Counsel for Defendant: 

Druscille Taylor

Counsel for Plaintiff: 

Gibril K Tholley

Cc. 11/2016        W. No.2

IN THE HIGH COURT OF SIERRA LEONE

(GENERAL CIVIL JURISDICTION)

ERNEST ABIOSEH WRIGHT                            -                                  PLAINTIFS/RESPONDENTS

YULE TITY WRIGHT

                                                            AND

MOHSEN MOUNIF TARRAFF                         -                                   DEFENDANT/APPLICANT

 

PRESIDING;

            THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA

Counsel;

Gibril K.Tholley Esq for the /Applicant

DruscilE. Taylor Esq of BMT Law Chambers for the Respondent

 

RULING dated 2nd March 2016

 

1.            The Applicant has approached the court for the following order:

(2)”……strike out the Statement of Claim and the Particulars of claim endorsed on the writ of summons in the action on the grounds that they are:

1. Scandalous frivolous and vexatious pursuant to Order 21 R 17(1)(b) of the High Court Rules 2007
2.  an abuse of the process of this Honourable Court

in the alternative the applicant seeks that specific portions of the writ of Summons be stuck off for the same reason to wit: paragraphs 2 and 4 of the Statement of claim.

2.         In a nutshell this action is between a tenant and his landlord. The tenant is claiming against the landlord for as it turns out the landlord was himself but a tenant and the tenant but a sub tenant. The head landlord repossessed the premises. . In an undertaking made prior to the action (Exhibit C) the applicant had promised to make refund of the “rent received from ….”the respondent. It would appear that he failed to do so attempting to submit a postdated cheque in satisfaction (which cheque was to mature outside the period of the undertaking.)

3.         The sub tenant properly so called now wants to recover from his landlord (the applicant) inter alia balance of rent he had paid and loss of earnings. The applicant contends these claims in the face of the undertaking are “scandalous, frivolous and vexatious”

4.         The court does have power to strike out pleadings if they are scandalous and frivolous and vexatious but are the present pleadings such. ‘Scandalous’ suggests “outrageousness” but that does not in itself will warrant the matter complained about to be struck off. Where the outrageous events or facts are themselves the matter to be tried, where they are the subject matter of the action or relevant to the trial then they cannot be struck off for being scandalous. (see Millington v. Loring 1881 6BD)

5.         Pleadings which are found to be both outrageous and unnecessary are more likely to be struck of for being “scandalous”. In such cases an argument can be successfully sustained that the pleading in question was only included in the court papers for the purpose of embarrassing the other side.

6.         The expression "Frivolous and vexatious" carry the ordinary meaning of the words.   According to the Oxford English dictionary "frivolous" connotes "not having any serious value" something which should not be given much or any attention. The same dictionary has "vexatious" as connoting "an annoyance"...to make angry or annoyed.

7.         A matter or pleading which is "frivolous and vexatious" will have no value whatsoever. It has no substance worthy of the courts’ attention. It only evokes anger and annoyance in the parties (and even in the court). Lindley LJ opined in AG of Duchy of Lancaster v. L & N W Ry 1892 3Ch pg 274 that such actions are "obviously unsustainable”. An example of such a matter would be where on the face of the pleadings its is glaringly clear that the party who has been brought could not have the liability alleged as he  was not at all in any remote way involved in the transactions pleaded.

8.         The facts pleaded in this case can support the statement of claim advanced including paragraph 2 and 4 of the statement of claim. Loss of earnings is not unrelated to the incidence of the loss of business premises. The questions of whether such loss was foreseeable and to what quantum are matters for the trial. Suffice it to say that loss of earnings is not an outrageous claim in the circumstances.

9.         The argument that because loss of earnings was not in the undertaking and it must therefore be scandalous and vexatious; an afterthought added to embarrass at trial has not found its mark with the court.  It is not uncommon for a person to accept a lesser amount than that due at a particular time but failing payment at that time to insist on the full amount at a later date. This seems to have been the case in this situation and therefore this variance or shift in the claim cannot at all make the claim scandalous and or frivolous and vexatious.

10.       My comments on loss of earnings will apply to the utility bills claimed as well.

11.       Counsel for the applicant also argues that the applicant has acted with candor. Knowing that he would not be able to meet the undertaking time line he proffered a post dated cheque which specified a date on which he could meet his obligation. This is a generous view and may well be correct but a less favorable one is seen by the other party who now has a broken promise replaced with nothing but a new promise from the man who broke the first one. The respondents cannot be blamed for entertaining doubts and refusing to accept the new promise. An action founded in the shadow of such a broken promise and the resultant mistrust cannot in my view be deemed a scandalous , frivolous and or vexatious action.

12.       I find that the action brought is sustainable and that paragraphs 2 and 4 in particular flow not only from the full context and circumstances of the case but are clearly claims supported by the pleadings generally and specifically.

