Unisa Bangura v Abu Bakarr Kamara (69 of 2017) [2023] SLCA 1 (26 January 2023)

aah CIV. APP 69/2017 IN THE COURT OF APPEAL OF SIERRA LEONE ; BETWEEN: UNISA BANGURA . APPELLANT AND ABU BAKARR KAMARA RESPONDENT Coram: Justice S R Fynn, JA Justice M M Sesay, JA as oni Justice E Taylor-Camara, JA Representation: E. T. Koroma Esq for the Appellant J K Lansana Esq for the Respondent JUDGMENT OF JUSTICE E TAYLOR-CAMARA, JA DELIVERED THE 26™ DAY OF JANUARY 2023 1. The Appellant claims to be the owner of 0.0836 acre of land lying and situate at Devil Hole along the New Freetown — Waterloo Road Freetown in the Western area of the Republic of Sierra.Leone as the same as delineated on survey plan numbered LS4430/14 signed by the Director of Surveys and Lands and dated 22 August 2014, which plan is attached to the Appeliant’s conveyance dated 22 October 2015, which conveyance is registered as nums o 1990 In Volume 756 of the Book of Conveyances kept in the Office of the Administrator and Registrar-General in Freetown. 2 2. The Respondent claims to be the owner of 2.7284 acres of land lying and situate at Devil Hole along the New Freetown — Waterloo Rd, Freetown in the Western Area ineated on survey plan numbered LS 4900/14 signed by'the Director of surveys and Lands and dated 11 February 2015, which plan is attached to the Respondent’s conveyance dated 27 February 2015 which conveyance is registered as number 357/2015 at Page 75 In Volume 745 of the Book of Conveyances kept in the Office of the Administrator and Registrar- General in Freetown. ~ 10. By an Ejectment Summons numbered 46/14 dated 19 July 2014, the Respondent commenced Summary Ejectment proceedings in the Magistrates Court against 20 persons, one of which was the Appellant’s wife. By writ of summons dated 25 May 2015, the Appatlant commenced proceedings in the High Court against the Respondent claiming a declaration of title to the land to which his conveyance relates. The Appeliant also claimed damages for trespass and an injunction against the Respondent from trespassing upon the Appellant’s land. On 15 July 2016, the Magistrates Court (Magistrate Ganca, as he then was), granted the Respondent immediate possession of the land described in his conveyance. By Notice of Motion dated 12 July 2016, the Appellant applied to the High Court for a stay of execution of Magistrate Ganda’s order for possession. By order dated 28 July 2016, the High Court (Samba J, as she then was) granted the Appellant the said stay and issued an injunction against the Respondent from entering on, moving, selling or leasing the land claimed by the Respondent. By notice of motion dated 26 May 20 17, the Respondent applied for the order of Samba J granting a stay of execution of Magistrate Ganda’s orde~ to be ‘deleted or dispensed’ with pending the hearing and determination of the substantive action. By order dated 20 July 2017, the High Court (Kamanda, J, as he then was) ruled that the High Court had jurisdiction to correct the order of 28 July 2015 and accordingly restricted the extent of the interlocutory injunction granted by Samba ! to the land claimed by the Appellant in his conveyance and nothing more, and ordered that the stay of execution of the judgment of Magistrate Ganda of 15 July 2015, should apply only to the land claimed by the Appellant. The court also ordered a speedy trial of the action. It is against these orders of 20 July 2017, that the Piaintiff/Appeliant now appeals. Counsel for the Appellant did not addrass the court orally at the appeal hearing and relied on his ? Synopsis for his arguments. It appears to me that the essence of the Appellant’s appeal is as follows: a\ Th oy rte covered by the principle of res judicata. 11. 12. 13; 14. b) As such, it was not open to a judge of the High Court, being of coequal jurisdiction, to amend the order. Any application for amendment of the order should be applied for by way of appeal to the Court of Appeal, rather than seek to have the order amended by the High Court under Order 23 Rule10 of the High Court Rules 2007 (hereafter “O23 R10”). c) Even if it were open to the High Court to revisit the decision, it could not do so pursuant 023 R10. That rile only permits “clerical mistakes” and “accidental slips or admissions” to be corrected. The amendment ordered did not fall into either of these categories. | will address the issues accordingly. Res judicata . The Appellant argues that the decision of Samba J to issue the injunction against the disposition of the land by. the Respondent, was and is binding on the parties and that the attempt by the Respondent to have the order amended amounted to a breach of the doctrine