CC296/07     2007   P   NO. 3

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION PROCREDlT BANK (SL)LIMITED             - PLAINTIFF

VS.

BANDS ASSOCIATES                                                                     - DEFENDANT

PATRICK LAMBERT ESQ                            FOR THE PLAINTIFF

J. B JENKINS JOHNSTON ESQ                   FOR THE DEFENDANT

RULING DELIVERED THIS 4th DAY OF JUNE 2007.

D. B. EDWARDS J .This is an application by judges summons dated 1st MAY 2007 for the plaintiff to be at liberty to sign final judgment in this action against the defendant/ respondent for the sum of US $27,500/00 interest and costs as claimed in the statement of claim indorsed on writ of summons intituled CC296/07 P No 3

The plaintiff applicant had issued a writ of summons intituled CC296/07 P No 3 dated 3rd April 2007 claiming the sum US $27,500/00 interest and cost . An appearance was entered and a defence and counterclaim filed . The plaintiff then applied for leave to enter summary judgment through the aforesaid Judges summons pursuant to Order 11 rule 1 of the High Court Rules as amended by Public Notice No 24 of 1964 . The application was supported by the Affidavit of THOMAS LENDZIAN sworn to on the Ist May 2007 together with the several exhibits referred thereto to wit exhibits TL1 -TL12 .

The defendant opposed the application on the ground that the defence and counterclain raised triable issues in view of which the application should be dismissed with cost relying on portions of the English Annual Practice 1960 to wit notes at page 243 under the rubric "Defendant's Rights" and at page 263 under the rubric "Leave to Defend". The defendant however failed refused or neglected to file an affidavit in opposition..

The Plaintiff in reply referred the court to the case of AMINATA CONTEH VS APC SC.CIV APP.4/2004 unreported and submitted that the new test which binds this court is to examine the issues of law and facts raised and to determine whether the defendant has a good chance of succeeding. He stated that it is not sufficient to show that that there are triable issues but there must be a prospect of success . It is for the judge to look at the issues raised and the law on the matter to see if there is any prospect of success..

the plaintiff, in reply, further submitted that the defendant has failed to condescend to particulars as he failed to disclose such facts in an affidavit in opposition going to the merits of the case as would entitle him to defend. He seems to be relying on the defence and counter claim filed which he submitted were insufficient and worse still mere sham;

I have perused all documents before this court and considered the various arguments raised and submissions made by both counsels . I hold that this application is within the terms of Order 11 rule 1 of the High Court Rules I960 as amended by PN 24 of 1964. The defendant however may be given leave to defend provided he can satisfy the test regarding whether he has a good chance of succeeding . I agree with the plaintiff that the case of AMINATA CONTEH represents the law on the subject. I further opine that it represent a divergence fromm the original position were leave to defend ought to be given were the defendant could show a mere arguable case . The test is a meritorious defence which goes beyond a mere arguable case . In this matter the plaintiff sued the defendant for money had and received to the use of the plaintiff;

In BULLEN & LEAKE AND JACOBS PRECEDENTS ON PLEADINGS 13th EDITION IN SECTION 71 AT PAGE 1313 it is stated

"The defence in an action for money had and received should deny the receipt of money, or the existence of those facts which are alleged to make such a receipt by the defendant a receipt to the use of the plaintiff"

In this matter the defendant did not deny receipt of money a total sum of US$ 27,500.00 and the purpose for which the money was received was clear and the time frame as to which to complete was also clear to all parties as detailed in the Pre Lease Agreement exhibit TL1 to wit to complete the building by doing a list of things before the end of January 2007 after which the building would be free for rent . The defendant admitted receipt of the US $ 27, 500.00 and it could not be doubted that this was pursuant to EX TL1.

In paragraph 4 of the defence the defendant stated as follows:

"With regard to the date for completion and handing over of the building, the defendant avers that by letter dated 23rd January 2007, the plaintiff wrote to the defendant as follows:

"We therefore accept your offer to issue a performance Bond for any delay in the completion of the building scheduled for 30th April 2007"

But thai even before the agreed date, the plaintiff's by letter dated 14th March 2007 demanded the refund of the sum of US $27,500.00 which had long been utilized in the structural modification of the building"

This letter of 23rd January 2007 indeed does give the impression that the deadline for the completion 6f the building has been moved to 30th April 2007. The full text of this letter is exhibit TL4 and a careful examination of same shows that that impression is negatived by the fact that the defendant was expected to accept the terms of that offer not later than Thursday 25th January 2007. That apart the defence and counter claim filed are standing

alone as they are not part of any affidavit in opposition. The defendant has failed refused or neglected to condescend to particulars and there is nothing to show that those terms were actually accepted. There is no evidence before this court that the defendant replied to this letter accepting those terms. In Exhibits TL5 and TL6 there is evidence to show that the defendant has not done any thing to accede to the terms of the proposed offer dated April 30th 2007, as deadline which was conditional on the execution of a performance bond.

The plaintiff has amply replied to paragraph 4 of the defence when he submitted that where there is one Agreement and you intend to vary it there must be consideration. FOAKES VS BEER (1884) 9 APP CASES AND THE RULE IN PINNEL'S CASE (1602) ,5 CO REP support this submission. That apart he submitted that there was no variation of the contract as exhibit TL2 was clear and to the effect that any extension of time granted did not waive the plaintiff's right as stated in the Pre-Lease Agreement dated 27th November 2006 and that they had reserved their right to terminate the said agreement. On exhibit TL4 which has been raised by the defendant in paragraph 4 of the defence, the plaintiff submitted that there was nothing before this Honourable Court as evidence that the performance bond was executed and that they were willing to extend the time if the defendants gave a performance Bond as this would have entitled them to vary the agreement .He referred the court to paragraph 11 of the affidavit which shows that the performance bond was not executed. I cannot agree more with the plaintiff on this submission.

I note that by the agreement the defendant was to complete the contract on or against January 2007 and that it was never completed . It was extended to April 30th by exhibit TL4 provided the defendant accepted this offer as against the 25th of January 2007 or executed a performance bond . All through out the plaintiff never waived its right to terminate the contract . On the dates on invoices as per exhibit TL3 it was only in December 2006 that the defendant began to put things in place to execute the contract.

The plaintiff referred this court to Halsbury's Laws of England 3rd Edition volume 8 page 243 -245 starting from paragraph 421- 423. These authorities confirm that money was had and received for a particular purpose and that there has been a total failure of consideration in that the defendant has failed to perform denying the plaintiff the benefit of going into the premises in January 2007. Surely in such a situation as considered above the defendant has failed to raise any issue likely of success.

This is a case perhaps where the defendant breached the contract but thought perhaps through the encouragement of the plaintiff without waiving his rights, he still could measure up. However the patience of the plaintiff ran out and he has to bear the cost. The plaintiff nonetheless had power to terminate the contract and that is what he did . He was denied the benefits of his consideration and the purpose for which he paid out consideration had wholly failed. He is definitely entitled to leave to sign final judgment for the sum of US$27,500,00 interest and cost. I therefore order as follows :

i) Leave to sign final judgment for the sum of US$27,500.00

ii) interest on the said sum at the rate of 5% per annum until judgment.

iii) cost assessed at Le 5,000,000.00 to the plaintiff against the defendant.

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