CC978/06    2006    C      NO. 63

IN THE HIGH COURT OF SIERRA LEONE Mariama Conteh         -  PLAINTIFF/ APPLICANT

VS.

The Owners and / or Persons

Interested in the vessels

F/V Nangbeto, F/VAmou, F/VAmoulome,

F/V Kawa and F/V Frosty                                                                    -  DEFENDANTS/ REPONDENTS

SERRY-KAMAL &CO For The Plaintiff / Applicant

MUSTAPHA S TURAY For the Defendants/ Respondents

RULING DELIVERED THIS 22nd DAY OF MARCH 2007.

D. B. EDWARDS J .This is an application by Notice of motion dated 24th day of January 2007 for an order that order 2 of the Order of the Hon Mr. Justice D. B. Edwards dated the 15th of January 2007 be varied to read:

"that the undertaking be substituted by the payment of the sum of US$324,000 into an account in a Commercial Bank in Sierra Leone within 14 days of this Order and that alternatively, that the said undertaking be substituted by the provision of a Bank Guarantee in the sum of US$324,000.00 with a Commercial Bank in Sierra Leone within 14days of this Order.

The application was supported by the Affidavit of Abdul Franklyn Serry Kamal sworn to on the 24th day of January 2007 together with the exhibits referred thereto, to wit, exhibits AFSK 1 and AFSK 2 which are the Court's Order and the Undertaken in Lieu of bail dated 15th and 19th January 2007 respectively.

The main contention of the plaintiff are as contained in paragraphs 3-6 of the Affidavit in support of application sworn to on the 24th of January 2007 and are as follows viz;

1. That on Tuesday 23rd January 2007 the plaintiff's Solicitor was served with what purports to be an Undertaken in Lieu of Bail but that he was never consulted by the defendants to settle this undertaken.

2. That the undertaken was signed by one Adamtious Kanakousakis who is a Greek national and representative of the Ship owners having no assets in Sierra Leone; and that in the eventuality that this Greek national leaves the jurisdiction the undertaken filed would become useless if the plaintiff were to obtain judgment in her favour.

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3. That his clients claim including general damages for breach of contract will be in the region of US$324,000.00 plus costs.

4. That the undertaken that ought to have been submitted should be in the form of a cash deposit in a Bank Account with both solicitors for the plaintiff and defendant as signatories to that account.

The application was made under Order 24 Rule 11 of the High Court Rules 1960 and the inherent powers of the courts to vary its own orders .

The defendants opposed the said application by filing an Affidavit in Opposition sworn to on the 23rd of February 2007 to which are attached exhibits. As between the date of filing the motion on the 24th of January 2006 and the hearing of the application on the 20th of February 2007, the parties informed this court that they were negotiating with a view to settlement which however resulted in a stalemate. The motion was moved on the 20th of February 2007. The defendants in their reply on the 1st of March 2007 argued that in exercising its inherent powers to vary its own orders the court ought to look at the entire circumstances of the case and the fact that a defence and counter claim were filed . The defence also argued that the undertaken filed was in accordance with the extent of the claim as evinced by the writ of summons exhibit MST 2, in that the total extent of the claim therein was USS 126,000.00, Four hundred and ten thousand leones, excluding general damages. In the undertaken in lieu of bail however filed the extent of the claim was indicated USS 140,000.00 plus four hundred and ten thousand leones. Even if you were to include general damages, it covered the extent of the claim.

The defendants however conceded to the fact that the person who signed the undertaken was a Greek national and deposed in their affidavit in Opposition that they were ready and willing to proffer credible Sierra Leoneans to sign the undertaken in the place of Adamtious Kanakousakis. They concluded by submitting that this court must have taken the entire circumstances of this case before arriving at the said Orders granted on the 15th of January 2007 and in such circumstances, it was necessary for the plaintiff to advance fresh reasons for this court to vary its own orders.

I have listened keenly to arguments and submissions by both counsels for and against the said motion.

