Sierra Leone Shipping Company v Albert Gomez And Others (CIV APP 63 of 2008) [2009] SLCA 19 (29 January 2009)

& beg ‘ CIV AvP 63/2008 IN-THIE COURT OF APPEAL FOR SIERRA LEONE : LET WEEN:

SIERRA LEONE SHIPPING COMPANY -PLAINTIFF/APPLICANTS AND ALBERT GOMEZ + IST RESPONDENT AND TIE SHERIFF OF SIERRA LEONE - 28 RESPONDENT AND MARTIN MICHAEL + 38” RESPONDENT

Coram

| ‘The Hon. Mrs. $. Bash-Taqi, JSC - _ Presiding © ‘The Hon. Mr. Justice P.

0. Hamilton, JSC |The Hon. Mrs. Justice A Showers, J 1 Barristers

{ &. Kargbo, Esq. for the Plaintiff/Applicant (0, Jalloh, Esq, for 1" Respondent | Mi-C.F’Margai and RB. Kowa, Esa forthe 3” Respondent ‘RULING DELIVERED ON THE 3 DAY OF JANUARY 2009

S. BASH-TAQI, JSC: - The Plaintiff/Applicants, by a Notice of Motion dated 4" | Dezember 2008, applied to this Cour, intr alia, for an Order i L. That this Honourable Court grants a Stay of Execution of the Judgment vt the H Hon. Mr. Justice D. B Edwards dated 10 November 2008 and all subsegzent i proceetiings pending the hearing and determination of an appeal aguinst si. i said Judgment, |The Supporting Affidavit is sworn to by Sylvester Bundar Fomber attached to which we eo? several exhibits including Exhibit “SBF 8” the Order of the High Court refusing to grant 4 Stay of Execution ofthe said Judgment and Exhibit “SBF4, a Notice of Appeal agains | the sald Judgment to the Court of Appeal.

. (Ht j tris against this background that the Appellant/Applicant has applied to this Court for a j stay of exceution pursuant to Rule 64 of the Court of Appeal Rules 1985. q * uring the course of the hearing, Mr. E. Kargbo obtained leave to file and use two ) % Supplemental Affidavits swom on 15 December 2008 and 9" January 2009 attached 10 4 which are exhibits “A 1-2" and "SBF 1” respectively. He applied und obtained leave to | ‘vithdraw Exhibit “SBE 8" attached to the Supporting, Affidavit of 4® December 2008, d and substitute therefore Exhibit “SBF 1” attached to the Supplemental Affidavit of 9" H Trmuary 2009. Ht j Jn support of his application, Counsel felied on the contents of the Affidavits more a especially paragraphs 6 t0 18 of the Supporting Affidavit of 4” December 2008, i paragraphs 1 of the Supplemental Affidavit of 15" December 2008 and 9" January 2009 4 snd the exhibits attached thereto. He relied on these paragraphs collectively to high light | the Special Circumstances justifying the grant of a stay of execution by this Court: he slso submitted that Exhibit “SBF#", the Notice of Appeal, discloses arguable and ubstantial grounds of appeal H | {the ‘Special Circumstances’ relied on by the Appellan/Applicant justifying the grant of | « stay can be gathered from the three Supporting Affidavits. They are basically, that the | ywoperty the subject matter is one of the main assets of the Company: that it is leased out | tw third parties and the Applicants utilized the rents derived from such letting to sustain snd maintain their business as well as to pay the salaries of their workers, Secondly, that 4 they have recently spent large sums of money refurbishing the property, so that if a stay is not granted, they would not only suffer huge financial losses that would cripple their Inusiness but also lead to the total collapse of their business; this in tum would cause inseparable damage and hardship to their business and third parties. He relied on the | following decisions to buttress his submissions, namely: - q

1. Africana Tokeh Village Co Ltd. vs. John Obey Development Investment | Co Ltd Misc. App. 2/94 (unreported); :

2. Clement Bankole Cox vs. Sunny Idowu Civ. App. 32/2007 (unreported) j 3, Linotype Hell Financial Ltd vs. Baker (1992) 4 All E. R. 887; (Conmiel further submitted that Exhibit “SBF4"the Notice of Appeal, discloses substantial sounds of appeal and good prospects of succeeding particularly as it challenges the legality and propriety of the sale of the Applicants’property to the Respondents (see yparapraph 7 of the Affidavit in Support); that the Appeal also call into question the nuvisions of Section 9 of CAP 22 of the Laws of Sierra Leone as to whether or not the sane was breached, He urged that these are serious issues of law that ought to be considered by thé'Court in deciding whether or not a discretion should be exercised in || lavonr of granting the Stay of Execution. ‘i ©. Jalloh, of Counsel for the 1! Respondént did not file an Affidavit in opposition. he nwnetheless strongly opposed the application. He contended that the Applicants have not shuwen any reason or special circumstances warranting the granting of a Stuy of Iicevution as required by the numerous authorities. He reminded the Court of the | i I

