Civil Procedure in the High Court of Sierra Leone: A Commentary on the High Court Rules 2007

A full-length practical and scholarly commentary on civil procedure under the High Court Rules 2007.

REPUBLIC OF SIERRA LEONE

CIVIL PROCEDURE

IN THE HIGH COURT OF SIERRA LEONE

A Practical and Scholarly Commentary on the High Court Rules, 2007 For Students, Lecturers and Legal Practitioners

FIRST EDITION Civil Procedure in the High Court of Sierra Leone A Practical and Scholarly Commentary on the High Court Rules, 2007 (Constitutional Instrument No. 8 of 2007), made by the Rules of Court Committee in exercise of the powers conferred by section 145 of the Constitution of Sierra Leone, 1991.

Edition: First Edition.

This work is a teaching and practitioner commentary. It explains the rules of civil procedure in force in the High Court of Sierra Leone, supported by decided cases of the superior courts of Sierra Leone and persuasive authority from the United Kingdom and the wider Commonwealth. Alongside the commentary it provides worked examples, short analyses of the leading cases, guidance on the preliminary and jurisdictional objections available at each stage with the likely reply, skeleton drafts of the documents most often needed, and flow diagrams of the proceedings. It is written in British English and uses the Oxford University Standard for the Citation of Legal Authorities (OSCOLA) in the footnotes.

Table of Contents

Preface

Civil procedure is the law of how a civil case moves from a grievance to a judgment, and from a judgment to its enforcement. It is the set of rules that turns a dispute into an orderly contest before a court. A litigant may have an unanswerable claim in substance and still lose it through a procedural slip; another may keep a weak case alive far too long because the other side did not use the tools the rules provide. For this reason a working command of procedure is not a secondary skill. It is central to competent practice and to fair adjudication.

This book is a commentary on the High Court Rules, 2007, which are the principal rules of civil procedure for the High Court of Sierra Leone. The Rules were made by the Rules of Court Committee under section 145 of the Constitution of Sierra Leone, 1991, and were published as Constitutional Instrument No. 8 of 2007. They are arranged in sixty-two Orders, beginning with preliminary matters and the mode of commencing proceedings, and running through pleadings, interlocutory applications, trial, judgment, enforcement, and the specialised procedures for probate, admiralty, judicial review, and habeas corpus.

The aim throughout is to be accurate first and readable second, and to show that the two goals are not in conflict. Each chapter sets out what the relevant Orders say, explains the reason behind the rule, illustrates it with short worked examples drawn from the kind of matters that come before the courts in Freetown, Bo, Kenema, and Makeni, and anchors the discussion in decided authority. Where a Sierra Leone decision is available it is preferred. Where the point has not been settled locally, the book draws on English and Commonwealth authority, which the courts of Sierra Leone have long treated as persuasive.

The book is designed to serve three readers at once. The student will find the structure of the Rules explained in plain language, with the leading cases and the common traps identified. The lecturer will find a sequence that tracks the way civil procedure is taught, with discussion points and worked illustrations that can be used in seminars. The practitioner will find a quick route to the governing Order and rule, the supporting authority, a practice note on how the step is taken in the registry and in chambers, the preliminary and jurisdictional objections that may be raised and how to answer them, skeleton drafts to adapt, and diagrams that show how the proceedings flow. The final Part draws this practical material together as a toolkit for use at the desk and in court.

Responsibility for any error of statement or citation is the compiler's alone. Corrections and suggestions are warmly welcomed, so that later editions may be improved.

Freetown, Sierra Leone How to Use This Book The book follows the working life of a civil action. Part I sets the foundations: the nature and sources of civil procedure, the structure of the High Court, and the rules on time and on non-compliance that run through everything else. Part II deals with starting an action and the choice of originating process. Part III covers service, appearance, and what happens when a party does nothing. Part IV is the heart of the contest: parties, pleadings, and the early disposal of cases. Part V deals with the gathering of evidence before trial. Part VI covers interlocutory relief and case management. Part VII deals with trial, judgment, and costs. Part VIII covers enforcement. Part IX collects the specialised procedures. Part X deals with appeals and with the administration of the court. Part XI is a practitioner's toolkit that gathers, in one place, a quick-reference table of the objections available at each stage, a set of flow diagrams of the proceedings, and a short library of skeleton drafts.

Conventions used

• References to the Rules.“Order 6, rule 7” and the short form “O 6, r 7” both mean the same provision of the High Court Rules, 2007. “The Rules” means those Rules unless the context shows otherwise.
• Citations.Footnotes use OSCOLA. Sierra Leone cases are cited in the neutral form now used by the Sierra Leone Legal Information Institute where one exists, for example SLHC 45, and otherwise by the best available report.
• Practice notes and examples.Shaded blue boxes marked “Practice note” give the practical step: what to file, where, and in what form. Blue boxes marked “Example” give a short worked illustration.
• Case analysis.Amber boxes marked “Case analysis” set out a leading authority under four short headings: the facts, the holding, why it matters, and how to use it in practice.
• Objections, drafts, and flows.Mauve boxes marked “Preliminary and jurisdictional objection” state, for the relevant Order, when and how an objection is taken and the likely reply. Grey-green boxes marked “Skeleton draft” give the bare structure of the document needed, and green boxes marked “Flow of proceedings” set out the steps in sequence. These are gathered and supplemented in Part XI.
• Currency and figures.Monetary sums are given as they appear in the source. The reader should note the redenomination of the Leone in 2022 when reading older figures.

A WORD ON PERSUASIVE AUTHORITY

Many Orders of the High Court Rules, 2007 follow the structure of the former English Rules of the Supreme Court, and Order 1, rule 2 itself defines the “appropriate Form” by reference to Volume 2 of the English Supreme Court Practice, 1999. English decisions on equivalent rules are therefore highly persuasive, though never binding, and must always yield to a Sierra Leone statute, rule, or decision that is on point.

PART I

Foundations of Civil Procedure

Part I explains what civil procedure is, where the rules come from, and how the High Court is organised. It then deals with two rules of general application that touch every later step: the reckoning of time, and the consequences of getting a step wrong.

Chapter 1 The Nature and Sources of Civil Procedure

1.1 What civil procedure is

Substantive law tells you what your rights and duties are. It says that a buyer must pay for goods delivered, that a landowner may recover possession from a trespasser, that a person injured by another's negligence may claim damages. Procedural law tells you how to enforce those rights or answer those duties in court. It governs how an action is begun, who may be made a party, what must be pleaded, how evidence is gathered and presented, how the court reaches and records its decision, and how that decision is enforced.

The two are bound together in practice. A right that cannot be asserted through any procedure is, for practical purposes, no right at all; and a procedure that exists to vindicate no right is empty. Civil procedure is therefore best understood not as a set of technical hurdles but as the machinery through which the courts do justice between parties in a predictable and even-handed way.

1.2 The objects of the Rules

The High Court Rules, 2007 exist to secure the just, expeditious, and economical disposal of civil business. Several features of the Rules serve these objects. The rules on pleadings require each side to state its case so that the issues are defined before trial. The rules on discovery and on the exchange of witness statements require the cards to be placed on the table in advance, so that trial is not an ambush. The rules on summary judgment and on striking out allow hopeless claims and defences to be removed early. The rules on costs give the court a tool to discipline waste and to compensate the successful party. Read together, the Rules try to balance two things that pull against each other: the desire to decide every case on its full merits, and the need to decide cases within a reasonable time and at a reasonable cost.

1.3 Sources of civil procedure in Sierra Leone

The civil procedure of the High Court has several layered sources. They should be read together, and in case of conflict the higher source prevails.

(a) The Constitution

The Constitution of Sierra Leone, 1991 is the supreme law. It establishes the High Court as a superior court of record and confers on it original jurisdiction in civil and criminal matters. It also creates the Rules of Court Committee and empowers it to make rules regulating the practice and procedure of the superior courts. The High Court Rules, 2007 were made under that power. (b) The Courts Act and other statutes The Courts Act, 1965 and later statutes structure the courts and confer jurisdiction. Particular statutes also lay down particular procedures that the Rules must accommodate, for example the Arbitration Act, 2022 for the recognition and enforcement of awards, and the various statutes that create specialist causes of action.

Where a statute requires a matter to be begun in a particular way, that requirement governs and the general freedom of choice in Order 5 yields to it. (c) The High Court Rules, 2007 The Rules themselves are the detailed code. They apply to all proceedings in the High Court. They are arranged in sixty-two Orders, each divided into numbered rules, and they were published on 31 May 2007 in the Sierra Leone Gazette. (d) Practice directions and the inherent jurisdiction Order 62 allows the Chief Justice and the court to issue practice directions and preserves the court's power to deal with matters not expressly provided for. Beyond the Rules, the High Court as a superior court of record has an inherent jurisdiction to control its own process, to prevent abuse, and to do what is necessary to ensure that justice is done. This inherent power survives alongside the Rules and is not displaced by them.

(e) Persuasive authority: English and Commonwealth practice

Because much of the structure of the Rules derives from the former English Rules of the Supreme Court, and because Order 1, rule 2 defines the “appropriate Form” by reference to Volume 2 of the English Supreme Court Practice, 1999, English decisions on the equivalent former rules carry considerable persuasive weight. The Privy Council decision in Macfoy v United Africa Co Ltd, which came on appeal from Sierra Leone itself, is a leading example and is discussed in Chapter 4. Such authority is persuasive only. It must give way to any Sierra Leone statute, rule, or decision on the point.

PRACTICE NOTE: FINDING THE RULE

When a procedural question arises, work down the hierarchy in order. Ask first whether the Constitution or a statute deals with it. If not, find the governing Order and rule. If the Rules are silent, look to a practice direction and to the inherent jurisdiction, and use English and Commonwealth authority on the equivalent rule as a guide. Always confirm that the rule has not since been amended.

Chapter 2 The Structure and Jurisdiction of the High Court

2.1 The High Court as a court of record

The High Court is a superior court of record with general original jurisdiction in civil and criminal matters. In the Rules, “the Court” means the High Court, and “judgment” is defined widely to mean any order, ruling, or decree of the Court. 2.2 Divisions of the High Court The High Court conducts its business through Divisions. The Rules require every action to carry, as part of its title, an indication of the Division to which it relates, and they allow a cause or matter to be transferred from one Division to another by order of the court made in the Division in which the cause is proceeding. Commencing an action in the wrong Division is an irregularity that the court may correct on terms; it is not, by itself, a ground that nullifies the proceedings, as the discussion of Order 2 in Chapter 4 explains. 2.3 The Registry and the District Registries The Rules speak of the Registry, meaning the High Court Registry in Freetown, and of the District Registries in Makeni, Bo, and Kenema. The Master and Registrar, including a Deputy Master and Registrar and a District Registrar, is the principal officer of the Registry. Process is issued, sealed, and filed in the Registry; a writ is deemed to be issued only upon being sealed by the proper officer. A cause may be transferred between District Registries, or from a District Registry to Freetown, by order made on cause shown. 2.4 The Fast Track Commercial Court Commercial disputes of a defined kind are dealt with in the Fast Track Commercial Court, which sits as part of the High Court and was established to reduce the time taken to resolve commercial cases. Proceedings there follow the High Court Rules, 2007 subject to any special directions, and the case law of that court is an increasingly important source of guidance on commercial procedure, particularly on summary judgment and on setting aside.

Chapter 3 Time: Reckoning, Extension, and the Long Vacation

3.1 Why time matters

Almost every step in an action must be taken within a period fixed by the Rules, by an order, or by a direction. Miss the period and the consequence may be serious: judgment in default, the striking out of a pleading, or the dismissal of an application. Order 3 lays down how periods of time are reckoned, and gives the court a broad power to extend or abridge them.

3.2 The meaning of “month”

In any judgment, order, direction, or document forming part of proceedings, “month” means a calendar month unless the context otherwise requires. 3.3 Reckoning periods of time Order 3, rule 2 sets out the counting rules. In summary:

Period after a date.Where an act must be done within a specified period after or from a specified date, the period begins immediately after that date.

Period before a date.Where an act must be done within or not less than a specified period before a date, the period ends immediately before that date.

Clear days.Where a specified number of clear days must elapse before or after a date, at least that number of days must intervene between the day the act is done and that date.

Short periods exclude non-business days.Where the period is seven days or less and would include a Saturday, Sunday, or public holiday, that day is excluded.

These rules are taken almost verbatim from Order 3, rule 2 of the Rules. 1.

2.

3.

4.

EXAMPLE: COUNTING THE DAYS

Period after a date.A defendant is served with a writ on Monday 2 March and has fourteen days to enter appearance. Time begins immediately after the date of service, so the first day counted is Tuesday 3 March, and the fourteenth day is Monday 16 March. Appearance entered on 16 March is in time; on 17 March it is late.

Short period, weekend excluded.An act must be done within three days. Because the period is seven days or less, any Saturday, Sunday, or public holiday falling within it is left out of the count. If the period begins to run on a Friday, the Saturday and Sunday are ignored, and the three days are counted from the following Monday.

Expiry on a closed day.If the last day for filing at the Registry falls on a Sunday, or on a day the office is shut, the document is in time if filed on the next day the office is open, under Order 3, rule 4.

3.4 When a time limit expires on a Sunday

Where the time for doing an act at an office of the court expires on a Sunday or other day on which the office is closed, so that the act cannot be done that day, the act is in time if done on the next day on which the office is open. 3.5 The long vacation Unless the court otherwise directs, the time of the long vacation in any year is excluded in reckoning any period for serving, filing, or amending a pleading. This rule has a long and important history in Sierra Leone. In Macfoy v United Africa Co Ltd, the plaintiff delivered a statement of claim during the long vacation, which the rules of the day did not permit, and the defendant argued that the statement of claim and everything built on it were a nullity. The Privy Council held that the irregular delivery was voidable, not void: it was an irregularity that the court could in its discretion overlook, not a nullity that destroyed the proceedings. The case is the foundation of the modern approach to non-compliance, examined in the next chapter.

3.6 Extension and abridgement of time

The court has a wide power to extend or abridge any period within which a person is required or authorised to do an act, on such terms as it thinks just. The power may be exercised even after the period has expired. And the parties may, by written consent and without an order, extend the time to serve, file, or amend a pleading or other document. The discretion to extend is exercised judicially. The court will weigh the length of the delay, the reason for it, whether the other side is prejudiced, and the overall justice of the case. A short delay with a good explanation and no prejudice is readily forgiven. A long, unexplained delay that has caused real prejudice is not.

PRACTICE NOTE: DO NOT RELY ON THE INDULGENCE OF THE COURT

The power to extend time after expiry is a safety net, not a plan. Calendar every deadline from the date the relevant step is taken, apply the counting rules in Order 3, rule 2, and remember that the long vacation is excluded only for serving, filing, or amending pleadings, and only unless the court directs otherwise. If you need more time, seek the other side’s written consent under Order 3, rule 5(3) before the period expires; it is faster, cheaper, and does not depend on the court’s indulgence.

Chapter 4 Non-Compliance: Irregularity, Nullity, and the Power to Cure

4.1 The general rule: failure is an irregularity

Order 2 contains one of the most important rules in the whole code. Where, in beginning or purporting to begin proceedings, or at any stage in or in connection with proceedings, there has been a failure to comply with the requirements of the Rules, whether as to time, place, manner, form, or content, the failure is to be treated as an irregularity and does not nullify the proceedings, any step taken, or any document, judgment, or order. The policy is plain. Procedure exists to serve justice, not to defeat it. A litigant who has a good claim should not lose it because of a slip that harmed no one and can be put right. So the starting point is that a procedural error is curable.

4.2 The court’s power to set aside or to cure

On the ground of such a failure, and on such terms as to costs or otherwise as it thinks just, the court may set aside wholly or in part the proceedings, any step, or any document, judgment, or order; or it may allow amendments and make any order dealing with the proceedings generally as it thinks fit. The emphasis is on doing what is just, usually by curing the defect and compensating any prejudice in costs, rather than by destroying the action.

There is one protection for the choice of originating process. The court may not wholly set aside proceedings, or the originating process by which they were begun, merely because the proceedings ought to have been begun by a different originating process. So beginning by originating summons what should have been begun by writ is not fatal; the court will convert or continue rather than strike out.

4.3 When an application to set aside must be made

An application to set aside for irregularity will not be allowed unless it is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity. The application is made by summons or motion, and the grounds of objection must be stated in it. The rule reflects a principle of fairness: a party who knows of a defect and presses on regardless is taken to have waived it and cannot later spring it as a surprise.

4.4 The dividing line: irregularity or nullity

Not every defect is a mere irregularity. Some defects go to the root of the proceedings and make them a nullity, which no amount of curing can save. The classic statement of the distinction is that of Lord Denning in Macfoy v United Africa Co Ltd, a Sierra Leone appeal. He explained that if an act is void it is in law a nullity, incurably bad, and automatically of no effect, so that everything founded on it also collapses; but if an act is only voidable it is an irregularity that the court may, in its discretion, set aside or overlook.

A practical test he offered was this: if the other side could waive the flaw, or take a fresh step after learning of it, and yet not be able to complain of it afterwards, the flaw is a mere irregularity; if the other side could still complain despite taking a fresh step, the flaw is a nullity. Order 2 builds on this distinction. By providing that non-compliance is to be treated as an irregularity, the Rules push most defects firmly onto the curable side of the line, leaving only fundamental defects, such as the want of jurisdiction or the failure to serve a defendant at all, as true nullities.

