CC20/08  2008   J NO. I

IN THE HIGH COURT OK SIERRA LEONE

CIVIL DIVISION

AMADU JALLOH T/A AMADU JALLOH COMMERCIAL -PLAINTIFF/RESPONDENT ENTERPRISES VS.

DEEPAK COMMERCIAL BROKERAGE LLC.408 ATRIUM CENTRE, KHALID BIN AL WALEED ROAD (BANK STREET), P.O.BOX 6832 DUBAE,U.A.E                                                     - DEFENDANT/ APPLICANT

S.V. KHA FLUVIAL                                      For the Defendant/Applicant

JAMES BLYDEN JENKINS JOHNSTON - For the Plaintiff/ Respondent

RULING DELIVERED MILS 12th DAY OF MARCH 2009 BY DESMOND B. EDWARDS J.:-

1. By Judges summons dated 3rd day of February 2009 the defendant in this action  applied to the Judge in chambers for the following orders:

1. That this Honourable court do make an order that the plaintiff/ respondent within 7 seven days from the date of this order make and file an affidavit stilling whether he has or has at any lime had in his possession , custody or power certain documents as specified in the schedule hereto and if the said documents or any of them has / have been but is / are not now in his possession , custody or power stating when he parted with the same and what has become of the same pursuant to Order 27 rule 7 of the HCR C1 No 8 of 2007 2.. Any other Order that this Honourable Court may deem fit and just.

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3. That the costs of and occasioned by this Application he the Defendant/ Applicant's costs in any event

2. The schedule of Documents required for discovery were as follows

i) Import Declaration from RF1 No : SLE011543 to Intertek Foreign Trade Standards for "SKIE BRAND BATTERIES -UM-1 for a quantity of 700 cartons FOB VALUE. OF US$4,550.00: Importers name and address, AMADU JALLOH COMMERCIAL ENTERPRISES. 6 Peter Lane . Campbell Street Freetown , Sierra Leone

ii) Invoice No DCB/ 503/06 dated 09-11-2006 for 700 Cartons SKIE BRAND BATTERIES UM-1 (R20) for the total amount C& FUSS" 6.550,00: CLIENT AMADU JALLOH COMMERCIAL ENTERPRISES;

iii) Maersk Line Bill of Lading Booking No 5543993266. Export reference No EXVO12006103269Consigned to the order of Amadu Jalloh Commercial Enterprises . Freetown Sierra Leone for "1 container said to contain 700 cartons

SKIE BRAND BATTERY R 20 FREIGHT COLLECT IN DUBAI SAY 700 CTNS ONLY MARKS AND NOS ... AMADU FREETOWN C/NO.1- 700 PROD: 10-2006 EXP.7-2009 SC.NO141081

iv) Copy of that part of the destination Inspection Report No 222071. Reference (RF) NO.SLE011543 dated 10th January 2007 issued by Intertec Foreign Trade Standards and handed to the Plaintiff/ Respondent's Representative at the end of the inspection exercise.

3. The application was supported by the affidavit of SALLY VINOO KHATUMAL sworn to on the 3rd day of February 2009 together with the several exhibits to wit ExhibilsSVKl-SVKS. The defendant /Applicant relied on the entire Affidavit in which she deposed to inter alia pursuant to order 27 (7) 3 of the HCR C1 No 8 of 2007 that it

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was her belief that the plaintiff/respondent has or had at some lime had in his possession custody or power, the class of documents, to wit exhibits SVK3A-SVK.3D and that those documents relates to one or more matters in question.

