(gambia) ltd

IN THE GAMBIA COURT OF APPEALCIVIL APPEAL N0. GCA 88/2010BETWEEN:FUTURELEC GAMBIA LIMITED ……. APPELLANTANDGUARANTY TRUST BANK (GAMBIA) LTD ….... RESPONDENTCORAM: The Hon. Mr. Justice J. Wowo – (PCA)The Hon. Mrs. Justice N. Sallah-Wadda – (JA)The Hon. Mr. Justice L. Jobarteh Ag. (JA)REPRESENTATION:Ms. A. Njie holding brief for Mrs. A. Bensouda for the Appellant/ApplicantMs. Ida Drammeh holding brief for Mr. C.E Mene for the RespondentDATED THE..….………….……….RULINGREASONS FOR RULINGOn the 30 TH June 2011, we dismissed the Appellant’s motion and weindicated that we will give reasons later. We now give reasons.By a notice of motion dated 18 th of March 2011 and filed on the same daythe Appellant/Applicant seek the following prayers:1

1. Order for stay of execution of the judgment of the High Court betweenthe parties herein delivered by Justice E. Fagbenle on the 9 th ofDecember 2010.2. Such further or other orders as the Court may deem fit to make underthe circumstances.When the matter came up for hearing counsel for the Appellant/ApplicantMr. A. Bensouda who was in Court from the commencement ofproceedings of other cases only informed the Court when the case wascalled that he was having a medical appointment and he will be asking foran adjournment. Despite the fact that he did not present any medicalappointment form to the Court and despite the objection of counsel on theother side to his application for adjournment this Court granted his requestand at his instance the matter was adjourned to 14 th April 2011 for hearing.On the 14 th of April, the matter was called and counsel for the Appellant/Applicant was not in Court to move his motion and counsel for theRespondent urged the Court to strike out the motion. The motion wassubsequently struck out. The Appellant/Applicant then filed this motiondated 14 th April 2011 seeking the following prayers.1. Order relisting the motion filed on the 18 th of March 2011 and struckout by this court on the 14 th April, 2011.2. Order staying execution of the judgment of the High Court betweenthe parties herein delivered by Justice E.O Fagbenle on the 9 thDecember 2010.3. Such further or other orders as the Court may deem fit to make.When the matter came before the Court for hearing, counsel for theAppellant/Applicant Mrs. A.N Bensouda informed the Court that she filed amotion dated 14 th April 2011 seeking the above mentioned prayers. Shesubmitted further that the judgment creditor/Respondent by their blatantconduct which are not denied are in total contempt of the court’s2

proceedings; she further submitted that by all the authorities and decisionsof the court the Respondent ought not to be heard at all until they havereversed the steps they have taken she refers to GAMBIA UTILITIESCORPORATION Vs BASIRU JAWARA Civil App. 4/89. Counsel for theApplicant submitted that the action of the judgment creditor Respondentwhile the application is pending before the court is an attack on the integrityand authority of the court and the court can suo moto deal with the matter,she argued further that the judgment creditor have advertised the propertyfor sale while the application is pending. She also argued that theRespondent have also evicted the Appellant/Applicant from the premisesand taken over possession while the application is pending and all theseconduct amounted to contempt of the court. She refers to the cases ofOUSMAN TASBASI Vs ABDUL RAMAN JALLOW Civil App. 4/07 alsoCHRISTIANA WILLIAMS Vs MELVIN WILLIAMS Civil App. 34/07 alsoFALOU JATTA Vs ADAMA JANNEH Civil App. 25/07.Counsel further submitted that the Judgment creditor cannot have a say inthis matter and it behoves the Court, following the decisions of all thelearned panels before it to direct the Judgment creditor to undo its steps.She further submitted that the motion dated 14 th April 2011 ought to berelisted. She relied on paragraphs 4 to 14 of the Affidavit of SAIHOUSINGHATEH which deal with the circumstances which lead to the saidmotion to be struck out. She also submitted that the mistake unfortunatelyis a mistake of counsel who recorded a wrong time and informed themanaging director to be present on a wrong time and unfortunately thecase was called on 10.30 am and since counsel was not present in court,the matter was struck out. She further submitted that where counsel madea mistake, such mistake must not be visited on the parties. She referred tothe case of N.E.P.A Vs SAVAGE (2001) a NWLR PT 717 P 230 at 242.She further submitted that when the motion was struck out, the Appellantimmediately filed the motion for relisting on the same date. She alsosubmitted that the judgment creditor will not be prejudiced by relisting themotion on stay as stated in the further affidavit.3

