CIV.APP.20/2000

IN THE COURT OF APPEAL FOR SIERRA LEONE

ATTORNEY-GENERAL AND) MINISTER

OF JUSTICE                                                  - APPELENDS

MINISTRY OF DEFENCE

MINISTRY OF FINANCE

AND CHATELET INVESTMENT LIMITED -RESPODENT

Coram: Son.Mr.Justice E.G. Thompson-Davis              – JSC

 Eon.Mr.Justice K.3. Tolla Thompson                           - JA.

 Eon.Mrs.Justice Patricia, Kacaulay                              - J.

S.B.Berewa Esq.,Attorney General and. Minister of Justice       for Appellants.

G. Banda Thomas Zsq.,                                                            for Respondent

Judgement DELIVERED ON 10th DAY OF DECEMBER 2001

THOMPSON-DAVIS JSC:- Sometime in 1989 the appellant entered into an agreement with the Government of Sierra Leone whereby the respondent were to supply a list of military hardware including helicopter gun ship engines and spares; the usual "End Users Certificate" in favour of the Respondents was approved and signed by H.E. The President of the Republic of Sierra Leone.

It is common ground between the parties and accepted by the Court that a certain number of goods was supplied and a lardge amount in U.S.Dollars was paid. It is also common ground between them that not all the goods ordered under the agreement have arrived in this country. The Respondents are saying that the sum of 377,490 is still to be paid by the Appellants._ Now with regard to a claim in foreign currency I would say that it is is right for our Court to. give judgment for an amount, in foreign currency; a debt expressed foreign currency must be converted in leones with roference to the rate of exchange prevailing on the day when the debt was payable.

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In these circumstances the plaintiff/respondents by writ dated December 16, 1999 commenced the present action; the respondents claiming the debt and the defendant/appellants alleging that, they had paid them in full and that the plaintiffs/respondents had acknowledged in writing receipt of the said payment, and alleged in a counter-claim that the goods supplied were not in accordance with the contract and not at the time agreed on. The Learned judge found the plaintiff/respondents evidence satisfactory and reliable and proved and gave judgment for them.

Being dissatisfied with the decision the appellants have come here for a redress.

Before going further one must try to be precise about the extent of the obligation to which the parties had been subjected.

The contract was made on the 28th of September 1988 - See Exh.D on October 29, 1990 notification of the decision of the Sierra Leone Government to import into its country some military equipment and related materials was sent to the Security Council Committee U.N. New York, on November 2, 1988, this body wrote back to the Permanent Mission of Sierra Leone to the U.N. to say that it had taken note of such notification.

The contract was for the sale of specific and ascertained goods, there was nothing in it terms as to the time the property in them was to transfer to the buyers. However from the conduct of the parties and the circumstances of the case time was an important factor in its implementation even though it was not of the essence of the contract.

In the absence of any definite intention on the part of the parties as to the time at which the property in the goods was to pass to the buyers one must have recourse to the sale of Goods Act,Cap.225 Laws of Sierra Leone - S3. 19 & 20 and Rule 1 to these Rules.

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S.19 (1) reads:

"Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract wanted to be transferred".

(2) "For the purpose of ascertaining the intention of the parties regard shall be had to the term of the contract the conduct of the parties and the circumstances of the case".

8.20 reads:

"Unless a different intention appears the following are rules for ascertaining the intention of the parties at to the time at which the property in the goods is to pass to the "buyer". RULE 1 reads:

"Where terms is an unconditional contract for the saleof specific,goods, in a deliverable state, the property in the goods-passes to the buyer when the contract is made, and it is immaterial whether the time and payment or the time of delivering, or both be postponed".

The goods passed to appellants on 28th September 1998 when the contract was made, it follows then that on September 28 1998, the Government of Sierra Leone was in complete possession of all the Goods landed at the fixed point of entry into Sierra Leone, Lungi International Airport and the property in them transferred to the Government.

The question now arises whether this particular Rule which I have read applied, that is whether the property had passed. There is no suggestion by any of the parties that any time had been fixed for the purpose. Failing that, and it is a question of law and face, the time for the property to pass to the buyer is when the contract is made.

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I do not think it is desirable to quote at length the grounds of appeal by the Appellants but I intend to deal with them under various, headings.

A Exhibits A & B including the Report of a Board of Enquiry It was submitted by learned counsel for the appellants who had said everything possible on behalf of his client that those two documents were wrongfully admitted by the trial judge on the ground of conraveningj the hearsay rule. He said their admission was a flagrant extension of the hearsay rule. If this submission is sound the other complaints and challentes to the validity of the judgment do not need to be considered. Logically it merits the position of being considered first.

The contention for the wrongness and invalidity of this submission is largely counted by learned counsel for the respondents by the arguments that both documents were made by parties to the action and that they were informal admissions by the parties.

The truth of the matter is that the whole case upon these two documents (Exhs A & B) both were documents made by the 3rd and 2nd respondents respectively parties to the action, A & B were primary evidence against them, evidence which are receivable to prove the contents of the documents even without notice to produce: Vide Slatterie v Pooly, Exchange 1840.

I shall now reproduce these two documents as tendered before the learned judge.