C.C. 1222/04      2004    T No. 29

IN THE HIGH COURT OF SIERRA LEONE

BETWEEN: JONATHAN TEMPLE   - PLAINTIFF

ALPHA BADAMASI THOMAS        -  DEFENDANT

JUDGMENT

introduction

This is an Action brought by the Plaintiff, through his Solicitors, Jenkins-Johnston & Co, by way of a Specially Indorsed Writ of Summons issued on 21 December,2004. In the Writ, the Plaintiff claims, inter alia, payment by the Defendant of the sum of Le6,500,000/00 being the full cost of 1 complete man-diesel engine, interest on the said sum, further or other relief, and the costs of the action. The claim is not based on a breach of contract, but rather on failure to pay for goods supplied on credit. The Plaintiff also claims that he "has suffered much inconvenience and embarrassment and has lost the monies which should have been paid by the Defendant." Perhaps, what the Plaintiff means here, is that he has lost the "benefit of the use' of the sum of Le6,500,000/00, the Defendant having failed to make payment when the same fell due.

PRELIMINARIES

The Defendant entered appearance on 17th January,2005 and gave Notice of Appearance to Plaintiff's Solicitors on the same date. On 7 February,2005, the Defendant filed his Defence. In it, the Defendant denies that the full purchase price was agreed at Le6,500,0000/00: he says the agreed price was Le2,500,000/00, and that it was agreed that the same should be paid after the engine had been satisfactorily installed in Defendant's vehicle and not at the end of April,2004 as averred by the Plaintiff in his Statement of Claim. The Defendant therein, raised certain other issues relating to Mr Cole of Rokel Commercial Bank Limited, but since he was not called as a witness at the trial, they bear little relevance to the final outcome of the litigation.

On 8 February,2005 the Plaintiff joined issue with the Defendant in his Reply, and Entered the Action for Trial, and gave Notice of doing so to the Defendant.

The matter appears to have come up in its turn in the civil cause list, because, without an Order for speedy trial under the old Rules, on the first day of the Michaelmas Session, 16 September,2005, the matter was mentioned before the Honourable the Chief Justice who presided over the call over of civil cases. He assigned the hearing of the action to Taylor,J and adjourned the trial to 7 October,2005. It appears, however, that the first hearing actually took place on 31st October,2005 before Taylor, J. However, no proceedings were taken that day.

TRIAL

The trial commenced eventually on 10 March,2006, with the Plaintiff taking the witness stand as PW1.There was an opening skirmish, during which, the Defendant attempted to derail the proceedings, by submitting that the Plaintiff, in describing the Defendant, in the opening stages of his evidence as a "Russian Ambassador," had thereby admitted that the Defendant was protected by some form of diplomatic immunity. The contention was rightly, in my view, rejected by Taylor,J in a Ruling delivered on 4 April,2006.

The Plaintiff resumed his testimony on 11 May,2006. He said the Defendant agreed to purchase the engine for the price of Le6,500,000, the same to be paid at the end of April,2004. He said the engine was in 'full working order' when sold, and that the Defendant was using the same for commercial purpose, though he did not give first hand evidence of this activity. During cross-examination, the witness denied being offered payment of the full purchase price; he denied the receipt of a letter dated 2 August,2004 from the Defendant's Solicitors, though he later admitted that he was informed by his Solicitors that such a letter had been sent by Defendant's Solicitors and that an offer had been made by the Defendant to pay him Le2.5m; he denied knowing a Mr Cole of Rokel Commercial Bank Limited.

Under Re-Examination he said that he did not accept the offer of Le2.5m made by the Defendant. Since he has not substantiated his claim that he intended to use the purchase price paid by the Defendant to buy a poda poda van and a truck, very little weight attaches to the answers relating to this issue, given by him during the said re-examination. At the close of re-examination, the case was adjourned to 23 May,2005 for further hearing. There followed a flurry of adjournments, due, it appears, to the absence of the parties and/or their Counsel. Evidence was only taken again on 31 January,2007, and this was from HASSAN KARGBO, wrongly described therein as PW3 instead of PW2, as the only other witness who had testified was the Plaintiff.

Mr KARGBO said that he knew both Plaintiff and Defendant; that in April,2004 he helped the Defendant secure the man-diesel engine from the Plaintiff through the medium of the Defendant's driver. He said he installed the engine in Defendant's bus at Williams Street, Freetown and that the engine was in working order. He knew nothing about the price of the engine.

At the end of this witness's testimony, Taylor,J adjourned the hearing to 8 February,2007. She did not sit on the adjourned date, and thereafter she became indisposed. The matter was reassigned to me with effect from 20 March,2007 by the Honourable the Chief Justice. The Court did not sit on that day as I had to represent the Chief Justice at the Anti-Money Laundering Seminar being held that day at the Bank of Sierra Leone Complex, Kingtom. I adjourned the matter to 23 March,2007.

On 23 March,2007 both Mr L Jenkins-Johnston, Counsel for the Plaintiff, and Mr James Forna Sesay, Counsel for the Defendant appeared before me. As it was a part-heard matter, I enquired of their respective intentions. They both agreed that the hearing continue before me. Taylor,J's handwriting is quite legible and I would have no difficulty in reading the same. They agreed to file their respective written consents to the continuation of the trial before me.