She further submitted that the properties worth over D50 million (fifty milliondalasis) and the judgment itself in this suit with all the interest is below D40million (forty million dalasis). Counsel further urge the court to order thatthe judgment creditor restore the judgment debtor to the premises to abideany further order of this court in relation to execution of the judgment of theHigh Court. She referred to the case of ATLANTIC HOTEL LTD VsJANKEH TAAL Civil Appeal 39/94; also ORDER 6 RULE 2 OF G.C.A.Counsel further submitted that the affidavit of the Respondent is a blatantadmission that the judgment creditor was going to sell the property on the22 nd June 2011 at 10.30 am in total disregard with what is happening in thiscourt. Counsel submitted that in regard to the further, further affidavit ofSAIHOU SINGHATEH that the judgment debtor were evicted from thepremises which has not been denied is an act of impunity and an abuse ofprocess. Counsel also submitted that the application before the High Courthas no relevance with the application that is pending before this court.Counsel also submitted that the Respondent has also exhibited a letterfrom the Sheriff as Exhibit “FJ1” but the letter was not exhibited. Shesubmitted that it was deliberate, she further submitted that the ruling of theHigh Court was also not exhibited, she therefore urge the Court to ignorethe affidavit because it is not an affidavit in opposition and it only prejudicethe outcome of this matter.Mr. C.E Mene Counsel for the Respondent responded by saying that themotion before the court is a simple straight forward motion. He submittedthat the only prayer on the motion the court can deal with is prayer I,because the court cannot deal with prayer 2 without granting prayer I. Hesubmitted that prayer 1 is a prayer seeking an order for the relistment of amotion that was struck out. He also submitted that what is before the courtis a motion seeking to relist a motion. Counsel submitted that this isimproper in law; and in term of practice, it is an anomaly. He submitted thatwhat the Applicant would have done is to re file a fresh motion and not tofile a motion to re list a motion. Counsel cited S. 130(4) of the 1997Constitution. Counsel also submitted that the power to relist a cause isprovided by order 34 Rule 6 of the High Court Rules Schedule 2. Cap 6:02.4

Counsel further submitted that the word CAUSE is defined by STROUDSDictionary at page 421 as follows:1. “Signifying one kind or another, it is cause jurisdictions, any suit,action, matter or other similar proceeding competently brought beforeand litigated in a Court”.2. “For the purposes of the judicature Acts, “Cause” includes any action,suit or other original proceeding between a plaintiff and defendantand any criminal proceeding by the crown”.Counsel cited the case of NOVOROSSIYSK SHIPPING Company VsINTERNATIONAL COMMODITIES TRADING CORPORATION LTD MISAPP 45/2000. Counsel further submitted that the court of Appeal hadcause to advert its mind to the same point in the ruling given by Justice Otain the Case of AMADOU JALLOW Vs ALH. BAKARY DRAMMEH. Counselalso submitted that it is clear that to bring a motion to re-list a motion isimproper and it will be a dangerous trend. Counsel further submitted thatthe Applicant did not address the Court on the Principles applicable forrelistment instead she concentrated on irrelevant matters. Counsel alsosubmitted that assuming a motion is a cause which will be relisted, hesubmitted that the principles that should guide the Court in exercising itsdiscretion is not automatic, they are the same principles that are applicableto an application to set aside a default judgment, counsel cited N.N.S.C VsESTABLISHMENT SIME VALDU (1990)7 NWLR PT 164 P.526 Ratio 11and 12, WILLIAMS Vs HOPE RISING VOLUNTARY FUND SOCIETY(1982) NSCC 36. Volume 13. Counsel submitted that all the five issuesmust be resolved in favour of the Applicant before the application can begranted. Counsel submitted that with regard to the conduct of theApplicant, the Court should look at whether the Applicant deservedsympathetic consideration from the court. Counsel submitted that theApplicant does not in the light of the record of the court and the previousindulgence. Counsel further submitted that the other issue which isrelevant with regard to the conduct of the Applicant which makes theApplicant not to deserve the sympathetic consideration of the court is5

