Saio Kamara v Freetown City Council (CIV APP 17/2023) [2024] SLCA 7 (26 March 2024)

{i\ A}Py! | ri INTHE COUT OF APPLAL Of eRRALLY HET WPEN SAID KAMAHA 1°) ge SPORDENTIAT 2 i BA MAIN ROAD CONGO TOWN tHELTOWN VMANCIS KANGBALI 7” RESPONDENTIAPTLLANS LISVKE STRERT, CONGO TOWN PRELTOWN MOHAMED KABA 29 PESPONDENT/APPELLAN TF WATER STRELT, CONGO TOWN PREELTOWN ELEANOR THOMPSON 4" RESPONDENT/APPEL LAN ITB MURRAY TOWN ROAD PREETOWN AND | PFREETOWN CITY COUNCIL 1*' APPLICANT/RI SPONDENT 17 WALLANCE JOIINSON STREET FREETOWN PHOMAS COLLINS PEARCE 2°” APPLICANT/RESPONDENT COUNCILLOR, WARD 438, FREETOWN MUNICIPALITY 30 MAIN ROAD, CONGO TOWN FREETOWN FAITH HEALING BIBLE CHURCH INTENDED RESPONDENT 53 MAIN MOTOR ROAD CONGO CROSS | FREETOWN

Coram

HON. MR. JUSTICE R.S. FYNN, JA;

HON. MR. JUSTICE S.A. BAH, JA;

HON. MR. JUSTICE A R MANSARAY, J.

COUNSEL:

D BEOKU- BETTS, Esq. forthe Applicants//Respondents

D E TAYLOR, Esq. for the Respondents/A ppellants =

ee

ee iT & ‘ ry ‘ re ‘ . RULING DELIVERED ON 1 nad oA OF MARCH 2024. The Application |. By a Notice of Motion dated the 8" day of February,2024, the Applicants are seeking relief for three orders, stated thereon as follows: 1, “That leave be granted by this Honourable Court for The Faith Healing Bibte Church [hereinafter referred to ay intended Respondent) to be added/joined as Respondent in this action.

2. Any further or other order(s) that this Honourable Court may deem fit an just,

3. Cost in cause,” ~ . . ee i s = 2 ~&£ |

2. The Motion is supported by the affidavit of Derek Beoku-Betts Esq, sworn to on the 5" day of February, 2024. Attached thereto are the following exhibits: (a) DBB | is a copy of the motion before the High Court by the Intended Respondent Which motion was dated 31° March, 2022: (b) DBB 2 is a copy of the Perfected Order of the High Court dated 14" November,

(c) DBB 3 is a copy of the face of the motion in the Court of Appeal dated the [4th February, 2023. Submissions for the Applicants

3. Counsel for the Applicants, Derek Beoku-Betts Esq., commenced by submitting that he relied on the entire content of the Affidavit, which are set out as follows:

1. That iam the Solicitor for the Applicants in this action.

2. That! am instructed by all Applicants herein to depose to this affidavit.

3. That the Intended Respondent made an application by way of motion to be joined in | this action before the High Court. A copy of the motion and affidavit are shown to me and marked DBB1. That the said motion did not proceed because the High Court struck out the main application for Judicial Review for want of jurisdiction on 14" November 2022. A copy of the perfected order of the court is now shown to me exhibited as DBB2.

4. Thaton the face of the records, the Intended Respondent appears to have been served papers in this matter. A copy of the current motion is shown to me and marked DBB3.

5. That the Intended Respondent is the party that will be materially affected by orders sought in this action and therefore it will only be just and fair and in the interest of justice for the Intended Respondent to be joined as a party. N

6. That the contents of this Affidavit are (rue and correct to fhe best of my knowledge, oy | information and belief. ae nn

f ee

4. Counsel submitted that this is a matter that was before the High Court lor Judictal Review ofa Freetown City Council decision made in March 2022, granting a long lease to the Intended Respondent and who has commenced construction on the property, Counsel referred to DBB 3 (the motion seeking injunctive orders) and submitted tna il Will be in the interest of justice for the Intended Respondent to be joined in the aan sO they can themselves make representation and be heard by the Court. ie furthet submitted that the Intended Respondent is the party continuing the construction, and Will be the most aflected if injunctions were granted. He relerred to Order 52 Rule 5 of the High Court Rules 2007 and submitted that parties to be directly affected by an appeal ought to be served, thus giving them the opportunity to ask to be joined. Submissions for the Respondents/A ppellants

