Commercial Enterprises Ltd & Whitakers Property Ltd v. Macauley (CIV APP, 23/91) [2000] SLCA 18 (16 February 2000);

CIV APP, 23/91




AND                                                                                        -RESPONDENT


HON. MRS. JUSTICE V.A.D. WRIGHT                               JUSTICE OF APPEA

HON. MR. JUSTICE N.D. ALHADI                                   - JUSTICE OF APPEAL

HON. MR. JUSTICE S.A. ADEMOSU                                - JUSTICE OF APPEAL


BERTHAN MACAULEY ESQ.,         FOR THE RESPONDENTS,                                                               


The Appellante herein instituted an action against the Respondents in the High Court before Gbow J (as he then was).

The claim against the Respondenta is for (i) an Order for specific performance of an agreement for a Lease and they the Respondents (then defendants) be ordered to execute proper conveyance in favour of the plaintiff/appellant.

(ii) Damages for forcible Entry by the defendants on the ground floor of premises, situate at 5 Howe Street Freetown,

(iii) Damages for breach of implied term of quiet enjoyment and possoasi on of the premises situate at 5 Howe Street, Freetown.

(iv) Damages for trespass.

(v) An injunction restraining the defendants by themselves their servants and/or agents from interfering or entering the said premises until the determination of the matter.

Particulars of Claim read thus:

1.By a Letter dated 12th February, 1987, the defendants offered to lease the Basement, of the premises situate at 5 Howe Street, Freetown to the Plaintiff for a period of 4-6 years certain at a rental value of U$2000 or its equivalent in leones payable yearly and the plaintiff by a letter dated 23rd February, 1987 accepted the offer made by the defendants.

2 In pursuance of the said agreement the plaintiff paid to the defendants four years rent on the understanding that a proper conveyance of lease in favour of the plaintiff will be executed by the defendants.


3. The plaintiff has performed his own part of the said agreement but the defendants have wilfully and wrongfully refused (sic) to execute a proper lease in favour of the plaintiff,

4.On or about the 2nd day of January, 1989, the defendants forcibly entered the premises referred to in paragraph 1 of the particulars of claim without lawful authority and completely shut down the promises thus depriving the plaintiff access to the said premises which is used by the plaintiff as a shop for the sale of agricultural and other mechanical equipment.

5 In the premises, the defendants are in breach of the implied tern of quiet and peaceful enjoyment of the said premises and the plaintiff has suffered loss, damages and expenses.

Particulars of special Damageg:-

1. Loss of sale of products for a period of 2 days at Le150.000 per day Le 300,000.00

2. Lose of goodwill valued at Le650,000.

5.  Costs incurred by the plaintiff Le6,500.00 in re opening.

A Defence and Counterclaim wag filed on behalf of the 1st Respondent. It is in this terms.

1. In answer to paragraph one of the Statement of Claim the 1st defendant will refer to the exact, words set out in the letters referred to therein. The 1st defendant will also refer to subsequent correspondence, between itself and the plaintiff herein and will contend that no tenancy agreement was concluded between itself and the plaintiff as alleged in the said Statement of claim.

2. The 1st defendant will contend that the relationship between the. plaintiff and the said 1st defendant was that of a yearly tenancy.

3. The 1st defendant denies paragraphs two and throe of the said Statement of Claim.

4. In answer to paragraph four of the said Statement. of Claim the 1st defendant will say that it is a limited liability Company incorporated under the Laws of Sierra Leone. The 1st Defendant will further deny the matters alleged therein.


5. The 1st Defendont denies paragraph 5 of the said Statement of Claim and puts the plaintiff to strict proof.

6. Save in 39 far as the same consists of admissions the 1st defendant denies. each and every allegation of fact contained as if the same were set out seriatim and specifically traversed seratim.

7. The 1st defendant repeats paragraphs 1-6 of the Defence.

8. The 1st defendant as Landlord of the plaintiff herein duly determined its tenancy by a notice dated 30th June, 1988 which was served upon the plaintiff Company for the plaintiff Company to vacate the premises on the 31st December, 1988.                                                                                         

9. The plaintiff Company has not vacated the said premises and is still, in possession thereof.


1. Vacant possession of all the premises situate on the ground floor (basement) of premises known as, No. 5, Howe Street, Freetown.

