Zubairu Kamara v Saidu Sesay (CIV APP 6 of 2019) [2019] SLCA 15 (29 May 2019)

& ES AMER WV SEELUSS Smeg IN THE COURT OF APPEAL OF SIERRA LEONE CIVIL DIVISION CIV. APP. 6/19 ‘<S ZUBAIRU KAMARA AND MR. SAIDU SESAY ESPONDENT REPRESENTATION: £.T. KOROMASESQ. COUNSEL. FOR THE APPELLANT/APPLICANT BRI itescoo ESQ. INSEL FOR THE RESPONDENT/RESPONDENT HON, MR. JUSTIGE’SENGU MOHAMED KOROMA- JSC | (SITTING ALONE)

RULING DELIVERED ON THE 29" DAY OF MAY. 2019 SENGUKOROMA JSC

1. This is an application by way of Notice of Motion dated the 28" day of = February. 2019 filed for an on behalf of the Appellant/Applicant herein (hereinafter referred to as the “Applicant”) praying for the following

Orders

1) That this Honourable Court grants an interim Stay of Execution of the Judgment dated the 24' day of January, 2019 and the Ruling dated the 15 February, 2019 respectively and all subgs@quent proceedings pending the hearing and determination of this application. 2) That leave be granted for the Notice of Appedlidated the 1" January, 2019 to be amended accordingly as verged in the PropdSediAmended Notice of Appeal 3) That if Order 2 is granted, that this Honourable CoUptggrants¥a stay of Execution of the Judgment dategfthjes24'" January. 2019°and the Ruling dated the 15 February, 2019 ‘RespectiV@lymand all subsequent proceedings pending the ing and@eterminatiomof the said appeal against the Judgment in the t of Appéa 4) Any further Order(s) that this rable CQugt may deem fit and just. 5) That the costs of thi§ Application beegsts in the cause

2. At the hearing ofgfhe Apy tion. théffidavit of ZUBAIRU KAMARA sworn, to onthe 28" Febrlary. 20 s intended to be used.

3. The Application camequp for j in the 13" day of March, 2019. At the said heafigg, Brima Kajama Esq” Counsel for the Respondent raised a preliminary‘aBjection onthe ground that the Application violates Rule 64 oftti@iGourt ofAppeal Rules, Public No. 29 of 1985. He argued that in Geo witfRuleg@4, the Applicant ought to have made the app on for a stay first in the High Court and if refused, could then appl\ytosthe Courtof Appeal as right 4, Brima K@koma Esq, referred to a plethora of cases in support of his objection }y=viz. AFRICANA TOKEY VILLAGE -V- JOHN OBEY DEVELOPMENT CO = (MIS.APP2/94) CA (unreported): ADAMA MANSARAY- V- IBRAHIM MANSARAY(CIV.APP.37/84) (Unreported). FIRETEX INTERNATIONAL V-SIERRA LEONE EXTERNAL * TELECOMMUNICATION(MIS.APP.19/2002)(Unreported) ; and REV. A ARCHBALD COLE -V- ABU BLACK 5 ORS.

5. Emmanuel T. Koroma Esq. Counsel for the Applicant in his response z argued that his learned friend had misconstrued his application. The RULING SMK/CK | 2

substance of his application was for leave to amend the Notice of Appeal. = The prayer for a stay only comes into play when the leave to amend has. been granted. He submitted that it would be an exercise in futility if an * amendment is granted but the Judgment had already been executed.

6. Emmanuel T. Koroma Esq. further submitted that Rule 64 of the Court of Appeal Rules, 1985 is not applicable here in that an application for leave to amend Notice and Grounds of Appeal should not be made to the High Court,

7. He submitted that Rule 31 of the Court of Appeal’Rules, 1985ggives wide powers to the Court of Appeal to grant leaveto amend. é

8. Emmanuel T. Koroma Esq. concluded by subtgitting*tMat, his application was not strictu facto an application foma stay bibratherthabfor leave to amend. He however pleaded with*theCoUstitoagrayt an interim stay of Execution

9. Brima Koroma Esq. ingfeply reiterat ¢ poinPthat the Application for a stay must first be@m@de to the High’ rt; though Counsel for the Applicant is arguing othegwise. thefeareyprayers in the said Application for (a) an interm@tay and (®pan inteflScutory stay. He submitted that an applicatiogfor a sta¥jis a distingkapptication from that for leave to amend.