CASE ANALYSIS

Macfoy v United Africa Co Ltd AC 152 (PC)

Facts.An action came on appeal from West Africa. The plaintiff had delivered a statement of claim during the long vacation, which the rules then in force did not permit. The defendant argued that the statement of claim, and the default judgment later built upon it, were a nullity and that everything that followed collapsed with it.

Holding.The Privy Council, in the well-known speech of Lord Denning, rejected that argument. Delivering the statement of claim in the long vacation was an irregularity that made the step voidable, not void. It could be set aside or waived, but it did not automatically destroy the proceedings.

Why it matters.The case draws the line that Order 2 now codifies. A void act is a nullity on which nothing can stand; a voidable act is an irregularity the court may cure or overlook. Because the case came from this jurisdiction and is a decision of the Privy Council, it carries great weight in Sierra Leone, and it is the starting point whenever a party argues that a procedural slip is fatal.

In practice.When the other side calls a defect a nullity, ask Lord Denning's question: could the objecting party waive it, or take a fresh step after learning of it, and still be heard to complain? If not, the defect is a mere irregularity and the action survives.

4.5 Service and the audi alteram partem principle

One defect that goes to the root is the complete failure to serve a defendant with the originating process. A defendant who has not been served cannot be in default of appearance, because the duty to appear never arose. The High Court applied this principle in Bank of Sierra Leone v Sowe, where the court stressed that, in an application for judgment in default of appearance, the plaintiff must satisfy the court not only that the defendant has not appeared, but also that the defendant was duly served; service is essential to the rule that a person must be heard before being condemned.

SKELETON DRAFT

Notice of motion to set aside for irregularity

IN THE HIGH COURT OF SIERRA LEONE

SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION

TAKE NOTICE that this Honourable Court will be moved on

[date] by counsel for the Defendant for an Order that:

1. the [writ / service / step] herein be set aside for

irregularity under Order 2, rule 1, the irregularity being [specify: e.g. failure to indorse / defective service / wrong form]; 2. costs; and 3. such further order as the Court deems just.

AND TAKE NOTICE that the grounds of objection are set

out below and that the Defendant has taken no fresh step since becoming aware of the irregularity.

GROUNDS

(a) [state the precise non-compliance]; (b) the application is made within a reasonable time and before any fresh step (O 2, r 2(1)).

DATED the ___ day of __________ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.On discovering the defect, do not take any fresh step. File and serve a summons or notice of motion stating the grounds of objection (Order 2, rule 2(2)).

Step 2.Support the application with an affidavit identifying the non-compliance, the date the applicant became aware of it, and confirming that no fresh step has since been taken.

Step 3.At the hearing the court decides whether the defect is a curable irregularity or a nullity. For an irregularity it may set the step aside, or cure it on terms as to costs, or allow an amendment.

Step 4.If the court cures rather than strikes out, comply with any terms imposed and the action continues from the corrected position.

PART II

Commencing Civil Proceedings

Part II deals with the first decision in any action: how to begin it. There are four modes of originating process, and the choice among them is governed partly by rule and partly by the nature of the dispute. This Part examines each mode and the rules that shape the writ of summons, the originating summons, the originating motion, and the petition.

Chapter 5 The Modes of Beginning an Action

5.1 The four modes

Subject to any enactment or the Rules, civil proceedings in the High Court may be begun by writ, by originating summons, by originating motion, or by petition. The first task of the would-be plaintiff, after deciding that there is a cause of action, is to choose the right vehicle. The choice is not free at large; it is structured by Order 5.

5.2 Proceedings that must be begun by writ

Certain proceedings must be begun by writ, notwithstanding the general freedom of choice. These are proceedings in which the plaintiff makes a claim:

for any relief or remedy for a tort, other than trespass to land; based on an allegation of fraud; for damages for breach of duty (whether contractual, statutory, or otherwise) where the damages claimed include damages for death, personal injury, or damage to property; or in respect of the infringement of certain rights where a substantial dispute of fact is likely.

This list reflects Order 5, rule 2, and the common thread is the likelihood of a substantial dispute of fact, which requires the fuller machinery of pleadings, discovery, and oral evidence at trial that the writ procedure provides. 5.3 Proceedings appropriate for originating summons Proceedings are appropriate to be begun by originating summons where the sole or principal question is, or is likely to be, one of construction of an enactment or of a deed, will, contract, or other document, or some other question of law; or where there is unlikely to be any substantial dispute of fact. The 1.

2.

3.

4.

originating summons is the vehicle for the short, document-based, or law-based question. It dispenses with formal pleadings and proceeds largely on affidavit evidence, which makes it quicker where the facts are not really in issue.

There is a residual freedom of choice. Except where the Rules or an enactment require a writ or an originating summons, proceedings may be begun by whichever of the two the plaintiff considers appropriate. But a plaintiff who intends to apply for summary judgment, or who sues for specific performance, or who for any other reason thinks the matter more suited to a trial, should choose the writ. 5.4 Proceedings by motion or petition Proceedings may be begun by originating motion or by petition only where the Rules or an enactment so provide or authorise. These are special vehicles for special cases; one cannot select them at will. Judicial review, for example, is begun by motion under Order 52, and certain matrimonial and probate matters proceed by petition.

5.5 The right to sue in person and the form of paper

A person may begin and carry on proceedings in person or by a solicitor. The Rules also prescribe the size and colour of the paper used for court documents, a small but real requirement of form. PRACTICE NOTE: WRIT OR ORIGINATING SUMMONS?

Ask one question first: is there likely to be a substantial dispute of fact? If yes, or if the claim is in tort (other than trespass to land), in fraud, or for damages for death, personal injury, or property damage, use the writ. If the real contest is about the meaning of a document or a point of law, with little dispute about what happened, the originating summons is faster. If you are unsure, the writ is the safer choice, and Order 2, rule 1(3) means that choosing the writ when an originating summons would have done cannot of itself nullify the action.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the parties have agreed to refer their dispute to arbitration, a defendant sued in court may object that the proceedings should be stayed so the matter goes to arbitration as agreed. The objection is not that the court lacks jurisdiction, but that it should not exercise it in the face of the parties' bargain.

How and when.Apply to stay after appearance but before delivering any pleading or taking any other step in the action. Taking a step in the action, such as filing a defence on the merits, is treated as an election to litigate and defeats the application.

Authority.InAttorney-General v Cape Management and Entertainment, the High Court considered an application to stay for arbitration and examined whether the dispute fell within the arbitration clause. The modern law is in the Arbitration Act, 2022, which gives effect to arbitration agreements. The distinction between a challenge to the tribunal's jurisdiction and a challenge to the admissibility of a claim was drawn inRepublic of Sierra Leone v SL Mining Ltd.

Possible reply.The party resisting a stay may answer that there is no concluded arbitration agreement covering the dispute; that the claim falls outside the clause (as the court found inCape Management); that the applicant has already taken a step in the action and so lost the right to a stay; or that the objection is really one of admissibility for the arbitrators, not jurisdiction for the court (SL Mining).

SKELETON DRAFT

Notice of motion to stay for arbitration (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION TO STAY PROCEEDINGS

TAKE NOTICE that the Court will be moved for an Order that

1. all further proceedings herein be stayed pending the

reference of the dispute to arbitration under clause [__] of the [agreement] and the Arbitration Act, 2022; 2. costs.

GROUNDS

(a) the parties agreed by clause [__] to refer disputes

of this kind to arbitration; (b) the Defendant has entered appearance and has taken no step in the action other than this application; (c) the Defendant is ready and willing to arbitrate.

Supported by the affidavit of [name] sworn [date].

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant/Applicant FLOW OF PROCEEDINGS Step 1.Enter appearance. Do not file a defence or take any other step in the action.

Step 2.Promptly issue a motion to stay, supported by an affidavit exhibiting the arbitration agreement and confirming readiness to arbitrate.

Step 3.The court asks whether there is a binding arbitration agreement covering the dispute and whether the applicant has taken a step in the action.

Step 4.If satisfied, the court stays the action and the parties proceed to arbitration; if not, the action continues in court.

Chapter 6 The Writ of Summons

6.1 Contents and indorsement

A writ of summons must contain the names and descriptions of the parties and a concise statement of the nature of the claim made or the relief or remedy required. The statement of the claim on the writ is the indorsement. A general indorsement states the nature of the claim shortly. A special indorsement sets out the claim in full, in effect a statement of claim on the face of the writ, and is used where the claim is for a debt or liquidated demand. The writ must also be indorsed as to the capacity in which the plaintiff sues or the defendant is sued where either sues or is sued in a representative capacity, and as to the plaintiff’s address for service. Where the plaintiff sues by a solicitor, the indorsement states the solicitor’s name or firm and a business address for service; where the plaintiff sues in person, it states the plaintiff’s address and occupation. 6.2 Issue of the writ A writ is issued upon being sealed by the proper officer of the Registry, and only then is it deemed to be issued. Every writ bears its date of issue. Issue is the formal act that begins the action and, for limitation purposes, stops time running.

6.3 Leave to issue out of the jurisdiction

Where a writ is to be served out of the jurisdiction, leave of the court or a judge is required. This is unlike service within the jurisdiction, which is available as of right. The distinction is well recognised: service within the jurisdiction does not require leave and cannot be refused, whereas service out of the jurisdiction is an indulgence that the court may refuse, and the applicant must show that the case is a proper one for service abroad. 6.4 Concurrent writs, duration, and renewal The plaintiff may issue one or more concurrent writs, for example for service on different defendants or at different places. A writ has a limited life. It remains valid for service for a fixed period, after which it must be renewed by the court if it is to be served, and the power to renew is exercised on cause shown and within limits, so that a stale writ cannot be kept alive indefinitely to defeat a limitation defence. 6.5 Service of the writ in special cases The Rules make particular provision for service in special situations. Where a contract was made within Sierra Leone by or through an agent residing or carrying on business here on behalf of a principal abroad, the writ in an action arising out of the contract may, with leave, be served on the agent, and notice with a copy of the writ is then sent by prepaid registered post to the defendant abroad. There is also special provision for service of a writ in certain actions for the possession of land. EXAMPLE: DRAFTING THE INDORSEMENT ON A DEBT CLAIM A supplier is owed a fixed sum for goods delivered. Because the claim is for a liquidated demand, a special indorsement is used: the writ sets out the dates of supply, the sums due in figures and words, the demand for payment, and the relief claimed (the debt, interest, and costs). A special indorsement is worth the effort because it opens the door to default judgment for a liquidated demand under Order 13 and to summary judgment under Order 16 without the need for a separate statement of claim.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the writ has expired and was served, or renewed, out of time, or where it was issued or indorsed irregularly. The defendant objects that the writ was not valid for service when served, which may also raise a limitation point if a fresh writ would now be statute-barred.

How and when.Apply to set aside the writ or its service, or to set aside any order renewing it, promptly and before taking a fresh step on the merits. Treat the objection as one to the regularity of the originating process under Order 2 and Order 6.

Authority.Service of a writ after its period of validity, or its renewal without good cause, is met by the strict approach to challenging the process seen inHoddinott v Persimmon Homes (Wessex) Ltd, where a defect in service was treated as engaging the court's power to decline to exercise jurisdiction. The renewal power exists so that a stale writ cannot be kept alive to defeat a limitation defence.

Possible reply.The plaintiff may reply that the writ was in fact valid when served; that renewal was properly granted on good cause shown; that the defect is a curable irregularity rather than a nullity (Macfoy); or that the defendant waived the objection by taking a fresh step (Hoddinott).

Chapter 7 Originating Summons, Motions, and Petitions

7.1 The originating summons

An originating summons is every summons other than a summons in a pending cause or matter. Order 7 governs its form and contents. The summons states the question on which the plaintiff seeks the determination or direction of the court, or the relief claimed, and is supported by affidavit evidence rather than by pleadings. Concurrent summonses may issue, and the summons has a limited duration and may be renewed, as with the writ. In a proper case an originating summons may be made ex parte. 7.2 Originating and other motions An originating notice of motion is every notice of motion other than one in a pending cause or matter. Order 8 governs motions generally. A motion is made on notice, in the prescribed form, and the notice states the terms of the order sought and the grounds. There is a restriction on rules nisi and orders to show cause. Notice of a motion to be made in an action may be served with the writ or originating summons, or at any time after service, whether or not the defendant has appeared; and the plaintiff may serve a notice of motion on a defendant who, having been duly served with a writ, has not appeared within the time limited. 7.3 Petitions Order 9 applies to petitions by which civil proceedings are begun, subject to any special provisions for a particular class of petition. A petition states concisely the grounds on which the petitioner relies and the relief sought, and on the presentation of a petition the court fixes the time for its hearing. Petitions are confined to those cases for which the Rules or an enactment require or authorise them, such as certain matrimonial causes.

EXAMPLE: CHOOSING AN ORIGINATING SUMMONS

Trustees hold a fund under a will whose wording is unclear: it is uncertain whether a gift takes effect on the beneficiary reaching eighteen or on marriage. Nobody disputes the facts; the whole dispute is about the meaning of the will. This is the classic case for an originating summons. The trustees issue the summons asking the court to construe the clause, support it with an affidavit exhibiting the will, and the court decides the point of construction without the cost and delay of pleadings and a trial on oral evidence.

PRACTICE NOTE: AFFIDAVIT EVIDENCE ON AN ORIGINATING SUMMONS

Because the originating summons has no pleadings, the affidavit carries the case. State the facts fully, exhibit the documents whose construction is in issue, and identify with precision the question the court is asked to answer. A loose or incomplete affidavit is the commonest reason an originating summons stalls or is converted to a writ for trial on oral evidence under the court’s power to give directions.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where proceedings begun by originating summons in fact raise a substantial dispute of fact that ought to be tried on oral evidence, or where the claim is one that Order 5 requires to be begun by writ (such as a claim in tort other than trespass to land, or based on fraud).

How and when.Object on the return of the summons, asking the court to order the proceedings to continue as if begun by writ, with pleadings and a trial, or to give directions for the resolution of the factual dispute. Do not ask for the action to be struck out merely for the wrong choice of process.

Authority.Order 2, rule 1(3) forbids setting aside proceedings merely because they ought to have been begun by a different originating process, so the right remedy is conversion, not dismissal. The originating summons is appropriate only where there is unlikely to be any substantial dispute of fact (Order 5, rule 4(2)); the court controls this through its power to give directions.

Possible reply.The party who chose the originating summons may reply that the real dispute is one of construction or law with no substantial factual contest; that affidavit evidence is sufficient; or that, even if conversion is appropriate, the proceedings should continue rather than be struck out (Order 2, rule 1(3)).

PART III

Service, Appearance, and Default

Once process has issued, it must be brought to the notice of the defendant. Part III covers how originating process is served, within and outside the jurisdiction, how a defendant enters an appearance, and what follows when a defendant does nothing.

Chapter 8 Service of Originating Process

8.1 Personal service the general rule

Originating process is, as a rule, served personally. Personal service of a document is effected by leaving a copy with the person to be served. Service may be effected by a party or by an officer of the court as the Rules provide, and after service the server indorses on the writ the day, week, and month of service within the time the Rules allow, and files a copy. 8.2 Substituted service Where personal service cannot be effected, the court may order substituted service, that is, service by some other means reasonably calculated to bring the process to the defendant’s notice, such as advertisement, registered post, or delivery to a named person. An order for substituted service is made on application supported by affidavit showing the efforts made at personal service and proposing the substitute method. Once the order is made and complied with, the defendant is deemed to have been served.

Substituted service is taken seriously because it is a substitute for giving the defendant true notice. In Bank of Sierra Leone v Sowe, the writ was served by order of court through publication in a newspaper, and the court, on the application for default judgment, examined whether the substituted service had been effectual before being satisfied that the defendant was in default.

EXAMPLE: APPLYING FOR SUBSTITUTED SERVICE

A process server attends the defendant's last known address three times, at different hours, and is told the defendant has travelled but still runs a shop at a known location and uses a known phone number. Personal service has proved impossible. The plaintiff applies, on affidavit setting out each attempt, for an order for substituted service by a combination of methods reasonably likely to reach the defendant: delivery to the shop manager, a registered letter to the address, and a notice in a national newspaper. Once the order is made and each step is carried out and proved, the defendant is deemed served and time for appearance begins to run.

8.3 Proof of service

Service is proved by an affidavit of service stating when, where, how, and on whom the process was served. The affidavit is the foundation of any later application that depends on service, above all an application for judgment in default. Without satisfactory proof of service, such an application cannot succeed.

8.4 Service out of the jurisdiction

Service of process out of the jurisdiction requires leave under Order 11. Leave may be granted in the cases the rule specifies, the application must be supported by evidence, and no leave is granted unless it is made sufficiently to appear that the case is a proper one for service out. The order fixes the time within which the defendant served abroad is to appear, and special provision is made for a non-citizen defendant outside Sierra Leone and for service of notice in lieu of the writ. PRACTICE NOTE: GET SERVICE RIGHT OR LOSE THE JUDGMENT Default judgment lives or dies on the affidavit of service. Before applying, check that the right person was served, by a permitted method, that the date was indorsed in time, and that a copy was filed. If you proceeded by substituted service, exhibit the order and prove that its terms were carried out to the letter. A judgment built on bad or unproved service is liable to be set aside.

