CC1215/2005   2005      F    NO 51

IN THE HIGH COURT OF SIERRA LEONE BETWEEN :

GRANVILLE FILLIE                                       - PLAINTIFF / RESPONDENT

AND

THE REPRESENTATIVE

WORLD HEALTH ORGANISATION           - 1st DEFENDANT / APPLICANT

AND JOSEPH MONROVIA                          - 2nd DEFENDANT / RESPONDENT

James Blyden Jenkins Johnston             For Plaintiff/Respondent

Berthan Macaulay Junior                       For The Defendants/Applicants

RULING DELIVERED THIS 14TH DAY OF MARCH 2007.

D. B. EDWARDS J. This is an application by Motion dated 24th August 2006 for the following orders:

1.  That this Honourable Court do make an order setting aside the Judgment in Default of Defence dated 15th June 2006 on the grounds of irregularity in that the judgment was irregularly obtained under Order 23 rule 6 of the High Court Rules 1960 having regard to the fact that the judgment sum was based on a claim which was not a liquidated demand, and that the judgment sum was not assessed by the Honourable Court contrary to Order 23 rule 6 of the High Court Rules 1960.

2.  That further and in the alternative, this Honourable court do make an order setting aside the Judgment in Default of Defence dated 15th June 2006 on the grounds that the defendants applicants have a good defence to the action.

In this matter, the Plaintiff had issued a writ of summons intituled 1215/05 F No. 51 for the following reliefs viz. damages for negligence for the accident of at least Le 500,000,000.00; special damages not below Le 13,300.000.0 and any further or other reliefs plus costs of this action. The background to the action was that the 1st defendant is a Diplomat and the owner of a registered vehicle Toyota Land Cruiser registration No 65-CD-2 while the 2nd defendant was the driver of the said vehicle at all material times

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acting in the course of his employment. On the 15th of August 2004 at about 2.30 p. m. while alighting from a vehicle AAG 469 which was stationery by the road side along the Freetown / Waterloo Highway by Orogu Bridge, the plaintiff was hit by the defendant organization's vehicle causing him serious injuries, the same whereof led him to institute this action.

A conditional appearance was entered on behalf of the defendants and thereafter the defendants through their solicitors Basma and Macaulay sought an enlargement of time through an application made on the 19th of December 2005 by which they could challenge the jurisdiction of the court to hear and determine this matter in view of the fact that the defendants were diplomatic agents covered and/or dressed with diplomatic privileges and immunities. The said application was and has never been heard and was adjourned sine die on the 1st of May 2006. On the 15th of June 2006, the plaintiff in circumstances where the application for enlargement of time was adjourned sine die but no defence filed, entered final judgment for the plaintiff. The full terms of which are as stated in exhibit JELK13. It is this judgment that these defendants, by this application, seek to set aside.

The application was supported by the Affidavit of Jamesina Essie Leonora King sworn to on the 24th day of August 2006 together with the several exhibits referred thereto to wit, exhibits JELK1-JELK14

The plaintiff opposed the application, the grounds whereof I would care to mention as I go into the issues. He also filed an affidavit in opposition and exhibited thereto several documents, to wit, exhibits A-F.

Following a protracted delay at the instance of the parties the application was only heard for the 1st time on the 22nd of February 2006.

The contention of the defendants were firstly that the Judgment of 15th June 2006 as exhibited as JELK13 was irregularly obtained in that the plaintiff's claim as represented

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or endorsed in the writ of summons exhibit JELK1 was for general damages and special damages and not a liquidated demand. The solicitor for the defendants argued that damages being an unliquidated claim, the plaintiff was to have requested damages to be assessed or entered the action on a motion for judgment. He distinguished between an unliquidated claim and liquidated claim by referring the court to a passage from the English Annual Practice 1960 page 30 under the rubric "debt or liquidated demand" in which it was stated thus:

"The provision of this rule of Order 13 rules 3&4 makes it necessary to illustrate the meaning of those words . In order to come within the definition liquidated demand a claim on a contract must state a) the amount demanded , or be so expressed that the ascertainment of the amount is a mere calculation; and b) must give sufficient particulars of the contract to disclose its nature . It is the nature of the contract on which the claim is based , as well as the fact that a specific sum is claimed which brings the claim or fails to bring it within the definition liquidated demand . The words debt or liquidated demand do not extend to unliquidated damages whether in tort or in contract, even though the measure of the damages be named as a definite figure Knight Vs Abbot 10 QBD Pll.

