Wurie Barrie V Alhaji Duramani Bangura (CIV APP 24 of 2008) [2015] SLCA 1132 (16 April 2015)

a2 i CIV APP 24/2008 > IN THE COURT OF APPEAL OF SIERRA LEONE : BETWEEN: WURIE BARRIE - APPELLANT : AND ALHAJI DURAMANI BANGURA - RSPONDENT COUNSEL: EEC SHEARS-MOSES ESQ for the Appellant ‘JB JENKINS-JOHNSTON ESQ for the Respondent

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THE HONOURABLE MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE S A ADEMOSU, JUSTICE OF APPEAL (Now deceased) T CRO drs nn lok hp pws ‘THE APPEAL. ‘

1. This is an appeal brought by the Appellant by way of Notice of Appeal filed on 2 May,2008 against the Judgment/Ruling of TAYLOR,J dated 24" January,2008. The Grounds of Appeal, with slight amendments so that they make some sense, are as follows:

(1) The Learned Trial Judge denied herself the opportunity of hearing the entire evidence and (of) deciding the case on its merits

(2) The Learned Trial Judge erred in failing to consider that the Defendant was denied the opportunity of being heard by the entry of a judgment in default of defence.

(3) The Learned Trial Judge ignored the affidavit showing that the Appellant had a defence.

(4) The Learned Trial Judge was wrong to hold that the Defendant had 2 delayed applying to set aside the Judgment in default of a defence, ignoring the steps he immediately took when he knew of a judgment against him, He took steps to set it aside.

(5) The Learned Trial Judge failed to consider the several adjournments and delays occasioned by the Respondent's Solicitor * causing the Appellant to ask for a change of venue of trial which also led to a dele.

(6) The Learned Trial Judge failed to evaluate the evidence, by way of affidavit, before tie court

2. The reliefs sought from this Court are as follows: .

(1) That the ruling be set aside and one in favour of the Appellant be substituted therefor.

(2) That the Appellant be granted leave to file a defence out of time and defend the action.

(3) That all subsequent proceedings consequent upon the judgment in default of defence be set aside.

(4) That the parties return to the status quo when a writ of summons was issued,

(8) That the Respondent bears the Costs of this Appeal FACTS OF THE CASE

3. The facts of the case are as follows and are to be found at pages 1-4 of the Record. Henceforth, reference to page numbers in this Judgment shall be references to pages in the Record. The Respondent was and is the leasehold owner of property at 43 Mahei Boima Road, Bo. He agreed to Sub-Lease it to the Appellant in 2002 on the basis that Appellant would erect a temporary structure on it. The Appellant, on the contrary, ‘erected a permanent structure on the land, and the Respondent terminated the sub-lease for this reason, Thereafter, after the intervention of third parties, the Respondent agreed to sub-lease the property again to the Appellant for a period of 10 years commencing 1 March,2002. A deed was prepared to this ef fect by the Appellant's Solicitor. After the same had been prepared, the Appellant refused to sign it, but continued to occupy the property. By letter dated 20 Tuly,2005 the Appellant was given notice to quit the premises, but he refused to do so. The Respondent then instituted action against him, in the High Court, Freetown, for recovery of possession of the property, an * Injunction, Mesne profits and Costs, by way of writ of summons issued on 2 August,2005. On 21 September,2005 the Appellant entered appearance to the writ in Freetown, and gave Notice of the same to Respondent's Solicitor in Kenema, that same day ~ pages 6 & 7.

