Union Trust Bank Limited v Mohamed Kakay (CIV APP 4 of 2019) [2019] SLCA 27 (6 May 2019)

civaPP.04/2019 IN THE COURT OF APPEAL SIERR. s L SIERRA LEONE H (GENERAL CIVIL DiVisiON; : BETWEEN: ) UNION TRUST BANK LIMITED an APPELLANT/APPLICANT MOHAMED KAKAY -RESPONDENT/RESPONDENT BEFORE THE HONOURABLE JUSTICE MIATTA MARIA SA DATED THISG® DAY OF MAY 2019 anne

Coram

HON. JST. MIATTA MARIA SAMBA, J.A PRESIDING HON. JST. ANSUMANA IVAN SESAY, ].A HON. JST. SULAIMAN BAH, ].A Counsel:

0. Jalloh Esq for the Appellant/Applicant E Kargbo Esq for the Respondent/Respondent Rating: 1 On file is an application by way of Notice of Motion dated the 15% day of May 2019 for and on behalf of the Appellant/Applicant basically for an order of stay of execution of the Judgment of the High Court dated the 15% day of January 2019 pending the hearing and determination of the appeal to the Court of Appeal,

2. The application is supported by the Affidavit of Millicent Macauley-James sworn toon the 15% day of May 2019 and Supplemental Affidavits sworn to by the said Millicent Macauley-James on the 16th May 2019 and 22nd May 2019. To the Supporting Affidavit of 15% May 2019 are the following Exhibits: Exhibits A and B are copies of the full text of the Judgment dated 15 January 2019 and a certified true copy thereof. Exhibit Cis a copy of a Notice of Appeal. Exhibit D is a copy of the Respondent's Cross Appeal. Exhibit E is a copy of a Lease Agreement between the ‘Appellant/Applicant and : the Respondent/Respondent. H Bah Fond respeopies of a full text of the ruling of the High Court and a certified copy of same on an epplication for stay which was refused. Exhibit is copy of a Garnisiice Order Nisi obtained from the High Court. Exhibit is w copy uf a Lease Agreement between the Respondent and a 3° party. Exhibit K scopy of exchange rates published by the ak OF Setra Keone

4. To the Supplemental Aidavit of 16% May 2919 's attached a copy of the Stamped judgment, same marived as Exhibit le

4, To the Supplemental Affidavit of 22» May 2019 is attached is a c: state of comprehensive income for the Appellant/Applicant Bank ‘01 ne serod 3017 and 2018, same marked Exhibit K, = 5, Counsel for the Applicant referred the Court to Exhibit A and sul i the Applicant when he said in Exhibit E2.1.2 that the premises will be fit for | banking purposes. He referred to Exhibit C, a Notice of Appeal which he said has prospect of success at appeals. He referred and relied on the local Court of Appeal decision of Richard Owiredu V Beijing Urban Construction Group Ltd, MiscApp. 4/2008, delivered on the 18% day of July 2008 where Ademosu, A. said that ‘a ground of law without more amounts to special circumstance to warranta stay’. I shall quote what was said by the learned Judge to wit: it is not every ground of law that qualifies as a special circumstance for a stay of sxecution. For @ ground of law to so qualify it ought to be shown it is substantial that a decision on it one way or the other will affect the substratum of the whole case and the applicant has some chance of success. | am satisfied that an issue of law has been raised on which the compelling right of the parties depend so that it is desirable to resolve it in the Court of Appeal...

6. While | appreciate Counsel's submission that the appeal has a chance of success, (and I am not in any way saying it will succeed), 1 do not agree that Ademosu’s position dispenses with the requirement of proof of special circumstances in an Affidavit. The Learned Judge's position rather supports the { requirement that the appeal must have a chance of success as one of the considerations: for granting, a stay of execution. The Court shall therefore consider what Counsel raised on behalf of the Applicant as special circumstances which must warrant the Bench to exercise its discretion in granting a stay of execution of the Judgment of the Court below. 7.18 opposing the application, Counsel for the Respondent/Respondent referred and relied on the Affidavit in Opposition of Mohamed Kakay. the Respondent/Respondent herein sworn to on the 20® May 2019 with the | following Exhibits attached: | Exhibit mx i the Writ of Summons which commenced this action. | Exhibit MK2 (182) are copies ‘of a Memorandum and Notice of Appearance and | Defenc ‘the Appellant/Applicant at the Court below. | fence fled for and on behalf of the App Peart court and Court order [hibit MK3 (182) are copies of the Judgment of the Ig | ‘ated 15° january 2019. re | + for a stay before the TA MK (182) isa Notice of Appeal and an application for a stay urt dated 22% January 2019. . an Affidavit in Opposition to i ean MKS (182) is a copy of a Cross Appeal and an Aff | MKA(2), i ificate of the Exhibiy ved aad valuation certifica ne MK6 (1&2) are copivs of the te dee a Lalit tants Broperty at No. © Free ces of the Respondents properties at Ca, MK? (182) are copies of Oye own, OFF Regent Rosd, Lumley; “en Carew Road, Off Wilkinson Road, Fr t 2

y 128 go-Taima kebbie Town Section, Bo; Off Peninsular Road, Sussex, Freetown and sprespectve valuation certicaes bit MKB is a copy of a Lease Agreement between the R and a 3" _ BN Bank (SL) Ltd dated 23°¢ April 2018, ee aetna

jubit MK9 is a copy of a report prepared by a quantity surveyor in respect of fhe demised property, the subject matter ofthis apaleation mor pe Exhibit MK10 is a copy of a ruling of the High Court refusing a stay of execution ofthe judgment of 15% January 2019, Exhibit MK11(182) are copies of payment slip, receipt of payment and judgment in default on behalf of the Respondent/Respondent. 8, Itis Counsel's position that the appeal filed by the Applicant raises no question of law neither does it raise any issue which will require consideration by this

i] Court for the granting of a stay of execution of the Judgment of the High Court of 15% January 2019. It is Counsel's submissions that Counsel's use of the words “Having correctly held ...” in the Grounds of Appeal in Exhibit MK4(1 & 2) filed by the Appellant are in agreement with the judgment of the Learned Trial Judge. He considers the Appeal to be a sham and a waste of the Court's time.