2. Mesne profits as from the 1st January, 1989 till possession is given.

3. Costs.

I now turn to the Defence filed on behalf of the 2nd defendant. It reads;-

1.The 2nd defendante denied paragraphs one, two, three and five of the Statement of claim filed herein. The 2nd defendant; will aver that he wrote the said letter referred to in paragraph one of the said statement claim herein in his capacity as. Chairman of the 1st defendant Company and not in his personal capacity.

2. In further answer to paragraph one, two three and five of the Statement of Claim filed herein, the 2nd defendant will aver that he is not the owner nor the Lesssor of the Basement, of premises situate at. No, 5. Howe Street, Freetown referred to in paragraph one of the said statement of claim nor of any part of the premises known as No. 5, Howe Street, Freetown

3. The 2nd defendant denies paragraph four of the said Statement of Claim.

4.Save in so far as the same consists of admissions the 2nd defendant denies each and every allegation of fact contained as if the same were set out seriatim and specifically travarsed-


A Reply and defence to counterclaim was filed on behalf of the plaintiff/ Appellant, It runs thus:-


1. The plaintiff joins issue with the 1st defendant in so far as paragraphs 1, 3, 5 of the Defence is concerned.

2. As to paragraph 2 of the Defence, the plaintiff denies it was yearly , tenancy that existed between itself and the 1st defendant and will ever that in Agreement, evidence in writing croated a term of years certain in its favour between itself and the 1st defendant.

3. As to paragraph 4 the plaintiff will contend that the 1st defendant who is Chairman of the 1st defendant and is in actual control of the 1st defendart and therefore had knowledge of the acts and deeds complained of in the said paragraph 4 of the Particulars of Claim,


4.The plaintiff repeats paragraphs 1, 3 of the reply.

5. The plaintiff denies that a notice as stated in paragraphs 8 of the counterclaim was served on it but admits it was served on one George Papazian the Managing Director of the plaintiff of which is denied such notice was served on the plaintiff the plaintiff, will aver that acceptance of rent constituted waiver of the said notice

6. No. admission is made as to paragraph 9 of the counterclaim.

7. Save in so far the same consists of admissions the plaintiff denies each and every allegation of fact contained in the counterclaim as if the same were set out seriatim and specifically traversed.

Records show that in the course of hearing, admendment of the 1st defendants counterclaim was sought and granted claiming interest on the mesne profits at 45% per annum. 'In the same manner, line 2 paragraph 1 of the statement of claim was amended to read, "for specific performance of an agreement for a lease of the ground floor of the building situated at 5, Howe Street".

The Learned Trial Judge after an exhaustive review of the facts and the law applicable dismissed plaintiff's case and found for the defendants on their Defender and Counterclaim as follows:-

1, That the plaintiffs, have not proved their case against the defendants on a balance of probabilities. I would accordingly dismiss thoir claim.


2.. I would hold that the 1st defendant has proved its. counter-claim against the plaintiffs for immediate possession mesne profits with interest, and coats-

Being dissatisfied with the judgment of the court, the plaintiffs appealed against it. Pour grounds of appeal were initially filed but they were abandoned at the hearing of this appeal. ' The main grounds on which the appellants seek to impugn the above judgment are:-

1. That the learned tria1 judge was mistaken in law and infact to hold that there was no agreement, between the appellant and the respondents.

2. The learned trial judge failed to consider the legal principle that an agreement for a lease is as good as a lease.

3. The learned trial judge miscontrued the facts in holding that the payment of U$7000 was arrears of rent and not an advance payment of rent to constitute a waiver of notice to quit.

4. The learned trial judge erred in law and infact in awarding the respondent mesne profits of U$ 35,000 per annum for the years 1989, 1990, up to 30th June, 1991 i.e. a period of 2 ½ years, commencing on 1st January of each year.

5. The learned trial .judge erred in law and in fact in allowing interest of 45% per annum on the mesne profits for 2½ years.

6, The judgment cannot be supported by the evidence adduced.

