IN THE HIGH COURT OF SIERRA LEONE

COMMERCIAL AND ADMIRALTY DIVISION

FAST TRACK COMMERCIAL COURT

THE MATTER BETWEEN:

ROKEL COMMERCIAL BANK (SL) LTD               -PLAINTIFF

AND    

JAMES BULL                                           -DEFENDANT

REPRESENTATION

I. P. MAMIE Esq.             -Counsel for the Plaintiff

JAMES BULL             -Defendant-IN-PERSON

  BEFORE THE HON. MR. JUSTICE SENGU M. KOROMA J.

RULING DELIVERED ON THE 13TH OCTOBER, 2015

This is an application on behalf of the Defendant/Applicant dated the 29th day of June, 2015 for the following Orders:

1. That leave be granted to the Defendant/Applicant to be appeal against the Order of the Hon. Mrs. Justice A. Showers J. A dated the 9th June, 2015 to the Court of Appeal.
2. That the Order of the Honourable Justice A. Showers J. A dated the 9th June, 2015 be stayed pending the proposal appeal to the Court of Appeal.
3. That any other Orders as to this Court may deem fit and just.
4. That the costs of this application be costs in the cause.

The application is supported by the Affidavit of James Bull sworn to on the 29th June, 2015 together with the exhibits attached thereto and filed herewith.

The Plaintiff/Respondent filed an Affidavit in opposition and the Defendant/Applicant also filed an Affidavit in reply.

In his Affidavit, the deponent admitted that the Plaintiff bank had been granting overdraft facilities to the Luma Microfinance Trust Limited (LMTL) since its inception in 2008. However, because of the high rate of interest, the Brand of LMTL decided to negotiate with the Plaintiff for the conversion of the overdraft to a loan. This was approved on the 28th March, 2010.  In the said Affidavit, the Plaintiff/Applicant made the following allegations:-

1. That the Plaintiff bank granted him the said loan without checking the adequacy of the collateral.
2. That the Plaintiff bank approved several withdrawals from the LMFTL accounts without the approval of its board and that of the Defendant. This also applied to overdraft facilities.
3. That if the learned Judge had allowed the Defendant to cross-examine the Plaintiff’s officials and produced pertinent documents instead of trying the matter behind “closed doors” Plaintiff’s word against the Defendant’s, things should have gone the other way.

I have here quoted the Deponent verbartim to show that such an allegation is misconceived, distasteful and an abuse of the right to fair trial. The proceedings, whose conclusion the Defendant wants to appeal against took place at the height of the Ebola epidemic when most Court settings took place in the Chambers of Judges. How could the Defendant have the effrontery to suggest that such a hearing was held in chambers with the view to depriving him of his rights? Had the Plaintiff not appeared in person with all the usual shortcomings in such situation, there would have been dire consequences.

1. That though the Plaintiff bank had amalgamated LMFTL facilities in to a loan of Le 336,008,483.00, it failed to approve an additional loan request of Le 300M which would have kept LMFTL in business.
2. That the Plaintiff bank failed to revalue at Le80M after the amalgamation of the loan.
3. That the Plaintiff bank unilaterally imposed interests, charges, commissions on the said accounts without any express or implied agreement with the Defendant.
4. That he verily believe that the proposed grounds of appeal raise serious questions of law and that the same have a real prospect of success at the trial.
5. That the trial Judge should have considered his counter-claim which he included in his Affidavit in opposition.

