Ilemmoh v. Sierra Postal Services (C.C 143/07 2007 H. No. 3) [2007] SLHC 27 (18 May 2007);


C.C 143/07  2007      H. No. 3



NENEH IIEMMOH                                                                            - PAINTIFF/APPLICANT

AND SIERRA POSTAL SERVICES LTD.                                        - DEFENDANT/RESPONDENT




By an Ex Parte Notice of Motion dated 8th March 2007, the Plaintiff (Judgment /creditor) applied for an Order for the garnishee (National Commission for Privatisation) to show cause why they should not pay monies' due from them to the defendant .Judgment / Debtor in respect of a judgment debt.

This application was supported by the affidavit of Yada Hashim Williams sworn to on the 8th day of March 2007 and the affidavit of Khalila Diana Kamara sworn to on the 12th day of March 2007.

Upon hearing Khalila Kamara, counsel on behalf of the Judgment / creditor, this court by order dated 12Ih March 2007 ordered the garnishee, Nationnl Commission for Privatisation to attend and show cause why they should not pay sum due and owing by them to the judgment / debtor directly to the judgment / creditor.

In compliance with the said order of the court dated 12th day of March 2007 an employee of the garnishee, one Mohamed Abu Sesay attended court on Monday 19th March 2007.

In testifying on oath Mr. Mohamed Abu Sesay said he was the Financial Analyst at National Commission for Privatisation the Garnisheee. Mr. Sesay in substance testified that his Institution was not indebted or does not hold money for the Judgment Debtor. In short there was no sum due or accruing from the Garnishee to the Judgment Debtor.

At this stage it was not so clear whether or not there was any amount due and owing from the Garnishee to the Judgment Debtor. Counsel for the Judgment Creditor and the Garnishee were directed to address the court by oral argument so as to assist the court to come to a decision one the way or the other.

The witness tendered letters marked Exhibits 'A' 1 to 'A' 6 which, I may refer to (where necessary) in this ruling.

In his submissions, Counsel for the Garnishee (NCP) referred the court to Order 33 Rule 1 of the High Court Rules 1960 pursuant to which the application herein was made, emphasising the phrase " all debts owing and accruing from such third person (hereinafter called the garnishee) ...." Counsel also relied on O 45 Rule 1 of the annual practice 1960 particularly the rubric " object of the process", He submitted that there was no debt owing or accruing from the Garnishee to the Judgment debtor.

Counsel for the judgment creditor on the other hand referred to the National Commission for Privatisation Act No. 5 of 2002; Sections 20(2), 23(2) and 27 respectively contending that the Commission may be funded only in the manner provided in the Act and that the money transferred to the account of the NCP does not fall into any of the categories provided in the Act as to how the Commission may be funded and that the said transfer was irregular or illegal. He also contended that as there was no consideration on the part of NCP for the said transfer, the money was payable to Salpost and it was that of Salpost's in the possession of NCP.

I have carefully considered the various submissions of counsel and have read the various cases and other authorities cited. I note that in Exhibit 'A' 1 which is a letter dated 13th February 2007 written by the Chairman of the NCP, the Commission was asserting that Salpost was being divested under the provisions of the Act and that upon the sale of the assets of Salpost, the total sum of Le. 905,319,100,00 was realised which sum was paid directly into Salpost's account That the sum of Le. 434,000,000.00 the subject of this application was part of the total sum renlised from the divestiture.

Section 20(2) (a) of the Act provides as follows:-

20 (2) Without prejudice to the generality of subsection (1), any divestiture may take one or a combination of the following forms:-

(a) the sale of the business to a private sector investor or investors or the sale of the assets of the business in part or as a whole.

This would suggest that the sale of the assets of Salpost would qualify as a divestiture if indeed the said sale was done pursuant the NCP Act 2002 as claimed in Exhibit 'AM. Within the context of the forgoing therefore the proceeds of such sale or divestiture ought to have been paid into the Consolidated Fund as provided in Section 23 of the Act. However from all what has been presented to this court, this was not done. Instead, the sum of Le. 434 Million was upon the instructions of the Accountant General by Exhibit 'A' 2 (i.e. letter dated 14th November 2006) directed to be transferred to the NCP account. This was said to be for the operations of the Commission. This I find rather curious. In the first place, as contended by counsel for the judgment creditor, this payment to NCP was not one of the sources of funding of the commission as provided in section 27(1) of the Act which provides as follows: -

27 (1) The activities of the Commission shall be financed by a fund consisting of:

a. any monies appropriated from time to time by Parliament for the purpose of the Commission based on the estimated income and expenditure.

b. Any monies otherwise accruing to the commission in the course of its activities;

I agree that the payment to NCP does not fall within the categories contemplated in Section 27(1) above.

