Vivat Davies v Achie Benson Davies & ORS (18 of 2004) [2004] SLCA 12 (6 July 2004)

ee? € if ‘ace 229 eae Misc.App.18/04 “BETWEEN: MRS. VIVAT DAVIES - APPELLANT > Vs. ARCHIE BENSON JAMES ] MISS E. JAMES ]_ ~ RESPONDENTS MRS.LUCYAGBASI

Coram

Hon. Sir John Muria JA Hon. Ms. U.H. Telan-Jalioh JA Hon. Ms. T.A. Doherty J. HEARING; 16" June 2004

Ruling

6" July 2004 Advocates: Applicant: . J.B. Jenkins-Johnston, Esq. Respondent: N.C. Browne-Marke Esq. Delivered this 6 aay of Leh, 2004, Mh MURIA, TEJAN-JALLOH-JJA, DOHERTY J: The substantive appeal in this matter had been dismissed on 2% June 2004. By a Notice of Motion, Counsel for the appeliant seeks to have the appeal re-entered for hearing relying on rule 24(2) of the Court of Appeal Rules, 1985. In the alternative, Counsel seeks to have the order dismissing the appeal on 2"! June 2004, set aside and re-enter the appeal for hearing pursuant to Rule 26(1) of the Court of Appeal Rules, 1985. 'n Court, Counsel for the appellant actepted the “blame in this matter” which we ake that to mean that Counsel accepted his failure to attend the hearing on 2" June 2004, resulting in the Court hearing only the respondent and dismissing the - appeal. The supporting affidavit in this application filed, by the appeliant herself explained why she was not able (c wume to Court on 2 June 2004, Ste said

+ > she was Ill, Counsel on the other hand did file also an affidavit explaining his absence and accepted the blame for what had happened on 2% June 2004, Counsel asked the Court's indulgence for his client's sake ‘ Counsel for first respondent who appeared and argued his case for his clients on 2™ June 2004, urged the Court to dismiss the application, as the appeal was heard and considered on the merit before dismissing it. Counsel submitted that Section 70 of the Courts Act, 1965 applies here and that the only option for the appellant is to appeal to the Supreme Court. Rules 24(2) and 26(1) of the Court of Appeal rules, argued Counsel, did not apply. Before we deal with arguments urged upon us by Counsel we set out the sequence of events leading up to the Order of 2% June 2004. The case commenced in the High Court by an originating summons on 4" March 1987 taken out by the Plaintiff (now the first Respondent) against Eunice James (First defendant now second Respondent), Vivat Davies (second Defendant and now Appellant) and Lucy Agbaji (third Defendant now third Respondent), The present Counsel for the appeliant was then also acting for the second defendant (now . appellant). The first Respondent (then Plaintiff) was represented by Mr. Nylander. The case was first listed for hearing on 28" October 1987 and after numerous adjournments it was finally determined on 7" June 1989. We note that 80% of the adjournments were due to absences of Counsel. We note with particular interest that the order for the sale of the property at 22 Sibthorpe Street, Freetown by private treaty, and not by public auction was made by the leamed trial Judge on 2! February 1988. By that Order also, the Master and Registrar was to appoint an independent valuer to assess the then current value of the property. ‘There was no challenge to that order of 2" February 1988. The parties did not come back to the Court until one year later, when on 6” March 1989 the Plaintiff applied for an Order that a reserved price be put on the value of * the property. After several adjournments, the learned trial Judge on 7" June . 1989 gave his ruling on the questions sought in the originating summons, among

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- other things, confirming his earlier order that the property be sold by private

* eaty rather than by public auction, and fixing the reserved price of Le.109,200.00'betow which the property must nat be sold.

. The second Defendant/Appellant by her notice of appeal dated 27" June 1989 appealed against the order of the High Court and on 22 June 1989 filed an application for Stay of Execution of the Order of the High Court dated 7" June 1989. It was not until the 7" December 1989 that a Stay of Execution of the High Court judgment was granted by the Court of Appeal. “In the meantime an interested buyer, Madam Aminata Bangura, had made an offer of Le.300,000.00 ‘or the property for which she paid Le.200,000.00 as deposit pending approval by the Court. Approval was given by the Court and the purchaser paid the balance ‘of Le100,000.00 on or about late November 1989. Thus by the 7" December 4989 when the Court of Appeal granted a Stay of Execution, the purchaser had already paid the full price for the property approved by the High Court. From November 1989'to the present day, the purchaser of the property remains

waiting for the result of this case. The next set of events occurred about one year later again. By an Order dated 13" November 1990, the appellant's appeal was dismissed pursuant to Rule 16(1) by the Court of Appeal for non-compliance with the requirements of Rules 13(4) and 14 of the Court of Appeal Rules, 1985. The appellant applied on 14" March 1991 to the Court of Appeal to set aside its Order of 13" November 1990 and restore the appeal to the list pursuant to Rule 16(3) of the Court of Appeal Rules. The application was granted the appeal was restored. Since the appeal was restored, it had come before the Court of Appeal and adjourned at least 27 times ((four times in 1993, eight times in 1994, fourteen times in 1995 and once in 1996) before it was adjourned sine die on 15" February 1996.

¥ The matter was resurrected eight years later, this year 2004 and was listed

. before the Court of Appeal at the Guma Bulldina on 31% March 2004. For

~ . teasons assigned thereto, their Lordships were not able to proceed to deal with the appeal. Subsequently, the appeal had been re-assigned and listed before nu. - his Panel of the Court on 8” April 2004. The appeal came before us cn *" April 2004 for mention. ‘The direction hearing was done on 23" April 2004 and then * adjourned for heating on 19" May 2004, It was further adjourned to 26" May 2004 at which time Counsel for Appellant had to attend to.a matter at the Special Court. The appeal was adjourned to 2" June 2004. The Court had said that: there would be no further adjournment. On the 2" June 2004 the appeal was called. There was no appearance for the Appellant nor was the appellant herself Present. Mr. Browne-Marke appeared for the first Respondent. The Purchaser (Aminata Bangura) was in Court also. As the case was adjourned to the 2" June 2004 for hearing and the Court indicating earlier that there would be no further adjournment, Counsel for the first Respondent argued the case for the first respondent, orally as well as relying on his synopsis of argument a copy of which had been filed with the Court. Apart from being absent, Counsel for the Aopeliant also did not lodge any synopsis of argument, for his client as earlier directed by the Court. Having heard Counsel for the Respondent and having considered the appellant's grounds of appeal, the Court dismissed the appeal. ‘The principles governing re-hearing of an appeal or application by the Court of Appeal are well settled. The Court of Appeal has power to alter the Court's decision before its order has been perfected but it has no power to rehear an appeal after its order has been passed and entered: Hession v Jones (1914) 2 KB

421. Where, however, the appeal has been struck out or dismissed for non-appearance of the appellant, the Court of Appeal has inherent. jurisdiction to reinstate the appeal for rehearing: Brooksband v Rawsthome and Co. (1951) 2 All England Reports

413. With those principles in mind, we now turn to the contentions of Counsel in this application.

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