The Plaintiff in his Affidavit in opposition sworn to by Daniel Moseray, credit officer of the Plaintiff bank averred as follows, among others,

1. That the loan of Le 200,000,000 was granted to LMFTL in May, 2010. On that same day the Defendant, Mr. James Bull sent a written undertaking to the Plaintiff bank. The said undertaking gave the Plaintiff bank the authority to create a legal change over the said security provided by the Defendant.
2. That the decision to use the Defendant’s property as security was reached at a meeting of the Board of LMFTL on the 20th March, 2010(Exhibit DM8 attached to the Affidavit in opposition). The Defendant tendered his conveyance to the Plaintiff bank on the 28th May, 2010 with the words “I hereby tender convey my property situated at Juba Hill Station Freetown…to secure banking facilities in the name of LMFTL.
3. A Mortgage Deed was executed between the parties on the 19th March, 2012.
4. That the Defendant did not at any time apply to the Court to cross-examine the Deponent on their respective Affidavits.
5. That the Plaintiff bank followed due process in granting the loan.
6. That the bank before pursuing the matter in Court had as a result of the contents of the letter of the bank dated 16th January, 2012 requested documentary evidence that LMFTL was still doing business with CORDAID. It will be recalled that the Defendant had by his averments disclosed that LMFTL had approved from CORDAID for the release of funds to it in the tune of USD$250,000.00.
7. That the Plaintiff as a financial institution need to get its customers to repay their loans otherwise the said institutions will fail.
8. That the Plaintiff bank was in no position to grant further loan to the Defendant as they had clearly manifested that they were in no  position to repay the existing loan.

The Affidavit in reply tended to rebut all the issues in opposition. He cited a series of procedural irregularities in the Plaintiff bank’s loan overdraft policies. He particular questioned the interest computation policy of the bank. At the end of his submission in respect of the Affidavit in reply, the Plaintiff stated that they were not denying their liability but only challenging the quantum interest charged.

      It should be noted at this stage that the Defendant/Applicant argued this application in person though he was some stage in the trial represented by Counsel. No authorities were cited in support of his application though this should not be a disadvantage to him.

      The issue here is whether the proposed grounds of appeal constitute good grounds of appeal which have the likelihood of succeeding in the Court of appeal, and would therefore merit a stay of execution of the Judgment of this Court. To my mind, it will not be allowable for the Defendant to appeal against the principal sum awarded to the Plaintiff on the simple ground that this was money received and utilized by the Defendant. No evidence has been adduced to prove that all overdrafts granted to the Defendant were utilized by the officers of the LMFTL without authority of the Board. There is no question therefore that the LMFTL is liable to repay the principal sum. There is therefore no prospect of the appeal succeeding on this point. Provided however that there is an action against.

      As regards the interest element, the Plaintiff ban in its letter to the LMFTL dated 5th March, 2012 marked Exhibit HK4, agreed to amalgamate the outstanding balances in the convert loan and loan accounts into an ordinary loan of Le 352,010,321.30.  The terms on which the loan facility was granted are as follows:-

1. The loan facility remains repayable on demand by the bank.
2. The loan has been marked for 24 months expiring 28th February, 2014.
3. Interest on the ordinary loan will be charged to the business current account at  2 percent below the bank’s prime  lending rate which is currently 24 percent per annum(i.e. 22%) for the time being  and will be debited in arrears to the account on the bank’s normal  charging dates. Changes in the prime rate will be advertised in the print and on electronic media.

 The Board of LMFTL had indeed made the request for the amalgamation of their existing obligations to the Plaintiff bank by a letter dated 16th January, 2012. They had even suggested an interest rate of 15 to 20 percent. On this aspect again, the Defendant has not disclosed any negotiations ground of appeal.  I will again point out provided there is a Judgment against LMFTL.

            The Defendant has applied for a stay of execution of the Judgment of this Court dated the 9th June, 2015. As N, C. Browne-Marke J. A (as he then was) puts in ABERDEEN BEACH RENDEVOUS AND ALEX HEROE, CHRISTIAN DAVIES AND ACCESS BANK, CIV.APP.6/2012 “the principle in which a stay of execution of judgment could be granted is too well known to warrant the citation of cases: It is, that the Applicant must show special circumstances why the successful litigant in the Court below, should be deprived of the fruits of his or her Judgment.” This principle had earlier been applied by the Court of Appeal in AFRICANA TOKEY VILLAGE-V-JOHN OBEY DEVELOPMENT COMPANY LTD, Misc. APP.2/94 and cited in the case of JOHN MICHAEL –V- ADNAN ABESS Misc. APP.7/96 to the effect that “the Court has an absolute discretion as to the granting or refusing a stay and as to the terms on which it will grant it, and will as a rule, only grant it if there are special circumstances.” In particular, Gelaga-King JA stated as follows “it is for the applicant to bring before the Court those facts on which he relies as constituting special circumstances. Of course, each case will depend on it merits… it is for this Court to determine what circumstances are special.”

