As there is an appeal pending herein, I shall at this stage refrain from making any comments on such procedure. The consequential orders just referred to included the following: te (a) That the judgement: dated 3143.93 be set aside. (>) That the applicant do file a defence and counter” claim within 14 days from the date of the Order setting aside the Judgement.

(3) That the applicant do pay to the responcents os the sum of Le.1,500,000/00 being costs threwn avey, before the defence and counterclaim is filed By notice of motion dated 13th May, 1993, the applicant applied for leave te apy sl-against (¢) supra ane ia for a stay of proceedings, Orders on we notice of motior were made by the learned Judge on 18th day of May, 1993, follows:-

ie bl Bae = 3S ae Wad s "(a) The applicant/defendant is hereby granted leave to appeal against that part of the order dated . mS 6th May, 1993, whereby Le.1,500,000/00 was ~ awarded as costs thrown away, (b) The application for a‘stay of proceedings is refused, A (c) The condition that the defendant rays the said e costs of Le.1,500,000/00 pefore the filing =: of his defence and counterclaim is hereby removed. : a

(9) No order as to costs."

It is in those circumstances that the applicant has come to this Court asking for a stay of proceedings pending the hearing and determination of the appeal that I have already referred to, One salient fact that stands out glaringly in considering this application is: this: that the learned Jugge on application for leave to appeal made to him against, conditich in his Order that the Le. 1,500,000/00 be paid before the applicant can file his defence and connterclaim took it upon himself to remove

i ‘the said condition, when that was the very complaint for which leave to appeal was being sought from him, we In these circumstances, it is in the interest | of justice, that this Court grant a stay of proceedings } pending the hearing and determinaticn ef the appeal. herein, : h and I so orden, The sum ofLe.1,500,000/00 if already paid must ber dene Hf 3 the Judicial Sub-Treasury, Go; c| within 7 days of ;this Order, panding the hearing and determination of the appeal herein. + I will now hear counsel’ as to the costs of, this application. ' Codiz ae I, 30 HD ory bo Lee, rc, aide & { fa NS, 2a, f A Bas Aa! Outi eoe. George Gelaga-King ‘3 eM “2 Justice of Append : Woe? Me Seer: 10; Adenhy ¢ “\ | io eee

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