Sierra Leone Shipping Company Ltd v Hussein Hamoud (CIV APP 43 of 2006) [2008] SLCA 56 (3 June 2008)

CIV. APP. 43/2006 Ic INTHE COURT OF APPEAL FOR SIERRA Leowp BETWEEN: SIERRA LEONE SHIPPING CO, Lip : APPELLANTS/RESPONDENTS AND \SSEIN HAMOUD ESPON nus RESPONDENT/APPLICANT

Coram

Hon, Mrs. Justice S, Bash-Taqi, JSC (Presiding) Hon. Mr. Justice S. A. Ademosu, JA Hon. Mr. Justice N. C. Browne-Marke, JA Barristers Alhaji M. Kamara, Esq. for the Applicant E. Kargbo, Esq. for the Respondent RULING DELIVERED ON THE 3RD DAY OF_JUNE2008, S.BASH-TAQI, JA This: is an application for Stay of Execution of the Judgment of the Court of Appeal dated 11" December 2007 pending the hearing and determination of an Appeal against the said Judgment to the Supreme Court of Sierra Leone. The application originally came before the Tull panel of the Court as an Ex parte application in which the Applicant sought two

Orders

numely (1) an Interim Stay of Execution of the said Court of Appeal Judgment pending the hearing and determination of the application and (2) a similar Order as in (1) above pending the hearing and determination of an Appeal against the said Judgment to the Supreme Court. When the motion came before us on 18” March 2008 we ordered the application to Proceed inter parties und directed that Counsel for the Appellants/Respondents be served with the Motion papers. At the adjourned hearing, on 19" March 2008, due to the Easter Vacation and the absence of one of the Judges of the panel, the application came up for consideration before a single Justice of the Appeal Court, who dealt with the first order Prayed for and granted the Applicant an interim Stay of Execution pending hearing of the substantive application before the full panel. | Itis this substantive application for a Stay that is now before the full pane! of the Court of Appeal and which is being considered in this Ruling.

Background

s that the AppellanvRespondents (hereinafter A brief background of this application i iat ies POtuncas eh pectaes Wein (fs wo asthe Respondents") were and ate sll he ones oF ry oe Scan Drive, Wilberforce, Freetown id to as “the Applicant”) in this application was | Respondenv/A pplicant (hereinafter referre a he said premises from the Respondents the Defendant in the Court below and he lease

