Ruling on a Preliminary Objection, concerning an Application for a Stay of Execution and All Subsequent Proceedings in the Magistrate Court; an Order to Set Aside Magistrate's Cowan Orders of 1^st July 2019 and 10^th February 2020; and an Order for a Declaration that the 1^st Plaintiff/Applicant is the Lawful Lessee, entitled to Possession and Occupation of the Property Situate, Lying and being, at the Back of Cockrill, Off Wilkinson Road, Freetown,

1. Introduction

This ruling is contingent on a preliminary objection, raised by S. A. Conteh Esq. on behalf of the Defendant/Respondent (Mayanie Sesay) on 24^th March, 2020. The objection was accordingly raised, immediately after A. Boyzie Kamara Esq., had moved this Honourable Court, on the contents of a notice of motion (dated 13^th February 2020) and supported by the affidavit of one John T. Mansaray Esq., a then Pupil Barrister, attached to the Law Firm of Fornah-Sesay, Cummings, Showers and Co., sworn to and dated 13^th February, 2020. The said notice of motion prays for the following orders:

1. That this Honourable Court grants a stay of execution of the Order of Magistrate Cowan (deceased) of 10^th February 2020, and all subsequent proceedings, pending the hearing and determination of this application.
2. That the orders of Magistrate Cowan, dated 1^st July 2019 and 10^th February 2020 respectively, be set aside.
3. That the 1^st Plaintiff/Applicant, whose name appear on a Letter of Offer, dated 16^th January 2019 and a survey plan marked LOA 12568, dated 17^th October 2019, as property leased to him by the Ministry of Lands, Housing and Country Planning, on behalf of the Government of Sierra Leone, be declared to be the lawful lessee and person entitled to possession and occupation of the property situate, lying and being at the Back of Cockrill, Off Wilkinson Road, Freetown.
4. Any further or other orders that this Honourable Court deems fit and just in the circumstance.
5. That the cost of this application be borne by the Defendant/Respondent.

2. The Preliminary Objection and the Response thereto

The preliminary objection is predicated on a jurisdictional concern. The High Court of Justice of the Republic of Sierra Leone, only presides over matters that are brought to it, pursuant to the provision in Order 5 Rule 1 of the High Court Rules, Constitutional Instrument N0.8 of 2007 (hereinafter referred to as the HCR, 2007). The said provision makes it quite clear that actions in the High Court of Justice are begun by originating notices of motion, originating summonses, petitions and writ of summonses. Contrary to this provision, this action is said to be wrongly before this Honourable Court, pursuant to a notice of motion (which is not one of the ways, by which an action can be initiated in the High Court of Justice). Thus, S. A. Conteh Esq. argued that this irregularity is so fatal that it cannot be cured; noting that it is neither a typographical error nor a mistake.

Counsel furthered that the Master and Registrar of the High Court of Justice and the Deputy Assistant Registrar of the Magistrate Court, should not have been copied in that application; though he did not articulate the reason why, this should not have been done. Meanwhile, Counsel also submitted that even the affidavit, supporting the application is defective on several points. First, it is devoid of the year, the letter and number as is requested. Secondly, it is not accordingly numbered; as required by Order 31 Rule 1 (6) of the HCR, 2007. Thirdly, it is contrary to the provision of Order 31 Rule 9 (1) of same, as it does not indicate the date on which it was filed; adding that he did not even know, when the said affidavit was actually filed.

Contrariwise, on 14^th January 2021, J. T. Mansaray Esq. asserted that it was rather unfortunate that, on the very day that the preliminary objection was raised, S. A Conteh Esq. made submissions that clearly contravened the rules, but could not cite the actual submissions that were in contravention of the rules. He emphasized the significance of Order 2 Rule 2 of the HCR 2007, which concerns the effect of non-compliance with the rules; and craves the court's indulgence for leave to be granted to the Plaintiff/Applicant, to file the requisite papers, for the matter to be expeditiously proceeded with; stating that the application for leave to amend, is based on Order 23 Rule 7 of the HCR 2007. Procedurally, on 5^th April 2022, S. A. Conteh Esq. replied that the provision (Order 23 Rule 7 of the HCR 2007), which J. T. Mansaray Esq. relied on, does not reflect any clear response to his jurisdictional objection; emphasizing that the objection is not one of mere irregularity, but one that touches and concerns an indisputable jurisdictional issue.

