Yonga Conteh v Regina Manley (Civ App 37/2012) [2024] SLCA 10 (3 December 2024)

CIV. App No. 37/2012 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN YONGA CONTEH - DEFENDANT/APPELLANT AND REGINA MANLEY (AS ADMINISTRATRIX OF ISAAC THEOPHILUS AKUNA WALLACE-JOHNSON) - _ PLAINTIFF/RESPONDENT AND IBRAHIM WUSU CONTEH - FIRST APPLICANT AND HAMMOUND KIS-KAMARA = SECOND APPLICANT

Coram

HON. MR. JUSTICE MONFRED SESAY ~ JA HON. MR. JUSTICE MOHAMED MOMOH-JAH STEVENS - JA HON. MR. JUSTICE MICHAEL P. MAMMY - JA ADVOCATES G.K. THOLLEY ESQ. FOR THE APPLICANTS MORNOMA BAH ESQ. FOR THE pLsaNTace/Ae=ranes RULING DELIVERED on tne b{Soay oF VS. daa

Introduction

By Notice of Motion dated the 20" day of July, 2024, the Applicants applied to this Court for the following reliefs, namely |

1. That this Honourable Court grants a stay of all proceedings in this action 7 pending the hearing and determination of this application.

2, That this Honourable Court grants leave to the First Applicant (i.e, the Proposed First Appellant) herein to substitute the First Appellant with the First Applicant (the proposed First Appellant) herein pursuant to Rule 31 of The Court of Appeal Rules, 1985 and Order 18 Rule 9 (2) of The High Court Rules 2007 on the ground that interest of the First Appellant now devolves on the said Appellant by operation of lav and the said substitution is necessary so that all matters in this appeal may be effectually and completely determined and adjudicated upon

3. That this Honourable Court grants an extension of time to the Second

Applicant (i.e, the proposed Second Appellant) herein within which to appeal the judgment of Hon. Justice St, George Ade Joiner J, dated the 28" May, 2012 pursuant to Section 129(2) & (3) of The Constitution of Sierra Leone, 1991 Act No. 6 of 1991 and Rules 11(4) and 66 of The Court Appeal Rules, 1985.

4, That this Honourable Court grants leave to the First Applicant (i.e. the proposed First Appellant) herein to amend the Notice of Appeal dated the 4! day of June, 2012 in the manner indicated in the proposed amended Notice of Appeal underlined RED pursuant to Rule 31 of The Court of Appeal Rules, 1985 and Order 23 Rule 6 of the High Court Rules, 2007 on the grounds that the said amendment may enable this Honourable Court to effectually and completely determine all questions in controversy between the parties herein,

5, That this Court grants leave to the First Applicant (i.e. the proposed First Appellant) herein to adduce fresh evidence in this appeal pursuant Rules 27 and 66 of The Court of Appeal Rules, 1985,

6. That this Honourable Court grants leave to the Second Applicant (i.e. the proposed Second Appellant) herein pursuant to Rule 31 of The Court of Appeal Rules, 1985 and Order 18, Rule 6(2) (i) of The High Court Rules, 2007 to be joined as a party to this action on the ground that her presence is necessary in this appeal in the light of the judgment aforementioned.

7. Any further or other order(s) that this Honourable Court may deem fit and just in the circumstances.

8. The costs of this application be costs in the cduse. . 7

The application is supported by the affidavits of Ibrahim Wusu Conteh and Mrs Hammond Kis-Kamara both sworn to on the 20th day of July, 2012. Attached to the Affidavit of Ibrahim Wusu Conteh are the following exhibits, namely: \) _ a-copy of the Notice of Appeal dated the 4" day of June, 2012 and marked Exhibit "A",

ii) a copy of the Death Certificate of the Defendant/Appeliant marked Exhibit "B”.

ili) a copy of Letters of Administration of the estates of the Defendant/Appellant marked Exhibit “C”

iv) a copy of the voter identification card (erroneously described as national identification card in paragraph 10 of the said affidavit) marked Exhibit "D”

v) copies of City Rate Demand Notes and Water Rate Bills (erroneously described as rates in paragraph 11 of the said affidavit) marked as Exhibit “E”

vi) copy of the proposed Notice of Appeal and marked Exhibit “F” ‘Attached to the Affidavit of Hammound Kis-Kamara are the following exhibits, namely:

i) acopy of a court order dated the 26" day of December, 2020 marked

Exhibit "HK1” ii) a copy of the Notice of Appeal dated the 17" February, 2021 marked Exhibit "HK2” This matter first came before us on Thursday, the 29" February, 2024 when Learned Counsel G.K. Tholley Esq. of Counsel for the First and Second Applicants moved the Court and made the following submissions: 1, That the application was made pursuant to Rules 31, 27, 11 of The Court ‘of Appeal Rules, 1985 Public Notice 29 of 1985 (i.e. The Rules) and Sections 129(3) of The Constitution of Sierra Leone 1991, Act No. 6 of 1991 (The Constitution) and Order 23 Rule 6 of The High Court Rules, 2007 CI No. 25 Of 2007 (i.e, The 2007 Rules)

2. That this was an appropriate application for the reliefs sought including: a) to substitute the First Applicant with the Defendant/Appellant oo b) time be enlarged for the Second Applicant to appeal the judgment =, by the trial High Court. . :

©) Fresh evidence be adduced by the First Applicant; and d) Leave to the Second Applicant to be joined to the appeal

3. That for the prayer for substitution, paragraph 5 of the Affidavit in Support sworn to by Ibrahim Wusu Conteh stated that the Defendant/Appellant had passed away on the 8" November, 2014 after the judgment of the trial court and that Order 18 Rule 19 (1) and (2) of The 2007 Rules, was relied on and further that it will serve the interests of justice if that relief was granted

4. That for the relief for enlargement of time, it was the former Solicitor who had misled the Second Applicant into believing that he, the said former Solicitor, had applied for and obtained a stay of execution of the judgment dated the 28" May, 2012 and that there was another judgment dated the 26" November, 2020 which was challenged. That they found out that even though there was an order for stay, there was no appeal and that that was why they filed the Notice of Appeal dated the 17" February 2021 marked Exhibit HK2.

That the enlargement of time prayed for was for them to appeal against

the judgment dated the 28" May, 2012 for the Second Appellant i.e.

after ten years, one month and three weeks.

Learned Counsel urged the Court to grant that relief even though the

Second Appellant had failed to comply with Rule 11 (6) of The Rules.

5. That on the relief for fresh evidence, he relied on Rule 27 of The Rules and submitted further that the only requirement for fresh evidence under the Rule cited was the interests of justice. Learned Counsel referred the Courts to paragraphs 10 and 11 of the Affidavit in Support sworn to by Ibrahim Wusu Conteh and to the case of LADD v MARSHALL (1954) 3 AER 745 which set the three requirements for fresh evidence to be admitted which include:

a) That the evidence could not have been obtained with reasonable diligence for use at the trial;

b) That the evidence must be such that if given, it will probably have an important influence in the result of the case, though it need not be decisive; and

c) That the evidence must be such as presumably to be believed and therefore must be apparently credible though it need not be incontrovertible. =. a “te

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