Chapter 9 Appearance

9.1 What appearance is

Appearance is the step by which a defendant who has been served signifies an intention to contest the action. It is entered by filing a memorandum of appearance in the Registry and giving notice to the plaintiff. The defendant must give an address for service; a fictitious address, or no address, has consequences under the Rules. 9.2 Time for appearance The time limited for appearance runs from service, and the Rules fix the period and provide for late appearance, which a defendant may enter at any time before judgment in default is signed, though late appearance does not by itself undo steps already validly taken. 9.3 Conditional appearance and disputing jurisdiction A defendant who wishes to contest the jurisdiction of the court, or the regularity of the writ or its service, must not enter an unconditional appearance, because an unconditional appearance may amount to a submission that waives the objection. Conditional appearance, properly so called, is prohibited as a separate device, but the Rules provide a route to dispute jurisdiction: the defendant enters appearance and then applies to set aside the writ or service, or for a declaration that the court has no jurisdiction. Entry of appearance is expressly stated not to be a waiver.

PRACTICE NOTE: PROTECTING A JURISDICTION CHALLENGE

If your client may have a jurisdiction or service objection, enter appearance and promptly apply under Order 12, rule 16 to set aside or for a declaration of want of jurisdiction, before taking any fresh step in the action. Taking a fresh step that treats the action as properly constituted, such as filing a defence on the merits, risks being read as a submission to the jurisdiction. Order 2, rule 2(1) reinforces the point: an application to set aside for irregularity is not allowed once a fresh step has been taken with knowledge of the defect.

EXAMPLE: CONTESTING JURISDICTION WITHOUT SUBMITTING TO IT

A foreign company is served and believes the Sierra Leone court has no jurisdiction over the contract, which contains a foreign jurisdiction clause. If it files a defence on the merits, it risks being treated as having submitted. Instead it enters appearance, takes no fresh step, and at once applies under Order 12, rule 16 for a declaration that the court has no jurisdiction and to set aside service. Order 12, rule 15 makes clear that entering appearance for this purpose is not a waiver, so the objection is preserved.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the defendant says the court has no jurisdiction over it (for example a foreign defendant, or a contract governed by a foreign jurisdiction clause), or that the writ or its service was irregular or was effected without the required leave for service out.

How and when.Enter appearance, then apply under Order 12, rule 16 to set aside the writ or service, or for a declaration that the court has no jurisdiction. Do this before taking any fresh step on the merits. Entry of appearance for this purpose is not a submission (Order 12, rule 15).

Authority.The strict approach to timing is shown byHoddinott v Persimmon Homes (Wessex) Ltd, where the defendant who failed to dispute jurisdiction in the prescribed way and time was treated as having accepted the court's jurisdiction. On the difference between the court's power to hear a claim and whether it should exercise that power, seeRepublic of Sierra Leone v SL Mining Ltd.

Possible reply.The plaintiff may reply that the defendant submitted to the jurisdiction by taking a step on the merits (Hoddinott); that leave for service out was properly granted and the case is a proper one; or that the objection goes to admissibility rather than jurisdiction and does not deprive the court of power (SL Mining).

SKELETON DRAFT

Motion disputing jurisdiction (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION (Order 12, rule 16)

TAKE NOTICE that the Court will be moved for an Order

1. declaring that the Court has no jurisdiction to try

this claim against the Defendant; alternatively 2. setting aside the writ and/or the purported service thereof; and 3. costs.

GROUNDS

(a) [no jurisdiction: foreign defendant / foreign

jurisdiction clause / no qualifying connection]; (b) [service out effected without leave under O 11]; (c) the Defendant entered appearance solely to make this application and has taken no step on the merits.

Supported by the affidavit of [name] sworn [date].

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.Enter appearance within time. Take no step on the merits (no defence, no discovery).

Step 2.Within the time allowed, issue a motion under Order 12, rule 16 disputing jurisdiction or attacking service, supported by affidavit.

Step 3.The court decides the jurisdiction or service question first. A delay or a step on the merits before this point risks waiver (Hoddinott).

Step 4.If the objection succeeds, the writ or service is set aside or jurisdiction is declined; if it fails, the defendant files its defence and the action proceeds.

Chapter 10 Default of Appearance and Default Judgment

10.1 The scheme of Order 13

Where a defendant who has been duly served fails to enter appearance within the time limited, the plaintiff may, depending on the nature of the claim, obtain judgment in default of appearance. The kind of judgment that may be entered depends on the kind of claim.

Liquidated demand.For a claim for a liquidated demand, final judgment may be entered for the amount claimed, with interest and costs.

Unliquidated demand.For a claim for an unliquidated demand (such as damages), interlocutory judgment is entered with damages to be assessed.

Detinue.For a claim in detinue, judgment may be for the return of the goods or their value, and damages.

Possession of land.For a claim for possession of immovable property, judgment may be for possession.

Mixed and other claims.For mixed claims, judgment is entered as appropriate to each part; and for claims not specifically provided for, the plaintiff proceeds as the court directs.

These categories follow Order 13, rules 2 to 7. 10.2 Service is the precondition The single most important precondition is proof of due service. As the High Court put it in Bank of Sierra Leone v Sowe, a defendant who has not been served with a writ cannot default in entering appearance, and so an application for judgment in default will not succeed unless the plaintiff satisfies the court, on the supporting affidavit, that the defendant was duly served. The requirement of service is the practical expression of the audi alteram partem rule, that no one is to be condemned unheard.

10.3 Several defendants and special defendants

Where one of several defendants is in default, the plaintiff may enter judgment against that defendant and proceed against the others, subject to the nature of the claim and any joint liability. Special rules apply to actions by moneylenders and on mortgages, and to default of appearance to an originating summons. 1.

2.

3.

4.

5.

10.4 Setting aside default judgment

A judgment entered in default of appearance may be set aside by the court. The approach turns on whether the judgment is regular or irregular. If the judgment was irregularly obtained, for example because the defendant was not duly served, it is set aside as of right (ex debito justitiae). If the judgment was regular, the defendant must show a defence on the merits that carries some degree of conviction, and the court, in its discretion, may set the judgment aside on terms, such as payment into court or costs. The discretion is generous but not unprincipled. The court looks at whether there is a real defence, how the default came about, and how promptly the defendant moved once the judgment came to light. Delay and the absence of any arguable defence are fatal; a good explanation and a defence with real prospects will usually prevail, because the law prefers, where it fairly can, to decide cases on their merits rather than by default.

SKELETON DRAFT

Motion to set aside default judgment (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION (Order 13, rule 9)

TAKE NOTICE that the Court will be moved for an Order

1. setting aside the judgment in default entered on

[date], and any execution issued thereon; 2. granting the Defendant leave to defend; 3. costs.

GROUNDS

EITHER (irregular) the Defendant was not duly served

and the judgment is irregular and set aside as of right; OR (regular) the Defendant has a defence on the merits with a real prospect of success, namely [summarise], and applied promptly on learning of the judgment.

Supported by the affidavit of merits of [name] sworn

[date], exhibiting the proposed Defence.

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.Identify whether the judgment is irregular (e.g. no proof of service) or regular. An irregular judgment is set aside as of right.

Step 2.Move promptly. Prepare an affidavit of merits exhibiting the proposed defence and explaining how the default occurred.

Step 3.At the hearing, for a regular judgment the court weighs the real prospects of the defence, the explanation for the default, and the promptness of the application.

Step 4.If set aside, the court usually imposes terms (costs, sometimes payment into court) and gives leave to defend; the action then proceeds to trial.

PART IV

Parties, Pleadings, and Early Disposal

Part IV is the analytical core of civil procedure. It deals with who may be joined as a party and how, with the pleadings by which the parties define the issues, and with the tools the Rules provide to dispose of weak claims and defences before trial: default of pleadings, summary judgment, and striking out.

Chapter 11 Causes of Action, Counterclaims, and Parties

11.1 Joinder of causes of action

A plaintiff may join several causes of action in one action, subject to the controls in Order 18, which exist to prevent a single action becoming unmanageable. Where joinder would embarrass or delay the trial, the court may order separate trials or otherwise direct how the causes are to proceed. 11.2 Counterclaim and set-off A defendant who has a claim against the plaintiff may raise it as a counterclaim instead of bringing a separate action, and may set off a cross-claim against the plaintiff’s demand. A counterclaim may, with leave, be directed against the plaintiff together with other persons, bringing in new parties where the convenient course is to resolve everything in one action. 11.3 Joinder, misjoinder, and nonjoinder of parties Persons may be joined as plaintiffs or defendants where there is a common question and the relief claimed arises out of the same transaction or series of transactions. A vital safeguard follows: no cause or matter is to be defeated by reason of the misjoinder or nonjoinder of any party, and the court may, at any stage, order that a party improperly joined cease to be a party, or that a party whose presence is necessary be added. This rule is the partner of Order 2: just as a procedural slip does not nullify the action, so the wrong line-up of parties does not defeat it, because the court can correct the parties as justice requires.

11.4 Death, representation, and estates

Where a party dies, the action does not necessarily abate; the court may order the cause to continue with the deceased’s personal representative, or appoint a person to represent the estate. There are also provisions for representative proceedings, where one or more persons sue or are sued on behalf of others with the same interest, for derivative actions, and for the representation of beneficiaries by trustees and of persons who cannot be ascertained. 11.5 Persons under disability A person under disability, meaning a minor or a person of unsound mind, sues by a next friend and defends by a guardian ad litem. No admission is implied from the pleading of a person under disability, and any compromise or settlement on such a person’s behalf requires the approval of the court, so that the vulnerable party is protected. The Rules also allow a poor person to sue or defend as a pauper, with court fees waived and, where appropriate, a solicitor assigned. 11.6 Third party proceedings A defendant who claims to be entitled to contribution or indemnity from a person who is not already a party, or who claims that a question should be determined as between the defendant and that person, may issue a third party notice. Leave to issue the notice is sought where required, and the court gives third party directions to manage the relationship between the original action and the third party claim, so that connected disputes are resolved together and consistently. PRACTICE NOTE: GET THE PARTIES RIGHT EARLY Map out, before issuing, every person whose presence is needed for a complete and binding resolution: co-obligors, indemnifiers, and anyone with an interest in the subject matter. Order 18, rule 6 will save an action from being defeated by a missing or wrongly joined party, but correcting parties mid-stream costs time and money. Where a defendant should look to a third party for indemnity, issue the third party notice promptly so the directions can be given at the same time as the main action.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a necessary party has not been joined (nonjoinder), or a party has been wrongly joined (misjoinder), or a defendant says a third person should bear the claim by way of contribution or indemnity.

How and when.Raise it at any stage, but the earlier the better. The objecting party applies for an order that a party cease to be a party, or that a necessary party be added, or for leave to issue a third party notice. The action is not defeated by the wrong line-up of parties.

Authority.Order 18, rule 6 provides that no cause is to be defeated by misjoinder or nonjoinder, and that the court may add or strike out parties at any stage. This is the partner of Order 2: just as a procedural slip does not nullify the action, the wrong parties do not defeat it, because the court can correct them as justice requires.

Possible reply.The party resisting may reply that the party in question is not necessary for a complete and binding resolution; that joinder at this late stage would prejudice the trial and cannot be cured by costs; or that the convenient course is separate trials under Order 18, rule 5 rather than joinder.

Chapter 12 Pleadings

12.1 The function of pleadings

Pleadings are the formal written statements by which each party sets out its case. The statement of claim states the plaintiff’s case; the defence answers it; the reply answers the defence. Their function is to define the issues, so that each side knows the case it must meet, the court knows what it must decide, and the area of dispute is narrowed before trial. Good pleading is disciplined: it states the material facts and nothing more, and it commits the pleader to a position.

12.2 The sequence and timing of pleadings

The statement of claim is served first, then the defence, then any reply and defence to counterclaim, and any pleadings after the reply require leave. The Rules fix the time for each, reckoned under Order 3 and subject to the exclusion of the long vacation for serving, filing, or amending pleadings. 12.3 The cardinal rule: facts, not evidence or law A pleading must contain a statement in summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved. The distinction is fundamental. The pleader states that the defendant agreed to supply diesel on stated terms and failed to deliver; the pleader does not set out the witnesses, the telephone calls, or the documents that will prove it. Nor does the pleader argue the law, though a point of law may be raised. 12.4 Matters that must be specifically pleaded Certain matters must be specifically pleaded, because to spring them at trial would take the other side by surprise. These include fraud, misrepresentation, breach of trust, wilful default, undue influence, illegality, the Limitation Act, and any matter which, if not pleaded, might take the opposite party by surprise or raise issues not arising from the preceding pleading. The requirement to plead fraud specifically is strict: an allegation of fraud must be distinctly alleged and distinctly proved, and a pleading that merely hints at dishonesty is not enough.

12.5 Particulars

Where a pleading is general or unclear, the other party is entitled to particulars, which give the detail necessary to know the case to be met. Particulars confine the issues and prevent a party from keeping its case deliberately vague. They are not, however, a substitute for evidence; they make the pleaded case precise.

12.6 Admissions, denials, and joinder of issue

A party must deal specifically with every allegation of fact made against it, either admitting it or denying it, and a fact not traversed may be taken to be admitted. A bare denial puts the fact in issue; a non-admission requires the other side to prove it; an admission removes it from contest. Where a reply does not deal with the defence, there is an implied joinder of issue on it. 12.7 Striking out a pleading The court may, at any stage, order to be struck out any pleading or indorsement that discloses no reasonable cause of action or defence, is scandalous, frivolous, or vexatious, may prejudice, embarrass, or delay the fair trial of the action, or is otherwise an abuse of the process of the court. This power, considered with summary judgment in Chapter 14, is a principal means of removing hopeless cases early. Where the application is that the pleading discloses no reasonable cause of action, the court assumes the pleaded facts to be true and asks whether, even so, the claim is bound to fail; on this branch no evidence is admitted, and the question is one of law on the face of the pleading.

EXAMPLE: STRIKING OUT A HOPELESS CLAIM

A plaintiff sues a newspaper for publishing a report that, on the face of the statement of claim, is an accurate account of open court proceedings. Even taking every pleaded fact as true, the claim is met by an unanswerable defence and is bound to fail as a matter of law. The defendant applies under Order 21, rule 17 to strike out the statement of claim as disclosing no reasonable cause of action. On this branch the court reads only the pleading, admits no evidence, and asks whether the claim can succeed at all; finding it cannot, it strikes the claim out and saves the parties a pointless trial.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a statement of claim or defence discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice or delay a fair trial, or is otherwise an abuse of process (Order 21, rule 17).

How and when.Apply by summons or motion at any stage, the earlier the better. On the branch of no reasonable cause of action, no evidence is admitted: the court reads only the pleading and asks whether, assuming the pleaded facts to be true, the claim is bound to fail.

Authority.The court will not strike out on a difficult or developing point of law that should be decided on actual facts; striking out is for the plain and obvious case. The discipline of pleading material facts only, and the surprise that flows from unpleaded allegations, underliesMacfoy's insistence that the court controls its own process to prevent abuse.

Possible reply.The party whose pleading is attacked may reply that the pleading does disclose a cause of action when read fairly and generously; that any defect is one of particularity curable by amendment under Order 23 rather than by striking out; or that the point of law is not plain and obvious and should go to trial on the facts.

SKELETON DRAFT

Summons to strike out (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

SUMMONS (Order 21, rule 17)

LET the [Plaintiff] attend before the Court on [date] on

the hearing of an application by the [Defendant] for an Order that:

1. the Statement of Claim (or paragraphs [__]) be struck

out as disclosing no reasonable cause of action / as an abuse of process; 2. the action be dismissed; and 3. costs.

GROUNDS

(a) on its face, and assuming every pleaded fact true, the claim discloses no cause of action known to law; (b) [scandalous / frivolous / vexatious / abuse].

(No evidence is relied on for ground (a).)

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.Identify the branch relied on. For no reasonable cause of action, no evidence is filed; for abuse or the other limbs, an affidavit may be needed.

Step 2.Issue a summons or motion under Order 21, rule 17 specifying the offending pleading or paragraphs and the ground.

Step 3.At the hearing the court reads the pleading (and any permitted evidence) and asks whether the case is plain and obvious.

Step 4.If struck out, the claim or defence (or the offending part) falls; the court may instead give leave to amend if the defect is curable.

12.8 Close of pleadings and trial without pleadings

Pleadings close at the time the Rules specify, after which the issues are fixed and the action moves towards directions and trial. In a suitable case the parties may agree, or the court may order, that the action proceed without pleadings, where the issue between them is already clear. EXAMPLE: PLEADING A BREACH OF CONTRACT CLAIM In a claim for the price of diesel supplied, the statement of claim pleads the material facts only: the parties and their capacities; the agreement and its terms (supply on credit, the agreed price, the agreed interest on late payment); the supply of the diesel; the failure to pay; the dishonour of the post-dated cheques given for the price; and the relief claimed, namely the sum due, interest at the agreed rate from the agreed date, and costs. It does not recite the witnesses or annex the correspondence; that is evidence. It does, however, give particulars of the cheques (bank, number, date, and amount) because those particulars define the claim.

Chapter 13 Default of Pleadings and Amendment

13.1 Default of the statement of claim

If the plaintiff fails to serve a statement of claim within the time allowed, the defendant may apply to dismiss the action for want of prosecution. The plaintiff who lets the action sleep risks losing it.