The grounds of appeal have been ably and at length argued for both sides. Grounds 1 and 2 above were argued together by the learned counsel for the appellant. Ho contended that, there was a valid agree cent for a lease although no formal lease was entered. Relying on the famous doctrine of Walsh v. Lonsadale (1882) 21.Ch D. 9. He submitted quite rightly that an agreement for a lease is as good as a lease. We pause here to say that the decision in that case is a vivid illustration of two equitable maxims.

"Equity looks on that as done which ought to be done", and "He who comes to equity must do equity".


Counsel further submitted that the appellant is entitled, to claim all the wrights under the lease giving for coming to the conclusion. He reforred to (alsbury's Laws of England 3rd Edition Volume 23 Page 437 Paragraph 1035 under the rubric Agreement for a lease". He drow the court's attention to the fact that the appellant gave reasons why they refused to sign the lease. The reasons advanced by them are amply stated in Exhibit V. Among the points raised were the foot that rent should be reviewed every two years and that other terms and conditions stated in 1987 were to continue. We observe that the appellant's objection to the final lease are contained in exhibits" and x".

Learned Counsel for the appellant further submited that the letters which passed between the appellant and the respondents revealed that there was an intention to enter into a lease.

Before this Court, Counsel for the respondent has repeated in substance the arguments he advanced before the trial judge. His contention in that there was no concluded contract by exhibit A" and B" because according to him several issues were raised in exhibit A" which the appellant never attended to. He gave reasons why ho thought the parties wore not ad idem on the res. In support of his proposition ho rolled on Halsbury's Laws of England 3rd Edition Volume 23 at Paragraph 1039 under the rubrio, Essential Terms of agreement", and ibid paragraph 1196 under the rubrio." Rent must bo certain, paragraph 1046 under the rubric. Memorandum of the contract." Evidence in writing etc etc. Counsel further argued that there must be a concluded agreement before a degree of specific performance. We accepted this as a good law. He submitted that if we were to hold that there was a concluded contract that the 2nd Respondent cannot bo found liable and the case against him must fail. Learned Counsel made a profuse use of Halsbury's Laws of England 3rd Edition under the rubric Specific Performance". He pointed out that the appeal is against two respondents but that the transaction was between the appellant and the 1st respondent.

With reference to the loomed counsel for the respondent we do not think th authorities rolied upon are of any help in deciding the present case. It seems to us that the argurments of learned counsel stem from a disregard of the indisputable fact that the purpose of Exhibit A" a to inform the tenants or lessesee's already in occupation of the premises at 5, Howe Street the standard rent to be paid and that ouch rent would be subject to review every two years. This is far from a case where two strange parties attempt to enter into a loase egreement. It appears from the judgment that the loarned trial judge based its judgment on the assumption that two strange parties wore entering into a contract of lease. The Exxxned trial judge appears to have completely ignored the very important and undiaputod evidence adduced before him which is to the effcot that the Commercial Enterprises (now Appellant) were in occupation of the ground floor of the premises 5, Howe Street, Frootown subject natter of the app


or about 27 (Twenty-seven) years and that they were paying rent to Whitakers Property Limited. We must point out that evidence was also adduced to show that there was a meeting between the two Companies before exhibit "B" was written and paragraph 2 is very much pertinent. It is in the following terms.

"As agreed during the meeting hold with pour goodselves on the sane subject on Friday 20th first of all I would like to acknowledge receipt of your letter and confirm the acceptance of the rate as stipulated in the 6th paragraph of the sane letter in hard currency".