IN THE BOOK Civil Litigation by John O'HARE & ROBERT N HILL 6th Edition at page 135 it was stated thus

"If the ascertainment of a sum of money even though it be specified or named as definite figure , requires investigation beyond mere calculation then the sum is not a debt or liquidated demand but constitutes damages"

Learned Counsel for the defendants submitted that looking at the writ of summons, Ex JELK 1, it was clear that what they had pleaded in paragragh 5 thereof were matters for which considerable investigation would be required and not matters of mere calculation even though stated as a definite figure.

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In response to the defendants' solicitor's argument that the Judgment was irregular, learned counsel for the plaintiff stated that it was regularly obtained and referred court to Order 23 rule 15 which confers a discretion on the judge as to whether he will set aside the judgment aside or not and referred the court to the case of SIR LINDSAY PARKINSON VS TRIPLAN LTD (1973) 2WLR P 632 & 634

Need I say, that I would be surprised if counsel for the plaintiff misdirects himself as to the distinction between a regular judgment and an irregular judgment . A regular judgment is a judgment obtained adhering correctly to the rules of procedure laid down but denying the court the opportunity to pronounce judgment on the merits or issues or by consent. An irregular judgment is one in which the correct rules and procedures have not been adhered to while at the same time denying the court the opportunity to pronounce judgment on the merits or issues or by consent.

Because of this salient distinction between the two types of judgments the method of treating them differ in that where a judgment has been obtained irregularly the defendant is entitled to have it set side ex debito justitia. See the case of ANLABY VS PRAETORIOUS 20 QBD 764. But before he could be entitled to this right to set aside the judgment on the ground that it was irregularly obtained, the defendant must be able to specify in the motion to set aside the grounds of the irregularity; and the affidavit in support of the motion too, must show the circumstances under which the required procedures as laid down by the rules of court were breached and disclose the nature of his defence.

In the case of the regular judgment the right to set aside is solely a matter of discretion of the Judge ,as the judgment was regular in the first place, in which case it should stand but for an affidavit on the merits showing a meritorious defence. A meritorious defence is a defence which must have "a real prospect of success" and "carry some degree of conviction" and the court must be able to form a provisional view of the probable outcome of the action. See the case of ALPINE BULK TRANSPORT CO INC VS SAUDI EAGLE SHIPPPING CO INC the Saudi Eagle 1986 2LLOYDS REPORT

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PAGE 221, CA which is the most recent application on the doctrine of a good defence on merits to set aside a regular judgment.

A close look at Order 23 rule 6 clearly shows that insofar as unliquidated damages are concerned it is only interlocutory judgment that could be entered. In the same vain a close look at the second order of the default judgment dated 15th June 2006 shows that it was final judgment that was entered for an amount of Le 13, 300,000.00 comprising several items as listed in paragraph 5 of exhibit JELK 1 and though stated as definite figure and called special damages was one which would require considerable investigation. Furthermore, the said judgment never contained a liquidated demand or sum for which final judgment ought to be entered . There could not be any gainsaying that the said judgment of the plaintiff breach the rules of court in which case it was irregularly obtained and ought to be set aside ex debito justitia.

The second contention of the defendant was that further and in the alternative if the court holds that this judgment was a regular judgment then they have a defence on the merits which was diplomatic immunity.