13.2 Default of defence

If the defendant, having appeared, fails to serve a defence within the time allowed, the plaintiff may enter judgment, the kind of judgment again depending on the nature of the claim, in the same scheme as default of appearance: final judgment for a liquidated demand, interlocutory judgment with damages to be assessed for an unliquidated demand, and so on for detention of goods, recovery of land, and mixed claims. Where a defence is delivered to part only of the claim, judgment may be entered for the undefended part. Judgment entered in default of pleadings may be set aside on the same principles as judgment in default of appearance: as of right if irregular, and otherwise in the court’s discretion on a defence with real prospects. 13.3 Amendment of writ and pleadings Pleadings are not set in stone. A party may amend a writ once without leave before pleadings close, and may amend a pleading without leave once before the pleadings are deemed closed; otherwise amendment requires leave of the court or the consent of the other party. The guiding principle is that amendments should be allowed, however late and however careless the mistake, provided they can be made without injustice to the other side, and provided any injustice can be compensated in costs.

The court also has power to amend other originating process, to amend judgments and orders to correct accidental slips, and to allow amendment by agreement. The limits are real: an amendment will be refused where it would prejudice the other party in a way costs cannot cure, or where it seeks to introduce a claim that is already statute-barred so as to deprive the defendant of an accrued limitation defence.

PRACTICE NOTE: AMEND EARLY, AMEND FULLY

If you discover that a pleading is incomplete or mistaken, move to amend at once. Early amendment is cheap and almost always allowed. Late amendment, especially on the eve of trial, invites opposition and an order for costs, and may be refused if it would unfairly disrupt the other side’s preparation. When you amend, amend completely, so that the pleading as amended states the whole of the case you intend to run.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Two situations. First, opposing the other side's application to amend a writ or pleading, especially a late amendment or one that introduces a statute-barred claim. Second, applying to dismiss the action for want of prosecution where the plaintiff has not served a statement of claim or has let the action sleep.

How and when.Oppose amendment on the hearing of the application. Apply to dismiss for want of prosecution by summons, showing inordinate and inexcusable delay and resulting prejudice or risk to a fair trial.

Authority.On dismissal for want of prosecution, the leading authority isBirkett v James: the power is exercised only where there has been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial is no longer possible, or to serious prejudice to the defendant. On amendment, leave is refused where the amendment would prejudice the other side in a way costs cannot cure, or would deprive a defendant of an accrued limitation defence.

Possible reply.The plaintiff may reply that the delay is neither inordinate nor inexcusable, or has caused no real prejudice (Birkett v James); that the amendment can be made without injustice and any prejudice met in costs; or that the proposed amendment does not in truth add a time-barred claim.

EXAMPLE: A LATE AMENDMENT THAT IS REFUSED

Three weeks before trial, a plaintiff seeks to amend the statement of claim to add an entirely new cause of action arising from facts known since the action began. The new claim would require fresh discovery and new witnesses, which the trial date cannot accommodate, and part of it is now statute-barred. The court is likely to refuse leave: the prejudice to the defendant cannot be cured by costs, and allowing a time-barred claim in by amendment would strip the defendant of an accrued limitation defence. Had the plaintiff moved to amend early, when the facts first emerged, the amendment would almost certainly have been allowed.

Chapter 14 Summary Judgment and Disposal on a Point of Law

14.1 The purpose of summary judgment

Summary judgment under Order 16 allows a plaintiff to obtain judgment without a trial where the defendant has no real defence. Its purpose is to prevent a defendant with no genuine answer from delaying the plaintiff by going through the motions of a defence. It saves expense, achieves expedition, and keeps the court’s resources for cases that truly need a trial. 14.2 How the application is made After the defendant has appeared, the plaintiff may apply on the ground that the defendant has no defence to the claim or to part of it. The application is made by summons or notice of motion supported by affidavit verifying the facts and stating the deponent’s belief that there is no defence. The application may also be made on a counterclaim. 14.3 The test: is there a triable issue?

If the plaintiff shows a claim and the defendant fails to show a defence that ought to be tried, the court gives judgment for the plaintiff. If the defendant satisfies the court that there is an issue or question in dispute that ought to be tried, or that there ought for some other reason to be a trial, the court gives the defendant leave to defend, conditionally or unconditionally. The modern formulation of the test asks whether the defendant has a real, as opposed to a fanciful, prospect of successfully defending the claim. A real prospect is one that carries some degree of conviction and is more than merely arguable; a fanciful one is without substance. In applying the test the court does not conduct a mini-trial: it does not resolve conflicts of evidence on the affidavits or decide questions that require oral evidence and cross-examination. Where the defence is a bare assertion contradicted by the contemporaneous documents, the court is entitled to hold that there is no real substance in it. A defence that a clear document is a sham, in particular, will not readily be accepted on bare assertion: where dishonesty is alleged, the court leans against finding a triable issue unless the evidence has real weight. CASE ANALYSIS Swain v Hillman 1 All ER 91 (CA)

The test.Lord Woolf MR explained that summary judgment is given, or leave to defend refused, by asking whether the defendant has a real, as opposed to a fanciful, prospect of successfully defending the claim. A real prospect is one that carries some degree of conviction; a fanciful one is without substance.

No mini-trial.Equally important is what the court must not do. It is not to conduct a mini-trial on the affidavits: it does not resolve conflicts of oral evidence or decide questions that truly require cross-examination. The summary procedure is for cases where the absence of a real defence is clear, not for trying the action on paper.

Why it matters.The decision gives the modern working formula for Order 16 and is applied throughout the Commonwealth. It is reinforced byED & F Man Liquid Products v PatelEWCA Civ 472, which adds that a realistic case is one that carries some degree of conviction and that bare assertions contradicted by the contemporaneous documents need not be accepted.

In practice.For a plaintiff, build the application on documents that speak for themselves. For a defendant, do not rest on a bare denial; put forward evidence with enough weight to show a genuine issue that ought to be tried.

14.4 Disposal on a point of law

Order 17 provides a separate route to early disposal. The court may determine any question of law or construction of a document at any stage where it appears that the question is suitable for decision without a full trial and that its decision will finally determine the whole or part of the cause. This is the tool for the case that turns on a pure point of law or the meaning of a document, where the facts are not really in dispute. It overlaps with the originating summons procedure and with striking out for disclosing no reasonable cause of action.

EXAMPLE: SUMMARY JUDGMENT ON DISHONOURED CHEQUES

A supplier sues for the price of diesel and relies on six post-dated cheques that the buyer gave for the price and that were dishonoured on presentation. The supplier applies for summary judgment. The buyer’s affidavit asserts, without documents, that the cheques were never meant to be presented. On the Swain v Hillman test the court asks whether that assertion has a real, as opposed to fanciful, prospect of success. A bare claim that signed, post-dated cheques given for a debt were a sham, contradicted by the cheques themselves and unsupported by any contemporaneous document, is unlikely to amount to a triable issue, and judgment may be entered. If, however, the buyer produced a written agreement that the cheques were security only, that would raise an issue fit for trial and leave to defend would follow.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a plaintiff applies for summary judgment under Order 16, the defendant objects that there is a triable issue, or some other reason for a trial, and asks for leave to defend.

How and when.File an affidavit in answer before the hearing. It must condescend to particulars: a bare denial will not do. Show, with documents where possible, the issue of fact or law that ought to be tried.

Authority.The test is whether the defence has a real, as opposed to fanciful, prospect of success:Swain v Hillman. A realistic defence carries some degree of conviction:ED & F Man Liquid Products v Patel. The court does not conduct a mini-trial, but a bare assertion contradicted by the contemporaneous documents will not raise a triable issue.

Possible reply.The plaintiff may reply that the answer is a bare assertion without documentary support; that it is contradicted by the contemporaneous documents (ED & F Man v Patel); or that even on the defendant's own case there is no defence in law, so leave to defend should be refused or granted only conditionally on payment into court.

SKELETON DRAFT

Affidavit resisting summary judgment (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

AFFIDAVIT IN OPPOSITION

I, [name, address, occupation], make oath and say

1. I am the Defendant / a director of the Defendant and

duly authorised to swear this affidavit.

2. I have read the application for summary judgment.

3. The Defendant has a real prospect of defending the

claim for the following reasons: [set out the triable issue of fact or law, with particulars].

4. I exhibit marked '[__]' the documents that support

this defence, namely [list].

5. There ought for the above reasons to be a trial.

WHEREFORE the Defendant prays for unconditional leave

to defend.

SWORN at ___ this ___ day of ____ 20__.

Before me, ______________ Commissioner for Oaths

FLOW OF PROCEEDINGS

Step 1.On receipt of the summary judgment application, prepare an affidavit in opposition that sets out the triable issue with particulars and exhibits.

Step 2.File and serve the affidavit before the hearing date.

Step 3.At the hearing the court applies the real-versus-fanciful test; it does not try the issue but assesses whether a genuine issue exists.

Step 4.The court enters judgment for the plaintiff, or gives the defendant leave to defend, either unconditionally or on terms such as payment into court.

PART V

Obtaining and Presenting Evidence Before Trial

A fair trial is not an ambush. Part V deals with the machinery by which each side learns, before trial, the documents and the evidence on which the other relies: discovery and inspection of documents, interrogatories, the exchange of witness statements, affidavits, and evidence taken on deposition.

Chapter 15 Discovery and Inspection of Documents

15.1 The duty of discovery

Discovery is the process by which each party discloses to the other the documents relating to the matters in issue that are or have been in its possession, custody, or power. After the close of pleadings the parties make mutual discovery, ordinarily by exchanging lists of documents, and the court may order discovery where it is necessary for disposing fairly of the cause or for saving costs. The obligation extends to documents that help the other side as much as to those that help the disclosing party; a party cannot suppress a harmful document. The list is verified, where ordered, by affidavit, and the court may order discovery of particular documents where the general list is incomplete. 15.2 Inspection and production Once documents are disclosed, the other party is entitled to inspect them, and to take copies, subject to any claim of privilege. The court may order production to itself where that is necessary. Discovery and production are ordered only where necessary, a control against fishing and oppression. 15.3 Privilege and public interest A party need not produce a document that is protected by legal professional privilege, namely confidential communications between lawyer and client for the purpose of legal advice, and communications made for the dominant purpose of litigation. The Rules also recognise that production may be withheld where it would be injurious to the public interest. 15.4 Failure to give discovery A party who fails to comply with an order or requirement for discovery faces real sanctions. The plaintiff’s action may be dismissed, or the defendant’s defence struck out, for failure to give discovery, and the court may make such other order as is just. The sanction is severe because discovery is essential to a fair trial; a party that hides its documents cannot expect the court’s assistance.

EXAMPLE: THE DOCUMENT THAT HURTS YOUR OWN CASE

In a contract dispute, a defendant's file contains an internal email admitting that the goods were defective. The email plainly damages the defence. The duty of discovery still requires it to be listed, because discovery extends to documents that help the other side as much as to those that help the disclosing party. Suppressing it is not a tactic but a breach: if it later emerges, the defence may be struck out under Order 27, rule 18 and the court's confidence in the party is lost. A document properly protected by legal professional privilege is listed but withheld from inspection, with the privilege claimed expressly so it can be tested.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a party is asked to give discovery, produce documents, or answer interrogatories that are privileged, irrelevant, oppressive, or a fishing expedition. The objection resists production rather than the action itself.

How and when.Claim privilege expressly in the list of documents, describing each privileged document by class so the claim can be tested. Object to oppressive or irrelevant interrogatories when answering (Order 29, rule 5). Production is ordered only where necessary for disposing fairly of the cause or saving costs.

Authority.Legal professional privilege protects confidential lawyer and client communications for legal advice, and communications for the dominant purpose of litigation. Order 27, rule 17 preserves objection where production would be injurious to the public interest. The necessity control in Order 27, rules 8 and 14 guards against fishing and oppression.

Possible reply.The party seeking discovery may reply that the documents are plainly relevant to a pleaded issue; that the privilege claim is too broadly stated and should be particularised or inspected by the court; or that the documents are not privileged because privilege has been waived or the dominant purpose test is not met.

SKELETON DRAFT

Claim of privilege in a list of documents (skeleton)

SCHEDULE 1, PART 2 – Documents objected to from production

The Defendant objects to producing the documents listed

below, on the ground stated:

1. Correspondence between the Defendant and its legal

advisers dated [range], being confidential communications for the purpose of obtaining legal advice — LEGAL ADVICE PRIVILEGE.

2. Documents created for the dominant purpose of this

litigation, namely [class], dated [range] — LITIGATION PRIVILEGE.

3. [Document] the production of which would be injurious

to the public interest — Order 27, rule 17.

The Defendant claims privilege from production of each

of the above and will, if required, justify the claim.

FLOW OF PROCEEDINGS

Step 1.When listing documents, place privileged or protected documents in the part of the list reserved for documents objected to, and state the ground by class.

Step 2.If interrogatories are oppressive, irrelevant, or privileged, object in the answer rather than refusing outright.

Step 3.If the other side challenges the claim, the court may inspect the documents privately to rule on privilege, or require the claim to be particularised.

Step 4.The court orders production only of documents that are relevant and necessary; privileged documents remain protected and the rest are produced for inspection.

15.5 Interrogatories

Interrogatories are written questions that one party may, with the court’s sanction where required, require the other to answer on oath, in order to obtain admissions and to narrow the issues. They must relate to matters in issue, and the answering party may object to questions that are oppressive, irrelevant, or privileged. The answers may be used at trial. PRACTICE NOTE: DISCOVERY IS A DUTY, NOT A TACTIC List every relevant document in your client’s possession, custody, or power, including those that hurt the case; the duty is continuing and the penalty for suppression is the loss of the claim or defence. Claim privilege expressly and describe each privileged document by class so the claim can be tested. Use interrogatories sparingly and only to pin down admissions that truly shorten the trial; the court will disallow questions that are a fishing expedition.

Chapter 16 Witness Statements, Affidavits, and Depositions

16.1 Exchange of witness statements

The Rules require the exchange of witness statements before trial, so that each side knows in advance what the other’s witnesses will say. The court may override the provisions where justice requires. The exchange of statements has transformed civil trials: evidence in chief is, in substance, given in the statement, and the live contest at trial is concentrated on cross-examination.

16.2 Affidavits

An affidavit is a written statement of evidence sworn or affirmed before a person authorised to take oaths. It is the staple evidence for interlocutory applications and for proceedings begun by originating summons. The Rules prescribe its form: it is expressed in the first person, divided into paragraphs, and states the deponent’s means of knowledge. Special provision is made for an affidavit by two or more deponents, and for an affidavit by an illiterate or blind person, where the person taking the affidavit must certify that it was read over and that the deponent appeared to understand it. The court may, in its discretion, receive a defective affidavit notwithstanding an irregularity in form, which is a particular application of the Order 2 philosophy that form yields to substance. Scandalous, irrelevant, or oppressive matter may be struck out of an affidavit. An affidavit must not be sworn before the solicitor of the party on whose behalf it is to be used, or before that solicitor’s clerk or partner, because the oath must be administered by an independent person. A document referred to in an affidavit and used with it must be exhibited and marked, and an affidavit sworn abroad may be used if taken before a person authorised in that country. 16.3 Evidence by deposition Where a witness cannot attend the trial, for example because the witness is out of the jurisdiction or is aged or ill, the court may order that the witness’s evidence be taken on deposition before an examiner of the court. The deposition is taken on notice, the witness may be cross-examined, objections to questions are noted, and the deposition, once taken, may be read at trial. There is also machinery to perpetuate testimony and to obtain evidence for foreign tribunals. PRACTICE NOTE: THE AFFIDAVIT OATH Two errors recur and both are avoidable. First, never let an affidavit be sworn before the deponent’s own solicitor or that solicitor’s clerk or partner; Order 31, rule 8 forbids it and the affidavit may be rejected. Second, where the deponent is illiterate or blind, ensure the jurat records that the affidavit was read over and appeared to be understood, as Order 31, rule 3 requires; without that certificate the affidavit is vulnerable. Exhibit and mark every document the affidavit relies on.

EXAMPLE: A DEFECTIVE JURAT

A company's affidavit in support of an application is sworn before the very solicitor on the record for the company. The opponent objects. Order 31, rule 8 forbids an affidavit being sworn before the party's own solicitor, that solicitor's clerk, or partner, because the oath must be administered independently. The affidavit is liable to be rejected, and the application may fail for want of admissible evidence. The cure is simple and should have been taken at the outset: swear the affidavit before an independent commissioner for oaths or notary.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where an affidavit relied on by the other side is inadmissible or defective: sworn before that party's own solicitor, clerk, or partner (Order 31, rule 8); lacking the certificate required for an illiterate or blind deponent (Order 31, rule 3); or containing scandalous, irrelevant, or oppressive matter (Order 31, rule 6).

How and when.Object at the hearing at which the affidavit is used, or apply to strike out the offending matter. Note that the court has a discretion to receive an affidavit despite an irregularity in form (Order 31, rule 4), so a purely formal slip may be excused.

Authority.Order 31, rules 3, 4, 6, and 8. The discretion in rule 4 is a particular application of the Order 2 policy that form yields to substance, so the objection succeeds only where the defect goes beyond mere form or causes real prejudice.

Possible reply.The party relying on the affidavit may reply that the defect is one of form which the court should overlook under Order 31, rule 4; that the jurat in fact complies; or that the impugned passages are relevant and admissible and should stand.

PART VI

Interlocutory Relief and Case Management

Between the start of an action and its trial, the court keeps control of the proceedings and may grant temporary relief to hold the position. Part VI deals with the summons for directions, interlocutory injunctions and the preservation of property, receivers, payment into court, and security for costs.