DEFENDANT SUBMISSIONS

4. Armed with this type of affidavit, the defendant's /applicant's solicitor submitted that from the documents exhibited in her application the plaintiff/respondent solicitor whilst claiming for 1100 cartons of SKIE BRAND BATTERIES has presented and used a different set of documents to clear his goods ordered and shipped and those documents relating to the documents used to clear the goods have not been disclosed to his solicitors. She contended that customs Bill of Entry exhibit SVK2B dated 9th January 2007 for 700 CARTONS OF SKIE, BRAND BATTERIES in the plaintiff's respondents List of documents was used to clear the goods and that the same misrepresents the claim in the writ of summons intituled CC20/08 JN01 which was for 1100 CARTONS OF SKIE BRAND BATTERIES in consequence of which those documents related to this Customs Receipt and Bill of entry to wit exhibits SVK 3A. SVK 3B , SVK3C AND SVK 3D ought to be disclosed .She argued that by the very presentation and /or production of exhibits SVK 3A-SVK.3D the defendant Applicant has been able to prove to this court that those documents exist. She stressed the point that she was not asking for SVK3A -SVK3D in a vacuum but as relevant to the proceedings already commenced by writ of summons intituled CC20/08JNO1, this amply demonstrated by the fact that, they have not only produced those documents for which discovery is being sought but have been able to link all of them to wit SVK3A-SVK3D to exhibits SVK2A and SVK2B and in the process been able to prove that those documents are necessary, hence the reason for the application herein for an order that those documents be disclosed. She concluded by contending that apart from the fact that those documents exhibit SVK3A-SVK3D may have compromised the writ of summons herein, the quality of the consignment is major issue relating to the action.

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IN REPLY

5. In his reply to the above submissions in support of the Application, the plaintiff's respondent's solicitor argued that the plaintiff has disclosed all the documents in his possession which were relevant to his claim. Secondly, he argued having regard to the statement of claim and also to the defence filed there is no claim to this court for 700 CARTONS OF SKIE BRAND BATTERIES; there is only 1 claim and that is with respect of 1100 CARTONS OF SKIE BRAND BATTERIES. Thirdly, he submitted, that the documents which the defendant applicant solicitor has put in the schedule arc not necessary or indeed relevant to the claim which the plaintiff has made in this action and there is no need for the court to grant the orders sought .He referred the court to the SUPREME COURT ANUUAL PRACTICE 1999 practice notes to order 24rule 8 under the rubric "IF SATISFIED THAT DISCOVERY IS NOT NECESSARY" under discovery as to credit stating that discovery solely for the purpose of impeaching the credit of the opposite side and giving him a bad name will not be ordered. He concluded by submitting that the documents listed in the plaintiff's bundle dated 29th October 2008 are more than sufficient to prove the plaintiffs claim.

IN ANSWER

6. In answer to the reply, the defendant's/applicants solicitor submitted that since the plaintiff/ respondent had disclosed a bill of entry for 700 cartons when the claim was for 1100 they find it relevant to seek discovery relating to the plaintiffs own discovery. Secondly, she submitted, there was no claim for 700 cartons but a claim for 1100 cartons of the said Batteries. The Bill of Entry 00139 exhibit 2B which the plaintiff used to clear the 1 100 cartons is for 700 cartons and all documents relating to that consignment are severally for 700 cartons. On the claim that the documents, to wit exhibit SVK3A-3D arc not relevant to the claim, she reiterated her submissions reference to paragraphs 5,10.13 and 15 of the aftidavit in support. She in answer to the claim that he was not in a position to know that the plaintiff had not disclosed certain documents to his solicitors observed that the documents that they are requesting discovery for emanates from and relates to the plaintiff's own documents to wit exhibit SVK 2A&B, the customs bill of

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Entry and documents related thereto. Lastly, on the submission that the documents in his bundle arc more than sufficient to prove his claim, the defendant Applicant's solicitor contended that the purpose of the rules for discovery was not to discredit anybody. She drew attention to the jurat of the affidavit in opposition page 2 thereof where she was. contrary to the Jurat, not able to see a right thumb print but some form of signature.

7. Before proceeding further, let me address this issue of the jurat in the affidavit in opposition. That which has been highlighted has made the affidavit defective and offends against the rules of practice but in no way affects the submissions made during the arguments raised as according to the practice notes in the SUPREME COURT ANNUAL PRACTICE 1999 with reference to this Application at page 471 , the Application may be answered by an affidavit in opposition but the usual practice is for the respondent to argue the matter without an affidavit if he opposes the application. 1 have therefore considered the arguments of both the plaintiff and the defendant Applicant. The main issue for determination is whether this court in light of the circumstances of this particular case could or could not sanction the disclosure as requested .for an application of this nature, the SUPREME COURT ANNUAL PRACTICE . at page 471 making reference to the case of BERKELEY ADMINISTRATION VS MCCLELLAND (1990) F.S.R 381 AT PAGE 382 noted that the court restated the principles by which it would be bound as follows:

"1. There is no Jurisdiction to make an order under order 24mle 7 of the Supreme Court Annual 1999 (which is ipsisima verba Order 27 rule 7 of the HCR CI No   of 2007) for the production of documents unless “

a) there is sufficient evidence that the documents exist which the other party has not disclosed;

b)  the documcnt(s) relate to matters in issue in the action ;

c)   that there is sufficient evidence that the document is in the possession , custody or power.

