CC228/06     2006     J   NO. 25

IN THE HIGH COURT OF SIERRA LEONE

CIVIL DIVISION

ABDUL RAHMAN JALLOH                                                                                     - PLAINTIFF/ RESPONDENT

VS.

WEST AFRICAN REGIONAL DIRECTOR LEONARD CHESHIRE                        - DEFENDANTS/APPLICANTS

Yada Hashim Williams                      - For The Plaintiff/Respondent

James Blyden Jenkins Johnston         - For The Defendants /Applicants

RULING DELIVERED THIS 29th DAY OF MARCH 2007.

D.B. EDWARDS, J. By Notice of Motion dated 6th March , 2007 made under action intituled CC228/06 J. NO.25, the Defendants in this action, attempted to apply to this Honourable Court to

1. Stay execution of the Judgment entered against them on the 28th February 2007, pending the herein and determination of this application.

2. Set aside the Order made by this Court on the 28th of February 2007 striking out the defence dated the 15th day of May 2006 and entering Judgment for the plaintiff; and to

3. To restore the defence filed on the 15th day of May 2006 , and that the defendants be allowed seven (7) days within which to comply with the Order made on summons for directions on the 26th day of September 2006 on such terms as may be just in the circumstances; and that thereafter the action should proceed to trial in the normal way.

In support of this Application was the Affidavit of James Blyden Jenkins Johnston sworn to on the 6th day of March 2007. He relied on the entire affidavit. The defendants' solicitor conceded at paragraph 5 thereof that he was to blame for failure to comply with the court's Order of 26th September 2006 but that the default on the part of him as solicitor should not be visited on his clients, the defendants themselves, which was all this judgment was about in view of the fact that it has prevented going into the issues, He

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submitted that all they wanted was an opportunity to defend the action on the merits, restoration of the defence and that the matter proceed to trial in the normal way. They relied on the case of KABIA VS CONTEH 1964-66 ARSL AT PAGE 354 at P 360 particularly the judgment of Bankole Jones P where he relied on the case of EVANS VS BARTLAM 1937 AC 480 where Lord Aitkin stated inter alia

"The principle obviously is that unless and until the court has pronounced a judgment on the merits or by consent , it is to have the power to revoke the expression of its coercive power where that has been obtained by failure to follow any of the rules of procedure"

The plaintiff in responding opposed the Application, the contents of which I would care to mention as I go along, but which, in the main comprised what plaintiff's solicitor termed to be an intolerable inexcusable and inordinate delay by the defendants' Solicitor in complying with this courts order, following directions from this court, spanning over four months back.

The facts of the case are that the plaintiff on the 21st of February 2006 brought an action against the defendants jointly and severally for the sums of Le 60,000,000.00 (Sixty million leones ) as the cost of the plaintiff's Tipper Lorry with registration No AAI 384 following damage to the said vehicle following an accident involving the defendants' vehicle; LE 14,060,000.00 (Fourteen Million, Sixty thousand leones), the value of goods lost in the accident and Le 2,960,000.00 per month for loss of use of the said vehicle from the 19th December 2006 until payment, interest and cost. The defendants entered appearance on the 9th of March 2006. A defence was filed on the 15th of May 2006. On the 27th day of May 2006, the plaintiff filed their reply . The matter was also entered for trial on that date.. On the 15th of September 2006 the plaintiff took out summons for directions returnable on the 26th of September 2006. At the hearing of the summons for directions the learned presiding Judge with whom the matter was assigned ordered as follows:

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1. That a list of the witnesses to be called at the trial be exchanged between the parties.

2. That written statements of the oral testimony which the parties intend to adduce on any issues of fact be exchanged between the said parties .

3. That the parties do discover and exchange all relevant documents to be used at the said trial.

4. That the said list of witnesses , the written statements of witnesses and the exchange of all relevant documents to be used at the trial be done within 21 days from the date of this order.

5. That liberty is hereby given by this Honourable Court for further directions to be given , in the action herein , if and when necessary.