Chapter 17 The Summons for Directions and Case Management

After pleadings close, the action is brought before the court on a summons for directions, at which the court considers all matters necessary to prepare the case for trial: discovery, the exchange of witness statements, the mode and place of trial, the estimated length, and any interlocutory applications. The summons for directions is the principal occasion for case management: the parties are expected to bring all interlocutory applications then, rather than piecemeal, and to make all admissions and agreements that will shorten the trial. Failure to apply for directions has consequences, and the court may dismiss the action or make such order as is just where a party does not proceed. The discipline of the summons for directions reflects the object of the Rules: to bring the issues to a head and to move the case efficiently to trial.

EXAMPLE: USING THE SUMMONS FOR DIRECTIONS

After pleadings close in a building dispute, the parties attend the summons for directions. Rather than make scattered applications over the following months, they deal with everything at once: the court orders mutual discovery within a fixed time, the exchange of witness statements, the instruction of a single joint expert on the alleged defects, trial by judge alone, an estimated length of four days, and the preparation of an agreed bundle. Bringing the applications together saves cost and fixes a realistic timetable, which is exactly what Order 28 is designed to achieve.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the other side seeks to make an interlocutory application that should have been brought at the summons for directions, or fails to apply for directions at all so that the action does not progress.

How and when.Object that all interlocutory applications should be dealt with together on the summons for directions (Order 28). Where a party does not proceed, apply to dismiss or for such order as is just.

Authority.Order 28, rules 3 and 6 require the parties to bring their interlocutory applications on the summons for directions rather than piecemeal, and to make the admissions and agreements that will shorten the trial. The discipline reflects the object of the Rules: to bring the issues to a head and move the case efficiently to trial.

Possible reply.The party making a later application may reply that the matter could not have been raised earlier because it arises from something that has since happened; that no prejudice flows from dealing with it now; or that the justice of the case requires it to be heard despite the general rule.

Chapter 18 Interlocutory Injunctions and Preservation of Property

18.1 The interlocutory injunction

An interlocutory injunction is a temporary order, granted before the final hearing, requiring a party to do or to refrain from doing something until the trial or further order. It is granted to hold the position so that the eventual judgment is not rendered worthless. The principles on which the court acts are well settled and derive from the leading English authority, which the courts of Sierra Leone apply. The applicant must show that there is a serious question to be tried, not a frivolous or vexatious claim. The court then asks whether damages would be an adequate remedy for either side, and, if there is doubt, where the balance of convenience lies, preserving the status quo where other factors are evenly balanced. An interlocutory injunction is almost always granted on the applicant’s undertaking in damages, by which the applicant promises to compensate the respondent if it turns out, at trial, that the injunction should not have been granted. Where the application is made ex parte because of urgency, the applicant owes a duty of full and frank disclosure of all material facts, including those against the application; a failure to disclose may itself justify discharging the injunction.

CASE ANALYSIS

American Cyanamid Co v Ethicon Ltd AC 396 (HL)

The framework.Lord Diplock set out the structured approach the court takes on an application for an interlocutory injunction. The applicant need not prove a strong prima facie case; it is enough that there is a serious question to be tried, meaning a claim that is not frivolous or vexatious.

Adequacy of damages, then balance of convenience.The court next asks whether damages would adequately compensate the applicant if the injunction were refused but the applicant succeeded at trial; if so, an injunction is usually refused. It then asks the same question for the respondent, protected by the applicant's undertaking in damages. Where there is doubt on both sides, the court turns to the balance of convenience, and where that is even, it preserves the status quo.

Why it matters.This is the governing test for interim injunctions, applied by the courts of Sierra Leone. It deliberately keeps the court from trying the merits at the interlocutory stage and focuses instead on holding the position with the least risk of injustice until trial.

In practice.Frame the application around the structure: identify the serious question, explain why damages would not be an adequate remedy for your client, address the balance of convenience fairly, and always offer the undertaking in damages. If you proceed ex parte, disclose the weaknesses too.

18.2 Preservation and interim custody of property

The court may make orders for the detention, custody, or preservation of property that is the subject of the action, may order samples to be taken or experiments to be made, and may order the sale of perishable property. It may order an early trial, allow the income of property to be paid out pendente lite, and give directions to hold the ring until trial. 18.3 Receivers The court may appoint a receiver to take charge of property where that is just and convenient, for example to preserve a business or to collect rents pending the resolution of a dispute about ownership. A receiver gives security, is remunerated as the court allows, accounts for receipts, and is liable for default. A receiver may be appointed by way of equitable execution to enforce a judgment where the ordinary modes of execution cannot reach the debtor’s asset. PRACTICE NOTE: THE PRICE OF AN INTERIM INJUNCTION Two things are nearly always required and are nearly always fatal if forgotten. First, offer the undertaking in damages; the court will rarely grant the injunction without it. Second, if you proceed ex parte, disclose everything material, including the weaknesses in your case and any answer the absent party would give; an injunction obtained by non-disclosure is liable to be discharged with costs when the matter returns inter partes. Frame the order so it preserves the position rather than giving the applicant final relief in advance.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where an interlocutory injunction, especially one obtained ex parte, was granted without full and frank disclosure of the material facts, or without the usual undertaking in damages, or where the applicant cannot satisfy the American Cyanamid requirements.

How and when.Apply promptly, when the matter returns inter partes, to discharge the injunction. Identify the facts that were not disclosed and show that they were material, or point to the absence of an undertaking in damages.

Authority.On material non-disclosure,Brink's Mat Ltd v Elcombe: an ex parte injunction may be discharged where it was obtained without full and frank disclosure of all material facts, though the court retains a discretion to continue or re-grant it. On the substantive requirements,American Cyanamid Co v Ethicon Ltd.

Possible reply.The applicant for the injunction may reply that the disclosure was full and fair; that any omission was innocent and not material, so the court should exercise its discretion to continue the order (Brink's Mat); or that there is a serious question to be tried and the balance of convenience favours the injunction (American Cyanamid).

Chapter 19 Payment into Court and Security for Costs

19.1 Payment into court

A defendant may pay a sum into court in satisfaction of the claim, and the plaintiff may accept it within the time allowed, ending the action on that claim, or press on to trial at risk as to costs. The existence of a payment in is not disclosed to the trial judge until the issue of liability and quantum is decided, so that it does not influence the decision on the merits. The tactical force of a payment in lies in costs. A plaintiff who refuses a payment in and then recovers no more than the sum paid in is ordinarily ordered to pay the costs incurred after the date of payment in, because the further litigation was unnecessary. The Rules also recognise the written offer made “without prejudice save as to costs”, which has a similar costs consequence. CASE ANALYSIS Calderbank v Calderbank Fam 93 (CA)

The idea.The case gives its name to the written offer made “without prejudice save as to costs”. Such an offer cannot be shown to the judge while liability and quantum are being decided, so it does not taint the merits, but it can be revealed afterwards on the question of costs.

How it bites.If a party refuses a Calderbank offer and then does no better at trial than the offer would have given, the court may order that party to bear the costs incurred after the offer was made, even if that party has otherwise won. The further litigation, on this view, achieved nothing and should not be paid for by the opponent.

Why it matters.The Calderbank offer extends the costs discipline of a payment into court to situations where money alone is not the remedy. It is expressly recognised by Order 25, rule 12, and is a powerful tool for putting the other side at risk on costs.

In practice.Make realistic offers in writing, marked “without prejudice save as to costs”, and keep them on file. Date them clearly, because the date fixes the point from which the costs consequence runs.

19.2 Security for costs

The court may order a plaintiff to give security for the defendant’s costs in defined circumstances, for example where the plaintiff is ordinarily resident outside the jurisdiction, so that a successful defendant is not left with an unenforceable costs order. The power is discretionary, and the court weighs the justice of the case, including the strength of the claim and whether an order for security would stifle a genuine claim. Security is given in the manner the court directs, and the rule is subject to any enactment. EXAMPLE: THE COSTS TRAP OF REFUSING A PAYMENT IN A plaintiff claims Le 50,000 in damages. The defendant pays Le 30,000 into court. The plaintiff rejects it, goes to trial, and is awarded Le 28,000. Although the plaintiff has won, the plaintiff beat neither the payment in. The court will ordinarily award the plaintiff the costs up to the date of payment in, but order the plaintiff to pay the defendant’s costs from that date, because the trial achieved nothing the plaintiff could not have had by accepting the money. This is why a payment in, or a Calderbank offer, must be weighed carefully and never ignored.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a defendant fears that, if it wins, it will be unable to recover its costs from the plaintiff, for example because the plaintiff is ordinarily resident outside the jurisdiction. The defendant objects by applying for security for costs (Order 26).

How and when.Apply early, before substantial costs are incurred. The application is supported by an affidavit showing the ground (such as foreign residence) and the likely costs. The power is discretionary.

Authority.Order 26, rules 1 to 3. The court weighs the justice of the case, including the apparent strength of the claim and whether an order would stifle a genuine claim. The rule is subject to any enactment.

Possible reply.The plaintiff may reply that an order would stifle a genuine and properly arguable claim; that the plaintiff has sufficient assets within the jurisdiction; that delay in applying tells against the defendant; or that the defendant's own conduct caused the need for the proceedings.

SKELETON DRAFT

Summons for security for costs (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

SUMMONS (Order 26)

LET the Plaintiff attend before the Court on [date] on

an application by the Defendant for an Order that:

1. the Plaintiff do give security for the Defendant's

costs in the sum of [amount] (or as the Court directs); 2. all further proceedings be stayed until security is given; 3. costs of this application.

GROUND

the Plaintiff is ordinarily resident outside the jurisdiction and has no [or insufficient] assets within it against which a costs order could be enforced.

Supported by the affidavit of [name] sworn [date].

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.Apply early by summons under Order 26, with an affidavit proving the ground and estimating the recoverable costs.

Step 2.The plaintiff answers, often arguing that an order would stifle a genuine claim or that there are assets within the jurisdiction.

Step 3.The court exercises its discretion, weighing the strength of the claim, the risk of stifling it, and the justice of the case.

Step 4.If ordered, security is given as the court directs (payment into court or a bond), and the action is usually stayed until it is provided.

PART VII

Trial, Judgment, and Costs

Part VII follows the action to its conclusion: setting the case down for trial, the conduct of the trial itself, the judgments and orders the court may make, and the rules that govern who pays the costs.

Chapter 20 Setting Down, Place, and Mode of Trial

After directions, the action is set down for trial and entered in the cause list, and the parties are notified of the setting down. A plaintiff who fails to set down in time risks having the action struck out, and the defendant may itself set the action down or apply to dismiss. The court determines the place and mode of trial: whether trial is by judge alone, which is the ordinary mode in civil cases, and where it is to be held. The court may order separate trials of liability and quantum, and may try particular questions or issues before others where that is convenient. The parties prepare the court bundle for the trial, and failure to comply with the bundle requirement has consequences. Chapter 21 Proceedings at Trial At trial the issues defined by the pleadings are resolved on the evidence. The Rules deal with what happens if a party fails to appear: the action may be dismissed, or judgment given, and such a judgment may be set aside on the usual principles. The trial may be adjourned where justice requires, counsel address the court, the judge may inspect a place or thing in issue, and the exhibits are listed and kept in the custody of the court after trial. The Rules also arm the court against delay: an action may be struck out for want of prosecution where there has been inordinate and inexcusable delay that prejudices a fair trial. The order of proceedings at trial follows the burden of proof: the party who bears the burden ordinarily begins, calls evidence, and the other side answers, with the right of reply as the Rules and practice allow.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the plaintiff has been guilty of inordinate and inexcusable delay in bringing the action to trial, or where a party fails to appear at the trial.

How and when.Apply to strike out for want of prosecution, showing the delay and the resulting prejudice. Where the other side does not appear at trial, ask for dismissal or judgment as the case requires (Order 41, rules 1 and 2).

Authority.The governing authority isBirkett v James: dismissal for want of prosecution requires inordinate and inexcusable delay giving rise to a substantial risk that a fair trial is not possible, or to serious prejudice to the defendant. The Rules arm the court against delay in Order 41, rules 9 and 10.

Possible reply.The plaintiff may reply that the delay was not inordinate or was excusable; that it caused no real prejudice and a fair trial remains possible (Birkett v James); or, on non-appearance, that there was good reason for the absence and any judgment should be set aside.

Chapter 22 Judgments and Orders

22.1 Form and entry of judgment

A judgment or order takes effect from the date on which it is pronounced, and is then drawn up and entered. The Rules prescribe the form of judgments and orders and which orders must be drawn up. A judgment may provide for payment by instalments, may be entered by consent where the defendant appears by a solicitor, and is recorded in the register of judgments. 22.2 Declaratory judgments The court may make a binding declaration of right whether or not any consequential relief is or could be claimed. The declaratory judgment is a flexible remedy that states the legal position between the parties, and is often used where the dispute is really about rights rather than about a sum of money.

EXAMPLE: WHEN A DECLARATION IS THE RIGHT REMEDY

Two parties disagree about whether a right of way exists over a strip of land. No money is owed and neither wants damages; what they need is certainty about the right itself. The court can make a binding declaration that the right of way does, or does not, exist, settling the dispute for the future. The declaratory judgment is well suited to such a case because the real contest is about legal rights, and a declaration resolves it without any consequential order being necessary.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a judgment or order as drawn up does not reflect what the court decided, contains an accidental slip or omission, or was entered irregularly.

How and when.Apply under the slip rule to correct an accidental slip or omission in a judgment or order at any time. Object to irregular entry promptly, before acting on the judgment.

Authority.Order 23, rule 10 and Order 43 permit the correction of accidental slips and the proper drawing up and entry of judgments and orders. The slip rule corrects what the court plainly intended; it does not allow a party to reopen the substance of the decision.

Possible reply.The party resisting may reply that the proposed correction goes beyond an accidental slip and seeks to change the substance of the judgment, which the slip rule does not permit; or that the judgment as entered correctly records the court's decision.

22.3 Time for compliance and consequences

Where a judgment requires an act to be done, it specifies the time for doing it, and the court may extend or vary that time. Non-compliance with a judgment or order may expose the defaulting party to enforcement and, where the order is to do or abstain from an act, to proceedings for contempt, dealt with in Part VIII.

Chapter 23 Costs

23.1 The discretion as to costs

Costs are in the discretion of the court. The discretion is wide but is exercised on settled principles. The most important is that costs ordinarily follow the event: the loser pays the winner’s costs, unless there is some good reason to depart from that rule. The court may take into account special matters, including the conduct of the parties, an exaggerated claim, and any payment into court or offer. 23.2 Conduct, misconduct, and the solicitor Costs may be ordered against a party whose conduct or neglect has caused waste, and, exceptionally, against a solicitor personally where costs have been incurred improperly or without reasonable cause through the solicitor’s default. 23.3 Assessment and taxation Costs may be assessed by the court or taxed by the taxing officer on the appropriate basis. A party dissatisfied with a taxation may apply for a review by the taxing officer and then, if still dissatisfied, by a judge. The basis of taxation determines how generously the costs are allowed, and the Rules prescribe the form of the bill of costs. PRACTICE NOTE: COSTS FOLLOW THE EVENT, BUT CONDUCT MATTERS Plan for costs from the outset. Keep a clear record of offers made and refused, because a Calderbank offer or a payment into court can shift the costs of the later stages of the action even to a winning opponent who failed to beat the offer. Avoid the conduct that attracts a costs penalty: exaggerated claims, unnecessary applications, and delay. Remember that a solicitor can, in a clear case, be made personally liable for costs wasted through default.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a bill of costs is excessive on taxation, or where costs have been wasted by the improper conduct or default of a party or a solicitor, or where a costs order should follow a payment in or Calderbank offer that the other side failed to beat.

How and when.Object on taxation before the taxing officer, item by item, and seek a review if dissatisfied. Apply for wasted costs against a solicitor in a clear case. Raise the payment in or Calderbank offer on the question of costs after judgment.

Authority.Costs are in the court's discretion and ordinarily follow the event (Order 57, rules 1 and 5), but the court considers conduct, exaggeration, and offers (rule 6). On offers,Calderbank v Calderbank. A solicitor may be made personally liable for costs incurred improperly or without reasonable cause through default (rule 9).

Possible reply.The party whose costs are challenged may reply that the items are reasonable and properly incurred; that the conduct complained of did not cause the costs; or that the offer relied on was not a true Calderbank offer or was in fact beaten at trial.

PART VIII

Enforcement of Judgments

A judgment is only as good as the means of enforcing it. Part VIII deals with the writs and procedures by which a judgment for money, for possession, or for the doing of an act is made effective, including fieri facias, garnishee proceedings, the examination of the judgment debtor, committal for contempt, and the reciprocal enforcement of foreign judgments.