of res judicata which provides that a decision on the rights of the parties cannot be re-litigated on the same cause or issues in fresh proceedings. The Appellant argues that the application for the injunction was heard inter partes with full arguments by both sides. The ruling of Samba J on 28 July 2016, determined the issues between them. The Appellant therefore argues that the application for amendment amounted to a relitigation of the issues which the court has already made a determination upon. In reply the Respondent argues that the order granting the injunction did not deal with the issues or cause of action raised in the W'rit of Summons between the Appellant and the Respondent. As such, the doctrine of res jucicata does not apply. It seems to me that the question whether the decision of the High Court to grant the injunction is binding upon the parties or whether it can be revisited by the court without appea!, depends to a great extent on whether the order is considered interlocutory or final. It is well established that the doctrine of res judicata does not apply to interlocutory decisions or orders, In Bozsan v Altincham [1903] 1 KB 547 it was said that a final decision is one that finaliy disposes of the rights of the parties. In White v Brunton [1984] 2 All ER 606, the English Court of Appeal held that the test formulated by Lord Esher MR in Salaman v Warne [1891] 12 QB 734, to wit, that “a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation.” 5. 16. i? 18. 19. 20. Although many other Commonwealth jurisdictions e.g. Nigeria, Canada, Australia and Malaysia, opt for the former test, this latter test, which is the test adopted in the English courts, is also the test that was preferred by this Court in the case of Francis Foray Koroma v Kusan Sesay & Ors [2019] E P Civ. App. 52/2018. It is well established that a fina! order “is one that cannot be varied, reopened or set aside by the court that delivered it or any other court of co- jurisdiction aithough it may be subject to appeal to a court of higher jurisdiction.” (per Lord Diplock in DSV Silo-und Verwaltungsgesellschaft mbH v Senna (Owners), the Senna (No. 2) (1985) 1 WL R490 HL). Whichever test is applied; it seems to me that the conclusion to be drawn in the appeal before us. is that the order of Samba J was an interiocutory order in that it did not finally dispose of the rights of the parties nor weuld such rights 5e finally determined regardless whether the interim injunction were granted or refused. It is also well established that both an order staying proceedings or execution, and an order granting an interlocutory injunction are interlocutory orders (see 0.59 R1A (6) (m) and (s) of the English Supreme Court Practice 1999, which is applicable in Sierra Leone). It seems clear to me also, that any application to amend or any order amending or varying clerical mistakes or errors in the wording of such an interlocutory order musi itself be interlocutory. The decision of Kamanda J was therefore interlocutory. This was a point not lost on the Appellant as he applied for leave to appeal! the decision of Justice Kamanda. Leave to appeal is only necessary for interlocutory appeals i.e. for appeals against interlocutor, orders. No feave is required where it is intended to appeal against a final order. Appeal in such case is as of right. It was not therefore necessary for the Appellant to seek leave to appeal against Kamanda J’s order. That the Appellant did so, is indicative of his belief that the order was interlocutory. | have considered the arguments by both counsel in this issue. In my view, there is no merit in the _Appellant’s contention. it is clear that the application before Samba J was for an ‘interlocutory’ injunction, pending the hearing and determination of the issues between the parties. The order given was an interlocutory order and not a final order. 21. 22. 23. 24. 25. 26. The order did not in any way finally determine any of the issues raised in the substantive matter, to wit, the ownership and entitlement to the respective plots of land. Indeed, Kamanda J gave directions and ordered that there should be a speedy trial of the action to determine those issues. The fact remains that the dispute between the parties concerned rival claims to ownership of land at Devil Hole, and the granting or refusa! of the interim injunction would not and did not finally determine the question whe owned the property. The decision of Kamanda J, which 's the aecisio. being appea!ed here, was also an interlocutory decision and not a final decision. it dic not determine the rights between the parties. In such circumstances | am satisfied thai