3. Analytical Exposition

Having presented the arguments, as they unfolded before this Honourable Court between 24^th March 2020 and 5^th April 2022, I must now proceed to unpick them in the context of the subsisting laws, that regulate the issues that are cognate with every bit of the arguments. Thus, the objection cannot be said to be either eclectic nor amorphous; neither can it be said to be baseless and not founded in law. The objection is clearly and straightforwardly founded in law. This point strikes a chord with a peculiar characteristic feature of a preliminary objection. The peculiarity of that feature is rather rooted in the incontestable legal position that preliminary objections are predicated on law and nothing else but law. The jurisprudence on preliminary objection, has evolved with a plethora of decided cases in Sierra Leone and the Commonwealth jurisdiction.

Moreover, the salient principle, underscoring any preliminary objection is that, it must be based on a point of law; if it is to be entertained by any court of competent jurisdiction. The Courts' decisions in Taakor Tropical Hardware Co. Ltd. v. The Republic of Sierra Leone (ECW1 CCJ/JUD/02/19 (2019) ECOWAS CJ1 (24™ January, 2019); Zaria Amira Amina Mara v. Managing Director Standard Chartered Bank and Others (FTCC 237 of 2018) (2019) SLHC 47 (11 July 2019); Yaya v. Obur and Others (Civil Appeal 81 of 2010) (2020 UGHC 165 (30 October, 2020); Kassam Kousa v. Alie Basma (CC:215/2019/C N0.31); Lovetta Bomah and Others v. PMDC (cc306 of 2018) 2021 SLHCL PED T1 (16 March, 2021); and S v. Joseph Saidu Mans and Another (CC: 31 OF 2018 2021 SLHC LPED 27 (16 March, 2021), are unambiguously instructive on this rule of law.

In fact, 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. Thus, when heard, a preliminary objection can either be disposed of immediately; or its ruling may be deferred, in circumstances wherein its determination, will undoubtedly impact the outcome of a matter {see Yaya v. Obur and Others (Civil Appeal 81 of 2010) (2020 UGHC 165 (30 October, 2020). Essentially, the preliminary objection, with which this Honourable Court is faced, is bound to be determined at this stage, because the legal issues that characterize it, would have no impact on the outcome of this matter, should it proceed to its logical conclusion. The first issue (that is cognate with the substantive law) that should be examined to determine whether the preliminary objection should or should not be upheld, concerns the jurisdiction of the High Court of Justice of Sierra Leone.

Thus, this point about the High Court of Justice not having jurisdiction to preside over this action, was made quite prominent and salient, in the protestation of A. S. Conteh Esq.; regarding the reason why he thinks the notice of motion, dated 13^th February2020, commencing this action, in the High Court of Justice, should be struck out. Meanwhile, jurisdictional issues are the structural architecture, upon which judicial functionality is built. Thus, in matters wherein jurisdictional issues emerge, the courts are bound to address them, before they are even obliged to proceed with such matters, should it turn out that the courts really have jurisdiction to preside over them. However, when courts are faced with matters for which they do not have any jurisdiction, they immediately become functus in the determinations of such matters.

Significantly, sections 132 and 134 of the Constitution of Sierra Leone, Act N0.6 of 1991 (hereinafter referred to as Act N0.6 of 1991), enunciate the original exclusive, appellate and supervisory jurisdiction of the High Court of Justice. Thus, section 21 of the Courts Act NO. 31 of 1965 (hereinafter referred as Act N0.31 of 1965) also touches and concerns the jurisdiction of Sierra Leone's High Court of Justice. This later provision articulates the court's overwhelming civil jurisdiction; and the surrounding circumstances, in which that jurisdiction is circumscribed. Circumspectly, the said section 21 has to be read in tandem with section 18 of the same statute. Thus, whereas section 18 focuses on the unlimited jurisdiction of the High Court of Justice, subject to certain exceptions, section 21 clarifies some of those exceptions, in the exercise of its original exclusive jurisdiction, relating to customary law (which by its very nature and structure has restrictive applicability in Sierra Leone).

