622/2000     J. NO. 31

IN THE HIGH COURT OF SIERRA LEONE

BETWEEN: -

VICTOR CHUKUMA JOHNSON                             - PLAINTIFF

1, JOHNSON DRIVE

OFF REGENT ROAD

LUMLEY

FREETOWN

VS.

AMADU JALLOH                                                      - DEFENDANT

3, WILBERFORCE ROAD CONGO CROSS FREETOWN

BEFORE THE HONOURABLE JUSTCE S.A. ADEMOSU - JUDGE

Friday 21st September 2001- Case Called

Same Representation as before for the Parties

RULING

This is an application by way of Notice of Motion dated the 4th day of May, 2001 brought on behalf of the Defendant/Applicant for the following Orders: -

1. That the proceedings in this action be re-opened.

2. That the Defendant/Applicant be granted leave to adduce evidence in furtherance of the defence and counter claim.

3. That costs be in the cause.

4. Any other order the court may deem just.

The application is supported by the affidavit of Amdau Jalloh who the Defendant/Applicant is sworn on the 4th day of May, 2001 and filed herein wherein the following facts which are not in dispute are deposed to:

That after service of the Writ of Summons herein on him appearance was entered after which he filed a Defence and counter claim.

The salient paragraphs that can be relied upon by the Defendant/Applicant are contained in paragraphs 6 to 12 inclusive of the supporting affidavit which are in these terms:

6. That 1 was not kept informed of the development in the matter even though I regularly 'enforced' (SIC) from the Solicitor about the progress of the matters.

7. It was when I was informed by a solicitor who I had wanted to brief also to ensure that there was no hitch if one was absent, that I knew the matter had proceeding in court from what he observed once.

8. That I later enquired from the Registry in the Master's Office and learnt that the matter had been adjourned for Judgment.

9. Since my Solicitor had failed to participate in the trial and did not keep me informed I asked him to allow me brief another their (SIC) Solicitor and he agreed.

10. That I then briefed another Solicitor to ensure that I present my case to the Court.

11. That I have been informed by my present Solicitor that I have to apply to the Court to allow me present my case in the interest of justice.

12. That I am very much desirous of defending the action against me and make this affidavit in support of an application for me to be given the opportunity.

A supplemental affidavit was filed and used with the leave of the Court. It was sworn on the 8th day of June 2001 by the Applicant. It is to the effect that the deponent was never served with a notice of Hearing or any other notice pertaining to this action and that when the file was searched there was an affidavit of service exhibited as AJ6. It reads inter alia "I personally served upon Amadu Jalloh by handing it over to the Clerk of Kargbo and Company who signed for the Notice numbered C.C 622/2000 issued by the High Court in the above matter."

There is no affidavit in opposition refuting the Applicant's assertion that he was never served with a notice of Hearing or any other Notice pertaining to this action.

Mr. Valesius Thomas opposed the application. The thrust of his argument is that the Court should not exercise its discretion in favour of the applicant. He placed reliance on the case of Morris Hajjar and Another V. Malik Hamawi Misc.26/91 unreported decision of the Court of Appeal dated 14th June, 1992 in support of his position of his position that the fault of solicitor may be considered but not that the Court is bound to use that as an excuse. He also referred to the case of Gatti V. Shoosmith (1939) 3 All. E.R. 916 at 919. Where the fault of a Solicitor was taken into consideration Mr. Thomas also pressed me with the argument that the Applicant should be deemed to have had notice of the hearing in view of the averments in paragraphs 7 and 8 of the supporting affidavit.

In his own argument, Mr. Shears-Moses submitted that the applicant should not be penalized for slackness of his Solicitor. He cited the case of A.J. Thomas V. J. Val Dohertv and Another Civ. Appeal in which the case of Gatti V. Shoosmith (supra) was considered. He also relied on the case of Odey V. Idim 6 .W AC A 6.3 at page 64. I think I should point out that I have real all the cases. I observed that they all bordered on how those Courts exercised their discretion. It is trite Law that a discretion necessarily involved a latitude of individual choice according to the particular circumstance and differs from case to case or a case where the decision follows ex debito justitas. As Kay L.J. said in Jenkins V. Dushby (1891) 1 Ca 484 at page 495. "the Court cannot be bound by a previous decision, to exercise its discretion in a particular was because that would be in effect putting an end to the discretion".

I have carefully considered the points that have been urged upon me by Counsel on both sides. I hold the view that the principles upon which the Court ought to act in circumstances such as in the instant case are clearly set out in the Judgment of Thesiger L.J. in Collins V. Vesticy of Paddington (1880) 5 Q.B.D. 308 at page 381 where he said:

" I agree that until a judgment has been arrived at upon the merits, an extension of time may be allowed for rectifying a mistake or oversight. Up to that time both parties may be considered as standing upon an equal footing the question between them are still open, and it is doubtful which of their opposing contentions is correct: each party has a right to have the dispute determined upon the merits and the Courts should do everything to favour the fair trial of the questions between them. Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his advising determined upon the merits. All such cases of blunder may be remanded by payment of costs or the imposition of terms and condition".

