Zubairu Kamara v Saidu Sesay (CIV APP 6 of 2019) [2021] SLCA 17 (4 May 2021)

INTHE COURT-OF APPEAL OF SIERRA LHONE BETWEEN:

| ZUBAIRU KAMARA 5 APPELLANT/ APPLICANT AND MR SAIDU SESAY 3 RESPONDENT

Coram

HON. MR. JUSTICE REGINALD S FYNN -JA (PRESIDNG) HON. MR. JUSTICE JOHN BOSCO ALLIEU—JA HON. MR. JUSTICE SULAIMAN A. BAH —JA COUNSEL: ET KOROMA forthe Appelan/pplicant | | B KOROMA for the Respondent | noUNG DELIvEneD on 4Ba¥ oF MAY 20 | ‘The Application

1. By a Notice of Motion dated the 24" October 2019, the Appellant/Applicant is seeking for five Orders stated thereon a follows: “ L, That this Honourable Court grants an interim stay of the execution of the Judgment dated the 24M January, 2019 and the Ruling dated the 15 February, 2019 respectively and all subsequent proceedings pending the hearing and determination of this aplication

2. That leave be granted for the Notice of Appeal dated the 31 January, 2019 to be amended accordingly as verged in the Proposed Amended Notice of Appeal

3. That if order 2 is granted, that this Honourable Court grants a stay of execution of the Judgment dated the 24" January, 2019 and the Ruling dated the 15" February, 2019

less i respectively and all subsequent proceedings pending the hearing and determination of the said appeal against the Judgment in the Court of Appeal. 4, Any further order(s) that this Honourable Court may deem fit and just

5. That the costs of this application be cost in the cause.”

2, The Motion is supported by the Affidavits of Zubairu Kamara (the AppellanY/ Applicant herein), sworn to on the 24% October 2019 and the 21% February 2020, respectively, together with the exhibits attached thereto.

‘Submissions of Counsel for the Appellant/Applicant

3. Counsel forthe Appellant/Applicant, E T Koroma Esq., commenced by submitting that the granting of a stay is entirely the discretion ofthe Cour; and, that discretion should be exercised judiciously in view of the special circumstances being deposed to in the Affidavit, and the appeal having a prospect of success. He went on to submit thatthe issue of special circumstances are not limited: for it varies from case to case. He futher submitted that special or exceptional circumstances were deposed to in the Affidavit and relied on ie paragraphs 12-43 of the said Affidavit in support ofthe application, Further, Counsel submitted that if the judgment isnot stayed in respect ofthe property

situate at Goderich, the Appellant/Applicant’s only property, execution would occasion extreme hardship on an elderly man with over 9 (nine) dependents, thereby rendering him a destitute and completely homeless. To further show exceptional circumstances, Counsel referred the Court to exhibit ZK and submitted that it was the Appellanv/Applicant who instituted the action against the Respondent for a Declaration Goderich; a propery totaly diferent from and not being the subject mater of what was agreed upon. Further, Counsel did submit that the appeal as filed stands a chance of success. He also submitted that the current application for a stay of execution is to

| preserve the property until the appeal is determined; and, thatthe Court should exercise its discretion in favour of the Appellan/Applicant. Also, Counsel sought the leave of

the Court to amend the Notice of Appeal filed inthis matter. ‘Submissions of Counsel for the Respondent

4. In opposing the application, Counsel for the Respondent, B. Koroma Esq, filed an

Affidavit in Opposition sworn to by Saidu Sesay on the $® day of November 2019. He

relied on the entirety ofthe affidavit. Counsel submitted that special circumstances are

clearly within the Court's wide discretion. He advanced that the Appellant/Applicant

Counsel's submission relating to the age of the Appellant has not been convincing as

the transaction was done just a few years ago. He continued by submitting that special

circumstances were not sufficiently canvassed. Further, Counsel did submit that the

Respondent has executed partly and is restrained from doing anything on the land with

due deference to the Court. He went on to state thatthe stay was refused by a Single

Judge ofthe Court of Appeal Finally, Counsel submitted thatthe grounds of appeal are

not good enough and the current application is a ploy to deny the Respondent in enjoying the fruits of his Judgment. Issues and Findings

5. There are two issues for determination in this application: (i) Has. the Appellant/Applicant shown special circumstances to warrant the granting of a stay of execution? (i) Is the Court of Appeal amenable in granting the Appellan/Applicant Ieave to amend the grounds in the Notice of Appeat?

