MARIAM IBRAHIM ANTAR ~ SLLS 2023

ORDER 13,22,26&50
INTERNATIONAL CONSTRUCTION COMPANY V ZAKHEM INTERNATIONAL
CONSTRUCTION judgment in Default of Defence was set aside on the basis that it was a
regular judgment and the Defendant failed to show in his application that he was deprived of
an opportunity to put forward a defence on the merits as no such defence was exhibited in the
application. There is no rule of law which stipulates that a money judgment must first be served
on the -Judgment Debtor before the Judgement/Creditor can apply for a garnishee Order Nisi
to enforce the said Judgement. The correct principle to be applied in setting aside a Judgement
in Default to wit, “the primary consideration in exercising the discretion whether the Defendant
has merits to which the court should pay heed, not as a rule but as a matter of common sense,
since there is no point in setting aside a judgement f the Defendant has no defence" failed to
apply the same in reaching a decision in the application before her where the Applicant failed
to show that it had a defence on the merits.

MACAULAY V. DIAMANTOPOULOS 1962 Justice Bankole Jones opined that “The

motion now before the court presumes that the judgment was regularly obtained and the
application is to set it aside. The law is that, apart from express rules, the court has a discretion,
untrammelled in terms, in setting aside a judgment regularly obtained, although the application
is made out of time, if circumstances require it to be set aside”. The court upheld that there was
no need for security for cost to be paid.

ORDER16&59
FATMATA NANCY LEWALLY V STEPHEN EMEKA OJII where a summary judgment
application was made consonant with Rules 1 and 3 of Order 16 of the High Court Rules 2007.
The writ of summons was issued and served; appearance was entered, and a defence and
counterclaim lodged in the Master and Registrar’s Office, on behalf of the
Defendant/Applicant. An application to set aside summary judgement was made on principle
of audi alteram partem; and alternatively for the said judgment to be set aside on the ground
that the Defendant/Applicant has a very good defence on the merit pursuant to Order 16 Rule
11 of High Court Rules 2007.
An affidavit in opposition to the application was filed by Yada Williams and Associates, after
they had filed a memorandum of change and a notice of change of solicitor, pursuant to Rules
1 and 2 of Order 59 of the HCR, 2007.
Binneh Kamara J opined that a stay of execution is an immediate act, ordered by a court of
competent jurisdiction, because of some just, fair, and reasonable considerations, to prevent
the enforcement of a judgment, which it has already delivered. This procedural ideal is held
sacrosanct even in circumstances, wherein that judgment, is based on either procedural or
substantive justice. Circumspectly, in a situation wherein a court, refuses to grant an order of
stay of execution, it behoves a higher or another court of competent and concurrent jurisdiction,
to grant it, should it consider it just, fair, and reasonable to do so.
Binneh Kamara J laid down the Considerations to grant a stay of execution to set aside a
judgement:
1. The jurisdiction to grant or refuse an application for a stay of execution is subject to the
discretion of the court.
2. The Court’s discretion must be justly, fairly, and reasonably exercised in accordance
with established principles.
3. In every circumstance wherein a stay of execution is granted on terms, such terms must
never be onerous
4. The applicant must show a special (peculiar) circumstance, concerning the reason why
the stay should be granted.

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5. The applicant must also show a good ground of appeal.