Chapter 24 Writs of Execution

24.1 Enforcement of money judgments

A judgment for the payment of money may be enforced by a writ of fieri facias, by which the sheriff seizes and sells the judgment debtor’s goods to satisfy the judgment; by garnishee proceedings against debts owed to the debtor; by the appointment of a receiver; and, in a proper case, by other means. 24.2 Writs of execution generally Order 47 contains the general rules on writs of execution: when leave to issue is necessary, how leave is sought, the issue, duration, and renewal of the writ, and the returns to be made to it. Leave is required, for example, where a long time has passed since the judgment or where there has been a change in the parties entitled or liable. 24.3 Fieri facias in detail On a writ of fieri facias the sheriff attaches the debtor’s goods, gives notice of seizure, and, after the prescribed period of notice of sale, sells them and applies the proceeds to the judgment and the costs of execution. Unauthorised dealing with the goods during the attachment is void, a sale may be set aside for irregularity, and the court may stay execution where justice requires. EXAMPLE: ENFORCING A MONEY JUDGMENT STEP BY STEP A creditor holds a judgment for a sum of money that the debtor will not pay. The creditor first applies under Order 49 to examine the debtor as to means, and learns that the debtor owns a delivery van and is owed money by a customer. To reach the van, the creditor issues a writ of fieri facias: the sheriff attaches the van, gives notice of seizure, waits out the notice period, sells it, and applies the proceeds to the judgment and the costs of execution. To reach the debt owed by the customer, the creditor uses a separate route, garnishee proceedings, explained next.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a judgment debtor wishes to resist or postpone execution, for example pending an appeal, on the ground of a payment already made, or because execution would be oppressive or the underlying judgment is being challenged.

How and when.Apply for a stay of execution promptly. An appeal does not, by itself, operate as a stay. A sale or seizure may also be set aside for irregularity, and unauthorised dealing with attached goods is void (Order 48).

Authority.On the approach to a stay and the protection of the fruits of the judgment,Bank of Credit & Commerce International v Ivory Coast Embassy. The court balances the risk that a successful appeal would be rendered nugatory against the successful party's right to enforce.

Possible reply.The judgment creditor may reply that there is no good ground for a stay and the appeal has no real prospect; that the creditor is entitled to the fruits of the judgment without delay; or that any stay should be conditional on payment of the judgment sum into court.

SKELETON DRAFT

Motion for stay of execution (skeleton)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION FOR STAY OF EXECUTION

TAKE NOTICE that the Court will be moved for an Order

1. that execution of the judgment of [date] be stayed

pending [the hearing of the appeal / further order]; 2. costs.

GROUNDS

(a) the Defendant has appealed / applied to set aside, with a real prospect of success; (b) unless a stay is granted the appeal would be rendered nugatory, the asset being [specify]; (c) [payment already made / oppression / irregularity].

Supported by the affidavit of [name] sworn [date].

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant FLOW OF PROCEEDINGS Step 1.Do not assume the appeal stays the judgment. Apply for a stay promptly, by motion supported by affidavit.

Step 2.Show a real prospect on the appeal and that, without a stay, success on appeal would be worthless.

Step 3.The court balances that risk against the creditor's right to the fruits of the judgment, and may grant a stay on terms.

Step 4.Common terms include payment of the judgment sum into court as a condition of the stay; comply, or the stay lapses and execution may proceed.

Chapter 25 Garnishee, Examination of the Debtor, and Contempt

25.1 Garnishee proceedings

Where a third person owes money to the judgment debtor, the judgment creditor may attach that debt by garnishee proceedings, so that the third person (the garnishee) pays the creditor instead of the debtor. The process begins with an order to show cause, served on the garnishee and the debtor; if the garnishee does not dispute the debt, the order is made absolute; if the garnishee disputes liability, the court tries the issue. EXAMPLE: ATTACHING A DEBT BY GARNISHEE A judgment debtor runs a shop and banks with a local bank that holds a credit balance in the debtor's account. That balance is a debt the bank owes the debtor. The judgment creditor applies for a garnishee order against the bank. The court first makes an order to show cause (a garnishee order nisi), served on both the bank and the debtor, which freezes the sum. If the bank does not dispute that it holds the money, the order is made absolute and the bank pays the creditor directly. If the bank says the account is overdrawn or the money belongs to someone else, the court tries that issue before deciding.

25.2 Examination of the judgment debtor

To discover what assets a judgment debtor has, the creditor may obtain an order for the examination of the debtor, who is questioned on oath as to means. The examination informs the creditor’s choice of the most effective mode of enforcement.

25.3 Committal for contempt

Disobedience of an order to do or to abstain from an act, and conduct that interferes with the administration of justice, may be punished as a contempt of court by committal. Because committal touches the liberty of the subject, the procedure is strict: the application is made in the prescribed way, the grounds must be clearly stated, and the respondent must be given a proper opportunity to answer. The court may suspend the execution of a committal order and may discharge a person committed. 25.4 Reciprocal enforcement of foreign judgments A judgment of a foreign court to which the reciprocal enforcement scheme applies may be registered and enforced in Sierra Leone as if it were a judgment of the High Court. Registration is sought on application supported by affidavit, the registered judgment may be set aside on defined grounds, and a register of such judgments is kept. PRACTICE NOTE: CHOOSE THE RIGHT MODE OF ENFORCEMENT Enforcement is a practical exercise. Examine the debtor first under Order 49 to learn where the assets are. If the debtor has goods, use fieri facias; if money is owed to the debtor by a solvent third party, use a garnishee order; if the asset is income or property that ordinary execution cannot reach, consider a receiver by way of equitable execution. Reserve committal for the breach of an order to do or abstain from an act, and follow the strict procedure exactly, because the liberty of the respondent is at stake.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Two situations. A garnishee (the third party said to owe money to the judgment debtor) objects that it owes nothing, or that the money is not due, or belongs to someone else. Separately, a respondent to a committal application objects that the strict procedure for contempt has not been followed.

How and when.The garnishee disputes liability on the return of the order to show cause (the order nisi); the court then tries that issue before making the order absolute. On committal, object that the grounds were not clearly stated or that the respondent was not given a proper opportunity to answer, because committal touches liberty and the procedure is strict.

Authority.Order 50, rules 3 to 5 provide for the garnishee to dispute the debt and for the court to try the issue. Order 51 governs committal: the grounds must be clearly stated and the respondent given a proper opportunity to answer, reflecting the strictness required where the liberty of the subject is at stake.

Possible reply.The judgment creditor may reply that the garnishee plainly holds a due and payable debt of the debtor; or, on committal, that the grounds were properly stated and served and the respondent had every opportunity to answer, so the application should proceed.

PART IX

Specialised Procedures

Several kinds of case have their own procedure layered on top of the general rules. Part IX deals with judicial review, habeas corpus, contentious probate, admiralty, the arrest of an absconding defendant, and interpleader.

Chapter 26 Judicial Review and Habeas Corpus

26.1 Judicial review

Judicial review is the procedure by which the High Court supervises the legality of the acts and decisions of public bodies and inferior tribunals, granting the prerogative remedies of certiorari (to quash), prohibition (to forbid), and mandamus (to compel), and, in a proper case, a declaration or an injunction. An application for judicial review is begun by motion, must be made promptly and within the time the Rules allow, and proceeds in the manner Order 52 prescribes, with notice to those affected and a hearing on the substantive application. The grounds of review are the established public law grounds: that the body acted without jurisdiction or beyond its powers (illegality), that it acted with such unreasonableness that no reasonable body could have so acted, or that it acted in breach of the rules of natural justice (procedural impropriety), including the right to be heard and the rule against bias. CASE ANALYSIS The grounds of judicial review: CCSU and Wednesbury The three heads.InCouncil of Civil Service Unions v Minister for the Civil ServiceAC 374, Lord Diplock grouped the grounds of review under three heads: illegality (the body misdirected itself in law, acted without power, or failed to exercise a power properly); irrationality; and procedural impropriety (a failure to observe the rules of natural justice or a statutory procedure).

Irrationality explained.Irrationality is theWednesburyprinciple: a decision so unreasonable that no reasonable authority, properly directing itself, could have reached it. The court does not substitute its own view of the merits; it asks only whether the decision is within the range of reasonable responses open to the decision-maker.

Why it matters.Together the two cases supply the vocabulary of public law in this jurisdiction. They mark the boundary of judicial review: the court polices the legality and fairness of the decision and the process, not the wisdom of the outcome. Procedural impropriety in particular carries forward the audi alteram partem principle met earlier in default practice.

In practice.Plead the ground precisely. Identify whether the complaint is that the body had no power, acted unreasonably, or denied a fair hearing, because each head calls for different evidence and a different argument. Remember that judicial review must be brought promptly.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where a public body resists an application for judicial review on a threshold ground, before the merits: that the application was not made promptly, that the applicant lacks sufficient interest (standing), or that an adequate alternative remedy (such as a statutory appeal) was not used.

How and when.Raise the threshold objection at the leave stage or at the substantive hearing. Promptness is a continuing requirement under Order 52; delay alone can defeat an otherwise good application.

Authority.On the grounds of review and their limits,Council of Civil Service Unions v Minister for the Civil ServiceandAssociated Provincial Picture Houses v Wednesbury Corporation. On the court's control of its own supervisory jurisdiction,Attorney-General v Huballah, where a preliminary objection to jurisdiction was argued before the merits.

Possible reply.The applicant may reply that the application was made promptly or that time should be extended for good reason; that the applicant plainly has a sufficient interest; that the alternative remedy is not equally effective or convenient; or that the supervisory jurisdiction covers the matter (Huballah).

FLOW OF PROCEEDINGS

Step 1.On being served with the application, identify any threshold objection: delay, want of standing, or an unused adequate alternative remedy.

Step 2.Raise the objection at the leave stage if possible, so the court can refuse leave without reaching the merits.

Step 3.If leave is granted, renew the threshold objection at the substantive hearing alongside the answer on the merits.

Step 4.The court decides the threshold point first; if it is upheld the application is dismissed, otherwise the court proceeds to the public law grounds.

26.2 Habeas corpus

The writ of habeas corpus ad subjiciendum is the means by which the lawfulness of a person’s detention is tested. An application is made, in the first instance often ex parte, for the issue of the writ, which commands the person detaining to produce the detainee and to justify the detention. If the detention cannot be justified, the court orders the release of the person restrained. The Rules prescribe the supply of affidavits, the service and return of the writ, and the procedure at the hearing, and provide for bringing up a prisoner to give evidence. Habeas corpus is one of the oldest and most important safeguards of personal liberty, and it operates with urgency.

EXAMPLE: TESTING AN UNLAWFUL DETENTION

A person is held in custody well beyond the period the law allows, without being brought before a court. A relative applies, in the first instance ex parte, for the issue of a writ of habeas corpus ad subjiciendum. The writ commands whoever is detaining the person to produce that person before the court and to state the legal authority for the detention. If no lawful justification can be shown, the court orders immediate release. Because liberty is at stake, the procedure moves with urgency and is not delayed by the ordinary timetable of an action.

Chapter 27 Probate, Admiralty, Arrest, and Interpleader

27.1 Contentious probate proceedings

A probate action is an action for the grant or revocation of probate or letters of administration, or for a decree pronouncing for or against the validity of a will, where the matter is contested. Order 55 lays down the special requirements: the parties to an action for revocation, the lodgement of any grant, the affidavit of testamentary scripts, and the special rules on pleadings, default, intervention, and discontinuance. 27.2 Admiralty proceedings Admiralty proceedings concern maritime claims, and Order 56 provides the specialised procedure, including the action in rem against a ship, the warrant of arrest, the caveat against arrest and against release, and the special provisions on pleadings in collision actions through preliminary acts. The arrest of a ship as security, and the machinery for its appraisement and sale and for the determination of the priority of claims against the proceeds, are distinctive features of admiralty practice. 27.3 Arrest of an absconding defendant Where a defendant is about to leave the jurisdiction in circumstances that would defeat the plaintiff’s claim, the court may, on application, order the defendant’s arrest unless security is given, with provision for bail, for a deposit in lieu of bail, and for committal in default. This is an exceptional and intrusive remedy, granted with caution and on clear evidence.

27.4 Interpleader

Where a person is under a liability for a debt or for goods and is, or expects to be, sued by two or more parties making adverse claims to the same subject matter, that person may seek interpleader relief, asking the court to decide between the rival claimants so that the stakeholder is not exposed to double liability. Interpleader also lies where goods taken in execution are claimed by a third person, allowing the sheriff to be protected and the competing claims to be tried. EXAMPLE: SHERIFF’S INTERPLEADER ON SEIZED GOODS A sheriff seizes goods at the judgment debtor’s premises under a writ of fieri facias. A third person claims that the goods are hers, not the debtor’s. Rather than risk a wrongful sale, the sheriff issues an interpleader summons under Order 20 so the court can decide who owns the goods. The judgment creditor and the claimant become the real contestants; the sheriff steps aside, protected by the order, and the issue of ownership is tried.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.In admiralty, where a party wishes to prevent the arrest or release of a ship; in probate, where a person interested wishes to be heard before a grant; and generally, where a stakeholder faces rival claims to the same subject matter and should not be exposed to double liability.

How and when.In admiralty, enter a caveat against arrest or against release (Order 56). In probate, enter a caveat so that no grant issues without notice. As a stakeholder, take out an interpleader summons under Order 20 so the court decides between the rival claimants.

Authority.Order 56 provides for caveats against arrest and against release in admiralty. Order 20 provides interpleader relief, both where a stakeholder faces adverse claims and where goods taken in execution are claimed by a third person, so that the sheriff is protected and the competing claims are tried.

Possible reply.The party resisting may reply that the caveat is unjustified and should be set aside with costs; or, on interpleader, that the applicant is not a true disinterested stakeholder but has an interest of its own, so interpleader relief is not available.

PART X

Appeals and the Administration of the Court

Part X gathers the rules that surround the action: the change of solicitor, the service of documents in a pending cause, the work of the registrars and bailiffs, the sittings, office hours, and vacations of the court, and the miscellaneous and saving provisions. It closes with a short account of the route of appeal.

Chapter 28 Solicitors, Service of Documents, and Court Administration

28.1 Change of solicitor

A party may change solicitor, appoint a solicitor having acted in person, or decide to act in person, and the Rules require notice of the change to be given and filed, with provision for the removal of a solicitor from the record at the instance of another party and for a solicitor who has ceased to act to be taken off the record. 28.2 Service of documents in a pending cause Order 58 governs the service of documents other than originating process. It states when personal service is required and how it is effected, how service is made on a body corporate, when substituted service may be ordered, and how documents not requiring personal service are served, including service on the solicitor of a party who has appeared. Service after certain hours is treated as service on the next day, and service is proved by affidavit. 28.3 Registrars, bailiffs, sittings, and vacations The registrars keep the cause lists and the money in court, and the bailiffs execute the process of the court. Order 61 fixes the sittings, the time for the commencement of sittings, the order of business, office hours, and the vacations, including the long vacation, with provision for a vacation judge and a duty judge. 28.4 Miscellaneous and saving provisions Order 62 deals with matters not expressly provided for by the Rules, with practice directions generally, with part-heard matters, and with the revocation of the earlier rules that the 2007 Rules replaced. Where the Rules do not provide for a situation, the court applies the practice that is most consistent with the Rules and with the just disposal of the matter, drawing where helpful on the persuasive authority discussed throughout this book.

Chapter 29 The Route of Appeal

A party dissatisfied with a decision of the High Court may, subject to the rules of the appellate courts, appeal to the Court of Appeal, and from the Court of Appeal, on the grounds the Constitution allows, to the Supreme Court, which is the final court of appeal. The detailed procedure on appeal is governed by the rules of those courts rather than by the High Court Rules, 2007, but several points belong here.

First, the distinction between an appeal as of right and an appeal by leave matters: many interlocutory decisions may be appealed only with leave, and the summons for directions itself addresses limitations on the right of appeal. Second, an appeal does not, of itself, operate as a stay of execution; a party who wishes to hold off enforcement pending appeal must apply for a stay, and the court weighs the risk that a successful appeal would be rendered nugatory against the successful party’s right to the fruits of the judgment. Third, time runs strictly on appeal: the notice of appeal must be filed within the time the appellate rules allow, and extensions, while available, are not granted as of course. The discipline of time examined in Chapter 3 applies with full force at the appellate stage.

EXAMPLE: APPEAL DOES NOT FREEZE THE JUDGMENT

A defendant who has lost a money judgment files a notice of appeal and assumes the creditor cannot enforce until the appeal is heard. That assumption is wrong: an appeal does not by itself operate as a stay of execution. Unless the defendant applies for, and obtains, a stay pending appeal, the creditor may levy execution at once. On a stay application the court weighs the risk that enforcement would render a successful appeal pointless against the creditor's right to the fruits of the judgment, and it may grant a stay on terms, such as payment of the judgment sum into court.

PRACTICE NOTE: PRESERVE THE RIGHT OF APPEAL

If a client may wish to appeal, three steps protect the position. Check at once whether the decision is appealable as of right or only by leave, and if leave is needed, apply within time. File the notice of appeal within the appellate time limit; do not assume an extension will be granted. And if enforcement would cause irreparable harm, apply promptly for a stay of execution pending appeal, because the appeal alone does not stay the judgment.

PRELIMINARY AND JURISDICTIONAL OBJECTION

When it arises.Where the respondent to an appeal contends that the appeal is incompetent: that it lies only with leave and leave was not obtained, or that the notice of appeal was filed out of time, or that the decision is not appealable.

How and when.Raise the objection by a preliminary objection in the appellate court, before the merits of the appeal are argued. Competence goes to the jurisdiction of the appellate court to entertain the appeal.

Authority.On the appellate structure and jurisdiction, sections 121 to 129 of the Constitution. On the strict approach to competence and the supervisory jurisdiction of the higher courts,Attorney-General v Huballah, where a preliminary objection to jurisdiction was argued as a threshold issue. The discipline of time examined in Chapter 3 applies with full force at the appellate stage.

Possible reply.The appellant may reply that the appeal lies as of right; that leave was duly obtained or that time should be extended for good reason; or that the appellate court has a supervisory jurisdiction wide enough to entertain the matter (Huballah).