            The Defendant’s Affidavit has not disclosed any special circumstances. His allegations of not been informed about interest rates as related matters have been proved to be incorrect as per Exhibit HK3 and 4 (letters signed by members of the Board of LMFTL applying for an amalgamation of the facilities and the letter from the bank granting the application). The Plaintiff   had an opportunity to renegotiate the interest element once he had been served with exhibit HK4 but failed to do so.

     As regards the mortgaged property, Mr. James Bull had by an undertaking made on the 28th May, 2010 tendered his property situate at Juba Hill Freetown to secure banking facilities in the name of LMFTL by creating a legal change thereon. He also signed an undated guarantor form. I must comment that the bank behaves recklessly but leaving such an important document unsigned. This incompetence would have been fatal to their case had there not been other documents in support of the existence of a guarantee. It is therefore clear that Mr. James Bull is the Guarantor of the loan to LMFTL. This guaranteed can only be enforced if there is a successful action against LMFTL (the Debtor) herein.

            There is an important point in this matter which has not been canvassed by the Defendant, understandably so since he is appearing in person. This question is whether the Defendant is the proper person to be sued in this matter. The loan was given to LMFTL which the Plaintiff in its Affidavit in support of the Originating Summons refers to as a limited liability company and the “Defendant” as its chairman. Mr. James Bull the second chairman guaranteed the loan in his personal capacity and not as James Bull (Trading as LMFTL). In fact, there is no evidence that an entity known as James Bull (Trading as LMFTL) exists. There was an NGO known as LMFT which was later incorporated into a company. It was established in the well-known case of SALOMON-V-SALOMON & Co LTD (1897) AC 22 H.L that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities separate to itself. In the words of Lord Herschell “the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what these rights are”.  I adopt these arguments to the extent that from available evidence, there is no loan relationship between the Plaintiff ban and James Bull (Trading as Luma Micro Finance) and therefore the Plaintiff bank lacks any legal basis for commencing this action against the Defendant. In arriving at this conclusion, I am mindful of Order 18 Rule 6 sub rule 1 of the high Court Rules, 2007 which provides that “no cause or matter shall be defeated by reason of the misjoinder or non-joinder any party and the Court may is any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the person who are parties to the cause or matter.” However, taking into account the circumstances of the instant case and upon a proper construction of the said provision, I have come to the conclusion that thus provision could not be of any assistance to the Plaintiff. From the Originating Summons, no action has been instituted against the LMFTC (the debtor) and James Bull (the Guarantor) but against a non-existence entity James Bull (Trading as LMFT). There is therefore one Defendant and no attempt at substitution was made by the Plaintiff right through the proceedings. Any attempt at enforcing the Judgment against LMFTC or James Bull will be illegal as no Judgment has been given against them. These principles were applied albeit in relation to a wrong Plaintiff in the Supreme Court case of ERIC JAMES (Trading as James International)   and Seaboard West Africa CIV. APP. 1/2001. For the reason given above, this Court with great reluctance orders as follows:-

1. That the Order of this Honourable Court dated on the 9th June, 2015 is hereby stayed pending the hearing and determination of the Appeal.
2. That leave is granted to the Defendant/Applicant to appeal to the Court of Appeal against the Judgment of this Honourable Court dated the 9th day June, 2105.
3. That the Defendant shall file a notice of appeal within 10 days from the date of this Order.
4. That costs of this application shall be costs in the cause.

…………………………………….

Hon. Justice Sengu M. Koroma J.