CC. App 16/2016

IN THE HIGH COURT OF SIERRA LEONE

JOHN ARTHUR YANNI                                                -                                   PLAINTIFF/APPLICANT

                        AND

ABUDOULAYE BARRIE                                                -           1ST DEFENDANT/RESPONDENT

AMINATA FULLAH                                                      -           2ND DEFENDANT/RESPONDENT

PRESIDING;

            THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA (SITTING ALONE)

Counsel;

S M Sesay Esq. for the Plaintiff/Applicant

T A T Q Harding  Esq. for the Defendants/ Respondents

1. This case was commenced by a writ of summons in which the Plaintiff prays for orders including the recovery of a Honda Civic vehicle and an assortment of goods or in the alternative the total value of them. It so transpired that the plaintiff had entrusted these goods to the 1st defendant who is engaged in the business of shipping goods, for him to ship those goods from the USA to Sierra Leone on the plaintiff's behalf. Both the plaintiff and the 1st defendant where in the USA at the time and the latter continues to be there acting in Sierra Leone through the 2nd defendant his agent.
2. It so happened that for some reason the ship carrying the goods was ordered by competent authority not to disembark the container belonging to the defendant and in which the plaintiffs vehicle and other goods were. The ship arrived safely to port in Sierra Leone but the container in which the plaintiff’s goods were was returned to the USA where it then received the green light to be reshipped to Sierra Leone. The whole case it seems to me turns on the point of who or what occasioned the return of the container to the USA before its eventual return to and disembarkation in Sierra Leone.
3. The defendants appear to believe that the inconvenience and cost they suffered due to the return of their container to the USA was caused by the plaintiff who according to them had given them a stolen vehicle to ship to Sierra Leone. On the container's eventual return to Sierra Leone the Defendants now refused to hand over the plaintiffs goods to him insisting that the Plaintiff reimburses them for the cost related to the return of the container to USA and re shipping it to Sierra Leone.
4. The plaintiff has therefore brought this action for the court to assist him get his goods or their value back from the 1st defendant and or his agent. By an interlocutory request the plaintiff has come by Notice of Motion dated 15th day of March 2016 (the same amended by Notice dated 29th April 2016) applying that the defendant be ordered to provide security for costs. The application is supported by the affidavit of Arthur Yanni dated 15th March 2016 and another dated 3rd May 2016, together these narrate the above facts of the case.
5. The plaintiff Applicant argues with great conviction that the defendant respondent resides outside the jurisdiction and has little or no assets in the jurisdiction. This the applicant argues will render any judgment against the defendant difficult if not impossible to execute thereby causing the plaintiff double loss- that occasioned by the detention of his goods and that resulting from litigation. For this reason and the fact that the defendant has indicated in his affidavit in opposition that he will be advancing a counter claim the applicant urges that it is a fitting case for the defendant to be ordered to provide security for costs.
6. The defendants/respondents oppose the application with equal conviction. They have filed an affidavit-in-opposition dated 20th April 2016 which is sworn to by one Ibrahim Turay. This affidavit recounts the facts as before except that it adds that the defendant has suffered loss due to the return of the container to the USA and which loss he proposes to counter claim from the applicant. He has exhibited his proposed defence and counter claim(Exhibit IT 7). The Counter-Claim itself is some nineteen(19) paragraphs long.
7. Security for costs is no doubt a vehicle by which the courts ensure that a plaintiff who resides abroad and who has little or no assets in the jurisdiction is made accountable for any costs his initiated litigation may cause the defendant to incur wrongfully. The opening line to the paragraph on "Security for Costs" in the Supreme Court Practice of 1999 is quite telling. It pronounces authoritatively and at the earliest opportunity that "Security for costs cannot be required from a defendant who is exercising his right to defend himself against attack, though resident out of the jurisdiction".
8. Ordinarily a defendant will not  be required to provide security for costs except he does something more than defend himself. That something more is identified in the Supreme Court Practice 1999: a defendant must have made a counter claim which sets up an entirely new action.
9. I do not see any particular need for  a construction of the 026 R 1 (3) of our High Court Rules of 2007. I find that it is reminiscent of the principles set out in the Supreme Court Practice 1999 to which I have recently referred and to which both counsel in their submissions had referred the court. I shall therefore be guided accordingly.
10. Two crucial questions come up for my consideration when faced with an application to order a defendant to provide security for costs: Has the defendant respondent set up a counter claim to the action? If Yes, it is found that in fact he has set up a counter claim the next question will be; Is that counter claim one that can be described as "....a matter wholly distinct from the claim"?[1]
11. In the instance case the defendant has not filed his defence and counter claim though he has exhibited same thereby giving the applicant and the court a clear indication as to what his intended defence and counter claim would be. Counsel for the applicant has urged the court to treat this embryonic defence and counter claim as being enough for the purposes of O 26 R 1(3) in other words, as being sufficient for the court to treat the defendant as one who has "made a counter claim" and who is in the position of a plaintiff.
12. Counsel refers to the assertions found in paragraphs 9-25 of the affidavit in opposition and urges (very persuasively) that they recount not only a defence but a counter claim. This may very well be the case but one should not lose sight of the fact that those paragraphs and the proposed defence and counter claim are at this stage nothing more than an indication of what the defendant intends to do. He could very well materially amend his indications or even wholly abandon sections of the proposed defence and counter claim so as to take himself outside of the description of a defendant who has made a counter claim. Until he actually files the defence and counter claim I am unable to find that he is a defendant who has filed a counter claim.
13. Consider in arguendo that the counterclaim as exhibited is as good as filed, I would still have to decide if it is a claim "which arises out of a different matter"."The mere making of a counter claim does not in itself without more put the defendant in the position of a plaintiff (as envisaged by O26 R1 (3)): the question is whether in the particular case the counter claim is a cross action or operates as a defence"
14.   I have read the affidavits filed in this matter and I find that the matters raised in the affidavit in opposition and in the proposed defence and counter claim offer an explanation of the same issues raised by the plaintiff but from the defendants' point of view. The following crucial questions will have to be answer at the trial and a lot will depend on how these crucial questions are answered; “What caused the container to be returned to the USA after the ship had set sail and brought it to Sierra Leone?" Who caused this? Was it the Plaintiffs fault??"
15. The parties each have their own answer to these questions and as msy be imagined each one pointing a finger at the other. I find that the defence and counter claim are the defendants' answers and explanations to the crucial questions I mentioned. The fact therefore that these explanations also include a counter claim does not automatically mean that a cross action from a different matter is being made. I am satisfied that the proposed defence and counter claim arise out of the facts in this matter and that they can properly be relied on as a set-off.
16. The court is mindful however that one of the main items and subject matter of this case; the Honda Civic Vehicle like all machinery has a tendency to depreciate and lose value if not in use or in the receipt of regular care and servicing. The need for this matter to be heard with significant dispatch is therefore not lost on the court.

 I therefore make the following orders:

1.         The application for security for costs is refused.

2.         This case will be expedited and the defendant shall file his defence and     counter claim if any no later than 5th June 2016

3.         The parties shall file their respective bundles including witness      statements, documents, list of issues in dispute, any admissions and the            parties shall make discoveries no later than 15th June 2016

4.         The parties shall be at liberty to apply for clarifications.

5.         A pre-hearing conference shall be held on 20th June 2016

6.         No order as to costs considering that the defendant now has leave to file his defence out of time.

Reginald Sydney Fynn J A.............................................................