Votovitch Rostislav & 1 Other v Momoh Ansumana & 2 Others (CIV APP 1 of 2017) [2018] SLCA 1285 (17 December 2018)

| ez. = Civ. App 1/2017 IN THE COURT OF APPEAL. OF SIERRA LEONE VOTOVITCH ROSTISLAV EDUARDO MYRONENKO ~ APPELLANTS AND. MOMOH ANSUMANA & BORIS FARFELL -RESPONDENTS: OLEG TSKANOV coram; HON. Mit JUSTICE REGINALD SYDNEY FYNN JA HON. MIC JUSTICE DESMOND BABATUNDE EDWARDS JA HON. MICHSTICE ELDRED PRANK TAYLORCAMARA YH Williams Esq. for the Appellants MP Fofannah Esa. for the Respondent Ruling delivered on ..... December 2018 Reginald Sydney Fynn JA

1. The Respondents have filed a preliminary objection pursuant to R19 of the COA Rules ‘urging that this Appeal not be heard at all, the objections rest on three grounds which were argued by MP Fofannah for the respondents. First, amongst these is that part of the appeal relates to a judgement which was given more than three months ago. Fofannah argues that where time within which to appeal has expired a party who wishes to appeal must frst apply for time within which to appeal to be enlarged. He argues that R 11 of the Court of Appeal Rules provides that unless time is so enlarged the court cannot properly hear such an appeal. ine respondent submits that a part of the present appeal clearly relates to a judgment for which time to appeal has expired. He submits that the applicant needs have extension of time to appeal before he can appeal against that judgment or any part of

2. On the second ground, tne respondent argues that the notice of appeal was filed before the judgment which is being appeated against was drawn up, This the respondent Voytovich Rostislav v Ansumnana Court of Appea! Fyn, Edwards, Taylor Camara

” argues is in contravention of Order 43 R 2, 5, 6(1) and 7 of the High Court to Cap 274, The Stamp Duty Act, section 12 & 14 thereof, the respondent submits that by acting as they have ie. filing an appeal without drawing up an order, the annlicant jhas circumvented the Stamp Duty Act. akysbans”

3. Thirdly, the respondent has argued that a motion dated 16" February 2017 was filed ‘seeking to amend the Notice of Appeal. However, this has not been moved. Counsel submits that the consequence is that the parties before the court are not those truly affected by the application, ae ?

4, In his reply, YH Williams referred the Count to S. 28(3) of the constitution of Sierra Leone Act No. 6 of 1991 also citing the majority ruling in case of Skye Bank Vs. Khalilu Jabbie. Wiliams argues that time did not run until the matter which appeared to be still in progress was brought to an end. Referring to paragraph 205 of the judgement, he summits that clearly there were stil things to be done before the final judgement. He maintains that the Judgment of 19" September 2016 itself anticipated that further processes were pending in the case and so time could not have started to run against the appellant. In the alternative Williams submits that even if time within which to appeal had expired on the first judgment the present Notice of Appeal is severable and only the offending portions need to be stuck off if at al

5. YH Willams agues further in relation to the second ground and the non-drawing up of

. the judgment appealed against, that there is no rule which stipulates the exact time for the drawing up of an order/ludgement. He argues further stil that the duty to draw up

. an order is primarily that of the successful party ie the person(s) who benefits from the

Order

6. Asa general alternative postion the appellant submits that R66 provides that an appeal shall not come to an end for non-compliance with the rules as the Court can waive any such non-compliance.

7. The first issue we are to determine is whether the appellant has filed this Notice of ‘Appeal outside the time within which an appeal ought to be filed. The Notice of Appeal is dated 18” January 2017 and it seeks to appeal against judgments given on 19” ‘September 2016 and 11 January 2017. 19” September 2016 is clearly more than three months away from 11™ January 2027 this puts the Notice of appeal outside the period available for appealing final judgments

8. However regarding that first judgment ie the one dated 19” September 2036 counsel has argued that the judgment itself envisaged that further action/process would follow it, Does this therefore mean that this was an interlocutory judgment? itis generally accepted that one of the indications that a judgment is interlocutory is the fact that does not bring the matter to a complete end but rather leaves room for further process @y 10 be dane. hs submission, though the appellants alluded to the fat thst he Voytovirh Rostislav v Ansumana Court of Appeal Fyn, Ldwward, Taylor Camara

Su

” judgment of 19" September 2016 was not final they did not go so far as to say that it was interlocutory in fact. Clearly if this judgment had been reckoned as an interlocutory one then the right to appeal would have expired after fourteen days by R 10(1) of the Court of Appeat rules. Also any such right to appeal would not have been automatic but father dependent upon and exercised only with the leave of the court. Would this not have complicated the issues further as neither leave to appeal nor an enlargement of time has been sought even though both would in those circumstances have been necessary?