the doctrine of res judicata does not apply. Order 23 Rule 10 The Appellant claims that the applicazion for a:iendment of the order of Samba J ought not to have been entertainec| as the amendment sought does not fall within the spirit of O23 R10. The Appellant claims that Kamanda, J, misdirected himself and erred in interpreting and applying O23 R10. The Appellant claims further that Kamanda J, then sitting as a High Court judge, and thus a judge of co-equal jurisdiction with Samba J, did not have jurisdiction to amend Samba J’s order. Let me say at the outset, that | do not accept the Appeliant’s submission that a court of co-equal jurisdiction cannot revisit and amend the decision of én earlier court of the same jurisdiction under 023 R10. # think this a misguided point of view. Clearly any application to amend a judgment or order of a judge should, where the judge is available and inthe same jurisdiction, be made to that judge, especiatly where, and as, the contention is that the order, as made, does not reflect the judge’s intention. But, as was confirmed in no uncertain terms in the English case of R. v. Cripps ex parte Muldoon [1984] 1 QB 68, a judge of co-equal jurisdiction clearly has power under the rule to revisit and amend the decision of an earlier court. In that case Robert Goff U said (at 80B-E): “{IIndeed, it appears to us, if In any particular case the trial judge was not available (for example, because he had died) after the drawing up of the order, another judge of the High Court could exercise the power of the High Court under the slip rule to correct an accidental error." | do not think more néeéd be sald on this issue. 27. 023 R10 (known as the slip rule} provides as foliows: “Clerical mistakes in judgments or orders, or errors arising in the judgement or orders from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.” 28. In the English.case of Mutual Shipping Corcoration v Bayshore Shipping Co. [1985] 1 Lloyd's LR 189, Sir John Donaldson M.R. explaining the application of RSC 0.20.r.11, the English equivalent of our 023 R10, said at page 193: "The High Court Slip Rule {RSC 0.20.r.11) which is similarly worded, was considered only recently by this Court in & v. Cripos ex parte Muldoon [1984] 1 QB 686. We there pointed out the width of the power, but also drew attention to the fact that it does not enable the Court to have second thoughts (p. 697). It is the distinction between having second thoughts or intentions and correcting an award or judgment to give true effect to first thoughts or intentions, which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misconstrues or misaporeciates the law, the resulting award or judgment will be erroneous, but it cannot be corrected ... underc. 20, r. 11..... The remedy is to appeal, if a right of appeal exists. The skilled arbitrator or sudg= may be tempted to describe this as an accidental slip, but this is a neturai form of seif-exculpation. It is not an accidental slip. it is an intended decision which the arbitrator or Judge later accepts as having been erroneous." 25. The Appellant’s Notice of Motion was very clear that the application for the injunction related 3 specificaily to the piece and parce! of iand claimed by the Appellant. The judge granted the orders ‘and tiie drawn up order reflected the orde.« as set out and prayed for in the Notice of Motion. The question then, is whether those orders reflected Samba J’s intention. Did she intend that the stay should be restricted to the area of land claimed by the Appellant, as found by Kamanda J, or not? 0. The application before Kamanda, J, as appears from the Notice of Motion dated 26" of May 2017, was for the following relief: “es a That leave be granted the Defendant/applicant herein for an order to delete and or dispense with paragraph 2 of an order granted by this Honourable Court dated 28" day of July, 2016: “for a stay of Execution of His Worship Magistrate Ganda at the Waterloo Magistrates Court this between: - Abu Bakarr Kamara v Abdul Kargbo and Others Abu Bakarr Kamara v Alpha Kargbo and Others Pending the hearing and determination of this matter on its merits as it involves the same Res {subject matter) on the grounds that the said order was made erroneously or per incurium and therefore needs to be varied or corrected dy this Honourable Court pursuant to this application. 31. Paragraph 2 of the order of Samba J read: “2. That a stay of execution of the Judgement dated 15‘ July 2016 delivered by his Worshipful [sic] Ganda at the Waterloo Magistrates Court between Abu Bakar Kamara v Abdul Kargbo and Others is granted pending the hearing and determination of this matter on its merits as it involves the same Res (subject matter). 