Counsel for Defendant:
Marrah Esq of Yada Williams and Associates
Counsel for Plaintiff:
F.Gerber and Halloway and Partners
Civ. APP.6 2/2012
IN THE COURT OF APPEAL OF SIERRA LEONE
BAIMBA BANDA THOMAS - RESPONDENT/APPELLANT
GLORIA HARDING - APPLICANT/RESPONDENT
THE HON. MR. JUSTICE M. F. DEEN-TARRAWALLY JA - PRESIDING
THE HON MR. JUSTICE R. S. FYNN JA
THE HON. MRS. JUSTICE A. SHOWERS JSC
Marrah Esq of Yilliams & Associates for the Appellant/Respondent
F. Garba of Halloway & Partners for the Applicant/Respondent
RULING dated 11th July 2016
- The Applicant/Respondent has filed an application pursuant to Rule 27 of the Court of Appeal Rules. The motion is dated 29th February 2016 and it is supported by an affidavit of even date. The Applicant/Respondent on commencing his application ran headlong into a preliminary objection from the Respondent/appellant which was founded on two limbs.
- First the Appellant/Respondent contends that some paragraphs of the Applicant/Respondent’s affidavit in support of the motion are scandalous and vexatious. This limb was however not fully argued and discarded placing reliance on the second limb advanced, to wit: that the said affidavit was fatally defective because its jurat does not immediately follow the last paragraph of the affidavit. The jurat in question is found on a page separate from that which holds the body of the affidavit.
- Counsel for the Appellant/Respondent referred to paragraph 41/1/12 of O 41 of the Annual Practice 1991 under the rubric Jurat”. Counsel submitted that it is an incurable defect for the jurat to be placed on a separate page especially where the pages of the affidavit are not numbered as is in the instant case. An affidavit laboring under such a defect counsel submitted was incapable of supporting the application before the court or any other.
- The Applicant/Respondent in answer to the objection seeks refuge in O 31 R 4 of the High Court Rules which rule inter alia empowers the court to receive and use an affidavit in a matter “notwithstanding any defect by misdescription of the parties or otherwise in the title or jurat or any other irregularity in its form”
- It would appear that paragraph 41/1/12 of O 41 in the Annual Practice 1991 on which the objection is grounded takes into consideration the equivalent of O 31 R 4 of our High Court Rules. I will reproduce the relevant portions of the notes in the former: “Irregularities in the form of the jurat cannot be waived by the parties but see rule 4”
- It is clear from the passage recently referred to that the parties are not in the position to waive any irregularities in the form of a jurat. However the reference to Rule 4, preceded, as it is with the preposition “but” suggests that Rule 4 presents a position that contrasts the rule set out in the said passage.
- O 41 R 4 of the Annual Practice which is referred to is similar in terms to O 31 R 4 of our High Court Rules (see para 4 above) and on which the Applicant/Respondent now relies in contrast makes it possible for a defective affidavit to be usable with the leave of the court. The major contrasting point identifiable may well be that in the first situation clearly the parties cannot waive irregularities in the jurat whilst in the second the court may grant leave to use a defective affidavit even if the defect may be in the jurat so long as no hardship or prejudice is caused to the other party.
- In the instant case no hardship or prejudice has been shown likely to occur if the defective affidavit is used and the court has not found any either. In the circumstances the court orders as follows:
- The Applicant is permitted to use the affidavit of 29th February 2016 notwithstanding the defect in the form of the jurat.
- Costs in the Appeal
The Hon Mr. Justice Reginald Sydney FYNN JA…………………………………..
The Hon. Mr. Justice Mange DEEN-TARRAWALLY JA
The Hon Mrs. Justice Adeliza SHOWERS JSC