The court having held that the judgment was irregularly obtained cannot now say it was regular obtained just for the sake of it. But assuming that it was a regular judgment could it be set aside. The law on the subject is that a regular judgment could only be set aside where there is defence on merits and a defence on the merits is one which must have "a real prospect of success" and "carry some degree of conviction" and the court must be able to form a provisional view of the probable outcome of the action. See the case of ALPINE BULK TRANSPORT CO INC VS SAUDI EAGLE SHIPPPING CO INC the Saudi Eagle 1986 2LLOYDS REPORT PAGE 221, CA

Turning to this issue the plaintiff noted that it was in the discretion of the court whether or not to set the judgment aside looking at all the circumstances of the case . The plaintiff's solicitor drew the court attention to paragraphs 4, 5 8,9 and 10 of the affidavit

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in opposition. He argued that the defendants cannot say that they have a good defence to the action when they have simply not exhibited a draft defence as was a requirement of the rules. He referred the court to the dicta of Bankole Jones in the case of Kabia vs Contch 1964 -66 ALR SL page 359-360. He submitted that for reasons afore stated, if the court were to grant the application would lead to grave injustice to the plaintiff. He submitted that even if the defendants were to rely on the diplomatic immunity as their defence, it simply did not hold, as per virtue of section 10(1) of the Diplomatic Privileges Act No 35 of 1961 Sierra Leoneans are expressly excluded from the immunities granted to Foreign envoys under that Act and that this was the same under PN No 178 under which they were claiming Diplomatic Immunity . He argued that the 2nd defendant being a Sierra Leonean he could not hide under this diplomatic immunity. He further submitted that the 2nd Defendant was charged to Magistrate Court and has pleaded guilty so that, even if, he claims diplomatic immunity he has already subjected himself to the jurisdiction of this Court and it was in respect of this act that the 1st defendant were held to be vicariously liable. He argued further that by their taking out an Insurance policy it was a clear manifestation they were not sure of their diplomatic immunity . He concluded that the application should therefore be dismissed with costs.

The defendants in reply submitted that they had a defence on its merits and that relying on the case of Kabia vs Conteh 1964 -66 ALR SL an affidavit showing that the defendant has a good defence on the merits was what was required by the rules and not that you have to file a draft defence as was argued by the plaintiff's solicitor. The learned counsel for the defendants also argued that section 10(1) of the diplomatic and privileges Act no 35 of 1961 has been incorrectly interpreted by the plaintiff in that it refers only to the personal immunities of a Sierra Leonean who do not have the same diplomatic immunity as his counterpart foreigners but all the same have immunities fromsuit and legal process for words written and oral and acts done in the performance of his official duties and that the 2nd defendant was in the course of his official duties when the accident occurred. He argued that the fact that the 2nd Defendant was charged and pleaded guilty in the Magistrate Court had no bearing on the present proceedings as that was a separate and distinct matter from the civil action which the plaintiff has

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commenced; He submitted that there was no evidence that the 1st and 2nd defendants have submitted or waived their immunity regarding the civil action. On the submission that because the 2nd defendant has pleaded guilty in the Magistrate court the 1st defendant is vicariously liable, the defendant's solicitor argued that even if it were to be held that the 1st defendant is vicariously liable for the acts of the 2nd defendant, this was no answer for the proposed defence of immunity which was a matter which goes beyond and was even a defence for vicarious liability even if you were to attack them on that front. He noted that what this means is that the defence of immunity may be unfair but it's the law.

I have considered keenly the arguments of both counsels on the issue of whether the defence of diplomatic immunity tantamounts to a defence on the merits. It is for this court to consider whether their claim for diplomatic immunity is justified and indeed forms a meritorious defence as the defence would want this court to believe. To my mind, such a defence goes beyond a mere meritorious defence as it attacks jurisdiction i.e. the plaintiff's right to bring this action. Need I say that if it is proved, the effect will be, not only to set side the Default judgment of 15th June 2006 but to throw the very writ of summons dated 30th November 2005 out of our courts, which would have no jurisdiction to hear and determine allegation contained therein. I could therefore see reason why it must be vehemently opposed. But even so, do the arguments advanced by the plaintiff amount to reasons for disregarding it? . I would think not.