6. That Tuesday the 24th of October 2006 is hereby fixed as the date for the hearing of the action herein.

7.  That the cost of this application be costs in the cause ."

On the 24th of October 2006 action did not commence as none of the parties complied with the terms of the Order. However Khalila Diana Kamara of counsel for the plaintiff on an oral application on the 24th of November 2006 applied for an extension of time by which to comply with the courts order of 26th September2006 . The court granted the application on the 24th of November 2006 whereof the new date for compliance was the 14th of December 2006. By the 14th of December 2006 the plaintiff had complied with the order of court dated 24th November 2006 . The defendants, however, failed to do so, whereupon on the 14th December 2006 the defendant solicitor applied for an extension of time and was granted same up to the 9th of January 2007. By the 9th of January 2007, the defendants had still not complied with the courts order of 26th September 2006 and this was the trend, following up to the 6th of February 2007. On the 13th of February 2007 when this matter came up this court decided not to quibble words by ordering in the strongest terms as follows

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" Upon hearing Yada Hashim Williams Esq of counsel for the plaintiff, the court notes that the defendants have failed refused or neglected to comply with the orders of the Honourable Justice Taylor (judge)dated 26th September 2006, 24th November 2006 and 14th December 2006. In the circumstances IT IS THIS DAY ORDERED ;

That unless the defendants comply with the order of court dated 26th September 2006 within 7 days after service of this order, the defence filed will be struck out and judgment entered for the plaintiff."

The defendants were served with this court order dated the 13th of February 2007, on the 16th of February 2007 and there is evidence of this service by an extract from the plaintiff's way book and an affidavit of service sworn to on the 27th of February 2007. Since this matter was adjourned to the 28th of February 2007 it came up on the said date . The court noting that the said affidavit of service evincing service was filed, struck out the defence and entered judgment on the reliefs prayed for. It is this striking out of the defence and the judgment entered that these defendants applicants through their solicitor seek to set aside . Since this striking out of the defence filed dated 15th May 2006 and entry of judgment for the plaintiff was pursuant to my "unless Order" of 13th February 2007, before delving into and analyzing the issues raised, I think it is convenient at this stage to consider what is an "unless order".

An unless order is a form of peremptory order carrying with it a penal notice. It is ordered normally to enforce compliance with the rules of court. It seems to me it is ordered pursuant to the inherent powers of the court to seek compliance with the rules of procedure and its orders.

In the case ATTOH -QUARSHIE VS OKPOTE 1973 GLR at page 60 the court held 3 areas were the court generally invokes its inherent powers thus:

"Tradition has sanctioned three areas where the court generally invokes its inherent powers . First, where the exercise of the powers is necessary for the maintenance of the court's dignity and independence, such powers include the power to punish for

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contempt and enforce obedience to its mandate and judgment and orders . Secondly, where the powers are necessary to ensure the control of its officers (including lawyers ), the power to hold its officers to a proper accountability and any default or misfeasance in the execution of its process. Thirdly, powers to prevent wrong or injury being afflicted by its own acts or orders or judgment including the power of vacating judgments entered by mistake and of relieving judgments procured by fraud , and a power to undo what it had no authority to do originally".

Hayfron Benjamin J at PAGE 65 of this case stated

"Inherent Power is not a power derived from any external source, possessed by the court" but are "those which are necessary for the ordinary and efficient exercise of jurisdiction already conferred . They are essentially protective powers necessary for the existence of the court and its due functioning . They spring not from legislation but from the nature and constitution of the court itself. They are inherent in the court by virtue of its duty to do justice between the parties before it"

The unless order specifies that a specific act is to be done; it also specifies the specific time for doing of the act and specifies the unpleasant consequences which may follow or a penal notice in the case of failure to do the act specified . It is worded in two ways. Viz. When the party to comply is absent from court- the specific time begins to run after service of the order and the order should be worded in such a way that time begins to run after service of the order. In the case of HITACHI SALES UK V MITSUI OSK LINES (1986) 2 LLOYDS REP574, CA It was held, any order which requires a person to do an act must specify the time within which that act is to be done , otherwise it is invalid and the subject of the order is entitled as of right to have it set aside.

In another case Re Tuck (1906) 1Ch. 692 at 696,CA It was held, that it is proper that after the fixed date in the order such words as after service should be inserted by the court without express instructions .

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When the party to comply is present in court - the specific time begins to run at the date of the order and the order need not be worded in such a way that time of the order begins to run after service of the order .

On the 13th of February 2007 when this court ordered an unless order it was in the following terms "That unless the defendants comply with the order of court dated 26th September 2006 within 7 days after service of this order , the defence filed will be struck out and judgment entered for the plaintiff •" it was in accordance with the law as required in the circumstances as the effective date of the order was 7 days after service of the order.Time began to run after service of the order which by evidence before this court was only on the 16th of February 2007 and the said time expired by effluxion of time on the 23rd of February 2007. The matter came up for hearing on the 28th of February and the defendants had still not complied with the terms of the unless order, the natural and unpleasant consequences having been made known, it was effected forthwith with this courts striking of the defence and entering judgment. Thus the penalty thereof for any non compliance where made known to the Defendants' solicitor and it would appear that he failed refused or neglected to comply with same .