jy abewe Agreement dated 28° August 2002 or aterm of iteen years staring from 1° ty ate 2002 the yearly fet of Eight Thousand Unied States Dollars (US$ 8.000). Janvarcssly agreed tha the rent should be pad yearly im advance on the 2 day of way in every year. The Lease was conditional upon the Applicant refurbshing the lasts ta apced amount nt exceeding USS 9.72288 and not to wg sublet oF recs ait with the possession ofthe premises without the prior wniten consent of te aeryndets. The Respondents alleged that Applicant defaulted in payment of ret and Respeune condition agains! subletting without her prior wntten consent ‘on the 23° January 2003, they brought the action in the High Court claiming. inter alva, session of the property upon forfeiture for breaches of fundamental covenants of ve Lease, Arrears of the rent, and Damages for breach ‘of covenants. On the 17* May 2006, poten Coun, (Nylander J), in delivering the Judgment of the Court. adjudged that he ine Jeconstrained t0 record an equitable judgment”, by which he ruled that he could not eran the relief against forfeiture and breaches of covenant, but ordered the Applicant siay all arrears of rent due to the Appellants/Respondents in ot more than (wo + priments and interest atthe rate of 4% per annum from 1/1/03 until yadgment on 25" July 2006, the Respondents. being aggrieved by the said judgment. appealed 19 the Court of Appeal, and on 11" December 2007, the Court of Appeal allowed their appeal; set aside the High Court Judgment ‘of 17" May 2006, and ordered the Applicant to pay the mesne profits of USS 8,000.00 ‘assessed from 23 January 2003, (the date of the Writ, until possession of the demised premises is delivered to the Responden's On the 17 December 2007. the Respondents proceeded to levy execution by issuing out ore ined Writ of Possession and Fier facia for the amount of the Judgment debt and posession of the premises. There was some confusion as to whether exceusion, as ‘completed before the filing of this Motion. ‘Be that as it may, on the 20” February 2008, the Applicant paid the Respondents the sum of US $ 4,000.00. being haf of the mesos profits ordered by the Court of Appeal. Following receipt of this amount. of 28" February 2008. the Respondent wrote to the existing tenants of the premises noufying them of the Judgment and giving them an option to contact the MD of the Responds Company wsthin one week, should any of them wished to continue to resiee 10 The premses, On the 7 March 2008, the Applicant filed a Notice of Appeal ro the Supreme Cour against the Court of Appeal Judgment of 17" December 2007 ‘The Applicant has now come to this Court pursuant to Order 60 R. 2 of the Supreme Court Rules 1982, seeking a Stay of Execution of the Judgment of the Court of Appeal, pending the hearing and determination of his Appeal tothe Supreme Cour, The application is supported by the Affidavit of Hussein Hamoud swom on 13" March 2008 filed together with exhibits HLH 1- 12C", and a Supplemental Affidavit sworn on 3 Apnl 2008 by Mustapha Santigie Turay attached 10 which is post dated cheque, Ea MST Le aston on Pro-credit Bunk, in favour of the Respondents (er he nm Of Le 12160,000.00 sepresenting the Leone equivaent of the remaining US $4,000.00 mesne profits ordered in the Court of Appeal Judgment The Applicant relied on both Affidavits in Support and especialy on paragraphs 4, 5, 6, ee sor policant acknowledged that this Court will mo, as a wl, deprive {Successful igant of the fruits of his judgment. He, however, went on fo submit that a

_yrevcoion usually red where an app - si) anes est which warans aay, cpan of ais the Court that special cecum cts deposed 10 i the {Wo Supporting ffi Seat co aa cs incre n etal a follows that the Applicant led aided Oko eo sa pe pein Which were dilapidated cond ee et cat's business 1 IaBe premises for poles riper toraesegmtiae in APP that it was based on this knowledge perpces of sublening the comes srt an experts that he ha! pad par ofthe ip Resi pce ge sett and thal By giving a post-dated ch mesne profit ordered by the Court of Ane a than a intention to pay Sirgen priya pre svn god og ofthe pees nth county ay eacton te aspen i varspty seriously affect the country’s intemational es hires woe = vot igi, but will also give a bad name to S ee ae ay ‘Appellant deposed to in his Affidavit in Opposition, te prec print odin trol AP. are not the only assets of the Respondents theta Sty of Ex oom a os wey hardship on the Respondents. He relied on the decision in Ic lbeins weapon Cour of Appeal cases: - ‘sions inthe following unreported | Commercial Enterprises Lid. Witakers Pr Africana Tokey Village v. John Obey, panei — Lucy Decker & Others v Goldstone Decker ° Mr Kg fr tg Respondent “gol opposed he apation He relied on his "2008 attached 0 which are five (5) exhibits includin Ain ro Ae, ann ES Let rete tothe Wr eth Under Shot of te Thigh Cour, Exhibit" EKG", evidencing that execution of the Jagent as been vrompleted. He submitted that no special or exceptional circumstances bade shown o waran his ‘Court exercising its unfettered discretion in favour of the Spleen and grating 2 Sa) * S exevution; that the reasons proffered in the affidavits in sup ae only a tem 0 uy time for Applicants tenants whose monies he had mare only a eminded the Court ofthe principle of law that a successful ought eae deprived ofthe frit of itigation: farther that payment By Post datce <eans fetcomplane ofthe Cou’ orser ad fs no guarantee onthe part of the Applicant of w wlopnee to pays moreover, Counsel submited, there is no aerement PSs the fares or the tenants to comin vetjin in occupation of the premises; that far from tse tenuis being expats and Ciplomats. they are businessmen and a journalist spectively a shown onthe uses omit exhibited to his Affidavit that a stay of extn wil rate unde hardin <arcespondents who rely on the proceeds from these premises to pay the sles of on ne eal workers; hence the Respondents need te propery n onder to cominue i busines rat no intemational issue is of importance shen considering an appistion for Seay of Execution, therefore the Court must bau he competing meets of he Pas yt apsdening an application ofthis nature 7 submitted finally that the Respondents are ‘willing to sign an undertaking (© refund all etpenss and cons of he Appel he sa pr its Being Successful. He urged the Court sms te pplication, He lied on eae threported C- A. decisions i= Yesur Bundu v. Mohamed ‘ailor Jalloh, Mise. App.23/2004: Desmond Luke v Bank of Sierra Leone Mise, APD- xem Basma v Adnan Wanza Nice: App. 53/2005; vatrick Koroma Sierra Lett Housing Corporation and Doleie Beckley ise. App.9/2004; and African Tokeh Village v John Obey-