The immediate difficulty was to secure the attendance of Hassan Kargbo, PW2, in order for him to be cross-examined by Counsel for the Defendant. He attended Court on 20 April,2007 but Counsel for the Defendant was absent without excuse or apology. As it appeared to me that the Defendant did not wish to proceed with the matter, and was intent on delaying the same, I closed the Plaintiff's case in the exercise of my inherent jurisdiction. However, I acceded to the re-opening of the Plaintiff's case on 26 April,2007 on payment of costs in the sum of Le25,000/00 by the Defendant to the Plaintiff. On that same day, Mrs Wright, Counsel for the Defendant also indicated to the Court, that the Defendant would be calling 3 witnesses, and that the witness statements of these witnesses would be filed and served in accordance with the then Rules of Court.

The witness, MR KARGBO, did not turn up on two subsequent occasions, and I had no alternative but to close Plaintiff's case again on 31 May,2007 due to the absence of Counsel for the Defendant. Defence Counsel's absence, and non-compliance with the Order of 26 April,2007 led to a series of adjournments which are fully minuted in the Court file. The trial only took off again on 11 October,2007 with the Defendant testifying on his own behalf. The pith and substance of his evidence is that he met with the Plaintiff in his office in April,2004; that after some negotiation, the Plaintiff accepted the purchase price of Le2.5m; that he the Defendant said to the Plaintiff that he would pay him this amount when the vehicle into which the engine was to be installed, was up and running; that up to 19 April,2004 when he had cause to travel out of the jurisdiction, the vehicle was still not in running order; that he told the Plaintiff that during his absence, Mr Victor Cole of Rokel Commercial Bank Limited would be acting on his behalf; that on his return to Freetown in May,2004 the vehicle was still not in working order, but that he decided to pay Plaintiff what he claimed to be the agreed purchase price of Le2.5m; that he called the Plaintiff on the phone, and asked him to collect his money; that the Plaintiff did not turn up; and finally, that he received a letter from the Plaintiff's Solicitors; and this was subsequently followed up by a Writ of Summons.

Under cross-examination by Mr L Jenkins-Johnston, the Plaintiff tendered in evidence as Exhibit A, the letter dated 12 July,2004 from plaintiff's Solicitors to him; he denied that the agreed purchase price for the engine was Le6,500,000/00 and insisted that it was Le2.5m.

He called a witness, the driver SAMUEL GRIFFITHS as DW2. This witness confirmed the Defendant's evidence in respect of the agreed purchase price; the problems with the vehicle - he said it broke down frequently because of engine trouble; and as to Defendant's evidence that he requested Plaintiff to collect the purchase price from him. There was some dispute as to whether he did see Mr Cole of Rokel Commercial Bank Limited; and as such, his witness statement filed on 24 July,2007 was tendered in evidence as Exhibit B. He was the last witness. Defendant closed his case.

At this stage, it seemed to me that the; real issue in dispute was the agreed purchase price, and not whether the vehicle into which the engine was installed was in good working order, or not. At no time did the Defendant suggest that the quantum of the purchase price, as against the time at which it was to be paid, was dependent on whether the engine was in good working order or otherwise. I thus invited Counsel to explore the possibility of ascertaining the average price of the same type of engine in 2004 so as to enable the Court to come to a just conclusion as to who was right as far as the purchase price of the engine was concerned. Neither Counsel could come up with the requisite information on the adjourned date. I then intimated them that the rights or wrongs of the parties seemed to me to depend on the view one would take of the meeting in the Defendant's office, and whether, if as Defendant claimed, Plaintiff had agreed to payment of the sum of Le2.5m, he would later refuse to accept the same when proffered by the Defendant. Though there is some evidence, which I accept, that the engine may have had some problems, there is no evidence before me that payment of the full purchase price (and not the time of payment of the same) was dependent on whether the engine had problems or otherwise. In this respect, Counsel waived their right to address the Court.

FINDINGS

In the premises, the sole issue before the Court, seems to be, who is speaking the truth about what transpired in the Defendant's office. Both parties appear forthright to me; but both of them cannot be right. Defendant's version of what was the agreed price is supported by DW2 who it appears, according to the evidence of the Defendant, was in the employ of Defendant's brother as a driver. The likelihood of bias should not therefore be ruled out altogether when one assesses his evidence. What seems unlikely to the Court in the light of all the evidence, is that the Plaintiff would refuse receipt of the purchase price he had agreed to. I would have been tempted to accept such behaviour as plausible had the Defendant said, for instance, that he told the Plaintiff, he would only be paying the reduced sum of Le2.5m because the engine was faulty. But, as I have repeatedly set out above, the Defendant made it clear in his evidence, that the quantum of the payment was never dependent on the mechanical condition

of the engine. He was buying in a market overt, and it seems to me, he was prepared to take on all the risks involved in such a transaction.

In the premises, I have come to the conclusion that the Plaintiff has proved his case on a balance of probabilities and I therefore find for him. No evidence has been led by the Plaintiff as to the rate of interest to be awarded, and in this respect, I would prefer to err on the side of caution. I am also prepared to give some allowance for the time the Defendant was out of the jurisdiction, and therefore hold that interest could only begin to accrue as of June,2004.

ORDERS

I ORDER as follows:

1.   The Defendant shall pay to the Plaintiff the sum of Le6,500,000/00 being the full purchase price of 1 man-diesel truck engine.

2.  He shall pay interest on the said sum at the rate of 22% per annum with effect from 1st June,2004 until 28th November,2007 and thereafter at the statutory rate until payment.

3.  The Defendant shall pay the costs of the action, such costs assessed by the Court, after taking into account, the quantum of the claim, the amount of work done by Plaintiff's Solicitors and Counsel, at Le2,000,000/00

N. C. BROWNE-MARKE

Justice of Appeal

28th November,2007