PART XI

The Practitioner's Toolkit

Part XI gathers, in one place, the practical material on objections, procedural flow, and drafting that is distributed through the chapters. It is meant for use at the desk and in court: a quick-reference table of the preliminary and jurisdictional objections available at each stage, a set of flow diagrams showing how proceedings move, and a short library of skeleton drafts. Nothing here replaces the detailed treatment in the chapters or the official text of the Rules; it is a map and a checklist, not a substitute for judgment.

Chapter 30 Preliminary and Jurisdictional Objections: When, How, and the Reply

30.1 The discipline of objecting

An objection is a weapon with a short fuse. Most procedural objections must be taken at the first opportunity and before any fresh step on the merits, or they are waived. The English Court of Appeal applied this strictly in Hoddinott v Persimmon Homes (Wessex) Ltd, treating a defendant who did not dispute jurisdiction in the prescribed way and time as having accepted the court's jurisdiction to try the claim. A true want of subject-matter jurisdiction is the exception: it cannot be conferred by consent or cured by delay, because the law itself withholds the power, as the Supreme Court's reasoning in Daniel K. Caulker v Komba Kangama on provincial land title illustrates.

Three questions discipline every objection. Is the ground one that goes to the court's power (jurisdiction), to the regularity of a step (irregularity), or to whether the court should exercise a power it has (for example a stay for arbitration)? Has the time to object passed, or has a fresh step waived it? And what, realistically, is the other side's reply? The table that follows answers the first across the main stages; the chapters give the detail.

30.2 Quick-reference table of objections

The table is a starting point. Always read it with the governing Order and with Chapter 4 on irregularity and nullity, because the line between a curable irregularity and a fatal defect decides most objections.

Chapter 31 The Flow of Proceedings in Diagrams

The three diagrams below show, at a glance, how an action moves and how the two most common contests, the jurisdiction objection and the default judgment, are decided. Read each diagram with the chapter that explains it.

Diagram 1: The life of a civil action

From cause of action to appeal, with the default and summary judgment off-ramps. Orders shown in outline.

Diagram 2: Taking a preliminary or jurisdictional objection

Enter appearance, take no fresh step, move promptly. A step on the merits waives the objection (Hoddinott).

Diagram 3: Default judgment and setting aside

Service is the precondition (Sowe). Irregular judgments are set aside as of right; regular ones in the court's discretion (Saudi Eagle).

Chapter 32 A Short Library of Skeleton Drafts

The skeletons below are starting structures, not finished documents. They show the essential parts and the key clauses; the practitioner must adapt the heading, parties, facts, and prayers to the case, settle the affidavit evidence, and confirm the current Forms and fees. Several fuller skeletons appear in the chapters next to the rule they serve; these are the ones most often needed.

32.1 Memorandum of appearance

SKELETON DRAFT

Memorandum of appearance (O 12)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

MEMORANDUM OF APPEARANCE

Please enter an appearance for the Defendant [name] in

this action.

The Defendant will [defend the action] / [defend in the

capacity of __].

Address for service: [solicitor's name, firm, and

business address].

DATED ___ day of _______ 20__.

______________________________ Solicitor for the Defendant 32.2 Affidavit of service SKELETON DRAFT Affidavit of service (O 10 / O 58)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

AFFIDAVIT OF SERVICE

I, [name, address, occupation], make oath and say

1. On [date] at [time] at [place] I served the

Defendant [name] with the writ of summons herein.

2. I effected service by [delivering a copy to the

Defendant personally / the manner ordered for

substituted service per the Order of [date]].

3. I identified the Defendant by [means].

4. I exhibit marked 'A' a copy of the writ served.

SWORN at ___ this ___ day of ____ 20__.

Before me, ______________ Commissioner for Oaths

32.3 General form of affidavit

SKELETON DRAFT

General affidavit (O 31)

[HEADING AND PARTIES AS ABOVE] AFFIDAVIT OF [NAME] I, [name, address, occupation], make oath and say:

1. I am the [party / officer of the party] and duly

authorised to swear this affidavit.

2. The facts stated are within my own knowledge except

where stated to be on information and belief, the source of which I give.

3. [Numbered paragraphs of fact, one point each.]

4. I exhibit the documents marked '[__]'.

(For an illiterate or blind deponent, add the jurat

certificate that the affidavit was read over and appeared to be understood: O 31 r 3.)

SWORN at ___ this ___ day of ____ 20__.

Before me, ______________ Commissioner for Oaths

32.4 Notice of motion (general shell)

SKELETON DRAFT

Notice of motion (general shell, O 8)

IN THE HIGH COURT OF SIERRA LEONE SUIT NO. ____/20__

BETWEEN [PLAINTIFF]... Plaintiff AND [DEFENDANT]... Defendant

NOTICE OF MOTION

TAKE NOTICE that this Honourable Court will be moved on

[date] at [time], or so soon thereafter as counsel can be heard, by counsel for the [party] for an Order:

1. [the substantive relief sought]; 2. [further or alternative relief]; 3. costs; and 4. such further or other order as the Court deems just.

AND TAKE NOTICE that the [party] will rely on the

affidavit of [name] sworn [date] and the grounds set out herein.

DATED ___ day of _______ 20__.

______________________________ Solicitor for the [party] PRACTICE NOTE: BEFORE YOU FILE ANY OBJECTION Run the same checklist every time. Confirm the exact ground and the Order that supports it. Confirm that the time to object has not passed and that your client has taken no fresh step on the merits. Decide whether the objection goes to jurisdiction, to regularity, or to the exercise of a power, because that decides whether delay is fatal. Anticipate the reply and meet it in your affidavit. Finally, check the current Forms, fees, and any amendment to the Rules before filing.

Chapter 33 Fuller Precedents

The skeletons earlier in this Part show the bare structure of the documents most often needed. The three precedents in this chapter are fuller. They are still models to be adapted, not forms to be copied blindly: the practitioner must settle the facts, the parties, and the relief to the case in hand, verify the current Forms and fees, and ensure that every statement in an affidavit is true and properly sourced. They are set out to show how the parts fit together in a complete document.

33.1 Writ of summons with general and special indorsement

The writ begins the action. The general indorsement states the nature of the claim; the special indorsement, used for a liquidated demand, sets out the claim in enough detail to support default or summary judgment without a separate statement of claim.

33.2 Statement of claim

Where the action proceeds on pleadings, the statement of claim sets out, in numbered paragraphs, the material facts on which the Plaintiff relies, ending with the relief claimed. It states facts, not evidence, and not law.

33.3 Affidavit in support of an interlocutory injunction

The affidavit must carry the application. It should establish a serious question to be tried, explain why damages would not be an adequate remedy, address the balance of convenience, and, on an ex parte application, make full and frank disclosure of any matter the other side might raise. The structure tracks American Cyanamid, and the duty of disclosure is that stated in Brink's Mat Ltd v Elcombe.

Glossary of Terms

The following short definitions are intended for the student and the lay reader. They are explanations in plain language, not substitutes for the precise meaning a term may carry in a particular Order of the Rules.

Affidavit. A written statement of evidence sworn or affirmed before a person authorised to administer oaths.

Appearance. The step by which a served defendant signifies an intention to contest the action, entered by filing a memorandum in the Registry.

Cause of action. The set of facts that gives a person the right to seek a remedy from the court.

Counterclaim. A claim brought by a defendant against the plaintiff in the same action.

Default judgment. Judgment obtained because the other party has failed to take a required step, such as entering appearance or serving a defence.

Discovery. The disclosure by each party of the documents relating to the matters in issue that are or have been in its possession, custody, or power.

Ex parte. An application made by one party in the absence of the other, allowed only where urgency or the nature of the relief justifies it.

Fieri facias. A writ of execution directing the sheriff to seize and sell the judgment debtor’s goods to satisfy a money judgment.

Garnishee. A third party who owes money to the judgment debtor and is ordered to pay the judgment creditor instead.

Indorsement. The statement of the nature of the claim or other required matter written on a writ of summons.

Interlocutory. Relating to a step or order made during, and not finally disposing of, the proceedings.

Interpleader. A procedure allowing a stakeholder faced with rival claims to the same subject matter to have the court decide between the claimants.

Irregularity. A failure to comply with the Rules that does not nullify the proceedings and may be cured by the court under Order 2.

Nullity. A defect so fundamental that the act is void and incurably bad, so that everything founded on it also fails.

Originating summons. A mode of beginning proceedings, suited to questions of construction or law where there is little dispute of fact, proceeding on affidavit evidence.

Pleading. A formal written statement of a party’s case, such as a statement of claim, defence, or reply, stating material facts but not evidence.

Service. The delivery of process or documents to a party in the manner the Rules require, so as to bring them to the party’s notice.

Summary judgment. Judgment given without a trial where the defendant has no real prospect of successfully defending the claim.

Writ of summons. The principal mode of beginning an action where a substantial dispute of fact is likely, leading to pleadings and trial.

A Closing Note for the Reader

Civil procedure rewards the careful. The rules examined in this book are not obstacles placed in the way of justice; they are the orderly path to it. The advocate who knows the governing Order, who reckons time correctly, who pleads the material facts with precision, who gives full discovery, who uses summary judgment and payment into court where they fit, and who chooses the right mode of enforcement, serves the client and the court at once.

The reader should treat this commentary as a companion to the official text, not a replacement for it. Rules are amended, fees change, and practice develops through the decisions of the High Court, the Fast Track Commercial Court, the Court of Appeal, and the Supreme Court. The decisions of the superior courts of Sierra Leone are now increasingly accessible, and the diligent reader should check the current position before relying on any rule or authority. Used in that spirit, a sound command of civil procedure is among the most practical and durable assets a lawyer can possess.

Freetown, Sierra Leone Table of Cases The cases below are referred to in this book. Decisions of the superior courts of Sierra Leone are listed first, followed by decisions from the United Kingdom and the wider Commonwealth, which the courts of Sierra Leone treat as persuasive. A short note records the point for which each case is cited. The note is a guide only; the discussion in the text governs.

Sierra Leone

Attorney-General v Cape Management and Entertainment (CC 352/07) SLHC 31: Stay of proceedings for an arbitration agreement; whether the dispute falls within the clause.

Attorney-General v Huballah (SC Misc App 4/2006) SLCA 11: Preliminary objection to jurisdiction argued as a threshold issue; supervisory jurisdiction of the superior courts.

Bank of Sierra Leone v Abdul Aziz Sowe SLHC 45 (30 July 2020): Default judgment requires proof of due service; a defendant not served cannot be in default; audi alteram partem.

Daniel K. Caulker v Komba Kangama (Civ App 2 of 1974) SLSC: High Court's jurisdiction over title to land in the provinces is ousted by the Courts Act, 1965, except for a qualifying leasehold.

Harry's SL Limited v Mohit Ramchandani (FTCC 24 of 2022) SLHCFTCAD 17: Commencement in the wrong Division treated as an irregularity, not a nullity; setting aside in the Fast Track Commercial Court.

Macfoy v United Africa Co Ltd AC 152 (PC): On appeal from West Africa; the divide between a void act (a nullity) and a voidable act (an irregularity); per Lord Denning.

United Kingdom and Commonwealth

American Cyanamid Co v Ethicon Ltd AC 396 (HL): The structured test for an interlocutory injunction: serious question to be tried, adequacy of damages, balance of convenience; per Lord Diplock.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1 KB 223 (CA): Unreasonableness as a ground of review: a decision no reasonable authority could have reached.

Bank of Credit & Commerce International v The Charge d'Affaires of the Ivory Coast Embassy (Misc App No 3/82) SLSC 8: Setting aside a default judgment and the related stay; the regular and irregular distinction. (Cited from the Sierra Leone reports.)

Birkett v James AC 297 (HL): Dismissal for want of prosecution: inordinate and inexcusable delay giving rise to a substantial risk to a fair trial or serious prejudice.

Brink's Mat Ltd v Elcombe 1 WLR 1350 (CA): Material non-disclosure on an ex parte application may lead to discharge of the injunction; the court retains a discretion.

Calderbank v Calderbank Fam 93 (CA): The written offer made without prejudice save as to costs and its costs consequence.

Council of Civil Service Unions v Minister for the Civil Service AC 374 (HL): The grounds of judicial review: illegality, irrationality, and procedural impropriety; per Lord Diplock.

Dresser UK Ltd v Falcongate Freight Management Ltd (The Duke of Yare) QB 502 (CA): Service of process within the jurisdiction; the commencement of proceedings.

ED & F Man Liquid Products Ltd v Patel EWCA Civ 472: A realistic defence carries some degree of conviction; bare assertions contradicted by the contemporaneous documents need not be accepted.

Hoddinott v Persimmon Homes (Wessex) Ltd EWCA Civ 1203, 1 WLR 806: A party who does not dispute jurisdiction in the prescribed way and time is treated as having accepted the court's jurisdiction.

National Westminster Bank plc v Jones 1 BCLC 98: Summary disposal and the approach to a defence without real substance.

Republic of Sierra Leone v SL Mining Ltd EWHC 286 (Comm): The distinction between a challenge to jurisdiction and a challenge to the admissibility of a claim.

Saudi Eagle, The 2 Lloyd's Rep 221 (CA): To set aside a regular default judgment the proposed defence must have a real prospect of success carrying some degree of conviction.

Swain v Hillman 1 All ER 91 (CA): Summary judgment: the real, as opposed to fanciful, prospect of success; no mini-trial; per Lord Woolf MR.

Table of Legislation

The principal instruments referred to in this book are listed below. The High Court Rules, 2007 are referred to throughout simply as the Rules, and individual provisions are cited as Orders and rules.

Constitution

Constitution of Sierra Leone, 1991 (Act No. 6 of 1991): Section 145 (power of the Rules of Court Committee to make rules of court); sections 120 to 132 (the superior courts and their jurisdiction).

Rules of court

High Court Rules, 2007 (Constitutional Instrument No. 8 of 2007): The principal rules of civil procedure for the High Court of Sierra Leone, arranged in sixty-two Orders; made under section 145 of the Constitution and published in the Sierra Leone Gazette vol CXXXVIII, No 25, dated 31 May 2007.

Acts of Parliament

Arbitration Act, 2022: Gives effect to arbitration agreements and provides for the stay of court proceedings in favour of arbitration.

Courts Act, 1965 (Act No. 31 of 1965): Limits the jurisdiction of the High Court over actions concerning title to land situated in the provinces, except for a qualifying leasehold.

Interpretation Act, 1971 (Act No. 8 of 1971): General rules of statutory interpretation, including the reckoning of time, applied in reading the Rules.

Provinces Land Act (Cap 122): Governs leaseholds and dealings in land in the provinces, relevant to the High Court's jurisdiction over provincial land.

A NOTE ON CITATION AND CURRENCY

Neutral citations for Sierra Leone decisions follow the series used by the Sierra Leone Legal Information Institute, for example SLHC 45 for the High Court and SLHCFTCAD 17 for the Fast Track Commercial and Admiralty Division. United Kingdom decisions are cited by the established law reports. Legislation is subject to amendment, and the reader should confirm the current text of any Act, the Rules, or a practice direction before relying on it.

Index

This index refers to page numbers. A single number points to the page on which the topic is discussed; a span such as 12-14 shows a topic running across pages. The reader should also consult the Table of Cases and the Table of Legislation, and the consolidated quick-reference table in Part XI.

A

Admiralty proceedings, 68, 71-72, 79 Affidavit, 11, 15-17, 19, 21, 24-25 Affidavit of service, 15-16, 27-28, 32, 83 Amendment of pleadings, 14, 17, 38, 40-42, 46, 78 American Cyanamid principles, 53-54, 58, 60, 87 Appeal, route of, 75 Appearance, entry of, 12, 21, 29-31, 78, 81, 83 Arbitration, stay for, 20-22, 78 Audi alteram partem, 15, 31 B Balance of convenience, 53, 58, 87 C Case management, 5, 10, 51-52, 55, 75, 79 Caveat (admiralty and probate), 71-72, 79 Commencement of proceedings, 19 Committal for contempt, 60, 63, 66-67, 71, 75, 79 Costs, 51, 55-56, 61, 79 Counterclaim, 35, 37, 42 D Default judgment, 12, 15-16, 23, 27-29, 31 Default judgment, setting aside, 9-10, 25, 30-33, 82 Discovery of documents, 7, 19, 30, 41, 45-48 E Enforcement of judgments, 5, 7, 60, 63-64, 66-67, 71 Ex parte application, 24, 53-54, 70, 87-88 F Fast Track Commercial Court, 9-10 Forms, appropriate, 5, 8 Full and frank disclosure, 53-54, 87 G Garnishee proceedings, 63-64, 66-67, 71, 75, 79 H Habeas corpus, 68-70 I Indorsement on writ, 16, 22-23, 38, 85-86 Injunction, interlocutory, 51, 53-54, 69, 79, 87 Interpleader, 68, 71-72, 79 Interrogatories, 45, 47-48, 79 Irregularity and nullity, 9-10, 13-17, 23 J Joinder of parties, 35-38, 78 Judicial review, 20, 68-69, 79 Jurisdiction, objection to, 10-11, 29-30, 78 O Originating summons, 14, 19-20, 24-25, 27, 43, 78 P Parties to an action, 36, 52, 71, 78 Payment into court, 32-33, 43-44, 51, 55-56, 61 Pleadings, 5, 7, 13, 15, 19, 22-24 Preliminary objection, 10-11, 75, 79 Privilege, legal professional, 46-47, 49 Probate proceedings, 20, 68, 71-72 R Renewal of writ, 22-24, 64, 70, 78 S Security for costs, 51, 55-56, 79 Service of process, 15, 22-24, 27-30 Slip rule, 40, 46, 60, 66, 79 Stay of execution, 64-65, 75, 79 Striking out, 7, 12, 16, 34, 36, 38-39, 43 Summary judgment, 7, 9, 19, 23, 32-35 Summons for directions, 51-52, 55, 75, 79 T Third party proceedings, 36, 38, 78 Time, reckoning of, 6, 12-13, 15, 37, 39, 74 Trial, proceedings at, 58-59 U Undertaking in damages, 53-54, 58, 60, 87 W Want of prosecution, 40-41, 46, 59, 78-79 Wednesbury unreasonableness, 69-70, 78, 87 Witness statements, 7, 45, 49, 52 Writ of summons, 18, 22, 35, 83, 85 Constitution of Sierra Leone, 1991 (Act No. 6 of 1991) s 145; High Court Rules, 2007 (Constitutional Instrument No. 8 of 2007).