66. In dealing with the issue as to whether the Appellant/Applicant has shown special

circumstances to warrant the granting of a stay of execution, itis worthy to note that “[tJhe principles applicable in determining whether a stay should be granted or not are well known and have been applied in numerous cases by the Courts in this Jurisdiction” (per Muria JA in Patrick Koroma Vs Sierra Leone Housing Corporation ‘and Dolcis Beckley Mise App 9/2004). ‘And fortunately, both Counsel for the Applicant/Appellant and the Respondent made submissions affirming these principles by referring this Court to the authorities ‘establishing same. The authorities mentioned (amongst others) are: Radar Vs Jaber 1950-56 ALR SL 115-117; Mise App 2/94 Africana Tokeh Village Limited Vs John Obey Development Investment Co. Lid; and, Misc App 13/2002 Mrs Lucy Decker and Others Vs Goldstone Decker. Therefore, the Court do not consider it necessary to pursue a ‘determining’ excursion on the principles of ‘stay of execution’. To that end, this Court will now consider whether the Appellan/Applicant has in his Affidavits shown special circumstances.

7. The application is praying forthe stay ofthe execution ofthe Judgment of Justice Musu D Kamara JA, dated the 24% January, 2019 and her Ruling dated the 15! February,

2019, respectively — a ‘non-monetary judgment for the recovery of ... possession’ of land. In that regard, the case of Boblyn Augustine Vs Abdul Koroma (Misc App 38/2004 ~ hereinafter referred to as “ The Boblyn Case"), is very instructive, where MuriaJA., iner alia stated: “su [Jn @ non-monetary judgment, as that of a judgment for delivery of possession, of a land, the ‘special circumstances’ that the applicant for a stay hhas to establish are those factors which make out a strong case for depriving the respondent of the benefit ofthe judgment obtained in his favour. A further consideration which the court will take into account in an application for stay especially in cases concerning land, is that of the non-perishable nature of the roperty. The cases of Ernest Farmer and Another (1945) Vol. 3 Sierra Leone Recorder 66, Bank of Sierra Leone v. Desmond Luke (14 July 2004) CA, Mise App 22/2004; Yusuf Bundu v. Mohamed Bailor Jalloh (23"4 July 2004) CA Mise App 23/2004 have clearly established the principle that in cases where the Judgments sought to be stayed are for recovery of possession of land, the Court

‘of Appeal will refuse a stay unless the applicant can establish a strong ease for depriving the respondent of the fit ofthe judgment obrained in his favour.”

8. Counsel for the Appellanv/Applicant relied on the Affidavits of Zubaicu Kamara to show special circumstances. And in his submission, he alluded to paragraphs 28-29, set outa follows:

*

28. That this isthe only property that Ihave and 1 am aver 80 years now, Jfindfing] an alternative accommodation will be very impracticable if mot ‘impossible. See copy of my tte deed shown to me exhibited and marked ZK1S.

29. That if this Judgment isnot stayed it will amount to injustice to me and my children of over 8 who are all saying with me."

9. Considering the above quoted paragraphs of the said Affidavit, highlighting the “old age’ of the deponent, the subject matter being his only property housing over eight (8) of his children; and, the ‘impractcability” and ‘impossibility’ of finding alternative accommodation, it is apt to hold thatthe said Affidavit expressed a sentimental and ‘emotional attachment to the sad property. This Court of Appeal has inthe Boblyn Case, cited above, rejected a stay of exccution, where ‘(he grounds advanced on behalf of ‘the appellanvapplicant range from saying the property was a family home and that he [the Applican/Appeltant} was sentimentally and emotionally attached 1 [the roperty]."(Per Muria JA),

10 So also did this Court refused a stay of exceution in respect of a house claimed as an ancestral home in the ease of Evelyn Ayo Pratt Administratix of the Estate of Betsy Rogers Parkinson (Deceased) Intestate Vs Jacquiline Carew and Others = Misc App

11. And as recent as the 26% day of January 2021, in the case of Ivan Davies & Others Vs

‘Ms Olabisi Barber ~ Civ App 7/2020 (hereinafter refered to as the Ivan Davies case), this Court also refused a stay in respect of a land said to be “family heritage” and being | inthe possession of the Appellants/Applicants (therein) for well over fifty (S0) years.

12. Additionally, the submission by Counsel forthe Appellant/Applicant thatthe very act of instituting an action against the Respondent for a Declaration that the Appellant/Applicant is the fee simple owner of all that property situate at Peninsula Road, Goderich - a property totaly different from and not being the subject matter of

‘what was agreed upon - constitute a special circumstance, cannot, be deemed as such

13. Considering the submissions made, the Affidavits filed (and more particularly Paragraphs 2, 28 & 29) and the authorities on_ stay of execution, this Court is of the View that there is no evidence ofa strong case being established *.. for depriving the respondent ofthe fruit of the judgment obtained in his favour’; consequently, no special circumstances have been shown,

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