clearly borne out in the Respondent affidavit sworned to by FamaraJobarteh on the 28 th June 2011.Counsel submitted that none of the paragraphs of the affidavit is denied.Counsel submitted that paragraphs 3 to 6 shows that while the Applicant isinvoking the jurisdiction of the Court with regard to the interlocutoryapplication filed before this court and at the same time went to the Highcourt to raise the same matter. Counsel submitted that to maintainconcurrently application in both the court of Appeal and the High Courtamount to an abuse of Court process. Counsel also submitted that theapplication of the Applicant was dismissed by the Lower Court and a costof D35, 000.00 awarded against the Applicant and which cost the Applicanthave refused to pay even though they have substantial fund to pay in theirbank account with BISIC BANK. Counsel submitted that it goes to showthe conduct of the Applicant and that the Applicant also while thisapplication is pending before this court, the same Applicant went to theHigh Court and sought the permission of the High court for the Judgmentdebtor to apportion the mortgage property and to dispose the said portionof the property by private sale to settle the judgment in the suit. Counselsubmitted that, if, the applications succeed, the Applicant would not havebeen in this court. Counsel submitted that the Applicant cannot get thesympathy of this court and there is nothing in any of the affidavits of theApplicant alleging any self help by the Respondent, and in all the casescited by the Applicant, there was a subsisting process before the Courtwhich were properly before the court and there was self help, but in thiscase there is no process of the court that have been used bonafide in thiscase, the application for stay of execution have been struck out. Counselfurther submitted that all the cases cited by the Applicant are irrelevantbecause they did not deal with motion to relist. Counsel also submitted thatthe second prayer, which is Prayer 2, is not proper before the Court and heurge the court to refuse the application.Mrs. A.N Bensouda replied on point of law by saying that the contentionthat a motion cannot be relisted by a motion is misconceived. She6

submitted that this court or any other court can relist a motion or any casewith a motion without going into the merit so long as when it struck it out, ithas not visited the merit of that motion or process.She referred to EVANS Vs BARTLAM (1937) 2 A.E.R 646 at 650.Paragraph C-D, also SUNDIATA TRADING CO. LTD Vs STANDARDCHARTERED BANK LTD (2002-2008)2 GR 405 AT 406. She submittedthat it is clear that a motion can be relisted and a party has the choicedepending on the circumstance whether to apply for the relistment or file afresh application. She submitted that the remark by OTA J have no legaleffect. Counsel submitted that the considerations which guide the court isthe same consideration as in setting aside a default judgment and theapplication of the fifth principle i.e. whether the Applicant conductthroughout the proceedings is deserving sympathetic consideration.Counsel referred to Fedelis Nwadialo at page 456 where the fifth principlewas stated as follows“Whether the Applicant conduct throughout the proceedings from service ofthe writ upon him to the date of judgment has been such as to make theapplication worthy of sympathetic consideration”.Counsel submitted that the only conduct that is relevant is the conduct ofthe party including his counsel up to the date of the striking out of theapplication and no conduct after the time of striking out is relevant.Counsel also submitted that the only matter the court is seized of is theapplication of stay of execution and the appeal has not yet been entered byRules 25 G.C.A. She also submitted that one can go to the High Courtduring the pendency of an application for stay and ask for any relief fromthe High Court even if it seems inconsistent with the appeal before thecourt of Appeal on condition that the appeal has not been entered, theconsequence is that if you obtained relief from the High Court, your appealat the Court of Appeal will be deemed abandoned. Counsel referred toRule 19 (2) G.C.A. Counsel also submitted that reliance on the doctrine ofapprobation and reprobation is misconceived. It is a doctrine at Law.Counsel cited EVANS Vs BARTLAND (Supra) Counsel submitted that forthe doctrine to apply the Respondent must show this court the benefit the7