The author thanks colleagues at the Bar and in the Faculty of Law, Fourah Bay College, for their comments on earlier drafts.

Constitution of Sierra Leone, 1991 (Act No. 6 of 1991) ss 120 and 132.

ibid s 145. The Rules recite this power in their opening words.

High Court Rules, 2007, O 5, rr 1–5, which make the modes of commencement “subject to any enactment or these Rules”.

High Court Rules, 2007, O 1, r 1: “These Rules shall apply to all proceedings in the Court.”

Sierra Leone Gazette vol CXXXVIII, No 25, dated 31 May 2007.

High Court Rules, 2007, O 62, rr 1 and 2.

High Court Rules, 2007, O 1, r 2, definition of “appropriate Form”.

Macfoy v United Africa Co Ltd AC 152 (PC), on appeal from the West African Court of Appeal.

Constitution of Sierra Leone, 1991, s 132.

High Court Rules, 2007, O 1, r 2, definitions of “Court” and “judgment”.

High Court Rules, 2007, O 4, r 1.

ibid O 4, r 2.

See Harry’s SL Limited v Mohit Ramchandani (FTCC 24 of 2022) SLHCFTCAD 17, where wrong Division was raised as a ground to set aside; and O 2, r 1.

High Court Rules, 2007, O 1, r 2, definitions of “Registry” and “District Registry”.

ibid, definition of “Master”.

ibid O 6, r 7.

ibid O 4, r 3.

See, for example, Harry’s SL Limited v Mohit Ramchandani (FTCC 24 of 2022) SLHCFTCAD 17.

High Court Rules, 2007, O 3, r 1, read with the Interpretation Act, 1971 (Act No. 8 of 1971), s 4.

High Court Rules, 2007, O 3, r 2(1)–(5).

High Court Rules, 2007, O 3, r 4.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

High Court Rules, 2007, O 3, r 3.

Macfoy v United Africa Co Ltd AC 152 (PC) 160 (Lord Denning).

High Court Rules, 2007, O 3, r 5(1).

ibid O 3, r 5(2).

ibid O 3, r 5(3).

High Court Rules, 2007, O 2, r 1(1).

High Court Rules, 2007, O 2, r 1(2).

High Court Rules, 2007, O 2, r 1(3).

High Court Rules, 2007, O 2, r 2(1).

ibid O 2, r 2(2).

Macfoy v United Africa Co Ltd AC 152 (PC) 160 (Lord Denning): “If an act is void, then it is in law a nullity … You cannot put something on nothing and expect it to stay there. It will collapse.”

Macfoy (n above) 160–161.

Bank of Sierra Leone v Abdul Aziz Sowe SLHC 45 (30 July 2020).

High Court Rules, 2007, O 5, r 1.

High Court Rules, 2007, O 5, r 2. The writ is the appropriate vehicle precisely because it leads to pleadings and a trial on oral evidence.

High Court Rules, 2007, O 5, r 4(2).

High Court Rules, 2007, O 5, r 4(1).

ibid O 5, r 4(2), proviso.

High Court Rules, 2007, O 5, r 5.

High Court Rules, 2007, O 5, r 6.

ibid O 5, r 7.

High Court Rules, 2007, O 6, rr 1 and 2.

ibid O 6, r 3.

High Court Rules, 2007, O 6, r 4.

ibid O 6, r 5.

High Court Rules, 2007, O 6, r 7.

High Court Rules, 2007, O 6, r 8, read with O 11.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

On the as-of-right nature of service within the jurisdiction, compare Dresser UK Ltd v Falcongate Freight Management Ltd (The Duke of Yare) QB 502 (CA). On the requirement of leave for service out, see High Court Rules, 2007, O 11, rr 1 and 3.

High Court Rules, 2007, O 6, r 9.

ibid O 6, r 10.

High Court Rules, 2007, O 10, r 9.

ibid O 10, r 10.

High Court Rules, 2007, O 1, r 2, definition of “originating summons”.

ibid O 7, rr 2 and 3.

ibid O 7, rr 4 and 5.

ibid O 7, r 6.

High Court Rules, 2007, O 1, r 2, definition of “originating notice of motion”.

ibid O 8, rr 3 and 4.

ibid O 8, r 2.

ibid O 8, rr 5 and 7.

High Court Rules, 2007, O 9, r 1.

ibid O 9, r 2.

ibid O 9, r 3.

High Court Rules, 2007, O 10, r 2; and, for documents generally, O 58, rr 1 and 2.

ibid O 10, r 1.

ibid O 10, r 7. The person serving must indorse the date of service within three clear days at most and file a copy.

High Court Rules, 2007, O 10, r 5.

Bank of Sierra Leone v Abdul Aziz Sowe SLHC 45 (30 July 2020).

High Court Rules, 2007, O 10, r 6; O 58, r 9.

High Court Rules, 2007, O 11, rr 1 and 3.

ibid O 11, r 4.

ibid O 11, rr 5 and 6.

High Court Rules, 2007, O 12, rr 1, 3, and 4.

ibid O 12, rr 5 and 7.

High Court Rules, 2007, O 12, rr 11 and 12.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

68.

69.

70.

71.

72.

73.

74.

75.

76.

77.

78.

High Court Rules, 2007, O 12, r 14.

ibid O 12, r 16. Entry of appearance is expressly not to be treated as a waiver: O 12, r 15.

High Court Rules, 2007, O 13, r 1.

High Court Rules, 2007, O 13, rr 2–7.

Bank of Sierra Leone v Abdul Aziz Sowe SLHC 45 (30 July 2020); the court cited the principle that “a defendant not served a writ of summons cannot default in entering appearance.”

High Court Rules, 2007, O 13, r 8.

ibid O 13, rr 10, 11, and 12.

High Court Rules, 2007, O 13, r 9.

On the distinction between regular and irregular default judgments and the merits-based discretion, see Bank of Credit & Commerce International v The Chargé d’Affaires of the Ivory Coast Embassy (Misc App No 3/82) SLSC 8; and, on the requirement of a defence with a real prospect of success, the reasoning in Saudi Eagle 2 Lloyd’s Rep 221 (CA), applied widely in the Commonwealth.

High Court Rules, 2007, O 18, r 1.

ibid O 18, r 5.

High Court Rules, 2007, O 18, r 2; O 21, r 4.

ibid O 18, r 3.

High Court Rules, 2007, O 18, r 4.

ibid O 18, r 6.

High Court Rules, 2007, O 18, rr 7, 8, and 9.

ibid O 18, rr 13, 14, 15, and 17.

High Court Rules, 2007, O 14, rr 1 and 2.

ibid O 14, rr 7 and 8.

ibid O 14, rr 10, 13, and 14.

High Court Rules, 2007, O 19, r 1.

ibid O 19, rr 2 and 3.

High Court Rules, 2007, O 21, rr 1, 2, 3, and 5.

ibid O 3, r 3, on the long vacation; and see Macfoy v United Africa Co Ltd AC 152 (PC) on the effect of pleading in the long vacation.

High Court Rules, 2007, O 21, r 7.

79.

80.

81.

82.

83.

84.

85.

86.

87.

88.

89.

90.

91.

92.

93.

94.

95.

96.

97.

98.

99.

100.

101.

102.

103.

ibid O 21, r 11, which permits a point of law to be pleaded.

High Court Rules, 2007, O 21, r 8.

High Court Rules, 2007, O 21, r 12.

High Court Rules, 2007, O 21, r 13.

ibid O 21, r 14.

High Court Rules, 2007, O 21, r 17.

High Court Rules, 2007, O 21, r 18.

ibid O 21, r 19.

High Court Rules, 2007, O 22, r 1.

High Court Rules, 2007, O 22, rr 2–7.

ibid O 22, r 8.

High Court Rules, 2007, O 22, r 11.

High Court Rules, 2007, O 23, rr 1, 3, and 5.

High Court Rules, 2007, O 23, rr 6, 10, and 11. The power to correct accidental slips in judgments is the slip rule.

On the purpose of summary judgment, see the observations of Lord Woolf MR in Swain v Hillman 1 All ER 91 (CA), widely adopted in the Commonwealth.

High Court Rules, 2007, O 16, rr 1 and 2.

ibid O 16, r 5.

High Court Rules, 2007, O 16, r 3.

ibid O 16, r 4.

Swain v Hillman 1 All ER 91 (CA) (Lord Woolf MR): the court asks whether there is a “real” as opposed to a “fanciful” prospect of success and must not conduct a “mini-trial”. See also ED & F Man Liquid Products v Patel EWCA Civ 472, CPLR 384– (a realistic case is one that carries some degree of conviction).

On contemporaneous documents contradicting bare assertions, see ED & F Man Liquid Products v Patel (n above). On the reluctance to find a triable issue on a bare allegation that a document is a sham, compare National Westminster Bank plc v Jones 1 BCLC 98.

High Court Rules, 2007, O 17, rr 1 and 2.

High Court Rules, 2007, O 27, r 1.

ibid O 27, rr 2, 3, and 8.

High Court Rules, 2007, O 27, rr 5 and 7.

104.

105.

106.

107.

108.

109.

110.

111.

112.

113.

114.

115.

116.

117.

118.

119.

120.

121.

122.

123.

124.

125.

126.

127.

128.

High Court Rules, 2007, O 27, rr 9, 10, 11, and 12.

ibid O 27, r 13.

ibid O 27, rr 8 and 14.

High Court Rules, 2007, O 27, r 17, on documents the disclosure of which would be injurious to the public interest. Legal professional privilege is a substantive protection recognised at common law and applied in discovery.

High Court Rules, 2007, O 27, r 18.

High Court Rules, 2007, O 29, rr 1, 2, and 4.

ibid O 29, r 5.

ibid O 29, r 7.

High Court Rules, 2007, O 30, r 1.

ibid O 30, r 2.

High Court Rules, 2007, O 31, rr 1 and 5.

High Court Rules, 2007, O 31, rr 2 and 3.

ibid O 31, r 4.

ibid O 31, r 6.

High Court Rules, 2007, O 31, r 8.

ibid O 31, r 11.

ibid O 31, r 12.

High Court Rules, 2007, O 32, rr 1 and 2.

ibid O 32, rr 9, 11, and 12.

ibid O 32, r 16; O 33.

High Court Rules, 2007, O 28, rr 1 and 2.

ibid O 28, rr 3 and 6.

High Court Rules, 2007, O 28, r 6, on the duty to make interlocutory applications on the summons for directions.

High Court Rules, 2007, O 35, r 1.

American Cyanamid Co v Ethicon Ltd AC 396 (HL) (Lord Diplock): serious question to be tried, adequacy of damages, and balance of convenience.

High Court Rules, 2007, O 35, r 9, on the undertaking as to damages.

High Court Rules, 2007, O 35, rr 2, 3, and 4.

129.

130.

131.

132.

133.

134.

135.

136.

137.

138.

139.

140.

141.

142.

143.

144.

145.

146.

147.

148.

149.

150.

151.

152.

153.

154.

155.

ibid O 35, rr 5, 7, and 8.

High Court Rules, 2007, O 36, rr 1 and 10.

ibid O 36, rr 2, 3, 5, and 7.

ibid O 36, r 9.

High Court Rules, 2007, O 25, rr 1 and 3.

ibid O 25, r 7.

High Court Rules, 2007, O 25, r 12, on written offers “without prejudice save as to costs”. The principle derives from Calderbank v Calderbank Fam 93 (CA).

High Court Rules, 2007, O 26, r 1.

ibid O 26, rr 2 and 3.

High Court Rules, 2007, O 40, rr 4 and 5.

ibid O 40, rr 6 and 7.

High Court Rules, 2007, O 39, rr 1, 2, and 4.

ibid O 39, rr 3 and 5.

ibid O 40, rr 9 and 10.

High Court Rules, 2007, O 41, rr 1 and 2.

ibid O 41, r 3.

ibid O 41, rr 4, 5, 6, and 7.

High Court Rules, 2007, O 41, rr 9 and 10, on proceedings after delay and striking out for delay.

High Court Rules, 2007, O 43, rr 4, 5, and 7.

ibid O 43, rr 2 and 6.

ibid O 43, rr 8, 9, and 10.

High Court Rules, 2007, O 43, r 1.

High Court Rules, 2007, O 43, r 3.

High Court Rules, 2007, O 57, r 1.

ibid O 57, r 5.

ibid O 57, r 6.

High Court Rules, 2007, O 57, rr 8 and 9.

High Court Rules, 2007, O 57, rr 2, 14, and 16.

ibid O 57, rr 13, 14, and 15.

156.

157.

158.

159.

160.

161.

162.

163.

164.

165.

166.

167.

168.

169.

170.

171.

172.

173.

174.

175.

176.

177.

178.

179.

180.

181.

182.

183.

184.

ibid O 57, rr 16 and 17.

High Court Rules, 2007, O 46, r 1; O 48 (fieri facias); O 50 (garnishee); O 36, r 9 (receiver by way of equitable execution).

High Court Rules, 2007, O 47, rr 2, 4, 6, 7, and 8.

ibid O 47, r 2.

High Court Rules, 2007, O 46, r 2; O 48, rr 4, 7, 8, and 9.

ibid O 48, rr 6, 10, and 12.

High Court Rules, 2007, O 50, rr 1 and 2.

ibid O 50, rr 3, 4, and 5.

High Court Rules, 2007, O 49, rr 1 and 2.

High Court Rules, 2007, O 51, rr 1 and 2.

ibid O 51, rr 2, 4, and 5.

ibid O 51, rr 6 and 7.

High Court Rules, 2007, O 45, rr 1, 2, and 13.

ibid O 45, rr 3, 7, and 11.

High Court Rules, 2007, O 52, rr 1, 2, 7, 8, and 9.

High Court Rules, 2007, O 52, rr 3, 4, 5, and 6.

On the classic heads of review see Council of Civil Service Unions v Minister for the Civil Service AC 374 (HL) (Lord Diplock): illegality, irrationality, and procedural impropriety; and Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1 KB 223 (CA).

High Court Rules, 2007, O 53, rr 1, 2, and 4.

ibid O 53, r 4.

ibid O 53, rr 3, 5, 6, 7, 8, and 9.

High Court Rules, 2007, O 55, r 1; and O 1, r 2, definition of “probate action” by reference to O 55.

ibid O 55, rr 3, 4, 5, 9, 10, 11, and 12.

High Court Rules, 2007, O 56, rr 3, 5, 6, 8, 14, 18, and 20.

ibid O 56, rr 22 and 23.

High Court Rules, 2007, O 54, rr 1, 2, 3, 4, and 5.

High Court Rules, 2007, O 20, rr 1 and 3.

ibid O 20, rr 2, 4, and 10.

185.

186.

187.

188.

189.

190.

191.

192.

193.

194.

195.

196.

197.

198.

199.

200.

201.

202.

203.

204.

205.

206.

207.

208.

209.

210.

211.

High Court Rules, 2007, O 59, rr 1, 2, 3, 4, and 5.

High Court Rules, 2007, O 58, rr 1, 2, 3, 4, 5, and 6.

ibid O 58, rr 8 and 9.

High Court Rules, 2007, O 60, rr 1 and 2.

ibid O 61, rr 1, 2, 3, 4, 5, 6, and 7.

High Court Rules, 2007, O 62, rr 1, 2, 3, and 4.

Constitution of Sierra Leone, 1991, ss 121–129, establishing the Supreme Court and the Court of Appeal and their jurisdiction.

High Court Rules, 2007, O 28, r 4, on limitation of the right of appeal at the directions stage.

On the approach to a stay pending appeal and the protection of the fruits of judgment, compare the reasoning in Bank of Credit & Commerce International v The Chargé d’Affaires of the Ivory Coast Embassy (Misc App No 3/82) SLSC 8.

Hoddinott v Persimmon Homes (Wessex) Ltd EWCA Civ 1203, 1 WLR 806.

Daniel K. Caulker v Komba Kangama (Civ App 2 of 1974) SLSC; Courts Act, 1965 (Act No. 31 of 1965).

American Cyanamid Co v Ethicon Ltd AC 396 (HL); Brink's Mat Ltd v Elcombe 1 WLR 1350 (CA); High Court Rules, 2007, O 35 (injunctions) and O 31 (affidavits).

Decisions of the superior courts of Sierra Leone are reported by the Sierra Leone Legal Information Institute. Readers should verify the current text of the Rules and the latest authority before acting.

212.

213.

214.

215.

216.

217.

218.

219.

220.

221.

222.

223.

224.