SIERRA LEONE No. CC 68/09  2009  J NO. 6

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION

BETWEEN: -

IBRAHIM JANNEH

11 CHARLOTTE STREET

FREETOWN                                       - PLAINTIFF/RESPONDENT

AND

UTAIR(SL) LIMITED

RUFATKASUMOV

WFP HELIPAD

FREETOWN                                        - DEFENDANT

YADA HASHJM WILLIAMS

WITH HIM OSMAN JALLOH           - For the Plaintiff/Respondent

FRANCIS BEN KAIFALA                 - For the Defendant /Applicant

RULING DELIVERED THIS 28th DAY OF April 2009 Bv JUSTICE D. B. EDWARDS J.

1. By Notice of Motion dated the 11TH day of March 2009 made under action intituled CC68/09 J NO6 , the Applicant herein, the defendant in the action Applied to this Honourable Court for an order setting aside the writ of summons dated 20th February 2009 on the grounds that the statement of claim and/or particulars of claim therein do not sufficiently disclose or establish a cause of action; any other or further orders that this Honourable Court may deem fit and just and Costs.

2. The application was supported by affidavit of Francis Ben Kaifala sworn to on the 11th day of March 2009. Exhibited to this affidavit was just one exhibit Hxhibit FBKl which is the writ of summons dated 20th February 2009.

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DEFENDANT /APPLICANT'S SUBMISSION

3. Relying on paragraphs 3, A, 5 and 6 of the particulars of claim the defendant /applicant s solicitor submitted that the particulars of claim as contained in exhibit fBKi did not

contain averments or claims which support what is prayed for in so far as there is nothing which the defendant ought to traverse nor anything which brings out that the defendant applicant had breached any contract whatsoever. He submitted further that to establish a cause of action on a contract, the plaintiff must first establish that there is a contract which they have done but fell short of the requirement in that they failed to show that a condition precedent is operational. In this case the plaintiff was obligated to show from the particulars of claim that the company was indeed formed; further that the company is operating, and after this, thai the company is making profits and thereafter was receiving Net profits upon which the plaintiff is claiming that he has not been paid. The defendant/ Applicant's solicitor submitted that the above constituted 4 or 5 condition precedents which ought to be pleaded in order to support a claim of the nature put up by the plaintiff He submitted in conclusion that the requirement for a cause of action to be shown before an action or claim can be maintained is of great significance as it is what the opposing party is supposed to traverse . He referred the court to Halsbury's Laws of England 3" Edition Vol 1 part 2 under the rubric "Cause of Action" under the sub rubric "Meaning of The Cause Of Action". The application was made pursuant to Order 21 rule 17(1) (a) of the High Court Rules 2007.

KEPLY BY PLAINTIFF/RESPONDENT'S SOLICITOR

4. In reply to the defendants submission the plaintiff/respondent's solicitor referred the court to OSBORNE 'S CONCISE LAW DICTIONARY 8TH EDITION where a cause of action is defined as I"facts or combination of facts which give rise to

an action". He submitted that noting the plaintiffs statement of claim there was no basis in law for the above application. He then went on to elaborate on this. He submitted that the writ of summons exhibit FBK1 sufficiently disclosed a cause of action against the defendant; this so because the plaintiff had pleaded a contract as evinced by an

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agreement dated the 23rd of February 2007.Thcre was an offer and an acceptance plus consideration ail of which were amply pleaded in the said writ of summons exhibit FBK1. These he submitted constituted overwhelming facts which the defendant must and should traverse. He submitted that if the defendant's solicitor was not satisfied with the extent of the particulars pleaded the appropriate line of action was for him to have asked for further, and better particulars. He referred the court to the case of BRITISH AIRWAYS PENSION TRUSTEES LIMITED VS SIR ROBERT MCALPII1NE AND SONS LTD (1994) unreported and to the case of DRUMOND JACKSON VS BRITISH MEDICAL ASSOCIATION AND OTHERS (1971) ALL ER 1094 PAGE 1101.

5. Referring to Order 21 rule 7 (1) of the High Court Rules C1 NO 8 of 2007, he argued that it is not the law in the settling of pleadings to plead evidence but rather to plead the bear facts which are relevant to your case and this is what the plaintiffs counsel has done. He therefore urged the court to dismiss the application with costs.

IN ANSWER

6.The defendant's solicitor in answer submitted that in determining what constitutes a cause of action each case must be treated by its own peculiar facts and circumstances and that this is amplified by the very authorities the plaintiff has submitted and that this being the case the action should be struck out.

7. Having listened carefully to the submissions by both the plaintiffs solicitor and the defendant's solicitor and noting in particular the law on the subject there could be no doubt to me that the application by the defendant's solicitor is baseless and perhaps only intended to waste this court's time. I would therefore uphold the arguments of the plaintiff's solicitor and dismiss the application with costs. Costs is awarded against the defendant assessed at Le 1,000,000.00 (One million leones ).

Hon Mr. Desmond Babatunde Edwards J.

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