It is our considered view that if due cognisance had been taken of the above evidence which refers to the lease in respect of the premises situate at 5, He Street, all the questions posed by the learned counsel for the respondents and which the learned trial judge embarked upon to answer would have been unneces- . as they were uncalled for the oral evidence as well as the exhibits tendered should in pur view, leave no room for doubt that it was not imperative for the appellant to match sentence by sentence in their acceptance of the now rent on offer made to them in Exhibit "A". What is more the Lower Court appeared to overlooked the fact that this was not a case of solicitor writing to another solicitor but one of a legal nan of many years standing corresponding with a layman. Aside from this is also the incontrovertible evidence that there was illusion about where the appellants were occpying in the premises. To obviate any doubt they amended their Statement of Claim to indicate in respect of where they were seeking the decree of specific performance. The place was stated as "the ground floor of the building situated at 5. Howe Street, Freetown. How then can anybody rightly say that the res was uncertain. According to exhibit "A" the starting point of the standard rent was U$ 5000, though subject to review every two years. We wonder why anyone can say that the rent was uncertain. Suffice it to say that the issues or points that were said to be raised in Exhibit "A" cannot be said to have been unanswered by reason of the fact that there is evidence that the appellant's representaive in the person of George Papazain told the court that after receipt of Exhibit "A" and before he wrote Exhibit "B" he held a meeting with the 2nd respondent who was the Chairman of the 1st respondent Company. It would bo recalled that paragraph 2 of exhibit "B" talks of such a meeting and about their agreement, on the matter of lease of 5, Howe Street, Freetown. This being the case the acceptance of offer in exhibit A should not be expected to be found only within the four corners of ehibit "B" as suggested by the leanred counsel for the resspondent's and which suggestions found favour with the learned. trial judge.


We share the view that the oral evidence and the documentary evidence tendered by the appellant sufficiently proved that there was a. concluded contract between the two companies i.e. the appellant and the 1st respondent. This is because we should not lose sight of the principle of incorporation by reference. We are of the view that if the learned trial judge had balanced, the evidence properly against the documents, tendered; he would have reached a different conclusion and found for the appellant.

In coming to the above conclusion we are mindful of the fact that this is an. Appeal Court and that wo should always be reluctant to differ from a trial judgment on a finding of fact but a distinction has to be drawn between finding of a fact based on the credibility of witnesses and finding based on an evaluation of evidence which was adduced before the court. The law is settled that in the latter case the Court of Appeal is in as good a position to evaluate the evidence as the court of trial though of course it will give weight to the opinion of the trial judge. It is on the bases that we have closely examined the evidence adduced in the matter, The case hero is not one of credibility but a matter of evaluation of evidence. We have been guided by "the principles succinctly stated by Lord Thankeryon in Watt or Thomas V. Thomas (1947) A.C. 484 at Page 489 - 490.

As regards the issue of spacific performance. the rhetorical question who have asked ourselves is what purpose will it serve to make a decision on it after the appellant had already given up possession of the premises. The conclusion we have reached is that since specific performance is still and has always been a discretionary remedy, the issue is no longer relevant.

Turning, now to ground 3 of the appeal, we wish to point out that we consider the issue of whether or not there was a waiver of notice to quit xxxx moment for the reasons already stated on the issue of specific performance, The issue -remaining for determination and which we feel called upon to decide is whether the U$7000 paid by the appellant was advance payment or arrears of rent.

As regards the payment of the U$7000 it is observed that there is no argument that the amount was paid. The issue in controversy is whether the cheque was enclosed in a letter - Exhibit "L" is a letter dated 16th July, 1988 from the appellant but addressed to the 2rd respondent as Chairman of the 1st respondent Company. It runs thus.:-


Dear Mr. Macauley,

I hereby forward my cheque No. 74714893 for an amount of US $ 7000 as advance payments for rent for premises occupied by Commercial Enterprises Limited, at No. 5 Howe Street. Freetown.

As you requested ,the cheque is in your name. Please acknowledge receipt. I remain.

Yours sincerely

P.P. Commercial Enterprises Limited (Sgd), G. Papazian

Vice Chairman & Managing Director' , The contention of the appellant both in this Court and the Court" below is that the rent was paid in advance. It is observed that because the 2nd ' respondent denied receiving exhibit-"L" the trial judge had to receive evidence on the issue. The appellant called witnesses including oho Donald Davies who claimed to be the general clerk in the Qffice of the appellant." He told the court among other tilings that he hand delivered Exhibit "L" to a lady raceptionist whom he claimed to know facially but could not recognise if seen. Although this evidence came upcwhan issue arose as to whether or not secondary evidence of exhibit "L" was admissible 2nd respondent admitted receiving only the cheque on the 16th of July, 1988, and travelling out of the jurisdiction the next day 17th, Be did not call any witness but did not deny having a He ceptionist.