aeeoineng special oF e8ceptonal pheaieioehapedlrraprly de. psnlond see panel of Special cumstances the under this Cour to grant 3 2 an for 4a) of execution, Therefore before underlying principle of every sep not he APPIN has adduced evidence of Consing 0 0 conciesien = el examine the reasons advanced in the support Special circumstances, we must percents ene Se ce emer tes fg ofa Sty. The reasons relied on according to Comal ore Aican tle seasons are contained in paragraphs 12,13, 16, 1, ind 1b ote Attdoet Seppo of the application. ial 19 of the Affidavit in easing through these paragraphs starting with para 2 that he has sublet the premises (0 diplomats and expatates: tat Respondent aged to levy execution, but stayed ation when the applicant paid part of the mesne profits ‘ordered; that he had already paid the sum of US '$ 4,000.00 pursuant to the said ‘eaement (see para.17); thatthe Respondent notified the “Applicant's sub-tenants of their Maden to levy execution within 7 days (see para. 18), and “that having regard to the vray of the occupants in this country some of whom are diplomats ‘and expatriates, any ‘such execution on them will seriously affect the: ‘country’s international relation with their sean of origin and obviously give a bad name and aint the Image of this country. "(see paal9), : ‘The question 1 be determined is: Do the above reasons amount to Special or exceptional Cecometances justifying the grant of a Stay. IB out judgment, having examined the reasons, we are of the view that most of the matters relied on in the Affidavits in support {3 special circumstances” relate tothe issues 2 the pleadings which we believe had Been 3 Fee he ial Ff, wl Be eal! WN “ppeal I shall here ‘attempt to refer to a few; the issue whether OF ‘not the Applicant expended considerable sae a ele 1 ay tte necesary tena 0 ‘accordance with the Lease Agreement matters he plains ra x conltion precedent inthe Lease Meccan aut tne Applicant had already Dd Te profits ordered by the Cou of } Appeal, which seems 10 us ro mean thal he Mrould not have paid the rent if e Rad Aol whch seems 1008 Oe ocd 09 OM expats Su | was not part of the Lease agreement that pied Rpplcant should rent the premises, | pals agreement that he APT ses were put was PUFLY 8 ale! 1 3 ee The sew we Pe ns. may abe: i forthe Applicant and had nothing © €0 the Respontet considering an application 4 rte Aplin ad a OF pe ot of ee ' fr uy of exesation EPO succesfl et while ngontons Were Ss | lary te fat that tne Respondents IIA Chas special i Ne Pe simply aa ee cannot be cHCumsanes ye mater 1 He BE neh because the Respondents having ‘obtained judgmen pase ee . ceed he aelvery uP of possesion oT We note from the affidavit evidence I CO cons uP reall } Pe ae a the possession OF the APplg, he date ofthe LEAS tndbcttony no rents had been paid 10 NE wee Su imsel ue rents ME received from though fron ae receipts exnibted DY Me pen |

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