32. It is ciear from his Notice of Motion, his Affidavit in Support, and the arguments advanced by his tra counsel before Kamanda J, that the gravamen of the Respondent/Apolicant’s complaint was that the effect of Samba J’s order, as drafted, was to prevent him from executing the order for possession granted by Magistrate Ganda. He wanted to deal with the land, but the stay, as granted, hindered his efforts. He argued that Samba J’s order should be deleted and disposed with as the judge had erred in granting the stay of execution of the order of Magistrate Ganda to the Appellant. He stated in the Notice that “tne said order was mace erroneously or per inquirium [sic] ..” And at paragraph 11 of his Affidavit in Support, he said that he considered the said order to have been “erroneous and mistaken” and be therefore sought rectification so that the mistake vould be corrected. . In reply, Counsei for the Appellant/Plaintift argued that the Respondent's application was misplaced. The application before the court was for the order for stay to be “deleted and dispensed with.” He said that the application was being made pursuant to 023 R10, which order makes provision for “clerical slips or omissions” to be corrected. He argued that an application under that rule would not allow for an order to he deleted or dispensed with, nor could an application for deletion or dispensation of.an order be made under 023 RiG. He submitted that if the Respondent was dissatisfied with the order, the proper course was for him to appeal against the decision rather than attempt to have the order deleted under the siip rule. 34. itis clear from the record (P2423), that the Responclent’s counsel had “vehemently” opposed the 36. 37: 38. 39. 40. application before Samb2 J and had made the same arguments about what effects the stay would have on the Respondent, as were later made before Kamanda J. . Itis noticeable however, that at no time, either before Sarnbe 3, when the Appellant moved the court for an order for stay, or before Karnanda J, when the Respondent moved the court to have the stay deleted or dispensed with, did the Respondent er his counsel proffer an alternative variation of the order {in the event that the stay should be granted, or amended, as the case may be) urging that the stay be restricted to the land claimed by the Appellant. lt is to be noticed that the order of Samba J was made the 28 July 2016, whilst the Respondent’s Notice of Motion was dated the 26 May 2017 - some 10 mortns later. [t seems to me that if the order nad been erroneously diafted, this weu'd hav’ been manifest very shortly after it had been drawn up. {t was therefore up to the Respondent to take prompt steps towards correcting the errer, it seems clear to me therefore, that thie judge wis “aly aware and cognizant of the Respondent’s concerns when she made her decision: The record shows that the judge made her decision after “Having read the Affidavit in Oppesition....” and “Having heard G B Kanneh Esq in opposition to the said application.” ‘Shere is nothing to indicate that she wes minded to restrict the stay to just the Appellant’s land. “as in my view, the decision was deliberate. The orders sought by the Appeliant before Samba 3 had heen clearly spelt out in the notice of motion. The Respondent received the notice informing him of the orders that the Anpelant sought to obtain. Tne Respondent objected to the orders being granted and t.'¢ judge tock his arguments into consideration before grani‘ng the order that she did. She was clearly not persuaded by them. Whilst she was urged to refuse the stay, she _ nevertheless decided to grant it-anc in the form set out by the Appellant in his Notice of Motion. After considering the application and counsel for the Appellant’s reply, Kamanda J found in favour of the applicant and made the order armending the orders ot Samba J, the effect of which was to restrict the scope of Samba !’s order to the “three tewn icts” of the Apoellant. The judge appears to have been motivated by the need to do justice, as he perceived it. He said \ J at page 254 of the record: “j e noted that our Court isa © ott it must be no <> t.4rt of justice and it has inherent jurisdicti ensure that justice Is not only done bUt_ Sen to be done. Barristers and Solicit ors Ought to be an integral part in helping to dispenS< jxsstice. !n that regard both | awyers ought to have prought to the attention of the judge treat th the Applicant was only i y interested in three T own lots that is a portion 1am clear in my mind that the f oflandandnotthe Emti ‘ tire portion claimed by the