In his ruling on the issue the clearned trial judge made certain observations which were in place. He said inter alia"

"2nd defendant did not tell the court whether the clerk Rceptionist was a woman or a man. Assuming that the Receptionist was a woman it is my view, that the defendants ought to have called her to give evidence that she never went to work on the 16th of 'July, 1988. This piece of evidence was important because Donald Davis the plaintiffs clerk had said in his evidence that he handed the letter to a lady Receptionist in the defendants' Office.

Since no objection was taken to all the other letters which were delivered by hand I do not see why the particular exhibit Z should be objected to It is very likely that this letter Z" was delivered at the defenduate office (emphasis nine) the learned trial judge overruled the objection.

"We think it is very important to bear in mind that Exhibit L" contains certain allegations or assertions. Among them are.


1, As requested by the 2nd Respondent a cheque in the sum of U$7000 had been prepared in. his name.

2. That the amount was advance payment, of rent for promises occupied by the appellant company.

3. That the 2nd defendant should acknowledge receipt of the letter. 2nd defendant denied recieving the letter in question but there is no denial of the assertion that he requested that the cheque should be made in his name But as the appellant inadvertently omitted to state for which period the rents paid were to cover. 2nd Respondent found it covonient to simply acknowledge reciept of the cheque but did not even date the receipt.           

In his judgment on the issue of payment of U$7000 the learned trial judge stated thus:-

"There are many doubts surrounding this U$7000 that have not boon cleared by the plaintiff. The first doubt concerns the method by which the plaintiffs allege the U$7000 was sent to the 2nd defendant. It was not entered in the plaintiffs' Way Book Exihibit "K" moreover the plaintiffs could not lead evidence as. to whom it was actually handed.

All we heard from the plaintiff's witness - Donald Davis (R.W.2) was that he delivered Exh "L" which was supposed to contain the U$7000 cheque to a certain lady at the 1st defendant's Company's Office; He did not know the name of the lady; he would only recognice her face. I would have though that learned Counsel would apply to move the court to the defendant's office to have this lady identified (Emphasis Mine). We wonder why the learned trial judge made a sudden volte face on this issue. Earlier on he had given a ruling which we 'have referred to and quoted. In that he put the blame for "nono production of the Receptionist on the defendants but in his judgment he shifted the blame to the Plaintiff's si( ), The learned trial judge did not bother to ask the second Respondent the period for which the Appellants were said to be in arreas. He appeared to be satisfied with the 2nd" Respondent's evidence which ho preferred to the Appellant's version

The issue of arrears of rent becomes more important when one considers exhibit. V which was a letter dated 22nd September, 1987 from the 1st Respondent's Company to the Appellants' It runs thus:

"Dear Mr; Papazian,      22nd September, 1987 Re'; Lease Agreement, 5 Hows Street, Freetown

Enclosed herewith two copies of the Lease .Agreement for the above premises. Could you sign and return to me as soon as possible together with your cheque for the 1st year's rent.

With thanks.                             

Yours faithfully,

(Sgd) D.U, Cummings-John (Mrs)


We are of the firm view that the above quoted letter will not leave any room for doubt that the rent being called for was for the year 1987. Bearing in mind that it was on the 16th of July, 1988 that the appellants issued a Foreign Cheque in the sum of U$7000 to the 2nd Respondent how come the 2nd Respondent to deny that the payment was not in advance. We feel exhibit E which is a letter addressed to the appellants dated 15th June, 1988 demanded among other things rent for the period 1st January - 31st December 1988 -stated as 19487,514.60 Exhibit J. dated 15th July, 1988 further reinforces the fact that the money paid in Foreign Cheque could not be arrears. of rent because it indicates that rent for two years i.e. 1987 and 1988 were among the payment by cheques already made by the appellants, Acknowledgement of that is contained in 1st Respondent's letter dated 18th July, 1988. Finally, we believe that the doubts which were being expressed by the learned tiral judge should have been cleared by exhibit O. Exhibit O dated 18th October, 1988 was written after the appellants had paid U$7000. According to P.W.1 George Papazian the amount was meant to be rent for 4 years, 2nd Respondent having given them a discount of U$1000 although this was denied by the 2nd Respondent. But read what paragraphs 1 and 2 of that letter say. The latter was addressed to the 2nd Respondent in his capacity as Chairman of the 1st Respondent's Company. Paragraphs 1 and 2 therein with the heading are in these terms.