This is because on the issue of the defendants submission to jurisdiction in the Magistrate court I agree with the defendants' solicitor that the Magistrate Court proceedings had no bearing on the present proceedings as that was a separate and distinct matter from the civil action and that there was no evidence that the defendants have submitted or waived their immunity regarding the civil action. You can waive your immunity in one situation and then choose not to waive it in another. One means of waiver is submission to the authourity of the court. The fact of this case i.e. the civil matter is that the defendants entered a conditional appearance and made an application to set aside the writ of summons for irregularity and jurisdiction. The matter was adjourned sine die and they have never submitted to the jurisdiction uptil now.

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On the issue of being vicariously held liable I hold that the defendants have never been held vicariously liable, and even if they were, action would similarly not be maintainable in view of the effect of a plea of diplomatic immunity which destroys the very root of the action.

Turning to the issue of the defendant's taking out an insurance policy by which fact it was argued that it was a clear manifestation they were not sure of their diplomatic immunity, this court would take support from the case of ARMON vs. KATZ (1976) 2GLR p 124 were similar arguments were proffered against the defendants in a negligence action against a diplomatic agent and Justice APALOO JA had this to say:

"Article 41. 1 of the Vienna Convention on Diplomatic relations enjoins all diplomatic agents to respect the laws of the receiving state . it enacts "Without prejudice to their privileges and immunities to respect the laws and regulations of the receiving state"

It would indeed be strange if a diplomatic agent were to flout the laws of his host country so as to be able to assert his immunity. THE MOTOR VEHICLES (3rd PARTY) INSURANCE ACT 1958 was passed to meet a felt need of this country and I entirely reject the argument that a diplomatic agent who in deference to this law insures his car thereby loses his diplomatic immunity."

The taking out of a policy of insurance by the defendants was in this vain and not that they were unsure of their immunities. That apart it is only creating an avenue by which plaintiff's like Granville Fillie could be compensated by insurance companies were the circumstances warrant same.

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On the other hand, it can be proved that indeed the defendants had a status as diplomatic Agents, exhibits JELK 3A,3B,4&6 - are letters and certificates issued by no less a department than the Ministry of Foreign Affairs and International Co-operation and it is conclusive. In the case of ARMON vs KATZ (1976) 2GLR p 120 it was held that

"The acceptance and recognition of persons who form the staff of an embassy are acts of sovereignty based on the comity of nations. The one department of state which oversees the exercise of sovereignty and is peculiarly knowledgeable about who are the diplomatic agents recognized by this country, is the Ministry of Foreign Affairs. What can be more authentic than an official letter head of that ministry certifying under his hand that a person sought to be impleaded before the court was so recognized and was as such, immune from the jurisdiction of the courts?.............................Thus that ministry is the one department of Government that can state with authority at any given time who are and who are not recognized as diplomatic agents"

It follows that with this certificate from the ministry the status of the 1st and 2nd defendants as diplomatic agents is conclusive

The point taken that Mr. Joseph Monrovia is a Sierra Leone and pursuant of Section 10 (1) the Diplomatic Immunities and Privileges Act No35 of 1961 and 9(4) not entitled to diplomatic immunities is based on wrong interpretation.. The full meaning of these sections is that while the 2nd defendant only may not be entitled to personal immunities, these do not exclude him from immunities relating to acts or words committed during the course of his performance of his official duties . It could not be doubted that the accident for which the 1st and 2nd defendants have been impleaded was act perpetrated in the course of the 2nd defendants official duties. Furthermore, the said exhibits JELK 3A, 3B, 4&6 clearly provide and it is noted also in ARTICLE 12 OF THE DIPLOMATIC AND PRIVILGES ORDER PN NO 178 that Except in so far as in any particular case any privilege or immunity is waived by the organization, all officials (and

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these include sierra Leonean drivers) of the organization are immune from suit and legal process in respect of words spoken or written and all acts done by them in the course of the performance of their official duties acts.