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. Ite . principles under which a Stay of Execution may be granted by the Court and submitted that the supporting affidavits show no such special circumstances; that the grounds of :ppeal show no reasonable prospect of success, and thatthe steps taken by the Appheans : pennis mutter are an abuse of process, in that they are secking, by this application, to set $ snide processes that had been taken in another action, namely ~ CC 50:03 G No-10 Henween Albert Gomez v SLNSC; that they could have applied to set aside those processes in that other matter, rather than come back with a fresh Writ of Summons: (ie CC124/05 §. No. 8), to set aside the processes that were taken in CC 303/03 G. No. 10. ‘As regards the Applicants’ contention that they have spent money in refurbishing the property, Mr. Jalloh, submitted that atthe time this was being done, the Applicants were Meare that the property had already been sold pursuant to a judgment of the court iherefore what the Applicants on the property when the matter was still pending does not Inmount to special circumstances. He relied on the case of Yusufu Bundu v Mohamed | thaitor Jalloh Misc. App. 23/04 page 3, and also on Heekmet Joseph v MacThompson + x Oths Civ. App. 65/03. He denied that the Applicants depended on the monies | Geecived from the property to run their business. Counsel also denied the contention that } the propery is Government property, and submited that this cannot be reled @f t8 1 Swelal circumstances, the Government not being a party to the proceedings. With |. tence to Order 46 ule 11 Counel ube atthe Alcan have ot shown a the Respondents are trying to sell or dissipate the Res. He further relied on the decision in tesmond Luke v Bank of Sierra Leone Mise. App. 22/2004, and submitted that no legal reasons have been shown for this Court to grant the stay. He urged us to dismiss the supplication. Mr. Margai, like Mr. Jalloh did not file an Affidavit in Opposition, he nevertheless, ‘opposed the application and adopted Mr. Jalloh's submissions. In addition, he canvassed tive Court that the 3" Respondent is a bona fide purchaser for value without notice: that the grounds of appeal do not suggest that there was collusion on the part ofthe 3° and 2" teespondents on the sale of the res. Mr. Margai further referred to Sec. 8 of CAP 22 and tw the cases of Evelyn Ayo Pratt v Jacklyn Carew & Others y. Isha Deen Sesay, Mise. ‘App. 712005; V. O. $. Olunloyo v Adedapo Ndeniran 2001 37 W. R. NSC.89/99 1-13 ft page 3 at page

7. He urged us to dismiss the application. 11 iss been held in a number of cases in our jurisdiction that this Court has unfetered power and discretion to grant a stay of execution provided the applicant can satisfy it that special or exceptional circumstances exist to warrant doing so (see African Tokeh Vile Ltd v John Obey Development Investment Co. Ltd. Misc. App. 2/94 (uureported). Another requirement in an application of this nature is that the Applicant tnnist show that he has prima facie good grounds of appeal. The rationale behind the jwineiple is that the Courts will not make a practice of depriving successful litigants of the fruits of their successes. (See {Patrick Koroma v S/Leone Housing Corporation ‘unt Doleie Beckley Misc. App. 9/2004 (unreported) and similar cases. This is so Tacinise “a judgment of the Court is presumed to be correct and rightly made until the * (vistaty is proved”. In Olualayo v Adeniran (200) 37 W. R. N. SC 89/1999, Kutigi , JSC, held in that ease that:

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competing rights of the parties". A discretion to grantor refuse a stay must oly | sone Mer considering. the facts of the case to see whether special | + Rosiittances ekists to invoke the Coun's power and jurisdiction. See Radar « 1) Saber ALES) 1950.86 118 which nas gute with appa bye Cou | ‘Appeal in Commercial Enterprises Ltd v Whitaker Properties & another | Pre sp. 12/91 (unreported) It special circumstances do exist the Court has the | safercted power to granta say of execution and may do so eventhough a writ of | possession has been issued and execution has taken place. See Richard f Gachariah v Jamal Morrowah Mise. App. 12/87; African Tokeh Village Ltd v john Obey supra (unreported). ‘And where there i an appeal pending es in the situation herein, the special | 2nd utanves which have received approval are when execution would | {a) destroy the subject matter of the proceedings 4 (b) _ foist upon the court a situation of complete helplessness; or q {@) render nugatory any order or orders ofthe appeal cour: | (3) partyze in one. way or the other, the exercise by the litigant of his | constitutional right of appeal; or q (e) provide a situation in which even if the appellant succeeds in his appeal. there could be no return tothe status quo: ‘A litigant applying for a stay of execution must thus show special or exceptional Circumstances pleading eloquently the balance of justice weighing in his favour, Even though what constitutes special circumstances may vary from case to case." Schanetton to grant or refuse a slay must only be taken after considering the facts of the case to see whether special circumstances exists 10 invoke the Court's power and jurisdiction. Sce Radar v Jaber ALR (SL) 1950-56 P. 115 which way {quoted with approval by the Court of Appeal in Commercial Enterprises Ltd v Whitaker Properties & another Mise. App. 12/91 (unreported). If special vNeumstances Go exist the Court has the unfettered power t0 grant a stay of Gnecution and may do so even though a writ of possession has been issued und recution has taken place.- See Richard Zachariah v.Jamal Morrowah Mise ‘App. 12/87; African Tokeh Village Ltd v john Obey supra (unreported). ntopa the principles law propounded by the above authorities. Although the case of svat sopra, involved & monetary judgment, the principle that there must be special «y caerptional circumstances disclosed by an applicant seeking the stay, which would aa rincapedient to enforce the judgment, isthe same asin other cases not involving vtetiy judgment, The circumstances to be disclosed must be those that goto the eacement of the judgment and not those which go merely to its correctness (See T. C. Fantees Ltd v Darwen (Successors) Ltd (1969) 1 All E. R. 271 at 274. the Applicant in his Supporting Affidavit pleaded that execution of the judgment will not ene nem hardship but will also lead to financial ruin since the continuation of rvs lnsiness depends on the profits derived from the property, the subject matter of the yiten See paragraph 10 of the Affidavit in Support). Although Counsel for the

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