Dear Sir,


I refer to your letter of 11th October 1988 and to previous correspondence on the above subject matte.

As you are aware, the above lease has another 4 years to run. I am therefore at a loss to see on what basis you are purporting to give notic to quit. Kent as you are also aware has been fully paid and received in accordance with the terras"

It is our view that these two quoted paragraphs make it abundantly clour that the Appellants were asserting their lease still had four years to run and that they had paid in full for the four years. Without further ado", we are satisfied that there was enough documentary coupled with circumstantial evidence

assortion that the U$7,000 paid was advance payment of rent to support the appelants ' /for four years i.e. 1988, 1989,1990 and 1991.


With respect to the learned tiral judge, we hold the view that xxxx xxx had addressed his mind sufficiently to all the correspondences referred to and quoted above he would have found that the U$7000 was an advance payment and arrears as the 2ns Respondent led himto believe and accept. This disposes of the arguments on ground 3.

We now turn to ground 4 which complains about the a ward of U $35,000 as mesne profits.

It is trite law that a landlord claiming "ma3ne profits" is claiming for the profits intermediate from the date the tenant ought to have given up possession. It is therefore daman's for trespass. The contention of the learned Counsel for the appellants is that there is no evidence of assessment of mesne profits. He submitted that the mesne profits for the intervening years should not have been more than US2000 per annum. He urged the Court to uphold the ground of appeal because according to him the respondents have only given a fanciful figure. He stated that the a ward of U$35,000 per annum was in the circumstances too excessive.

In his reply, the learned Counsel for the respondents conceded that mesne profits should be asses bed by the Court when the amount being claimed is higher-than the rent formerly paid by the tenant. The two Counsel in the matter made copoiusreference to various authorities in support of their propositions but the dividing line between the two of them is the question of evidence and the assessment of damages. The complaints against the award of mesne profits and rent are more serious. In the first place, we observed that the learned trial judge's award

on mesne profits is simply an acceptance of the figure asked for by the 2nd Reapondent which was by and large inordinately high and unconscionable having regard to the rent of U$2000 started with. We are utterly surprised that the trial judge was so willing, and eventually accep tod a figure of U$35,000 pay annum. When in his judgment had earlier opined that that ront cannot be determined in advance. because it was to be reviewed every two years. He wont on: This means that after 1987 and 1988 the rent for the next two years 1909 and 1990 would attract a different amount of rent. It may well be U$2000 per yoar as in 1987 or Le310,3.50 as in 1988 or these figures might well be increased depending on the outcome of the Review". With respect, he completely ignored the fact that it was the appellant who instituted the notion which culminated in the Respondents filing a defence and Countorclain,


It is our view that accepting the evidence of a witness is not the game as assessment of dumages. In th o former caso, it is the exercise of one's discretion. Whilst in the latter case, involves evaluation of evidence.

As a general rule an Appeal Court will not interfere with the exercise of the distrection by the Lower Court unless it has not boon exercised judicially. But it is also well setteled that a Court of Appeal will interfere when the order of the Lower Court would result in injustice.

Maxwell V. Keun (1928) I K B 645. We are patisfied that what the learned trial judge did in this case was making an order, We are constrained to say that we are unable to day that the learned trial Judge had roached a, careful disprotiontary dooision in this matter and on this issue. He accept the argument of learned counsel for the appellant in this connection. We feel that the award has been justly critised. To allow the order made for mense profits to stand would result in patent injuntice. It is our view that a fair rent would not be in execss of U$4000 per annum. We would therefore reduce the award of U$35,000 per annum for mesne profit a to U$4,000 per annum or its quivalent in loones.

our own calculation on the basis of our conclusion that the U$7000 paid by the appellant represented four years' rent. It follows that ronts had been paid for the period 1988-1991 the result is that the Appellant would have to pay mence profits for the period 1st January - 31st December, 1992 to the 1st respondent and we so order in place of the order of the learned trial judge.