13.       In the circumstances I cannot grant the orders prayed for or any of them.

I also order that the Applicant bears the cost of this application assessed by the court in the sum of ....................................... agreed by the parties

 

 

 

………………………………………………………. The Hon. Mr. Justice Reginald Sydney Fynn JA

 

 

 

Cc. 11/2016        W. No.2

IN THE HIGH COURT OF SIERRA LEONE

(GENERAL CIVIL JURISDICTION)

ERNEST ABIOSEH WRIGHT                            -                                  PLAINTIFS/RESPONDENTS

YULE TITY WRIGHT

                                                            AND

MOHSEN MOUNIF TARRAFF                         -                                   DEFENDANT/APPLICANT

 

PRESIDING;

            THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA

Counsel;

Gibril K.Tholley Esq for the /Applicant

DruscilE. Taylor Esq of BMT Law Chambers for the Respondent

 

RULING dated 2nd March 2016

 

1.            The Applicant has approached the court for the following order:

(2)”……strike out the Statement of Claim and the Particulars of claim endorsed on the writ of summons in the action on the grounds that they are:

1. Scandalous frivolous and vexatious pursuant to Order 21 R 17(1)(b) of the High Court Rules 2007
2.  an abuse of the process of this Honourable Court

in the alternative the applicant seeks that specific portions of the writ of Summons be stuck off for the same reason to wit: paragraphs 2 and 4 of the Statement of claim.

2.         In a nutshell this action is between a tenant and his landlord. The tenant is claiming against the landlord for as it turns out the landlord was himself but a tenant and the tenant but a sub tenant. The head landlord repossessed the premises. . In an undertaking made prior to the action (Exhibit C) the applicant had promised to make refund of the “rent received from ….”the respondent. It would appear that he failed to do so attempting to submit a postdated cheque in satisfaction (which cheque was to mature outside the period of the undertaking.)

3.         The sub tenant properly so called now wants to recover from his landlord (the applicant) inter alia balance of rent he had paid and loss of earnings. The applicant contends these claims in the face of the undertaking are “scandalous, frivolous and vexatious”

4.         The court does have power to strike out pleadings if they are scandalous and frivolous and vexatious but are the present pleadings such. ‘Scandalous’ suggests “outrageousness” but that does not in itself will warrant the matter complained about to be struck off. Where the outrageous events or facts are themselves the matter to be tried, where they are the subject matter of the action or relevant to the trial then they cannot be struck off for being scandalous. (see Millington v. Loring 1881 6BD)

5.         Pleadings which are found to be both outrageous and unnecessary are more likely to be struck of for being “scandalous”. In such cases an argument can be successfully sustained that the pleading in question was only included in the court papers for the purpose of embarrassing the other side.

6.         The expression "Frivolous and vexatious" carry the ordinary meaning of the words.   According to the Oxford English dictionary "frivolous" connotes "not having any serious value" something which should not be given much or any attention. The same dictionary has "vexatious" as connoting "an annoyance"...to make angry or annoyed.

7.         A matter or pleading which is "frivolous and vexatious" will have no value whatsoever. It has no substance worthy of the courts’ attention. It only evokes anger and annoyance in the parties (and even in the court). Lindley LJ opined in AG of Duchy of Lancaster v. L & N W Ry 1892 3Ch pg 274 that such actions are "obviously unsustainable”. An example of such a matter would be where on the face of the pleadings its is glaringly clear that the party who has been brought could not have the liability alleged as he  was not at all in any remote way involved in the transactions pleaded.

8.         The facts pleaded in this case can support the statement of claim advanced including paragraph 2 and 4 of the statement of claim. Loss of earnings is not unrelated to the incidence of the loss of business premises. The questions of whether such loss was foreseeable and to what quantum are matters for the trial. Suffice it to say that loss of earnings is not an outrageous claim in the circumstances.

9.         The argument that because loss of earnings was not in the undertaking and it must therefore be scandalous and vexatious; an afterthought added to embarrass at trial has not found its mark with the court.  It is not uncommon for a person to accept a lesser amount than that due at a particular time but failing payment at that time to insist on the full amount at a later date. This seems to have been the case in this situation and therefore this variance or shift in the claim cannot at all make the claim scandalous and or frivolous and vexatious.

10.       My comments on loss of earnings will apply to the utility bills claimed as well.

11.       Counsel for the applicant also argues that the applicant has acted with candor. Knowing that he would not be able to meet the undertaking time line he proffered a post dated cheque which specified a date on which he could meet his obligation. This is a generous view and may well be correct but a less favorable one is seen by the other party who now has a broken promise replaced with nothing but a new promise from the man who broke the first one. The respondents cannot be blamed for entertaining doubts and refusing to accept the new promise. An action founded in the shadow of such a broken promise and the resultant mistrust cannot in my view be deemed a scandalous , frivolous and or vexatious action.

12.       I find that the action brought is sustainable and that paragraphs 2 and 4 in particular flow not only from the full context and circumstances of the case but are clearly claims supported by the pleadings generally and specifically.

13.       In the circumstances I cannot grant the orders prayed for or any of them.

 also order that the Applicant bears the cost of this application assessed by the court in the sum of ....................................... agreed by the parties

 

 

 

………………………………………………………. The Hon. Mr. Justice Reginald Sydney Fynn JA