Further, the Third Schedule of Act N0.31 of 1965, articulates a plethora of thematic issues, from which many civil disputes may arise, that shall never be presided over by any Magistrate Court in Sierra Leone. In effect, that schedule clearly explicates the original exclusive jurisdiction of the High Court of Justice as generically stated in section 132 of Act N0.6 of 1991. So, the Third Schedule of Act N0.31 of 1965, also has to be read in tandem with particularly subsection (1) of section 132 of Act N0.6 of 1991. Thus, an indisputable construction of section 21 of Act N0.31 of 1965 is that the High Court of Justice, does not have original exclusive jurisdiction to preside over specific matters, relative to the determination of title to land situated in the provinces, other than the title to a leasehold granted under the Provinces Land Act, Cap. 122 of the Laws of Sierra Leone, 1960; neither can it establish the existence or dissolution of any marriage contracted in accordance with customary law; or any claim, relating to any marriage governed by customary law; nor can it determine the administration of estates of deceased persons, where such administration is governed by customary law.

Thus, the order to grant a stay of execution of the Order of Magistrate Cowan (deceased) of 10^th February 2020, and all subsequent proceedings, pending the hearing and determination of the pending application; the order to set aside the orders of Magistrate Cowan, dated 1^st July 2019 and 10^th February 2020 respectively; the order that the 1^st Plaintiff/Applicant, whose name appear on a Letter of Offer, dated 16^th January 2019 and a survey plan marked LOA 12568, dated 17^th October 2019, be declared the lawful lessee and person entitled to possession and occupation of the property situate, lying and being at the Back of Cockrill, Off Wilkinson Road, Freetown, as property leased to him, by the Ministry of Lands, Housing and Country Planning, on behalf of the Government of Sierra Leone; are very clear orders, which the High Court of Justice (in its original exclusive jurisdiction) can grant in accordance with the above provisions.

Analytically, to assume that the preliminary objection, which S. A. Conteh Esq. raised to the application, is jurisdictional, is as unrealistic as it is bizarre. Nonetheless, in as much as this Honourable Court cannot hold, that the preliminary objection is strictso senso jurisdictional; it simultaneously cannot dismiss it as one that lacks merit. Thus, the preliminary objection is meritorious, because it touches and concerns, a very serious point of adjectival law, that is cognate with the question of how proceedings are begun in the High Court of Justice. Essentially, Order 5 Rule 1 of the HCR 2007, concerns the modes by which actions are begun in Sierra Leone's High Court of Justice. The provision thus reads:

'Subject to any enactment of these rules, civil proceedings in the Court (the High Court of Justice) may be begun by writ, originating summons, originating motion or petition' (my emphasis in parenthesis and italics).

Bizarrely, it is discernible from the contents of the papers filed that this action has not come to this Honourable Court by any of the aforementioned modes, stated in Orders Rule 1 of the HCR2007. Thus, this action is improperly brought to this court by a notice of motion, dated 13^th February 2020. This singular act contravenes the foregoing provision; and simultaneously raises the question of whether this action is really apt or even proper for it to be in this court. Thus, my interpretation of the provisions in the HCR 2007, regarding applications that are made by notices of motion, are those made in respect of interlocutory proceedings, that had been commenced by any of the modes of commencing actions, contemplated in Order 5 Rule 1 of the HCR 2007.

The next issue which S. A. Conteh Esq. raised is in respect of the so-called defective form of the affidavit that bolsters J. T. Mansaray's application. This point is as well founded in the provisions of Order 31 of the HCR 2007. Thus, assuming without conceding, that the said affidavit is defective; nothing precludes this Honourable Court, from accepting that affidavit in its defective form. The provision in Order 31 Rule 4 is indubitably instructive on this point. Nonetheless, my examination of the application's bolstering affidavit has asseverated the following irregularities: First, it does not confirm the name of the person or law firm that files it. Secondly, it does not asseverate the name of the party to the action, on whose behalf it is filed. Thirdly, it does not point to any date on which it was actually filed (see the bottom part of J. T. Mansaray's affidavit; specifically, the blank portion of the document,