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2, When it is established that those 3 prerequisites for jurisdiction do exist ,the court has a discretion whether or not to order disclosure : and 3. The order must identify with precision the document or documents which are required to be disclosed."

8. Applying the above principles to the facts of this application my first enquiry is whether there is sufficient evidence that the documents exist which the other party has not disclosed. It is clear to me that the class of documents to be disclosed arc those exhibited as SVK 3A -3D. the same which are evinced as i-iv in the schedule supra, It is also clear to me that they exist as the copies have been produced by the Defendant Applicant. Since they emanated from and relate to plaintiffs own very documents the Bill of entry customs documents exhibits SVK 2A and SVK. 2B, it must be presumed that like the BILL of entry customs documents which exists they loo exist as forming a change of documents reference to the 700 CARTONS of SKIE BRAND BATTERIES of which only 1 set of documents to wit Exhibit SVK2A AND SVK.2B has been produced. In other words exhibits SVK2A AND SVK 2B are standing alone in a situation where there are other documents to go with it. That apart, the following Institutions viz. 1. INTERTEC to which the Plaintiff/ respondent declared his import and which conducted the destination inspection; 2. CUSTOMS AND EXCISE DEPARTMENT to which the plaintiff declared the value,of the consignment and from which he cleared the same, are institutions, which were then in existence even up to now still in existence, such that the documents, if at all necessary, could be obtained readily from them, they being the authors of such documents. Predicated on the above, there could be no doubt that exhibit SVK 3A - SVK3D do exist or that there is at least sufficient evidence that exhibits SVK 3A SVK3D exist.

9. On the second enquiry that the documenl(s) must relate to mailers in issue in the action, it is pertinent to note that documents are relevant if they relate to any matter in question in the proceedings and this should cover all documents which directly or indirectly assist or damage either party's case. Thus what may be required in this second enquiry is the relevancy of the documents to the current proceedings. The current

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proceedings are elaborated in the pleadings that go with it i.e. the Statement of claim Defence and Reply. In the current matter intituled CC20/08.JNO1,. the plaintiff has claimed for breach of contract in respect 1100 carious of SKIE BRAND BATTERIES which were ordered for and shipped to Sierra Leone to the plaintiff as per bill of hiding NO554493266 in container No CAUXU16346397 on Maersk Line to Freetown. These specific details which are found on exhibit SVK 6A AND SVK6B for 1 100 cartons of SKIE BRAND BATTERIES could be gleaned from exhibit SVK3A - SVK 3D for only 700 cartons of SKIE BRAND BATTERIES. Worse still, they relate directly to the customs entry documents exhibit SVK 2A AND SVK2B which have been disclosed by the plaintiff which was to the effect that the documents used to clear the Batteries show that only 700 CARTONS OF SKIE BRAND BATTERIES were ordered shipped and paid for. Thus it has been noted from paragraph 5 of the Statement of claim that the plaintiff averred that " Upon arrival of the goods in Sierra Leone , the container load of Batteries were cleared through customs by the plaintiff and all applicable taxes, fees and other expenses were duly paid by the plaintiff and the container delivered to him". It is however, clear to me that the only documents in the plaintiffs list of documents related to the above exercise of clearing the goods shipped through customs and paying of all applicable taxes fees and other expenses by the plaintiff is exhibit SVK2A AND SVK2B but this was with respect to ONLY 700 CARTONS OF SKIE BRAND BATFERIES and not 1 100 CARTONS OF SKIE BRAND BATTERIES. The claim by the plaintiff is not that 700 CARTONS OF SKIE BRAND BATTERIES were delivered instead of 1 100 CARTONS OF SKIE BRAND BATTERIES but rather that the 1100 supplied were not in good and merchantable condition constituting breach of contract and so it becomes relevant to the issue that those documents SVK 3A- SVK 3D relating to the documents to wit SVK 2A SVK 2B by which the goods were cleared be produced. Finally while the plaintiff has claimed that the goods supplied were not of merchantable quality and fit for the purpose. The defendant has replied that what they supplied was of merchantable quality and fit for the purpose, the goods having been subject to pre-shipment inspection and certified as "(qualified*. This raises the issue of quality of that which was shipped and it is the case that among the documents which confirms or verifies the quality of goods shipped is exhibit SVK3 D which relates to 700 and not 1100 reference to exhibit

