Yonga Conteh v Regina Mainley (CIV APP 37/12) [2026] SLCA 3 (18 June 2026)

cv. app 37/12 2012 No. IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN

YONGA CONTEH DEFENDANT/APPELLANT

AND

REGINA MAINLEY(AS ADMINISTRATIX OF THE

ESTATE OF ISSAC THEOPHILUS AKUNA WALLACE-JOHNSON- PLAINTIFE/RESPONDENT

Coram

SKIN,

Hon. Mr. Justice Abdulai M. Bangurah JSC (Presiding) ¢ He, Ss

Hon. Mr. Justice M.P, Mami JA abe

Hon Mr. Justice Aiah S. Alliew JA i SUA

‘COUNSEL oS LIOR

AZ Kanu Esq. for the Appellant a ecisti

B.M. Bah Esq. for the Respondent JUDGMENT DELIVERED BY THE HON. MR, JUSTICE ABLULAI M. BANGURAH JSC DATED THE

! gt ~DAY OF Tete 2026

This Appeal was filed in this Court on the Sth of June 2012, by the 1st of three defendants in the lower Court Pa Yonga Conteh, against the Judgement of His Lordship St George Ade Joiner J, delivered on the 28th May 2012. The grounds as contained in the Notice of Appeal dated the 4th June 2012 are as follows: a). That the Learned Trial Judge (hereafter "the LTJ") erred in law in Proceeding with the Trial of the matter in the absence of the Defendant/Appellant and his Counsel. b). That the LTJ misdirected himself in using a principle of law that does not support the facts of the case before him. c). That the LT) erred in law and fact in coming to the conclusions that the property at Lumley Road Lumley Freetown described in survey plan numbered LS803/07 forms part of the estate of ISAAC THEOPHILUS AKUNA WALLACE-JOHNSON, who died in Ghana on the 9th May 1965. 4). That the LTJ's award to the Respondent in the sum Le550,000,000/00 as damages for trespass is inordinate, e). That the Appellant has a good and Triable defence.(seemingly questioning that very assertion by making it a ground of appeal) The reliefs sought from this Court are that: The judgement of the lower Court dated the 28th May 2012, be set aside and the Defendant/Appellant be given an opportunity to prove his case in the Court below. It must be noted from the onset that, there are no particulars of the errors of law and misdirections alluded to in the 1st to 3rd grounds of Appeal, an omission that offends Rule 9(2) of the Court of Appeal Rules 1985 and thus susceptible to the powers conferred on this Court by Rule 9(4) supra.

BRIEF FACTS

The Respondent herein Regina Mantey(hereafter “the Respondent"), on the 7th April 2008 took out a Wat of summons in the lower Court, against the Appellant herein and a Josephus Comm who later identified himself as Joseph Kong, in her capacity as Administratrix of the estate of her deceased father, Isaac Theophilus Akuna Walace-Johnson.

By an Order dated the 22nd October 2008, a certain Hamon Kis-Kamara was added as a 3rd Defendant to the action,

The claims set out in the said Writs of summons are as follows:

'}. Adeclaration that property situate at Lumley Road Lumley Freetown described in survey plan ‘numbered ($803/07 (hereafter "the res" or "the disputed land"), forms part of the estate of Isaac Theophilus Akuna Wallace-Johnson who died in Ghana on the Sth May 1965.

ii, That by a judgement of the lower Court dated the 14th July 1992, Sally Ann Wallace Johnson the lawful widow of isaac Theophilus Akuna Walace-Johnson (hereafter ITA Walace-Johnson), up to her death on the Sth January 2008, was the person entitled to administer the estate of her deceased husband and entitled to one third of same by the provisions of the Second Schedule to cap 45 of the laws of Sierra Leone 1960,

il). Damages for trespass

'v), Perpetual injunction restraining the Defendants and their privies from entering or remaining ‘upon the said land or from interfering with the peaceable enjoyment of same by the plaintiff. v).Costs

vi). Any other further reliefs as the Court deems fit

‘The Defendants by their Counsel (Manly spaine esq for the Ist and 3rd Defendants and Oliver O. ‘Nylander for the 2nd defendant), entered Appearance and gave Notice of such Appearance, on the 7th May 2008 for the 1st defendant, 8th July 2008 for the 3rd Defendant and 30th April 2008 for the 2nd defendant respectively