9. Counsel referred to the case of Sierra Leone National Shipping Co V Hussein Hammoud Misc. App. 43/4996 CA and submitted that to be successful on an application for a stay of execution, the Applicant must show an appeal with a prospect of success and also show special circumstances warranting the stay. I xc totally agree with Counsel's submission in that regard. It is Counsel's contention b that the Applicant's supporting Affidavit, paragraphs 11-16 inclusive as well as the Supplemental Affidavit of 22% May 2019 raise fresh issues which were not agued at the Court below.

10. In respect of the issue of special circumstances, Counsel referred to Paragraph 10 of the Applicant's Supporting Affidavit which he argued is the only special circumstance relied on by the Applicant. I do not think there is in law any i] limitation as to the number of special circumstance that must be shown for the ~ sranting of a stay of execution or otherwise. If | accept Counsel's submission as 1 am bound to do, the,it must appear to me that Counsel accepts that at least a Special circumstance was raised by the Applicant. Counsel referred to Paragraphs 9 and 10 of the Respondent's Affidavit in Opposition and submitted tht te averment in paragraph 10 of the Supporting Affidavit hereinbefore ‘erg to cannot be correct and that same cannot amount to special “rcunstances being that the Applicant is a corporate body which has been in lence for over 15-20 years with a basic objective of making profits. He {utes that the Applicant bank collects moneys from depositors and loans out “ moneys to other customers on interest basis. Wo tte re , Aifidavit and submitted that he Mferred te paragraph 13 of the Supporting, AM Te ces et a ral gees Toe vai Rent, is financially strong with about 4 separ ries. yan Certificates of each of the sald properties ave exhibited as Exhibit MK 6, on! Counsel's point is that should the Court reise the application for a stay ' “ution and the judgment of the Court below ss executed, pondent

gall bein the financial position to refund | Scesfal at appeals. on the strength of as segment sum ifthe Applicant the Linogppe-Hell Finance Ltd V Baker relied on by the are ons: Submits that ie argued that in the Linotype-Hell Finance Ltd V Boker Peas applicable. svas granted because the Court realized that the other (oa, Stay Of execution ruined ifthe stay was not granted, He referred to paragrenn 2 oe, financially Linotype Finance Ltd V Baker case and submitted thee tr ree 323 OF the Apalicant, being a reputable institution will not be finemcrane eee case the polcant, being 6 reputable Financially ruined should the applical y sed. Well, my understanding of th word ‘reputable’ differs from Counsel's in so far as mine has notheee ee cial strength. The word 's mine has nothing to do with finan a reputable {s the adjective for the n which is the beliefS or opinions people generally hold about coneone nt something me tae oe being a reputable Bank as submitted by Counsel would mean a Bank of good repute, standii i mnean tis liquidated in physical eaghs “NO” BANK te, which would not 12 Counsel referred to the Supplemental Affidavit of the 224 May 2019 and submitted that Exhibit K attached thereto does not amount to a bank ‘statement { as same is undated and unsigned. He argued that Exhibit K is a ploy to deprive the successful litigant, in this case, the Respondent, of benefiting from the fruits ofhis judgment. He therefore asked that the Court discountenance Exhibit K.

13. Counsel argued that contrary to what the Applicant deposed to in paragraphs 15 and 16 of his Supporting Affidavit, the Respondent paid the complete stamp Suties as seen in Exhibit MK11(1&2) same being receipts of payment.

14. Referring and relying on the cases of Clement Bankole Cox V Sonny Edewu Civ App 32/2007, Patrick Koroma V SALHOC MiscApp. 9/2004 CA, Yusufu Bundu V Mohamed Bailor Jalloh Misc.App! 23/2004 C.A, Boblyn Augustine V Abdul Koroma MiscApp. 38/2004, Sorie Tarawally V Sorie Mansaray Misc.App. 27/2004 and Sierra Leone National Shipping Company V Hussein Hammoud CivApp-43/06 Counsel urged the Court not to grant the application prayed for by the Applicant on the basis that the Applicant did not disclose any special Circumstance in his Affidavits which should warrant the Court to grant a stay : t note, to Counsel's earlier submission execution in his favour, contrary, | must 1 stance in his Affidavit. that the Applicant referred to only one special circuntst that all the 1s, By way of a final reply, Counsel for the Applicant are evession psa Shores relied on by. Counsel forthe Respondent deat Wi an “whorities are therefore inapplicabl erie . tt is liquid in cash even though ‘oolcant being a reputable body’ does not mean ti point earier. Counsel "’ Cypiicant has assets. 1 believe | have ret ek wot support the Learned vu a the facts laid before the Court Below Vt Nc the 1s. jogs ring in king te APP eg eyidence before the "tou; was based on conjectures and SUPPOS NS I rofits ‘o say the Applicant Bank must have

The pages read for this report end here. The judgment continues in the PDF.