Secondly counsel for the Judgment Creditor pointed out that even where money paid as a result of divestiture is to be paid into the Consolidated Fund, Section 23 (2) of the Act provides that " In case retrenchments or payments of debts or other obligations of the public enterprise is a condition for the divestiture, the estimated resourses used to effect such payments shall be segregated and kept in a specific trust account...." And that as evinced in the Statement of Claim in the action herein the plaintiff's claim being one for end of service benefits qualifies as regards Section 23(2) of the Act.

Apart from what is stated in Exhibit 'A' 1 which was tendered by a senior officer of the Garnishee, there seem to be no other evidence that there was in fact divestiture (by sale of assets) of Salpost in accordance with the Act. However, this witness, again to stress, a senior officer of the Garnishee Commission, i.e. its Financial Analyst, testified that he was aware of the sale of the Parcel Post Building at Wallace Johnson Street but that his office did not receive any sum from the proceed of that sale. I pause to ask these questions " If that sale was a divestiture of Salpost in accordance with the Act, would not the commission have conduct or supervision of such transaction as well as deciding what happens to the funds realised therefrom?" "Would the witness' testimony not be seen to distancing the Commission fromm the sale of the assets of Salpost?"

The provisions of the Act as a whole and in particular Sections 10, 17, 19, and 20 clearly suggest that the commission shall be responsible for the decision relating to divestiture of a public enterprise like Salpost and shall make recommendations oversee, implement and practically conduct the sale or divestiture as the case may be. How or why was the said Le. 434 million transferred from Salpost account to NCP account? Counsel for the Garnishee has not suggested any or any satisfactory answer as to whether the same was transferred under or in compliance or in accordance with the Act. Counsel for the Judgement Creditor for his part contends that if it is accepted that the said transfer was not under or in accordance with the Act it is therefore irregular. Further that if the transfer was paid by mistake it was to be taken as an implied debt due from the Garnishee to the Judgement Debtor (Salpost)

In all circumstances of this case, having considered inter alia the manner and unsatisfactory explanation(s) or reasons for the transfer of the said sum from the Judgment Debtor to the garnishee, I am left with no doubt that the said sum is attachable. I am satisfied that under the circumstances, the Judgment debtor could sue and recover the sum paid to the garnishee.

I agree with the submissions of Counsel for the Judgement Creditor as I am clear in my mind that the sum of Le. 434 Million transferred to the account of NCP is sum owing and accruing from the Commission to the Judgment Debtor as contemplated by Order 33 Rule 1 of the High Court Rules 1960. My coming to this conclusion has been made somewhat easier by the fact that the total proceed or any part for that matter of the sale of asset of the Judgment Debtor was never paid to the Consolidated Fund. I am also clear in my mind that it is fair, just and equitable to grant the garnishee order absolute having regard to the facts and circumstance of this case. I therefore make the following orders:

1. That the Gamishee Order nisi herein dated 12th March 2007 is hereby made absolute; that is to say that the Garnishee National Commission for Privatisation do hereby pay the said Judgment Creditor' the sum of Le. 12,645,413 .00 plus interest on the said sum at the rate of 22% per annum from 31st December 2001 till judgement which is 5th March 2007 being so-much of the debt from the said Gamishee to the Judgment Debtor in satisfaction of the Judgment Debt. That the sum of to be paid to the Solicitors for the Judgement Creditor and the sum of to be paid to the Solicitors of the Garnishee such sums representing cost of the garnishee proceedings.

2. That the Garnishee shall pay the sum of Le 3,000,000 to the solicitors for the Judgment Creditor and the sum of Le 3,000,000 to the Solicitors for the Garnishee such sums representing the costs of the garnishee proceedings.

Hon. Mr. Justice E.E. ROBERTS, J.A.