S.M. Saccoh v Ibrahim A.H & sons (MISC APP 16 of 1993) [2003] SLCA 28 (17 July 2003)

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Hil Der. 1g 54 Mie et MIBC/APPL 18/93 Boa | art HLIHE COURT oP APPEAL poR stuRRe LEONE i. BETWEEN: | SM. Saccgit + @PPLICANT/DEFENDANT iH | - | AND ‘ hy it ‘TERAHIM AH. Daten & te i SONS -° | RESPONDENTS/PLATNTIA 4} CORAM: HON. MR. MR. JUSTICE M0. ADOPHY, JA. | HON. MR. JUSTICE G. GELAGA KING, J.a, \lhi HON. MR. JUSTICE A.B, TIHBO, J.A. %.0.D. COLE, ESQ., FOR THE APPLICANT i E. LABIB MICHAEL, ESQ,, FOR THE RESPONDENTS. | t 1 i RULING DELIVERED ON THE i) DAY OF JUNE, 1993. 1h | C. CELAGA KING, J.A.: By Notice’ of Motion dated 27th es =f Jul ‘May, 1993,the applicant moved this Court principally for: | \

1. An Order for a stay of proteedings in the action: | i CeCe 12/93 (G). 1993 D No.1 in the High Courts) 9 | | . between the above-named parties, pending the. || I hearing end determination of the appeal on contained in the Notice of Appeal herein dated 2° | ‘ 22nd May, 19930... } 2. ‘n Crder for a stay cf execution of the Order | i - of A.B, Rashid, J., cated 6th May, 1993, i requesting the applicant to pay to the respondent i gosts assessed at Le.1,500,000/00 as costs | thrown away.’ The’ motion was supported by the | affidavit of Josep Omodele Dominic Cole sworn I te on 27th May, 1993 and filed herein with @ { \j exhibits annexed. An affidavit in oppésition "| q sworn to on 29th May, 1993, by Cherles Francis \| Merged with one ezhititwas elso filea, fH? - P/eves i.

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' Briefly the facts are that the respondents had i | instituted action in the High Court, Bo, cleining egeinst Ml the applicant the sum of Le. 15,%3,981,020/00 and interest i at 59% per annum from 6/6/92 until payment, as mcney due and | ‘owing. " Phe respondents took out a Judge's Summons ‘ apparently under 0.X1.0f the High Court Rules and upon reading the affidavit of service on S.A, Conteh Esq., who HM * was stated to be solicitor for the epplicant but who failed f to appear at the hearing of the summons, final judcemen* was entered for the said sum against the applicants with | eests on 31.3.93 - See Ex. "JODC3", dae The applicant then moved High Court, presided “© EY over by Rashid J., far an Order to set aside the Judgement | on the grounds that the applicant has a good defence and | that the Order for Judgement was mage per incuriom. He also epplied for unconditional leave to defend the action. i The learned Judge on the 6th day cf May, 1993, ordered that | ‘upen being told that both sides are agreed that the - Sudgement dated the 31st day of March;- 1993, be set aside on terms", mede certain consequential orders. As there is | an appeel pending herein, I shall at this stage refrain ‘from maxing any comments on such procedure. The consequentii orders, just referred to included she following: ees (a) That the judgement: dated 31.3.93 be set asides (>) That the applicant do file a defence and counter claim within 14 days from the date of the Order setting aside the Judgement. >

(2) That the applicant do pay to the respondents the sun of Le.1,500,000/00 being costs throw avy, before the defence and counterclaim is filed By notice of motion dated 13th May, 1993, the applicant applied for leave te cppeal against (c) supra’ ana for e stay of proceedings. Orders on tno notice of motion were made by the learned Judge on 18th day of May, 1993, ‘as follows:- . . ' > “~ Bleees :

a bl na) The applicant/defendant is hereby granted leave to appeal against that part of the order dated 6th May, 1993, whereby La.1,500,000/00 was awarded as costs thrown away. (>) The application for a stay of proceedings 1s refused, } (cs) The condition that the defendant roys the said : costs of Le.1,500,000/00 before the filing of his defence and countercleim is hereby removed. ¢ "(a No order as to costs. " It is in those circumstances that the applicant has come to this Cours asking for o stay of proceedings pending the hearing end 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 nede to him against conditich in his Order that the | Le.1,500,00/00 be paid before the applicant can file | his defence and counterclain took it upon himself to remove | “the said condition, when that was the very complaint for which leave to appeal wes being sought from hin. | Wein these circumstances, it is in the interest | _ of justice, that this Court grant a stay of proceedings | pending the hearing end determination of the appeal herein, | and I so order, The gum’ ofLe.1,500,000/00 if already | paid must ber Senge? 6h tae Judicial Subd-Treasury, Go, | cal within 7 days of nis Order, panding she hearing and determinazion of the appeal herein. | I will now hear counsel’ as 20 the costs of this application. ° 2d ah kn fray) applica Gis ean 2d esh ; me) be ber oye pA ord oo George Gelaga-King Justice of Appeal VSG seo. Adephy sovecenpreccoee Inetine af Annes

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