SIERRALII SUPREME COURT BULLETIN
COURT: SUPREME COURT OF SIERRA LEONE
CORAM
The Hon. Justice Dr. Ade Renner-Thomas - Chief Justice
Hon. Justice Mr. S.C.E Warne - J S C
Hon. Justice Mrs. V. A. Wright - J S C
Hon. Justice Mr. T. Thompson - J S C
Hon. Justice Mr. A. N. B. Stronge - J A
SC. Civ. App. No. 4/2004
BETWEEN:
AMINATA CONTEH - APPELLANT
AND
ALL PEOPLE’S CONGRESS - RESPONDENT
REPRESENTATION
C. F. Margai Esq., and E. E. C. Shears-Moses Esq., for the Appellant
A. F. Serry Kamal Esq., for the Respondent
JUDGMEMT DELIVERED ON THE 27TH DAY OF OCTOBER, 2005
FACT:
The Respondent had let a property at 27 Pultney Street to the Appellant. According to the Respondent, the tenancy expired on the 31st August 2001, yet the Appellant continued to live on the premises after the expiry of the tenancy. The Respondent then instituted legal action against the Appellant and issued a writ claiming a recovery of possession of the premises during the long vacation. An appearance was entered by the Appellant, but no defence was filed. The respondent applied for leave to enter a summary judgment in the High Court which was granted. Upon appeal at the Court of Appeal, the Appellant argued that there were several triable issues in the case, and that the High Court was wrong in granting leave to sign summary judgment. The Court of Appeal’s judgment was one based on the merit of the case rather than a determination as to whether it was a case where summary judgment was to be granted. The Appellant in dissatisfaction further brought an appeal to the Supreme Court.
ISSUES:
1.Whether there were triable issues?
2. Whether the Appellant had a strong defence with a real prospect of success as distinct from a fanciful one?
FINDINGS/ ANALYSIS:
At the Supreme Court, it was submitted by the Appellant in evidence that the tenancy agreement in question was to subsist up until the 31st day of December 2003, contrary to the notice given to vacate within 21 days from 24th July 2002. The Court found that the Lessor who is equally the Respondent, never swore to an affidavit denying the assertion of that evidence. The Court also found that the Appellant denied signing the Tenancy agreement which was due to expire on the 31st August 2001. There was also the issue of breach of the lease agreement according to the Respondent. In response to which the Appellant provided evidence asserting that the Respondent had acknowledged alleged breach and considered it a “good work.”
The Court also found and emphasised that summary judgment under order 11 of the High Court Rules 1960 should not be granted during the vacation, unless both parties consent to it. In this case, the Appellant did not give consent to the summary judgment.
Accordingly, the Court found that these were all triable issues that vitiate against a summary judgment pursuant to Order 11 of the High Court Rules 1960. The Court emphasised that the object of this order is to ensure a speed conclusion of the matter where the plaintiff can establish clearly that the defendant has no defence or triable issues. The test is not that there should only be triable issues, but that the defence should have a real prospect of success, and it is therefore the duty of the Judge to examine the issues of law and of facts raised to determine the case before it.
ORDER/DECISION:
The Court ordered that the judgement of the Court of Appeal dated 7th April, 2004 and that of the High Court dated 12th September, 2002 be set aside, and that the matter was remitted to the High Court. The Appellant was granted leave to defend the matter at the High Court, and ultimately, the Respondent was asked to pay the taxed costs of the Appeal and those of the Courts below.
Summarized by: Augustine Diction Bona
Edited by: Frederick Ishmael Bockarie