Binneh Kamara J opined that the contention the Defendants/Applicants’ put forward is that
when the Judgment was delivered there was already a defence and a counter claim and an
affidavit in opposition to the application for a summary judgment, was already in the Court’s
records. He stated that the rationale for setting aside judgments in one of the instances in which
Judgments are set aside, depicts the situation in which a judgment, based on procedural (not
substantive) justice, is granted in the absence of the other side and the principle of adjectival
law is strengthened by Buckley L. J. in Hamp-Adams v Hall 1911 when he said: where a
plaintiff proceeds by default every step in the proceedings must strictly comply with the rules;
that is a matter of strictissima juris’. The cases of SLOF v. P.B. Pyne-Bailey and Yemen Co.
Ltd. v. Wilkins are also very instructive on this rule. Thus, even regular judgments can be
deemed irregular, should the parties that have obtained them, consciously or unconsciously,
fail to strictly comply, with the procedures as prescribed in the rules. But the fact remains that
when the application for a summary judgment was made there was no affidavit in opposition
on file. And when the matter was adjourned, this Honourable Court made an order for them to
file an affidavit in opposition on the next adjourned date; and for a notice of hearing to be sent
to them. Again, when the matter subsequently came up for hearing on 31st March 2020, neither
the Defendants/Applicants, nor their solicitors were in court. They jeered (flouted) this
Honourable Court’s order by not filing any affidavit in opposition; even though there is
evidence on file that the notices of hearing of 24th March 2020, had been served on them. It
was on 31st March 2020, that the matter was withdrawn for judgment. Thus, in oblivious of
any affidavit in opposition to the application for a summary judgment, the order was punctilious
granted on 7th October 2020. The order was made on the basic fact that there was no affidavit
in opposition on file when the file was withdrawn for a ruling. Factually speaking, to say that
the Defendants/Applicants were not given the opportunity to be heard is a misnomer. They
were given the opportunity to be heard, but they chose not to do so on time; they only filed the
affidavit in opposition after the horse had bolted. Therefore, it will be foolhardy of this Bench
to set its order of 7th October 2020 aside on the somewhat unrealistic plea of audi alteram
partem. Nevertheless, in the interest of justice, based on the fact that this Bench is convinced
that indeed there are contentious issues, surrounding this matter that can only be determined,
pursuant to the conduct of a full-blown trial, the last order is hereby granted and the order of
7th October 2020, is thus set aside with cost to be paid.

ORDER 16
MARIE STOPES SIERRA LEONE V GLORIA MAC-CONTEH Brown Marke opined
that no attempt was made by the Learned Presiding Judge to analyse the merits of the case
before her, nor, to refer to any principle of law, relating to the cause of action before her, or to
the manner in which applications for summary judgment under Order 16 of the High Court
Rules, 2007 should be dealt with and Learned Trial Judge erred in Law in giving judgment in
favour of the Plaintiff in an application for summary judgment, notwithstanding that the
Defendant has shown cause against the application and there being sufficient evidence before
the Court to show that the Defendant has a defence to the action and therefore the judgement
was a vacant judgement on basis that the judge failed to give reasons for her decision. No
attempt was made by the Learned Trial Judge to assess the interest payable on the principal
sum awarded, nor to explain how she arrived at the sum awarded for general damages.
Damages cannot be plucked out of a hat they have to be awarded on the basis of proper
assessment. There was a serious legal issue to be tried and there was also affidavit evidence,
which went unchallenged. There was a contention which ought to have been tried at a full
hearing. The judgment in Order 16 proceedings is final, and it due consideration has to be
given to the law relating to the issue in dispute. It is of course trite law that Order 16

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proceedings are not decided by weighing the two affidavits. It is also trite that the mere
assertion in an affidavit of a given situation which is to be the basis of a defence does not, ipso
facto, provide leave to defend; the Court must look at the whole situation and ask itself whether
the defendant has satisfied the Court that there is a fair or reasonable probability of the
defendants' having a real or bona fide defence.

ORDER 17
VINCENT LAMIN KANU V BENJAMIN JUXON SMITH The Defendant entered an
appearance and filed a statement of defence and counter claim. The Plaintiff filed a Defence to
the counterclaim denying any arrangement as alleged by the Defendant in the Statement of
Defence. The Plaintiff applied to the Court for a determination on the question of law pursuant
to Order 17 Rule 1 of the High Court Rules (HRC) 2007. The first issue is whether there is
a question of law arising in this matter suitable for determination without a full trial and which
determination will finally determine the subject only to any possible appeal, the entire cause or
matter. Counsel for the Plaintiff believes there is, the application has been supported by
affidavit evidence by both parties. The Plaintiff has produced all the necessary documents
relating to his claim to determine this matter as a matter of law, mainly the Letters of
Administration granted to him as well as the title deeds of the deceased. The Defendant has
also in his affidavit set out the basis of his Defence and Counterclaim. He has however not
produced any document of title, does not have anything in writing but relies on an oral
agreement to show that he is the owner of the property and entitled to have the property
transferred to him. The questions for determination by the Plaintiff is whether as a matter of
law, the Statement of Defence filed by the Defendant raises/constitutes a valid defence in law
to the claims of the Plaintiff; whether his counterclaim is valid and enforceable by the Court
against the Plaintiff and whether the several agreements referred to in his Statement of defence
and Counterclaim are void and unenforceable based on the provisions of the Registration of
Instruments Act Cap. 256 of the Laws o Sierra Leone 1960. The appeal was dismissed as it
was not be in the interest of justice to allow the matter to proceed to trial as even if the oral
agreement can be proved, it is void.