The application was made pursuant to Order 24 rule 11 of the High Court Rules 1960 and under the inherent powers of the Court. The full text of Order 24 rule 11 is as follows:

"11. The court or a Judge may at any time , and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings."

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This rule is ipsisima verba Order 28 rule 12 of the ENGLISH ANNUAL PRACTICE

1960 and in the notes explaining the extent of this rule, it is stated that this rule extends to "defects or errors in proceedings".

On the issue of the inherent powers of the court to vary its own orders in the case of LAWRIE VS LEES (1881) 7 APP CASE AT P19 AT 34 it was held that

"The court has an inherent power to vary its own orders so as to carry out its own meaning and to make it plain."

In the particular application before this court 3 (three) issues emerge for considerations viz.

1. The issue of the type of undertaken or guarantee given as security whether it was right for the court to give that type of security in the circumstances of the case.

2. The issue of who should sign such an undertaken if, at all, it was that which the court intended, and

3. The extent of the undertaken, whether it was to have been in the region of 324,000.00 or USS 140,000.00 plus Le 410,000.00.

On 1 supra I would rephrase it thus :Taking the law into consideration, Could it be said that there was any error in the proceedings that warranted this court varying its previous order of the 15th of January 2007? I would think not . It is indeed true that in Admiralty matters the more recognized forms of security are 1. Bail Bond, 2. Payment Into Court In lieu of Bail, 3. A Guarantee or an Undertaking given out of Court by a Bank or Insurance Company. But they are not the only forms of security and the circumstances of the case may help one in deciding that the court was right in limiting security to just a particular kind which is permissible in Admiralty proceedings and / or permissible in the circumstances .

In this particular case the security recommended in the affidavit of Abdul Franklyn Serry Kamal is not unusual but is not the one indeed contemplated in my Order of 15th January 2007. On the contrary that which was filed was that which was contemplated except that it was signed by a foreigner. This was a matter in which the facts were such that I could have ordered an unconditional release of the vessels but somehow held the balance with the undertaken in lieu of bail. That apart, I see that the defendants have a good defence and counterclaim on the merits. I therefore hold that the orders were not an error or defect but the intention of the Court in the circumstances of the case .

On the issue of who should sign the undertaken, the defendants themselves have conceded that they would have credible Sierra Leoneans to sign the undertaken and I think it would be proper for this court to vary its order of 15th January to reflect this change .

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On the last issue, it is indeed clear that the amount of the undertaken comes within the full extent of the claim . The amount of the claim as evinced by the writ of summons exhibit MST 2 is USS 126,000.00, plus four hundred and ten thousand leones excluding general damages . The defendants have filed an undertaken in lieu of bail that is to the tune of USS 140,000.00 plus Four hundred and ten thousand leones. I should think that the additional sum is inclusive of general damages plus interest and is sufficient security in the circumstances. An undertaken in lieu of bail to the tune of US $ 324,000.00 as proposed by the plaintiff is way on the high side and has never been the intention or contemplated by this court as to what would amount to sufficient security.

In the case of the MOSCHANTHY(1971) 1 Lloyd 's Report page 37 at p 44 it was stated that the arresting party is entitled to sufficient security to cover the amount of his claim with interest and costs on the basis of his reasonably arguable best case. I am not sure whether the plaintiff has a reasonably arguable case.

Against this background and against the fact that "The court has an inherent power to vary its own orders so as to carry out its own meaning and to make it plain.", I therefore vary my order of 15th January 2007 as follows .

Order 2 of the order of Justice DESMOND b EDWARDS DATED 15TH January 2007 is varied and substituted as follows;

That the vessels F/V KOZAH, F/VNANGBETO, F/VAMOU, F/VAMOULOME, F/VKAWA and F/V FROSTY now lying under arrest within the territorial waters of Sierra Leone are conditionally released on the defendants giving an undertaking in lieu of bail to the extent of the plaintiff's claim limited to the sum of USS140,200.00 and that the same be provided by credible Sierra Leoneans.

Hon Mr. Justice D B Edwards J

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