9. However stil asa final judgment, as earlier mentioned the three months within which to appeal have elapsed before the Notice of Appeal was filed. Counsel argues though that the judgment itself envisaged that something more needed to be done therefore time did not start running. He cites the case of Khaliluabbie in support of this proposition

10. My reading of the majority ruling in the Khalilu Jabbie v Skye Bank does not disclose an intention on the part of my brethren there, to lay general guidelines on the failure to apply for extension of time. The ruling does not make any direct pronouncements on that specific issue save that it did in fact accept a notice of appeal filed out of time and

without the party frst seeking extension of time. | note that in that case the second

Judgment had sought to rectly that which was being appealed against. The present

objection is made in completely different circumstances.

11.1t is my opinion that Khalilu Jabbie v Skye Bank was decided in the peculiar

: circumstances of that case. | do not therefore consider the majority ruling in the Khalilu

Jabbie v Skye Bank as binding upon usin this regard, The time within which to appeal a 7 final judgment is three months, Those three months elapsed with respect to the

judgment of 19" September 2016 before the notice of appeal herein was filed. A need

arose thereby for an application for enlargement of time but none was sought.

12. The following passage from the white book is helpful as to the necessary attitude of

the court when there has been a failure to do a requiced thing “where leave to oppeal is required it must be obtained before service of o notice ©f appeal. Where leave to oppeo! is required @ void notice of oppedl can only be served ofter leave has been granted” (see 1999 white book 59/1/5).

13. The reasoning here is not unlike what would be expected where there is @ need to apply for enlargement of time in which to appeal; When time within which to oppeel hos expired a valid notice of appecl can only 2 fled ofter the time within which to oppeo! thas been enlarged.

14. Thompson Davies JSC makes the point clearly in the Nigerian National Shipping tines Utd v Abdula Ahmed (Trading as Abdul Aziz Enterprises) case where he fst pprovngly quotes Dove Fdssin I Elah Speck vs, Gbassay Keister before continuing 7

Noytowih RostshivvAnsumana Court of Appeal Fyn. Edwards, Taylor Camara

7 “In the circumstences the omission to follow the rules is fatal and it is my opinion that the appeal is not properly before the Court and should be struck out” “It seems clear to me that in all the circumstances, the Appellant here have failed Sey follow the Rules by applying to the Ceairt of Appeal,; to have their application determined when they were out of time without first obtaining an order granting them an enlargement of time; there was no appeal before the Court; that omission was fatal. It could surely not have prejudiced the Appellants’ case if they had. chosen to obtain an enlargement of time to apply to the Court of Appeal, On that basis the Appellants have no rights to complain about the Court of Appeal’s decision, the Court had no jurisdiction in the matter, it could not have adjudicated on it and therefore could not: have assumed jurisdiction even where there is a fresh step or waiver by the Respondents of any non-compliance with any of its rules..."

15. On the question of whether R66 can cure this failure to apply for enlargement of time | will reproduce what | said in the Kallilu Jabbie case: “Lam also of the considered view that R 66 is not intended to be used to make substantive orders which have not been asked for. This rule (R 66) could be resorted to where there is a minor slip or irregularity in a party's papers but not when there has been such a major and foundational failing as filing out of time cand without first seeking for enlargement of time" £

16. It remains my view that itis the Notice of Appeal that is the vehicle by which an appeal comes to this court. When that vehicle is defective, the appeal does not arrive at the ? court and so there is truly nothing before us; in which case we are not in the position to administer a cure even if we wanted to,

17. The opinion expressed in Auto Import Export v Adebayo & Others SC49/1997 is also helpful in this regard.

failure to fle an appeal within the stanuory period of time preseribed by law without obtaining an extension of time within which to appeal in aceordance with she stattuory requirements which are coraitions precedent to the filing of a valid appeal constitutes a grave irregularity. so fiundcmemal that there would be no appeal which the appellate court could lawfully entertain. Such irregularity can by no means be regarded! us ui mere techinisity but constitutes an incurable detect that must deprive the appellate court uf jurisdiction."

18. Can we now sever the defective portion of the notice of appeal from the rest of it as alternatively argued by counsel for the appellant? 1 will decline this invitation. The grounds of appeal have not been organized so as to readily lend itself to such easy dissection, Even though the notice refers to two judgments in its body the grounds are SE not distinctive as to which refers to which judgment whilst in the portion “reliefs E;

Voytowch Kostistav v Ansumana Court of Appeal Fyn, Edwards, Taylor Camara

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