applicant have obtained by his application at the High court. Counselfurther submitted that the fact that an appeal and an application is pendingbefore this Court does not bar the Appellant/Applicant from going toapportion the mortgaged property and pay off the judgment debt. Counselfinally submitted that no abuse arises from the High Court proceedings.After listening to the arguments of both counsel and perusing all theprocesses including the exhibits attached. I am of the firm view that theissues for determination here are as follows:-1. Whether a motion can be relisted by filing a motion for relistment.2. Whether the Applicant has fulfilled all the necessary requirements tobe granted a stay of execution.The Appellant/Applicant filed a motion dated 14 th April 2011 on the sameday seeking the following prayers.1. Order relisting the motion filed on the 18 th of March 2011 and struckout by this court on the 14 th April 2011.2. Order staying execution of the Judgment of the High Court betweenthe parties herein delivered by Justice E.O Fagbenle on the 9 thDecember 2010.3. Such further or other orders as the Court may deem fit to make.Counsel for the Respondent Mr. C.E Mene contended that it is improper inlaw to file a motion seeking to relist a motion and he argued that theApplicant should have filed a fresh motion. He referred to S.130 (4) of1997 Constitution. Counsel contended that the power to relist a cause isprovided by Order 34 Rule 6 of the High Court Rules Schedule 2 Laws ofthe Gambia. Counsel also cited the case of NOVOROSSIYSA SHIPPINGCO Vs INTERNATIONAL COMMODITIES LTD Civil Suit N0. 45/2000.Counsel also contended that the court of Appeal adverted its mind to the8

same point in the ruling in the case of AMADOU JALLOW Vs ALH.BAKARY DRAMMEH. On the other hand Counsel for theAppellant/Applicant Mrs. A.N. Bensouda argued that the contention of theRespondent is misconceived and that it is absolutely right to file a motion torelist a motion. She cited the case of SUNDIATA TRADING CO. LTD VsSTANDARD CHARTERED BANK LTD (2002-2008)2 G.R 45 at 406. Shecontended that a party has the choice depending on the circumstancewhether to apply for the relistment or file a fresh application. In order toresolve this issue let me look at the provision of Order 34 Rule 6 of theHigh court rules Cap 6:01 Laws of the Gambia. Order 34 Rule 6 Provideas follows:-“Any cause struck out may, by leave of the court be replaced on the causelist on such terms as to the court may seem fit.”By virtue of Order 34 Rule 6 of the High Court Rules, it is clear that it is onlya cause that is struck out that can be relisted by the Court. So, let me seewhether a motion can be termed a cause. According to Shroud’s JudicialDictionary at page 421 “cause” is not a technical word signifying one kindor another, it is cause jurisdictions, any suit, action, matter or similarproceeding competently brought and litigated in a court. Cause is alsodefined to include “any action, suit or other original proceeding between aplaintiff and defendant and any criminal proceeding by the Crown. It alsodefine “reasonable cause” to mean “Just cause” and cause of actions tomean and entire set of facts that gives rise to an enforceable claim. Itdefines cause of action as being materially different from “ACTION”. Inother words does the definition of a cause include a motion? This is themain issue here. In order to better understand the word, let me look at therules itself and see whether the entire Order 34 Clearly shed light on theword “Cause”.ORDER 34 RULE 2 Provides as follows“If the plaintiff does not appear the Court shall unless it sees good reasonto the contrary, strike out the cause except as to any counter-claim by the9