Turning to the actual issues raised for or against the application it seems to me that the Application before me concerns the discretion of the courts to Set aside judgments where it had been denied the opportunity to pronounce judgment on the merits or issues or by consent and the judicial discretion imposed on the judge by statute as to whether he could dismiss an action , strike out a defence and enter judgment in favour of the plaintiff or adopt any other means in securing compliance to the rules of court. These are indeed two separate and distinct powers of the court inthat the one is derived from the common law and the order by statute . It is, however, my belief that they are not at logger heads and, if any, they go hand in hand and are based on discretion. The law on the subject of compliance as gleaned from the Supreme Court Annual Practice 1999 or the High Court Rules 1960 as amended by Constitutional Instrument No 3 of 2006 is that provided in the under mentioned provisions                                         

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ORDER 20A R 18 "If any party who is required by rules 1 to 15, or by any order made under any of those rules to make discovery of documents or to produce any document for the purpose of inspection or any other purpose to supply copies thereof fails to comply with any provision of that rule or with that order, as the case may be , then without prejudice, in the case of failure to comply with any such provisions, to sub rule (2) of rule 3 and sub rule (1) of rule 11, the court may make such order as it thinks just, including in particular, an order that the action be dismissed or , as the case may be , an order that the defence be struck out and judgment be entered accordingly"

The unless order is a vehicle adopted by the court based on its inherent powers to put into effect the provisions of Order 20 Rule 18 and generally to effect compliance with the orders of the Court.

In this particular case the defendants' solicitor is known to have inadvertently, as he puts it, and not by willful default, failed refused or neglected to comply with the courts orders of 26th September 2006, 24th November 2006, 14th December 2006 , 13th February 2007 and he seeks under the principle of EVANS VS BATLAM to set aside the judgment claiming he has a good defence on the merits . The defence argues that the principle function of the High court is to see at all cost where possible that matters are heard inter parties on the merits.The plaintiff, on the other, say the delay caused by the defendants is excessive , our courts cannot and should never allow such to happen. The Plaintiff refers this court to an earlier case of STA TECH ELECTRICALS AND GENERAL SUPPLIERS VS FIRST INTERNATIONAL BANK (SL ) LIMITED CC 533/06 DATED 16th November 2006 unreported in which I had stated in page 8 thereof as follows :

"In a situation where lawyers take 4 months for just taking out a summons for directions there can be no doubt that this constitute intolerable, inordinate and inexcusable delay which I certainly would not see myself or the courts under temporary,.times encouraging"

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emphasizing that like in that case and in this case it is matter of policy that such delays ought not be tolerated ."

They referred the court to the cases of ALLEN Vs SIR ALFRED MCALPHINE & SONS (1968) 2QB PAGE 232; (1968) 1ALL ER AT P 547 and the case of FITZPATRICK VS BATGER & CO LIMITED (1967) 2ALL ER 657 dictum of LORD DENNING AT PAGE 658 when he stated that:

"Public policy demands that the business of the courts should be conducted with expedition."

With similar tenor and greater emphasis Lord Salmon in page 659 of that case stated :

"It is of the greatest importance in the interest of justice that these actions should be brought to trial with reasonable expedition. It is not only in the interest of defendants that this should be done , but it is perhaps even more in the interest of the plaintiff themselves"

Worse still in the process they have now flouted the Judges unless Order of 13th February 2007 which carried a penal notice in case of noncompliance. The said order was served on the defendant's solicitor but he again failed to comply with the courts order inconsequence of which the court struck out the defence and entered judgment on behalf of the plaintiff. There was no excuse constituting so very special circumstances for his failure to comply. The plaintiff's solicitor in opposing the application submitted that the defendants' solicitor has not provided cogent reason for the delay. I cannot agree more . Orders for summons for directions were granted by this court on the 26th of September 2006 and 21 days were given to comply with the varied orders, the 24th of October 2006 was fixed for the commencement of trial. It was over 4 months before judgment was entered after noncompliance and this constitutes intolerable inexcusable and inordinate delay . The Defence Solicitor has strenuously argued that despite the delay the principle function of the High court is to see at all cost where possible that matters are heard inter parties implying the matter perhaps should

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not have been struck out but should be allowed to be decided on its merits. To this, I will borrow words from LORD DENING in the case of ALLEN Vs SIR ALFRED MCALPHINE & SONS (1968) 2 Q B PAGE 232; (1968) 1ALL ER AT P 547 when it was urge before him that the court ought not strike out a man's action without trial because it meant depriving him of his right to come to the queens court when he said,

"The delay of justice is a denial of justice..........................to no one will we deny or delay right to justice . AH through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakes spear ranks it among the whips and scorns of time. Dickens tells how it exhaust finances, patience courage and hope . To put right this wrong, we will in this court do all in our power to enforce this expedition; and if need be we will strike out actions when there has been excessive delay.

