CC 55/2006    2006  S. NO 10

IN THE HIGH COURT OF SIERRA LEONE BETWEEN:

ALLIE SESAY

(REPRESENTING ALWAFA STAR ENTERPRISES)           PLAINTIFF

AND MARIAMA BANGURA                                                 DEFENDANT

Abdul F. Serry-Kamal Esq. for the Plaintiff

No Representation by the Defendant

JUDGMENT DELIVERED ON 26th DAY OF FEBRUARY 2007

S. Bash-Taqi, J.A INTRODUCTION

The Plaintiff in this action seeks to recover from the Defendant, the sum of Le 16,050,000.00 debt, plus interest thereon at the rate of 27% per annum from 21st July 2005 until payment; damages for breach of contract; Special damages of Le 2,500,000.00, and cost of the action.

The Writ of Summons dated 17th January 2006 was served on the Defendant at Bo Town Bo District on 21st January 2006; there is an Affidavit of service sworn to by Sulaiman Koroma, Solicitor's clerk in the Court file. The Defendant did not enter an appearance to the action, as appears from the Affidavit of search sworn to by Mohamed Saio Samura on 8th March 2006. The Plaintiff subsequently signed Judgment in default of Appearance on 13th March 2006, for the amount claimed on the Writ and for damages to be assessed. By a Notice of Motion dated 8th May 2006, the Plaintiff applied for an order that the Court proceeds to assess damages as claimed in the Statement of Claim. The assessment date was fixed for 3rd July 2006, but the assessment did not commence until 12th January 2007.

THE ISSUES

The plaintiff's representative, Allie Sesay, gave oral evidence in support of the plaintiff's claim. He testified that Alwafa Star Enterprises, the Plaintiff in this action, is a registered business situate at 32 Malama Thomas Street, Freetown, and tendered in evidence the Business Registration Certificate of Renewal of Licence valid from 1st January 2006 to 31st December 2006 as Exhibit "B". The witness said he was employed by Alwafa Star Enterprises as an Invoice Writer; that the business was owned by one Allie Ibrahim, and it deals in the sale of Plastics items of all kinds. Further, he said he knew the Defendant as a customer of the plaintiff's and that she conducted business with them. She took goods on credit periodically from the plaintiff's and paid for them within two weeks of taking delivery of each consignment. The witness testified that his duty was to write out Credit

Invoices for the Defendant during each transaction and he tendered in evidence the original Credit Invoice Book as Exhibit "A".

On 3rd September 2001, the witness said that the Defendant purchased from them, various Plastic goods on credit amounting to Le 18,173,600.00. He prepared the credit invoices from Exhibit "A", and tendered in evidence the last four (4) pages of that Book, evidencing the transaction between the plaintiff's and the Defendant on 3rd September 2001 as exhibits "A1-A4". The Defendant thereafter made several payments for the goods up to 21 July 2005, leaving a balance of Le 16,050,000.00, which she failed to pay. The witness went to Bo Town on several occasions to demand payment of the balance, but each time the Defendant would promise to come to Freetown and pay, but never did. The witness went on further to say that he made a total of eight (8) trips to Bo to demand payment from the Defendant. For five (5) of these trips, he used the official vehicle, but had to buy 10 gallons of petrol per return trip on each occasion The cost of petrol per gallon at the time was Le 12,500.00. Thus he spent a total of Le 625,000.00 for the five return trips. On the other three (3) occasions, he travelled to Bo by commercial transport for which he paid Le 30,000.00 per return trip amounting to Le 90,000.00 for the three trips. On the whole, the witness said he spent a total of Le 715,000.00 as transportation cost and in addition he paid for board and lodge while in Bo. He said the Defendant has refused and is still refusing to pay the outstanding balance, and is therefore liable for breach of contract. He was thus asking the Court to award the plaintiff's for damages for breach of contract, and in addition to recover Special damages of Le 2,500,000.00, which he said is made up of the cost of travelling to and from Bo town plus board and lodge. This was the plaintiff's case.

CONCLUSION

The Plaintiff has already signed Judgment for the outstanding debt of Le 16,050,000.00 owing by the Defendant for the goods she took on credit, and I will therefore award him this amount.

With respect to the claim for Special Damages, I believe that the Plaintiff sent the witness to Bo to try to recover the outstanding balance owing and I will therefore award him sum of Le 715,000.00 as the cost of travelling to and from Bo town on the occasions that he said he went there. There is no evidence of the amount spent on board and lodge and will therefore dismiss this item.

With respect to the claim for breach of contract, the evidence is clear that there was a business transaction between the plaintiff's and the Defendant, and an agreement between them for the supply of goods to the Defendant on credit, and for payment for such goods to be made by the Defendant within two weeks of their delivery. When the Defendant failed to pay for goods she took on 3rd September 2001, she was in breach of this agreement. The Plaintiffs' business would have been affected by the failure to pay because as the witness stated in evidence the business was being run on overdraft facilities for which the Bank charged interest of 27% per annum.

In view of the foregoing, I hold that the Plaintiff has proved their case on a balance of probabilities, and will enter Judgment for the plaintiff's in the following terms:

a) That the Plaintiff recovers from the Defendant the sum of Le16,050,000.00 debt, plus interest thereon at the rate of 27% per annum from the 21st day of July 2005 until payment;

b) That the Plaintiff recovers from the Defendant the sum of Le 715,000.00 Special Damages;

c) That the Plaintiff recovers from the Defendant damages for breach of contract assessed at Le 1,500,000.00;

The Plaintiff shall have the costs of this action assessed at Le 750,000.00;

day of February 2007