Sheik M. Conteh v Rev. Dr. Fr. Gabriel Koroma (MISCAPP 7/2024) [2025] SLCA 11 (8 October 2025)

Misc.App.7/2024 INTHE COURT OF APPEAL OF SIERRA LEONE Between; SHEIK MOHAMED CONTEH & Others : PLAINTIFF/RESPONDENT (Suing as the Administrator of the Estate of Brima Roke Conteh) vs. REV. DR. FR. GABRIEL KOROMA& Others - DEFENDANT/APPLICANT

Coram

Hon. Justice Reginald Sydney Fynn JA Counsel: CMB Jalloh Esq with him D. Fofannah for the Defendant/Applicant Boniface Kamara Esq for the Plaintiff/Respondent Fynn JA RULING dated 8% October 2025

1. This application is brought by Notice of Motion and the applicant seeks as follows: a) leave to appeal against the Judgment of Bawoh J delivered on 20" February 2024 b) An Interim Stay of the High C: urt Orders made in said judgment pending the ruling herein ©) An Interlocutory Stay pending the judgment of the Appeal should leave be granted as requested

2. The facts of the case in brief as disclosed in the affidavit in support of the motion are that after a writ of summons had been filed, defence and counter claim filed an application was made for the matter to be struck out on the ground that the court lacked the jurisdiction to hear it, The alleged lack of jurisdiction was ascribed to the fact that estate property subject matter of the action was alleged to be governed by customary law. This application came in the form of an order 17 application,

3. The application under Order 17 was not successful and it is that ruling that the proposed appeal is against. The applicant believes it is an interlocutory ruling Page 1 of 6

court below for leave. He argues that did not get a response in a timeous manner so he applied to this court for leave to appeal.

4, The Respondent in answer submits that the applicant cannot be properly before this court as he already has a live application for leave below. The respondent urges that it is only when the application for leave is refused below, that the jurisdiction of this court is ignited to allow the applicant access to apply before this court.

5. The respondent also argues in part that an Order 17 application results in a final order that does not require need for an application for leave to appeal. He submits that the applicant can appeal the ruling as of right.

Deliberations

6. The issue relating to whether the impugned ruling is final requiring an application for leave to appeal or none is fundamer ‘al to the existence of this application. | will therefore address that first.

7. There are several tests that have been advanced to provide guidance to judges faced with this question. The one I find most appropriate in the present circumstances is the test which seeks to establish whether the ruling or order in question resolves conclusively the dispute between the parties. Where a ruling brings the dispute to an end with no outstanding questions then that ruling is a final ruling. Where on the other hand the ruling leave some questions unanswered or some further action to continue in the court then the ruling is interlocutory.

8. Inthe present situation the ruling does . ot answer all the questions. In fact the ruling itself orders “that this course or action proceeds to a full blown trial”. This therefore cannot be a final order. | hold that the ruling was interlocutory such as requires for leave to appeal to be granted either below or by this court before the appeal could be heard.

9. The next issue relates to whether the court below refused the application for leave. This court has recently ruled on the issue of constructive refusal by the court below with respect to applications for the stay of execution or proceedings ‘on the one hand and for leave to appeal on the other. The Court identified possible constructive refusal not only via acceptance coupled with the imposition of onerous terms but also recognized re .usal in circumstances where there has been inordinate delay to deliver a ruling on the leave or stay application.

10.1 will reproduce here what the court said in Leone Oil Company v Jaffer Zeghir;

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10.1 will reproduce here what the court said in Leone Oil Company v Jaffer Zeghir;

) In the former case the applizants had actually filed a fresh application for stay in this court before the ruling below was delivered rendering the need to rule on refusal by inordinate delay unnecessary. In the latter case it was in the arguments of another application before us (for leave to appeal) that the facts of the inordinate delay came to the court's attention.

») Notwithstanding the fact chat the court was not required to rule on any of those two occasions mentioned the issue did not fail to make an impression on the collective mind of the court; sufficient for the court to form an opinion on the issue. This court is of the opinion, that in @ proper case, the inordinate delay to hear and determine an application for a stay of execution may be deemed as a refusal igniting the court's jurisdiction under rules 28 and 64 of the Court of Appeal Rules.

¢) It should be crystal clear by now that it is not only when a court pronounces that “the application for a stay is refused” that it would be deemed to have refused a1. application for a stay of the execution of a

Judgment

The several opticns mentioned in the preceding paragraphs can each in a proper case with the factual context permitting be deemed to have resulted in a refusal.

4d) Having opined that a refusal of a stay of execution may in law take on a constructive visage; the court will now consider the facts specific to this case and the present application to see if in the context of this case the stay of execution granted below was in fact a refusal. For this purpose it will be helpful if the orders of the court below are reproduced in the least for ease of reference. (see Leone Oil Company v

Jaffer Zeghir Civ.App 13/224 unreported)

11. Nothing more needs to be said on the issue of whether our jurisdiction was properly invoked by the applicant. In the present application it did not seem as if the ruling on the question of leave would be forth coming and duties to the client would require that an endless wait not be embarked on. | hold that a resort to the jurisdiction of this court citing constructive refusal was available to the applicant.

12. The non-payment of costs previously ordered has also been raised as an issue. It is my opinion that this may be one of the main issues for the court to consider as it comes to decide the appeal. The LT) had given an UNLESS order (not drawn up

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but the written notes of the judge are exhibited as RP9 at para. 11 of the affidavit in opposition.

13. The application discloses that the LTJ Ceclined to hear a subsequent application from the applicant on the ground that the costs that the court had ordered against the said applicant had not been paid. The respondent captures this position in his affidavit in opposition at para 11:

“That after the ruling of 20" February 2024 the Defendants/Applicants filed a Notice of Motion seeking the leave of the court to appeal against its

Ruling

While Counsel for the Defendants/Applicants was about to move the said motion B $ Kamara Esq who is in conduct of this matter objected on the basis there is an unless order granted by the court against the Defendant/Applicants that unles * the accumulated costs on this matter is paid they will not be allowed to’:ake further actionon this matter. The said portion of the Judges note is hereby produced shown to me me marked as exhibit”RP9” ”.

14.Whilst courts should not act in vain. | find this order denying access to the protection of the courts because of unpaid costs a bit unusual. 0 57 of the High Court Rules deals with costs extensively, and various writs of execution are available to a party to assist them to execute an order of costs made in a parties favour. | find that this in itself provides for an unusual circumstance in this case that would persuade me to grant leave to appeal.

15. Counsel for the respondent provided as his authority under this head the case of Hadkinson v. Hadkinson 1952 EWCA Civ J0725-3. | am grateful to counsel for this case which underscores the point no doubt that courts should not act in vain and that court orders are meant to be obeyed. Counsel appears to have missed in his reading though that even in that case, the options available are first a writ of attachment or contempt: the second option which counsel relies on is indeed that such a person cannot be heard in the court but this becomes operational after some or other execution process. Counsel missed the part of the judgment which clearly noted as follows:

“There upon a further Order ws made for attachment of the wife for contempt and another order for her committal.....she subsequently ‘appealed. The Court of Appeal entertained her appeal...”

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