defendant and make such order as to costs in favour of any defendantappearing as seems fit provided that if the defendant shall admit the causeof action to the full amount claimed, the court may, if it thinks fit, givejudgment as if the plaintiff had appeared.ORDER 34 RULE 3 Provides as follows“Subject to the provision of rule 5 of Order LII of this schedule, if the plaintiffappears and the defendant does not appear or sufficiently excuse hisabsence, or neglects to answer when duly called, the Court may, uponproof of service of the summons, proceed to hear the cause and givejudgment on the evidence adduced by the plaintiff or may postpone thehearing of the cause and direct notice of such post ponement to be given tothe defendant.ORDER 34 RULE 4 Provides as follows“Where the defendant to a cause which has been struck out under rule 2 ofthis Order, has a counter claim, the Court may, on due proof of service onthe plaintiff of notice thereof, proceed to hear the counter-claim and giveJudgment on the evidence adduced by the defendant, or may postpone thehearing of the counter-claim and direct notice of such postponement to begiven to the plaintiff.”From the above definitions of order 34 rules 2, 3 and 4 of the High CourtRules Schedule 2 Laws of the Gambia, it is clear to me that cause meansthe main suit. I say so because, it is only when the main suit filed by theplaintiff is determined, that the court will then consider the counter-claimfiled by the defendant. It therefore accords with the definition that a“Cause” includes “any action, suit or other original proceeding between aplaintiff and a defendant and any criminal proceeding by the Crown”.10

Counsel for the Applicant Mrs. A.N. Bensouda however contended that thisCourt had ruled in the case of SUNDIATA TRADING CO LTD VsSTANDARD CHARTERED BANK LTD that an Applicant can either filemotion to relist a motion or file a fresh motion. I have looked at theauthority cited by Counsel for the Respondent Mrs. A.N. Bensouda. I wantto say with respect that Justice E. Agim - PCA (as he then was) did notconsider the issue whether a motion can be filed to relist a motion, in thatcase. The learned Justice was only making a passing comment thatcannot be termed as authority. Besides the position of the law is that in therealm of conflict between PRECEDENTS. AND STATUTE, STATUTE LAWprevails over any gloss on it. In PIONEER AGGREGATES LTD VsENVIRONMENT SECRETARY (1985) 1 ac 132, 141 LORD SCARMANexpress the general rule that “If the statute law covers a situation, it will beimpermissible exercise of the Judicial function to go beyond the statutoryprovision by applying such principle because they may appear to achieve afairer solution to the problem being considered. In this case, since theprovisions of Order 34 of Schedule 2 Cap 6:02 Laws of The Gambia coversthe procedure for relistment, it prevails over any case law cited by Counsel,mostly in the case, cited by Counsel for the Appellant/Applicant, the issueof whether a motion can be filed to relist a motion was not determined bythe learned President of the Court of Appeal (as he then was).In the circumstances therefore the rules expect the Court to re-list a causethat has been struck out and in this case, no cause has been struck out.The motion that was struck out does not in my mind constitute a causeaccording to the definition envisioned by the rule.) I therefore hold that it isimproper to file motion to re-list a motion. Even though I hold that it isimproper to file a motion to re-list a motion: let me now go further for theavoidance of doubt to resolve the issue that governs relistment. Counselfor the Respondent Mr. C.E Mene argued that relistment is not automaticand that the principle governing relistment is the same as applicable to anapplication to set aside a Default Judgment. He cited the case of N.N.S.CVs ESTABLISHMENT SIMA VADUZ (1990) 7 N WLR PT 164 P.526 Ration11 and 12, WILLIAMS Vs HOPE RISING VOLUNTARY FUND SOCIETY11

(1982) NSCC 36 Volume 13. I agree entirely with counsel for theRespondent. The factors to be considered in an application for settingaside of a judgment in default are as follows:-1. Whether the Applicant has good reasons for being absent at thehearing.2. Whether he has shown that there was a good reason for his delay inbringing the application, that is, whether there was undue delay inbring the application so as to prejudice the party in whose favour thejudgment subsists.3. Whether the respondent will not be prejudiced or embarrassed if theorder for the re-hearing was made4. Whether the applicant’s case was manifestly unsupportable5. Whether the applicants conduct throughout the proceedings isdeserving sympathetic consideration.All the above factors must be resolved in favour of the Applicant before thediscretion of the Court can be given in his favour. In this case, let me nowsee whether the Appellant/Applicant has fulfilled all the requirements for theCourt to grant the relistment. Let me first of all looked at the affidavit insupport of the Appellant/Applicant motion for re-listment deposed to bySAIHOU SINGHATEH dated 4 th April 2011 to see whether the facts aresufficient as to grant the relief sought. Let me reproduce the relevantparagraphs of the affidavit in support below:-Paragraph 4:-“This matter was set down on 12 th April, 2011 for the hearing of theMotion for stay of execution dated 18 th March 2011. The matter wasscheduled for 10 am on that day but I am informed by Abdul AzizBensouda of Counsel and verily believe same to be true that the matter12