ORDER 17&19
SIERRA LEONE RED CROSS SOCIETY V AYEA ROSALINE KOROMA the matter
proceeded for determination on a point of law in the high Court pursuant to Order 17 of the
High Court Rules 2007. A summary of the questions of law directed for the Court's
determination related to Deceased Intestate's entitlement to repossess the said property
following the orders from Government returning the property, extinguishment of the
Government's interest in the property upon its return. The Appellant's main contention in this
Appeal is that its third party right was not addressed by the trial judge on the basis that, firstly,
as a lessee it had expended large sums of money on the property to put up permanent structures
on the instructions of GOSL, secondly that GOSL's return of the property to the Respondent
was incomplete in the absence of a release order, and thirdly the court's determination of the
case on a point of law deprived it of the opportunity of a full trial as well as adding GOSL as a
party to the proceedings. It is important to conclude on the procedure adopted in the light of
submissions to this Court that the Appellant was disadvantaged due to the nature of the
proceedings in the court below, as it shut down any possibility for the Appellant to have tested
the evidence before the Court especially the release from the President which it could have
done by instituting third party proceedings and to also address the court on the investment made
in the said property from 1995 up to the time they came to court. The Judgment in the High
Court was obtained following an application made under Order 17 Rule 1 of the HCR 2007.
The above procedure empowers a High Court by its own motion or on the application of a party

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to finally determine the issues. in controversy between the parties on a point of law and without
a full trial provided the necessary requirements are fulfilled.
1. The first issue is whether there is a question of law arising in the matter suitable for
determination without a tull trial and which determination will finally determine the
subject only to any possible appeal, the entire cause or matter.
2. Having reviewed the pleadings, motion and affidavits, it is clear that the Learned Trial
Judge's determination on a point of law was in order given that the conditions under
Order 17 of the High Court Rules were fulfilled.
It is important to point out that all relevant documents pertaining to the point of law were
exhibited for the High Court's consideration and the Appellant was given an opportunity to be
heard on the questions put to court. Having fulfilled all of the requirements under Order 17,
the trial judge correctly exercised his discretion to determine the matter on a point of law on
the questions posed in the application of the Respondent and to grant the orders made, having
formed an opinion on the suitability of the questions without a full trial, the determination of
which was final as to the entire cause or matter. The Appellant in their affidavit in opposition
was entitled to adduce evidence about their case which they did and there was no need for a
trial as most of the evidence of the Respondent consisted of documentary evidence and it was
not likely that new evidence will have emerged at the trial beyond what was already before the
court which was used to determine the issues. The questions on point of law that were to be
answered by the Court, once they were answered, the entire matter between the parties were
determined bearing in mind that Order 17 is aimed to assist parties in the efficient disposal of
their cases and to avoid unnecessary delays and expenses. Order 17 Rule 2 of the High Court
Rules gives discretion to the Court upon determination of the issues to dismiss the cause or
matter or make such order or judgment as it thinks just.

ORDER 26&46
CHRISTIAN JUNIOR LANGLEY V RAMATU KABBA Order 46 Rule 10 of the High
Court Rules, 2007 on the contents of his notice of intention to raise a preliminary objection,
the said provision in the HCR, 2007 which concerns conditional judgment waiver thus states:
A party entitled under any Judgment or order to any relief subject to the fulfilment of any
condition who fails to fulfil that condition is deemed to have abandoned the benefit of the
judgment or order, and, unless the court otherwise directs, any other person interested may take
any proceedings which either are warranted by the judgment or order or might have been taken
if the judgment or order had not been given or made.

Binneh Kamara J opined that a preliminary objection is not a preliminary objection, if it is

based on facts, which evidential significance, can obviously be determined during the course
of the proceedings.

Upholding the contention of improper service, when the Respondent/Applicant’s Counsel

could not be located in his last known address of service, will be unfair to the Appellant, who
is also laying claim to the realty in question. So, if the preliminary objection is upheld on this
point, an order for service, will have to be made and that will continue to forestall the progress
of this matter. The evidence of payment of the security for cost shall be exhibited in an affidavit.
Therefore, to say that the Notice of Appeal, should not be heard, because the evidence of
payment of security for cost has not been exhibited is unacceptable as that averment is not to
be found on the face of that exhibit. There was evidence that the security for cost was paid into
the Judicial Sub-Treasury.

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