5. In opposing the application, Counsel for the Respondents/Appellants, D.E. Taylor Esq., without filing an Affidavit in Opposition submitted as follows:

(1) That Counsel for the Applicants’ submission on Order 52 Rule 5(1) of the High Court Rules 2007 is a reference to the application for Judicial Review and not the appeal. He then referred to SMITH’S JUDICIAL REVIEW 7!" EDITION page 97 under the rubric — Interested Parties and Interveners paragraph 2-067, which reads in part: * .. Being inevitably and necessarily affected by the outcome of the claim for judicial review is insufficient to make a person directly affected; he must (also) be “affected without the intervention of any intermediary agency.” He further referred to SMITH’S PRINCIPLE OF JUDICIAL REVIEW 28° EDITION paragraph 16-071, which reads in part: *... A person wishing to intervene by making written submissions or being represented at the hearing must seek permission to do so “at the earliest reasonable opportunity.”

(2) Counsel continued by submitting that on the basis and due consideration to the fact that the application is one for which Solicitors and Counsel for the Applicants can properly and effectively deal with, the application before the Court is unnecessary.

(3) He further submitted that the other key consideration is that the substantive issue is for Judicial Review ofa decision to which the Intended Party is a complete stranger; and. the courts will normally grant leave to interest groups on the consideration of public interest. He continued submitting that in such cases the party added or joined will bring peculiar perspective and add value to the court,

(4) In conclusion, He did submit that adding the Applicant as a party will be unnecessary and superfluous as the applicants/Respondents are seised of everything ~

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and Nothing new will be added should Applicant - (he person affected be joined cs party,

6. 1D. Beoku-Betts in reply submitted that the Intended Respondent ts a party that will be directly affected by the application and it is only fair that they be heard, He nyt submitted that the earliest time to ask to be joined is now that the Appellants — b injunctive order against the Intended Respondent. He continued aeeee a application of similar nature had been made in the High Court on the at ulate i. ch (DBB 1) evidencing that the Intended Respondent had not been tardy in _ eu

this application; but the application was not proceeded with as there was an iain on jurisdictional basis, resulting in the Judicial Review being struck-oul. That striking out is now the appeal.

7. Further, Counsel submitted that the intended party is no busybody as they ig giveth affected by the appeal. And therefore, the most effective party to resist an iejunetien against the construction of the building will be Intended Respondent, - the one doing the construction as the injunction will certainly be against them and not the Freetown City Council.

8. Finally, Counsel submitted that he really does not see the reason for an objection.

Issues and Findings

9. Both counsel are in agreement that the Court of Appeal is vested with the discretion of

adding/joining an intended party to an ongoing proceeding. This was reiterated by this

Court in CLV APP 1/17 Voytovich Rostislav and Another vs Momoh Ansumana

and Another (ruling dated the 31S October 2019), following CIV APP NO 45/2014

THE ESTATE OF KHALILU JABBIE (Represented by Mr. Bockarie Enssah as Court

Appointed Administrator of the Estate of the Deceased Khalilu Jabbie) vs SKYE

BANK (SL) LIMITED AND MOHAMED BOBO BAH (hereinafter referred to as The

Estate of Khalilu Jabbie Case).

10. In exercising its discretion, this court will consider the facts, nature and circumstance

of the case before it. This view is strengthened by SC MISC APP 3/2005 TAMBA

BRIMA AND THE PRESIDENT OF THE SPECIAL COURT v THE REGISTRAR

OF THE SPECIAL COURT AND THE PROSECUTOR OF THE SPECIAL COURT

AND THE ATTORNEY GENERAL AND MINISTER OF JUSTICE, (hereinafter referred to as The Tamba Brima Case), where it was stated that:

“[eJach case, ... must be decided on its on facts. It is not desirable to propound

general propositions in matters such as this, beyond what is necessary for the determination of the particular case...”. Per Muria JA.

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