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SVK2A and 2B. For the above reasons. I would agree with the defendant/ applicant's solicitor that those documents have not been requested (or in a vacuum as they are all linked or related to exhibit SVK 2A and SVK2R.The issue here is not giving the oilier parly a bad name ; if even it gives the other side a bad name which is not being admitted here as long as it is related to the matters in issue it is permitted . The issue is not whether the disclosure may do damage to a party but rather whether it is relevant to the proceedings as the court must have all the relevant information to do real justice and save costs. It would seem to me that from the arguments of the plaintiff's solicitor that it is discretional on the part of a party as to which document is relevant to his case and that he could choose which document to disclose and which not to disclose. This is not the law on disclosures and would defeat the purpose of disclosure. It is not whether a disclosure would help or destroy your case but rather whether all the relevant information would be put before the court so as to do real justice as between the parties. That apart notinig the arguments of the plaintiff it is not that these documents sought to be disclosed would unfairly prejudice the respondents rights or that the information sought would be supplied by making an admission. They are relevant to the proceedings directly or indirectly if you like, through relation to the only documents supplied by the plaintiffs for clearing the goods, 1100 batteries shipped when they show that 700 batteries were shipped and they ought to be disclosed.

10. On the last enquiry as to whether there is sufficient evidence that the documents are in the possession custody or Power of the party to disclose one would only note that those documents apart from any thing else were issued to Amadu Jalloh Commercial Enterprises, the plaintiff/respondent herein or carried the reference number covering the importation done by the said Amadu Jalloh Commercial Enterprises to wit RF1 NO SLE011543.

II. This being the case, I would all things considered exercise the discretion of the court by ordering that the plaintiff/ respondent within 7 seven days from the dale of this order make and file an affidavit slating whether he has or has at any lime had in his possession . custody or power certain documents as specified in the schedule hereto and if the said

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documents or any of them has / have been but is / are not now in his possession , custody or power stating when he parted with the same and what has become of the same.

SCHEDULE

i)  Import Declaration from RF1 No : SLE011543 to Inlertek Foreign Trade

Standards for "SKIE BRAND BATTERIES -UM-1" for a quantity of 700 cartons FOB VALUE OF USS4;550.00; Importers name and address, AMADU JALLOH COMMERCIAL ENTERPRISES, 6 Peter Lane Campbell Street Freetown . Sierra Leone ;

ii) Invoice No DCB/ 503/06 dated 09-11-2006 for 700 Cartons SKIE BRAND BATTERIES UM-1 (R20) for the total amount C& F USS, 6,550,00: CLIENT AMADU JALLOH COMMERCIAL ENTERPRISES;

iii) Maersk Line Bill of Lading Booking No 5543993266, Export reference No EXYO12006103269Consigned to the order of Amadu Jalloh Commercial Enterprises . Freetown Sierra Leone for "1 container said to contain 700 cartons SKIE BRAND BATTERY R 20 FREIGHT COLLECT IN DUBAI SAY 700 CTNS ONLY MARKS AND NOS ... AMADU FREETOWN C/NO. 1-700 PROD: 10-2006 EXP.7-2009 SC.NO141081

iv) Copy of that part of the destination Inspection Report No 222071. Reference (RF) NO.SLE011543 dated 10th January 2007 issued by lntertec Foreign Trade Standards and handed to the Plaintiff/ Respondent's Representative at the end of the inspection exercise.

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2. That the costs of this Application be the defendant's /Applicant's cost assessed at Le 1,500,000.00 (One million, five hundred leones).

3.  Matter is adjourned to Tuesday 24th March 2009. Hon Mr. Justice Desmond B, Edwards J