(On the 18th day of June 2008, a defence was filed for the 1st Defendant therein and the Appellant herein. The 2nd and 3rd Defendants therein as admitted by their Counsel in subsequent Applications to the lower Court, did not file any defence to the claim against them,

The matter was assigned to the Hon Mrs Taylor J, albeit directions as to its conduct were issued by the Hon A.8.Halloway J, as he then was, on the 6th July 2008,

By the contents of the Judgement of the LT, the Hon Mrs Taylor J commenced hearings and took two witnesses, who were cross examined by the erstwhile Counsel for the Appellant herein. For some reason that is not in the Records of appeal, the matter was reassigned to the Hon St George ade Joiner J, the LTJ herein

‘It was at this stage that, the Appellant, his Co-Defendants in the lower Court and their Counsel, were said to have neglected the proceedings in that Court and stopped attending same. The judge then proceeded to hear and eventually determine the matter in pursuance of Order 41 Rule 1(2)(a) of the High Court Rules 2007, which states:

“Where an action is called for trial and a Party fails to attend the tral, a judge may:

a). Where the plaintiff attends and the defendant fails to attend, dismiss the Counterclaim if any, and allows the plaintiff to prove the claim"

On the 28th May 2012, His Lordship delivered a judgement in favour of the Respondent herein

On the 30th May 2012, the Appellant rightly applied to set aside the Judgement aforementioned apparently invoking the provisions of Order 41 Rule 2 of the High Court Rules 2007 that says: “Any verdict or judgement obtained where one Party does not appear at the trial may be set aside by the Court upon such terms as it thinks fit upon an application made within 6 days after the trial or within such time as the Court or judge may allow" There is however absolutely nothing in the Records of appeal that speaks to the status and/or Outcome of that Application. All we have is learned Counsel for the Appellant's word for it in his synopsis that, His Lordship the LTJ refused the Application, on the basis that, his judgement is one on the merits and can only be upturned on appeal. How and when that prouncement was made by the LTJ is not stated by Counsel ‘On the Sth June 2012, the Appellant as 1st Defendant in the lower Court, filed an Appeal to this Court against the judgement of 28th May 2012 aforesaid, on the grounds as stated above. On the 12th June 2012, the 2nd Defendant Josephus Comm now identified as Joseph Kone, filed an Application to the Court below, again seeking to set aside the judgement and praying for an enlargement of time within which to file his defence. That Application was refused by the Hon. Mrs. A. Showers JA, in her Ruling of the 9th October 2012. On the 13th November 2012, the Appellant herein as 1st Defendant in the lower Court and the 3rd Defendant Hamon Kis-Kamara applied to that Court, for a stay of execution of the Judgement of the 28th May 2012 pending the hearing and determination of the said Application and the Appeal filed to this Court by the 1st Defendant and Appellant herein and for an enlargement of time within which the 3rd Defendant is to appeal against the said judgement. ‘As with the Application of the 30th May 2012, nothing could be found on the Records of Appeal respecting the status or outcome of that Application. And there is no mention of same in the synopsis of both Counsel. This was how the Parties came to this point. | note with abhorence that, the Records of proceedings in the lower Court are not in the Records of Appeal of this Court. This could presents undue hardship to this Court, where itis to determine an appeal on the merit. It will lead to placing dangerous reliance on processes filed in the lower Court and excerpts of what obtained in that Court cited by their Counsel, which are more often than not, slanted in support of their case. Its safer when happenings in the lower Court are read first hand from the Judge's notes. ‘SUBMISSIONS BY BOTH COUNSEL. Both Counsel made very instructive and thought provoking arguments in their synopsis, that | would have loved to dilate and make definitive pronouncements on. | am however constrained by the technical tenure of this judgement. To delve into those submissions now, is in my view acquiescence of the irregularities that will inform my conclusions hereunder.