was not called until around 11.30 am.Paragraph 5:-“That Counsel had a hospital appointment at RVTH at around 11.30 amand informed the Court of same while applying to file a written brief ofarguments.Paragraph 6:-“I am informed by Abdul Aziz Bensouda of counsel and verily believe sameto be true that the Court stated that it preferred arguments to be madeorally and granted the adjournment to today the 14 th of April 2011. ThatCounsel recorded the schedule date and time in the case file as 14 th April,2011 at 11.am”.Paragraph 7:-“Counsel informed Mr. Karamoko Diaby to be present at 11 am on the 14 thof April 2011 and asked me to record this time in the office cause list:Paragraph 8:-“That fortunately this time was convenient because counsel would have justcompleted a matter before Justice E.O Fagbenle which was scheduledfrom 10: am to 11 am. A copy of the cause list for Justice E.O Fagbenle isnow produced and shown to me marked SS1”.13

I want to say that the above paragraphs deposed to by the Appellant/Applicant is not convincing as to grant the relief sought. I say sobecause in Paragraph 5 above, the deponent depose to the fact thatCounsel had a hospital appointment at RVTH, but deliberately failed toattached a copy of the hospital appointment card or any document fromRVTH. It is a known fact that RVTH or other hospital that engages in theservices of Western treatment always have document to show fortreatment or appointment card.Also, the deponent deposed on Paragraph 6 that Counsel recorded theschedule date and time in the case file as 14 th April 2011 at 11 am.Counsel again failed to exhibit the case file where he recorded a differenttime but instead he only exhibited a copy of the cause list of Justice E.OFagbenle which is not relevant to the case in any way. Let me also saysomething as per the conduct of Counsel Mr. Abdul Aziz Bensouda prior tothe striking out of the motion for stay of execution. Initially the motion onNotice dated 18 th March 2011 was slated for hearing on the 12 th April 2011at 10.00 am. Both counsel for the Applicant Mr. Abdul Aziz Bensouda andMr. C.E Mene for the Respondent were present in Court but the case wasMentioned at about 11.30 am due to the hearing of other cases on theCause list. When the matter was eventually mentioned. Mr. Abdul AzizBensouda without any inclination of ill health stood up and said he washaving a hospital appointment even though the Court was willing to hear14

his application. Mr. Abdul Aziz Bensouda did not even have the courtesy toinformed counsel for the Respondent Mr. C.E Mene or the court that he ishaving a hospital appointment prior to mentioning the case, counselconduct make me to believe that he is only adopting a delaying tactics inthis case, and since the Appellant/Applicant failed to exhibit the hospitalappointment in their motion it goes to show that there was no hospitalappointment.In view of the above, I am of the view that the Applicant has not showngood reasons for being absent at the hearing mostly since the Applicant didnot exhibit the case file where the wrong time was written, becauseexhibiting the case file will clearly show that the mistake is from counsel.This court cannot take the averment of counsel as a gospel trust withoutany proof.Again, I want to comment on the motion on Notice dated 14 th April 2011,filed the same day by the Appellant/Applicant. The motion seek thefollowing reliefs:-1. Order relisting the motion filed on the 18 th of March 2011 and struckout by this court on the 14 th April 2011.2. Order staying execution of the judgment of the High Court betweenthe parties herein delivered by Justice E.O Fagbenle on the 9 thDecember 201015