10. My commentiflere is thatthis Application and objection to it represents a trest@iimour Cougs wherejp in arguing a preliminary objection, on a point ounselGn both sides infact end up to argue the entire application. This is “ot good\practice Tl. In thedastant case: the objection is based on non-compliance with Rule 64 of the CgUgt of Appeal Rules 1985 simpliciter. All the other submissions made by Counsel are irrelevant at this point and! shall accordingly ignore them.

12. Emmanuel T. Koroma Esq. argued that the substance of his application 7 was for leave to amend the Notice of Appeal dated 31 January. 2019 and & that the application fo~ a stay was just secondary. He howe'’er submitted P that it would be an exercise in futility if the leave is granted but there is no stay of execution of the Judgment appealed against. This was contradictory. Counsel was arguing in one breath that his Application was * mainly for leave to amend but in another breath. he argued that it would RULING SMK/CK | 3

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be fruitless to be granted leave when the Judgment would have been executed.

13. To my mind, Counsel for the Applicant made two distinct prayers which 7 required separate conditions to be fulfilled. In other words, the Application for leave must be treated independent of the application For a stay. As the Applicant has not argued his application for leave to amend (though he made reference to the powers of this Court under Rule 31), | shall not make any determination on it at this stage

14. On the objection made regarding non-compliance awith Rule 64, | shalt start by stating that provision in extensio:-

15. Rule 64 provides that: Except otherwise provided in these-Rules or by any other enactment. where an Applicatidj, may Beymade eithelyto the Court below or to the Court, it shall be madejp the figStinstagce to the Court below. but if the court below fuses the applicationuthe Applicant Shall be entitled to have the applicationdeterminedy the Court”

16. In NIGERIA NATIONAL SHIP} INES $Y ABDUL AZIZ (TRADING AS ABDUL AZIZ ENTERPRISES) KUTI CJ had'thtis to say “Rule 64 makes it obligatory for an Appligant to first mi jis application to the Court be low and where that Cou! ises the appli he shall proceed to have the application detegmine: e Court@f Appeal.”

17. Earlier isfQis, Ruling, th@learne: ief Justice whilst dealing with Rule 10 (2)- an interW@eutory applation for enlargement of time within which to applifor leave'Said orbiteg) -... the Jurisdiction of both the Court of Appeal

a @yhligh CoUgparegeoncurrent”. This dictum found support in the

“Eng Siipreme court Practice, 1999, paragraph 59/13/9 which provides thaldsTpe"eBplication must be made in the first instance to the Court beloWabut if it is'refused, the Application to the Court of Appeal is not an appeal’the Jurisdiction is concurrent”

18. In other to determine whether the Applicant had made an application to the High Court for a stay, | perused the affidavit in support and the only information | gleaned in that regard was in paragraph 34 thereof. In the

* said paragraph deponent averred that “That | am further informed by my erstwhile Solicitor that my application for a s'ay was never considered despite it has been filed and served before the application for writ of possession” My comment on this is that no mention is made of refusal which is the operative word in this context. In fact no application was apparently moved. It has always been my view that Counsel must be 2 RULING SMK/CK | 4 eo a

vigilant in prosecuting their matters. To abandon procedural ib requirements and seek solace in a higher court just becatse your Application has not been listed for hearing in a lower court is not my # understanding of professional diligence.

19. In conclusion, as no application for stay of Execution in the High Court of the Judgment dated 24" February. 2019 and Ruling dated 15" February. 2019 had been made and refused. this Court is bereft of Jurisdiction to hear that part of the Application herein. 20.1n the circumstance. | order as follows:- 1) The preliminary objection is upheld. This @Ourt lack@lurisdicti hear that part of the Application herein relating t,Stay ecutjon of the Judgment and Ruling of the High Cowgidated fRea.24'r j, 2019 and 15" February. 2019 respectively 2) That the Applicant is at liberty’ move this Courtonithe other prayers in the said Application herein. 3) Costs of this application shall bec inthe Cause. hh iP fl HON. MR. JUSTICESSE] ORomAISc

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