Findings

The LT)'s judgement of the 28h May 2012, is entered in pursuance of Order 41 Rule 1(2)(a) of the High Court Rules 2007 qouted pro rata itis obvious that, a judgement obtained under Order 41 Rule 1(2)(a), isa judgement in default of Appearance at the trial and like all default judgements, it can not be the subject matter of a substantive appeal to this Court in any event. Our rules of Court from Orders 13 Rule 9, 22 Rule 11 and 41 Rule 2 of the High Court Rules 2007 to Rule 26 of the Court of Appeal Rules 1985 and Rule 66 Subrule 2 of the Supreme Court Rules 1982, do not contemplate Appeals against the

(On the 30th May 2012, the Appellant rightly applied to set aside the Judgement aforementioned apparently invoking the provisions of Order 41 Rule 2 of the High Court Rules 2007 that says

“Any verdict or judgement obtained where one Party does not appear at the trial may be set aside by the Court upon such terms as it thinks fit upon an application made within 6 days after the trial or within such time as the Court or judge may allow"

There is however absolutely nothing in the Records of appeal that speaks to the status and/or ‘outcome of that Application. All we have is learned Counsel for the Appellant's word for it in his synopsis that, His Lordship the LTJ refused the Application, on the basis that, his judgement is ‘one on the merits and can only be upturned on appeal. How and when that prouncement was ‘made by the LTJ is not stated by Counsel.

On the Sth June 2012, the Appellant as 1st Defendant in the lower Court, filed an Appeal to this Court against the judgement of 28th May 2012 aforesaid, on the grounds as stated above.

On the 12th June 2012, the 2nd Defendant Josephus Comm now identified as Joseph Kong, filed an Application to the Court below, again seeking to set aside the judgement and praying for an enlargement of time within which to file his defence. That Application was refused by the Hon. Mrs. A. Showers JA, in her Ruling of the 9th October 2012.

‘On the 13th November 2012, the Appellant herein as 1st Defendant in the lower Court and the 3rd Defendant Hamon Kis-Kamara applied to that Court, for a stay of execution of the Judgement of the 28th May 2012 pending the hearing and determination of the said Application and the Appeal filed to this Court by the 1st Defendant and Appellant herein and for an enlargement of time within which the 3rd Defendant is to appeal against the said judgement.

‘As with the Application of the 30th May 2012, nothing could be found on the Records of Appeal respecting the status or outcome of that Application. And there is no mention of same in the synopsis of both Counsel. This was how the Parties came to this point.

Inote with abhorence that, the Records of proceedings in the lower Court are not in the Records of Appeal of this Court. This could presents undue hardship to this Court, where itis to determine an appeal on the merit. It wll lead to placing dangerous reliance on processes filed in the lower Court and excerpts of what obtained in that Court cited by their Counsel, which are more often than not, slanted in support of their case. Itis safer when happenings in the lower Court are read first hand from the Judge's notes. SUBMISSIONS BY BOTH COUNSEL. Both Counsel made very instructive and thought provoking arguments in their synopsis, that | would have loved to dilate and make definitive pronouncements on. | am however constrained by the technical tenure of this judgement. To delve into those submissions now, is in my view acquiescence of the irregularities that will inform my conclusions hereunder. The L1)'s judgement of the 28th May 2012, is entered in pursuance of Order 41 Rule 1(2)(a) of the High Court Rules 2007 qouted pro rata {tis obvious that, a judgement obtained under Order 41 Rule 1(2)(a), is a judgement in default of Appearance at the trial and like all default judgements, it can not be the subject matter of a substantive appeal to this Court in any event. Our rules of Court from Orders 13 Rule 9, 22 Rule 1M and 41 Rule 2 of the High Court Rules 2007 to Rule 26 of the Court of Appeal Rules 1985 and Rule 66 Subrule 2 of the Supreme Court Rules 1982, do not contemplate Appeals against the

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