3. Such further or other orders as the court may deem fit to make.I am of the firm view that this motion is sloppily drafted. I say so becausebased on the way the motion is drafted, assuming the first prayer is grantedby the Court. It will therefore mean that this court will now determine twothe same prayers seeking the order of staying execution of the judgment ofthe High Court between the parties herein delivered by Justice E.OFagbenle on the 9 th December 2010.This will clearly amount to an abuse of the Court process. Abuse of theprocess of the Court is a tort in respect of which remedy may be had for thetwisting of the ends of Justice. Per STREET on Tort 6 th Edition declaresthat “It is a tort to use legal process in its proper form in order to accomplisha purpose other than that for which it was designed thereby causedamage”. Similarly, in the case of GOLDSMITH Vs SPERRINGS (1977) 1WLR 478 Lord Denning Mr. described abuse of process as follows “a legalprocess which is diverted from its true course so as to serve extortion oroppression or to exert pressure so as to achieve an improper end”. In thecase of AKPAN Vs JULIUS BERGER (NIG) PLC (2002) 17 NWLR PT 795P.1. The Supreme Court of Nigeria set out the circumstances in whichabuse of processes can arise which include the following:-i. Institute a multiplicity of actions on the same subject matteragainst the same opponent on the same issue or multiplicity ofactions on the same matter between the same parties even whereexist a right to begin the action.ii. Institute different actions between the same parties simultaneouslyin different courts even though on different grounds.iii.Where two similar processes are used in respect of exercise of thesame right.16

In this instant case, the parties are the same and the subject matter is thesame. So, it is clear that it would amount to an abuse of the process of thecourt if prayer 1 which is to relist the motion struck out is granted.Counsel for the Appellant/Applicant Mrs. A.N Bensouda contended that theblatant act of the Judgment Creditor/Respondent which is in total contemptof the court proceeding is enough not to hear the Respondent, she citedthe case of GAMBIA UTILITIES CORPORATION Vs BASIRU JAWARACA4/89. Counsel further contended that the Judgment creditor haveadvertised the property for sale while the application is pending and theJudgment Creditor have also evicted the Appellant/Application from thepremises and take over possession while the application for stay is stillpending and these acts of the Judgment Creditor is enough to grant stay ofexecution in favour of the Appellant/Applicant Counsel cited the cases ofCHRISTIAN WILLIAMS Vs MELVIN WILLIAMS CA 34/07, OUSMANTASBASI Vs ABDUL RAMAN JALLOW CA 4/07 and FALOU JATTA VsADAMA JANNEH CA 25/07.Counsel for the Respondent however contended that the Respondentnever acted in disobedience of the Court orders as alleged by theAppellant/Applicant counsel.From the argument of Counsel for the Appellant/Applicant, it seems tobased all her argument on stay of execution on the disobedience of theorder of the court by the Respondent and nothing more. The Respondentcounsel on his part denied that the Respondent acted in disobedience ofthe order of the court. In order to resolve this issue let me look at theaffidavits filed by the Appellant/Applicant and the Respondent. Looking atthe affidavits deposed to by SAIHOU SINGHATEH on the 14 th April 2011,the further affidavit deposed to by HANNA SYLLA on the 25 th June 2011and the further affidavit deposed by SAIHOU SINGHATEH on the 27 th June17

2011 it is clear in all the three different affidavits, the alleged acts ofdisobedience were committed by the Sheriff. Unfortunately the Sheriff isnot a party to this case, and also the Sheriff cannot be termed an agent ofthe Judgment Creditor, and this Court cannot punish the Judgment Creditorbased on the sins committed by the Sheriff which is an independent body.So, since this court has held that the disobedience of the order of the courtis committed by the Sheriff and not the judgment Creditor, the argument onissue by the Appellant/Applicant will automatically fall like a pack of cards.I will therefore need not go to the extent of stating all the requirementswhich the Applicant need to fulfilled in order for a stay of execution to begranted in the Applicant’s favour.Based on all the above analysis, this application lacks meritand it is hereby dismissed. Cost of D100,000.00 against theAppellant/Applicant.…………………..…………………….Hon. Justice J. Wowo (PCA)I AGREE………………………………….Hon. Justice A Joof (JA)I ALSO AGREE…………………………………Hon. Justice E. Fagbengle (JA)18