We find it convenient to deal with grounds 5 and 6 together. This is because ground 6 is an omnibus ground. the real complaint of the appellant is on the interest of 45% per annum awarded on the mesne profits. Learned Counsel for the appellant's contontion is that before awarding interest on a foreign curreney there should have been evidence before the court whether that was the rate of the in torest agreed by the parties or the rate of interest at the Bank Official londing rate which ho maintained could only have come from an expert witness. In support of this proposition ho he cited the case of MiliangesV. George Frank Tortiles Limited (No.2) (.1976) 3 ALL E.R. 599 at 602 and 603, He submitted that since that was not done the appeal should be uphold.


Replying learned counsel in an attempt to support the decision of the learned trial judgo referred us to the decision of the Court of Appeal in M/V Sylt CC 3/ 3/87 1987 U. No 1 (unreported) in which the court confirmed award of 35% interest on a dollar claim in a shipping matter. He further contended that under section 128 of the Sierra Leone Constitution Apt No.6 of 1991 we are bound by that decision. He urged this Court to uphold the award of 45% on the

claim for mesne profits.

In his own reply cousel for the appellant submitted that in as much as the court is bound to follow it a provious decision it can only do so when the circumstances are similar. Ho pointed oat that case relied upon by counsel Tor the reapondent was a shipping matter whilst this is a case of roal property He therefore submitted that the case of M/V Sylt does not apply in this case. We share the view of the learned counsel for appellant that the case of M/V Sylt is matorially different from the case in hand. This is a case of landlord and and tenant in which the matter in controversy is how much is the landlord entitled to. With respect, we do not think we are bound to follow M/V Sylt and the facto and circumstances are not the same, the conclusion we have roached is that to meet justice of the case an award of 12% is appropriate and we so award in place of 45% awarded in the court below. Having considered the whole evidence, I find myself conostrained to agree with counsel for the appellant that the judgment of the court below does not support the evidence adduced before it The result. is that we uphold the appoal and set aside the judgment of the leared trial judge. the appeal succeeds. the appellant will also have the costs of his appeal and and the costs to bo taxed.

At this stage, we think it isnecessary to consider the issue reaised by the learned counsel for the respondents about the joining of the 2nd respondent in this action. Suffice it to say that wo hold the view that the 2nd respondent is a person who had an interest in the proceedings as he was affected or likely to bo affected or agrieved or likely to bo agrieved by the proceedings. For instance it is averred in the pleadings that ho ordered foreible entry into the domised premises. It is also part of the undisputed evidence that he personally received a cum of U$7000 on behalf of the company i.e. the 1st respondent.


He is not in any way a total stranger to the proceedings If the learned counsel for the respondents is seriously contending that the 2nd respondent was improperly or wrongly joined ho ought to have advised his client to take the necessary steps. But once his client chose to be an active litigant ho is not entitled to say that ho ought to have his costs. 3oo Butler v. Riceo (1910) 2 Ch 277 at Page 284 and Vallance v. Birmingham Land Corporation (1876) 2 Ch. D. 369 &"at page 372 per Malins V.C. Moreover there is no Cress-Appeal on behalf of the respondent, Vide Woeker Basma 12 WAGA 316 PLC.

The Court thereforemakes the following orders:

1. That the two thirds of the judgment debt already paid to the defondent/respondents be refunded to the plaintiff/ appellant minus the loans. equivalent of U$4000 at the prevailing rate of exchange at feat time for mesne payable to the defendants/respondents for the period 1st Jannuary - 31st December, 1992.

2. That the one third of the judgmemt debt already invested in the Sierra Leone Commercial Bank under a fixed joint account of the plaintiff/appellant and defendant/respondents with interest thereen be withdrawn and paid to the plaintiff/appelland.


I Agree Hon Mrs Justice V.A.D.Wright Justice of Appeal

Hon. Mr. Justice N.D. Alhadi

I Agree Hon. Mr. Justice N.D. Alhadi Justice of Appeal