Respondent/Appli actthat AM o plicant.... aa <a rder was made in respect of the entire land was a rror arising | ent... ; ein 1m my view by correcting the error in this case can mistake or e ‘ coinetine ae in no way lead to injustice © cause harm to no one, rather that will put the record ord straight and ensure that justice is manifestly se@n to nave beend n done.” 41. Having considered the judgment of Kamanda J, i am ofthe view that h d e. erred in making the o rders that he did. It is clear that the application was for Samba #’s order f er for stay. to be “deleted and dispensed with”. The Applicant wanted to enferce the order f er for possession but was of the view that the imposition of tne prevented this. From the record, it doe : ; s not appear as thou gh counsel for ihe Respondent/Applicant specified that or h now he wanted the o rder of Samba J t oO be . oct polying for it tO b = de “ted but made the ap fication under a rule tnat provides for correction of an erroneously drafted order. Counsel for th : : : cai or the Appe ‘ the judge’s attention and pointed out fe the judge that ne ougtit not t ppellant drew this to ; ~ ct to entertai we under the slip rule bec ain the application was being made. Couns?! for the Appai!ant did not argue the case under O er O23 R10. He ause the ralief sought dic n ‘ + Not come within the ambi : ambit of the rule . pursuant to which it was of the view that that rule did not apply, and so did not sei whether in fact the a é/ mendment party is dissatisfied with, ought to be made On appea} A2. } find it difficult to agree with Kamanda J, that Samba J intended t eh tended to make the restri = 12+ wn 2 . icted ord 2 made. Even if it were the case, 2S Kamanda J found, tnat Samba J oes er he o restrict the sco pe of the stay to the Appellant's iand, this was not the argument ad ; | advanced by the Res pondent. He ’ see how such intention could have been or can be imputed to her. The f dto ner. The fact she did not restri estrict or specify the sco what her intention had been. in my view it iS Not clear that she had such : ad such intention, nor i 5 can it be e of the stay as she did in th ; P stay the case of the injunction, leaves the q i uestion open shown that she erroncously failed to Specify the fanz to which the st ch the stay applied. At best it i res ‘ st it is an arguable case buiit-is-notone that was-ergze Se a guable case, Dur’ a argued-sy the Kespondent. He argued simply th 5 ply that there a es was a Clerical mistake or an error arising from én accidental slip or omission that should be corrected under 023 R10. 43. For my part, ! do not think it was Samba J’s inten tion to make the restricted order and so | cannot see that it can properly be said that there Was & Clerical rsistake er an error in the way that the order was drafted, or that any such error arose from an accidental slip or omission. 44. Samba’s order granting a stay, read at fzce valucs had the effect tof staying execution of Magistrate Ganda’s order for 2 writ of possession te issue 28a. 3t ail the defersanis to that action. Kamanda J’s order whilst, attempting to restrict the affect of t stay to just the Appellant’s land, did in effect, what the Respondent/Applicant had asked for: it dispensed with the stay. It had the effect of setting aside Semba !’s order for Stay and imposing a stay on the Appeiiant’s land Only. This in my view was way outside the scope of O 243 RK iu and was sometning that ought Properly to have gone on appeal. 45. The judge also procesied to make an order restricting tne injunction to the Appellant's “three ews lois” even though the Resoondent dia nor epply for the injunction to be amended. On the contrary, the Respondent had in his motion applied that “that Paragraphs 1 and 3 of the said order of this Honourable Court datea 28 day ot July 2016 do stand unless otherwise ordered by this Konourable Court.” There was therefore no need for the judge to have armended this order, especially co. as that order: as dratted, already extended to covered tne Appeilant’s land which wes tully described in the erder by reference to the Survey pian ana conveyance. 46. Karnanda J made reference to the court’s inherent Powers as 4 basis for making his orders. It is urcoubtecly the case that the court has an inherent POWEr to vary its own orders to make the moentiyanc intention ef the court clear. Ho. ever, famnore persuaded, as Kamanda J appears ” have been, that this was a situation where the Court ought properly to exercise its power under its inhere nt juvisciction. - 47. For the reasons stated above, | would uphsta the aponal, Signed? & Gaylor-Camara disctice & Taylor-Camara, JA _— ees =