BE . 4, On 19 October,2005 Mr Abdulai M Bangura, then Solicitor for the a Respondent, deposed and swore to an affidavit of search ~ page

8. In his : affidavit, he deposed that he had searched the file in the District Registry, Bo, and had found out that the Appellant had not filed a defence to the Respondent's claim. RESPONDENT'S APPLICATION FOR LEAVE TO ISSE WRIT OF : POSSESSION

5. By Notice of Motion dated 11 November,2005, the Respondent applied to the High Court in Bo for liberty to issue a writ of possession against the Appellant pursuant to a Judgment in default dated 19 October,2005 - pages 10 -13. That Application was supported by the affidavit of Mr Bangurah, deposed and sworn to the same day. Exhibited to the affidavit are: a copy of the affidavit of service of the writ of summons: a copy of the default judgment dated 19 October 2005 signed by the Registrar, High Court, Bo: and a copy of a letter dated 20 October 2005 addressed to the Appellant by Mr Bangurah, forwarding therewith, a copy of the default judgment, and demanding compliance with its terms, In paragraph 4 of his affidavit, Mr Bangurah refers to an affidavit of service of the letter, supposedly exhibited thereto as *AMB4" but it has not been included in the Record. That Application was heard by TUNIS, on 25 November,2005 in the presence of Mr Nabie, Appellant's then Counsel - pages 220 -

226. The Learned Judge granted the Orders prayed for by the Respondent. A praecipe for a writ of fieri facias was filed on 2 December 2005 by Mr Bangurch, and directed to the Master's Office in Freetown. APPELLANT BECOMES AWARE OF DEFAULT JUDGMENT.

6. So, as of 25 November,2005, the Appellant was aware, through his then Solicitor and Counsel, of the default Judgment. 12 days later, i.e. 7 December,2005, he made his first application to the Court for that Judgment to be set aside, 12 days can in no wise constitute delay. That the Application took several twists and turns, and metamorphosed into a later application filed 2 years later, we have found out, was not the fault 7 of the Appellant. The Court's processes, and the manner in which TUNIS, and the first Counsel for the Respondent treated the separate applications may perhaps be responsible in different measures, for the inordinate delay in bringing the whole episode to a speedy conclusion, This

8S . initial assessment is directed in particular at the point made by Mr a Tenkins-Tohnston at pages 1-2 of his synopsis, that there was undue . delay on the part of the Appellant. The 2007 Application was not the first one made by the Appellant. APPELLANTS 15° APPLICATION TO SET ASIDE DEFAULT JUDGMENT “

7. By Notice of Motion dated 7 December 2005, Appellant applied to the High Court sitting in Bo for, inter alia, leave to file a defence out of time, and for a stay of execution of the default judgment - pages 16 -

29. The Appellant deposed and swore to an affidavit in support of the Application = pages 18 &

19. In short, the Appellant deposed that he was unaware of the default judgment. A proposed defence was exhibited - page

29. The Application came up before TUNIS,J for hearing on 12 December ,2005 - pages 226 -228. Objection was taken by Mr Bangurah to the hearing of ‘the Motion on the ground that its supporting affidavit was unsigned by the Deponent, the Appellant herein. It appears at page 228 that TUNIS,J did not allow the Motion to be moved because there was no affidavit of service. She awarded Costs in the sum of Le250,000. FURTHER APPLICATIONS MADE BY APPELLANT

8. Several other Applications were filed by the Appellant, trying to get the Default Judgment set aside, but none of them were successful. They were heard by TUNIS,J. There were also several changes of Solicitors on the part of the Appellant, until the current Solicitors, Shears-Moses & Co were appointed by him on 31” January 2008, Respondent also changed Solicitors and appointed Mr Amadu Koroma in place of Mr Bangura. APPELLANT'S APPLICATION DATED 17™ MARCH,2006

9. ANotice of Motion dated 17 March,2006 filed by the Appellant was heard by TUNIS, J. She reserved Ruling on this Application on 3 ‘July,2006 - page

261. It appears that she did not deliver a Ruling as the date mentioned was the last occasion on which the matter came up before her. > APPELLANT'S APPLICATION DATED 11 OCTOBER,2007

10. Finally, the Appellant, through his then-Solicitor, Mr A J M King, filed a Notice of Motion dated 11 October,2007. It is the Ruling on this

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