If I accede to the submissions made by Mr. Thomas, it would mean that this Court will be saying that because the defence has blundered, they have no right to be heard and the Court can ignore their papers and proceed to judgment on the Plaintiff's version of the matter. With respect that will not be in consonant with the principles enunciated by Thesiger LJ.

I am aware that in Ojikutu V. Odeh (1954) 14 W.A.C.A. 640 where the error and neglect on the part of the Solicitor caused the lateness in filing of defence, the Court of Appeal adopted the same lenient attitude as in Collins V. Paddington Vesting Supra. In that case the defence was not put in within five days prescribed by the Rule. The defendant's Solicitor asked for time within which to file an affidavit explaining the neglect and at the same time informed the Court that the error was due to his own neglect in failing to read the rule. The Judge said "I do not consider that defendant should be given time. He has had plenty already". He therefore proceeded to enter judgment for the Plaintiff for the amount claimed and costs adding. "I would emphasize the necessity for observing strictly the provisions of the rule! The defendant appealed.

The Court of Appeal agreed to the necessity for observing strictly the provisions of the rules but came to the conclusion that the failure to do so was explained to the Court by the solicitor appearing for the Defendant and that in those circumstance the trial Judge ought to have given permission to file an affidavit explaining the neglect. The judgment was set aside.

A very important point to be considered in this ruling is the question of notification of the Defendant or his Solicitor. Mr. Shears-Moses also placed reliance on the cause of J.T. Chanrai and Company Ltd., (S.L) V. Palmer (1970-71) ARISL.391 at page 402 where the judgment of the Court of Appeal delivered by Jessel M.R. in Burgoine V. Taylor (1878) 9 CHD, 1; 38 L.T. 438 at 438-439 is set out. The said judgment is along the lines with the two cases I have cited. It is very much opposite to the facts of this case. It reads:

"We think that the order asked for by the Defendant ought to be made. Solicitors cannot any more than other men conduct their business without sometimes making slips, and where a solicitor who watches the list and happens to miss the case, consequence of which it is taken in his absence, it is in accordance with justice and with the course of practice to restore the action to the paper, on the terms of the party in default paying the costs of the day, which include costs thrown away by reason of the trial becoming abortive. As a general rule, solicitors in my branch of the Court consent to such an order as is now asked. I pause here to say that in the instant case, the Solicitor for the Plaintiff strongly opposed the application. Still continuing "and that such an application should be opposed is to me a novelty. Still as the appellant was in default, he must pay the costs of appeal".

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This is a case which comes properly under Order XXV Rule 10 of the High Court Rules which provides as follows: -

"If when a trial is called on, the Plaintiff appears and the Defendant does not appear then the Plaintiff may prove his claims, so far as the burden of proof lies upon him".

At page 397 lines 36 - 40 Livesey Luke Justice of the Supreme Court delivering the Judgment of the Court had this to say; "But on the question of notification of the Defendant or his solicitor the judgment, in my view be satisfied by evidence, either by affidavit or viva voce. A statement by Counsel for the Plaintiff that the Defendant or his solicitor has been notified is not evidence and therefore such a statement would not be sufficient to satisfy the Judge". The case of J.T. Chanrai V. Palmer is a Court of Appeal decision.

In that case the Court held that as there was no satisfactory evidence before the Court, the judge erred in Law in hearing the case and giving judgment in default of appearance. Such was the situation in the instant case, but only that this Court has not yet delivered judgment in default of the Defendant's appearance. I must confess that this Court would not have proceeded to hear the Plaintiff's case had it not acted upon the misleading and very unsatisfactory affidavit evidence of the purported service on the defendant. On the authority of J.T. Chanrai V. Palmer (Supra) which is very much binding on me, I have come to the conclusion that the question of whether or not I have discretion in this matter does not arise. The law is clear on the point. There is no running away from the fact that the Defendant was not served. (Though this explanation he has given might be conflict on the affidavit evidence. I see no reason why he should be disbelieved

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when it is clear that he was not personally served as ordered by this Court. For all the foregoing reasons, the first two orders prayed for in the Notice of Motion are granted as prayed but the Defendant shall pay costs to the Plaintiff.

Mr. Thomas:                 - I am asking for Le500,000.00c

Mr. Shears-Moses:       - I am offering Le10.0,000.00

Court:-                          Costs of this application assessed at

Le250,000.00c to be paid to the Plaintiff.

(Sgd.) S.A. Ademosu Judge 21/9/2001

JSiM/EML

CERTIFIED TRUE COPY MASTER AND REGISTRAR.