Against the abundance of evidence to show that the defendants carry such status, the courts must wholesomely ascribe the privileges and immunities associated with it unto them for to do otherwise will not inure public good. To borrow similar words from JUSTICE APALOO JA IN THE CASE OF ARMON VS KATZ (1976) 2GLR P120, I will say these privileges and immunities depend upon maintaining the obligations of international law and the comity of nations. It would indeed be unfortunate if, after recognition had been afforded by the State (through the passing of such Order as effecting the Vienna Convention to which this State of Sierra Leone is a party) to people holding such posts on the international organizations' staff entitling them to the privileges and immunities which the defendants seek to invoke; and for a statement as to their position having been afforded on behalf of the State through our Foreign affairs office, it was to be regarded lightly by the judiciary, which hold a duty to take Judicial notice of same, for in such circumstances , the ensuing contest could not possibly inure to public good.

The above constitutes the defendants meritorious defence. Really and frankly speaking, it goes beyond the issue of the Judgment in Default of Defence dated 15th June 2006 being regular or not as based on the diplomatic immunity an action is not maintainable against the diplomatic organizations and their staffs for acts done in the performance of their official duties whether they are citizens of this country or not. In such circumstances where an action is not maintainable it would be inconceivable to say that the judgment whether regular or irregular could at any time be entered against defendants under such immunity; and where it has been so entered, I think it would be proper for this court to set it aside and the very writ of summons it self. This is because it would appear to me that if you cannot bring an action , you cannot obtain judgment and where you obtain judgment in a matter for which action is not maintainable, it would be, not only an irregular judgment, but the writ itself must be set aside to deny any attempt of continuing the

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action to trial when a strong jurisdictional issue has been raised . Be that as it may, I would refrain from doing so as what is before me is not the matter adjourned sine die which could be brought up at the instance of the defendants but an application to set aside the Judgment in Default of Defence dated 15th June 2006.

Nonetheless it is abundantly clear that the defence of the diplomatic immunity raised by the defendants was such that it gave the defendants in the words of the Saudi Eagle "a real prospect of success" and "carry some degree of conviction" and the court is able to form a provisional view of the probable outcome of this action.

Having said all, I think in a case like this, I have to address the issue of the plaintiff Granville Fillie. There is a very strong case to say that he has suffered as result of his accident, which has left him partially disabled. But the issue here is "ubi jus ubi remedium" meaning "where there is a right there is a remedy". Conversely "where there is no right there is no remedy". Thus no action is maintainable against a diplomatic organization and its staff, a sierra Leonean, on official duties for negligence or otherwise even if the international organization may be culpable for causing the accident as alleged. Granville Fillie, the plaintiff in such circumstances, it would appear, is left stranded to take in the woes of his predicament. This may seem very unjust to him and while I may even feel sorry for him that is the law, which overrides in such situations. I have no further obligation but to stick to and jealously guard the law.

I would however venture to say that I would only hope that the organization having been given their rightly dues by this court would now see reason that they owe it to Granville Fillie to ensure that he is compensated of their own volition on terms that may seem to them just and not that they are being bullied into it by a writ of summons which runs contrary to their privileges and immunities.

In the same vain, it is hoped that the plaintiff would have now seen it clearly that action does not lie against a diplomatic organization and its staff for the acts complained of where the party is dressed or covered with immunity. The fact that the Judgment is going

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to be set aside should I think provide the parties with ample opportunities for meaningful negotiations towards settlement through compensation through defendants' insurance company .For after all, the mere recognition and realization by the plaintiff that he is legally helpless in such situation may trigger the defendants to coming to his aid in terms of adequate compensation..

I will order as follows:

1. Default Judgment dated 15th June 2006 is set aside for irregularity and /or the ground that the defendant has a good defence on the merits by the claim of and proof of diplomatic immunity. .

2. That in the interest of the plaintiff the court makes no order as to costs.

Hon. Mr. Justice D.B. Edwards J.

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