Mullener and Another v Koroma (Ruling) (CC757/05 2005 N. No.45) [2006] SLHC 2 (20 February 2006);

CC757/05 2005  N. No.45





THOMAS NIEDER HOUSE (Suing by their Attorney Patient Baby Joe Thompson) - Plaintiffs


Monday 20th                                                                       Before the Hon. Mrs.

February 2006                                                                    Justice A. Showers J.

Case Called

Same representation


The Plaintiff is by Judges summons dated 16th December 2005 seeking leave to enter final judgment in this action against the Defendant for certain sums of money entrusted to the Defendant by the plaintiff's for certain purposes which the Defendant has failed to carry out, also for damages for breach of contract and costs respectively as endorsed on the Writ of Summons. In support of the application is the affidavit of Patient Baby Joe Thompson, the Attorney for the Plaintiffs. In his submission to the court counsel for the plaintiff stated that the Defence filed is a mere shame. He referred to the particulars of claim in the writ of summons which set out the whole transaction between the parties. He pointed out that the Defendant received the monies stated therein but failed to perform the contract for which those monies were transmitted to him. He then referred to the defence filed by the Defendant which he submitted were mere denials. He referred to Order 16 Rule 13 of the Rules of the High Court which provides that the denials must be specific and that it is not sufficient to deny generally the allegations contained in the


statement of claim. He stressed that the defendant has failed to explain to the court what transpired between the parties in his defence, all he stated was a bare denial. Counsel also referred to the affidavit in opposition in which the defendant admitted that his defence denied all the allegations of the plaintiff set out in his particulars of claim. He pointed out that it is only in his affidavit in opposition that he has attempted to explain the transaction between the parties and to state that there are triable issues. He submitted that these issues ought to have been raised in his defence. In his view the defendant has no defence and the issues raised in his affidavit as opposition are merely a deliberate ploy to delay the cause of justice.

In reply to the above submissions, counsel for the defendant referred to the affidavit in opposition filed and submitted that the defendant has disclosed that there are triable issues. He submitted that the defendant carried out the purpose for which the money was given to him by the plaintiff. He referred to the exhibits attached to the affidavit in opposition as evidence that the defendant performed his side of the contract. He therefore submitted that for those reasons they have disclosed that there are triable issues for the matter to be heard on its merits.

Having listened to the above submissions, it is now for me to determine whether or not the plaintiff's are entitled to the Orders prayed for. Order 11 Rule 1 of the High Court Rules as amended provides, inter alia, as follows:

"The Judge ... unless the Defendant by affidavit, by his own viva voce evidence or otherwise shall satisfy him that he has a good defence to the action on the merits, or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgement as may be just...."

It is therefore my duty to examine the defence to satisfy myself whether the defendant has a good defence. In this matter the defendant has merely denied the claims of the plaintiff. His defence is an example of an evasive denial as described in Order 16 Rule 15 of the said High Court Rules. He has not answered the points of substance as he has not offered any explanation of his own part of the transaction. All he has submitted are


bare denials. There cannot be said to be any evidence of a good defence for the matter to be heard on its merits.

The said Rules however provide an alternative, that is, that he shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally. Here 1 must take into consideration the facts deposed to in the affidavit in opposition. He states therein that he purchased the land for which he received the monies and exhibited a survey plan. I observe that the plan is yet to be signed by the Director of Surveys and Lands. The defendant has admitted receiving money for the purchase of land in 2002 or 2003 yet by the date of the affidavit sworn to in January 2006, he has no evidence of the survey plan to the land being completed.

In sum, I am not satisfied that the defendant has a defence to this matter as he has not disclosed such facts that to me seem sufficient to send the matter for trial. In the circumstance 1 shall grant the Orders prayed for in the said Judges summons and the plaintiff's are at liberty to enter final judgment against the defendant for the reliefs set out in their first prayer in the said Writ of Summons.

I hereby further order that damages for breach of contract are to be assessed. Costs of this application are assessed at Le150,000. Liberty to apply.

A. Showers J.