Need I point out that even as this application is made compliance has still not been effected with the Order of September 26th 2006 as the defendants are still seeking time a further extension of 7 days after this courts order before they would comply .Not that they do not have to seek leave to comply with the time having expired, but that the same could have been complied with in the form of an exhibited compliance with the defendant just seeking leave for it to be filed and served on the plaintiff and not to come and ask for another 7 days. How unfair !, the delay has already prejudice the plaintiff's and to do so will only prejudice the plaintiff's more and more . This is so for the simple reason that as envisaged from the Order of 26th September 2006 there should have been simultaneous exchanges of documents especially the written witnesses statement.

It is the law as in EVANS AND BARTLAM that where judgment had been regularly obtained it could be set aside on discretion of the judge where the defendant has a good defence on the merits. There is no doubt that the Judgment entered was a regular judgment and strictissimi juris; the defence having been exhibited, it depended on the judges discretion whether it could be set aside. The

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authority which this court will go by however is as stated in the The SAUDI EAGLE (1986) 2 LLOYDS REPORT PAGE 221, CA which defines a good defence on merits as one which has "a real prospect of success" and "carry some degree of conviction" and for which the court must be able to form a provisional view of the probable outcome of the action. The statement of defence dated 15th May 2006 do not show a likelihood of success . Furthermore , it would however seem to me that in matters of this nature, a good defence on the merits may not be limited to just the statement of defence which the court was seised of all along, but rather the documents in the form of lists of witnesses , list of documents to be used at the trial and the production of same, witness statements etc that constitute the defendants' case and which would put the court in a better position vis-a-vis a situation where a mere statement of defence is presented , to consider whether the same constitutes a meritorious defence; these are yet to be place before this court; for what is the purpose of discoveries and inspection and exchange of witnesses statements? With the procedure of production and inspection of documents and witnesses written statements all or substantially all the oral evidence which parties intend to adduce on any issues of fact to be decided at the trial would have been exchanged before the trial so as to enable the parties or their solicitors to make a more realistic appraisal of the strength and weaknesses of their case. In the same vain the court can make realistic appraisal so as to decide whether the defendant has a meritorious defence. Where the defence in making the application to set aside fails, refuse neglects or omits yet still to comply with the order of the court regarding these documents, I do not think, that there is much room to exercising that discretion which the defendants' solicitor is so craving this court to invoke . That apart discretion has limits. In the usual case where a regular judgment is prayed to be set aside it is normally a case where the judgment though regularly obtained was obtained employing the administrative machinery of justice i.e. through the Masters office. In a situation where it is a Judges order that is flouted it is different. I take support for this from the above statement from Lord Aikin in EVANS VSBARTLAM

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"The principle obviously is that unless and until the court has pronounced a judgment on the merits or by consent , it is to have the power to revoke the expression of its coercive power where that has been obtained by failure to follow any of the rules of procedure"

In this case the expression of the court's coercive powers was obtained by failure to adhere to, not just the rules of court, but rather, to orders of the court which was then using its discretion to seek compliance, not once, not twice, not thrice and then had to impose compliance through its inherent powers using the unless order which was blatantly flouted . In such cases it is different and it becomes difficult to exercise discretion to revoke the coercive power . To do so would be misuse of discretion and would only do grave injustice to the plaintiff. According to STROUDS JUDICIAL DICTIONARY QUOTING WILLES J IN LEE VS BUDE RAILWAY, LAW REPORTS 6 COMMON PLEAS at page 576

"where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred . the discretion must be exercised honestly and in the spirit of the statute , "according to discretion" means it is said , according to the rules of reason and justice and not private opinion"

I cannot agree more. The remedy appropriate in case of non compliance of this nature is a stern measure; but is within the inherent jurisdiction of this court, and the rules of our court as contained in order 20 A rule 18(1) expressly permit. It is the only effective sanction that they contain. If a defendant fails within the specified time to comply with a judges order or to exchange lists of documents, the plaintiff can apply for the defence filed to be struck but and judgment entered for the plaintiff. It is even worse when the judge has given an "unless order" which prescribes the sanction in the case of non compliance. A worse form of penalty is committal.

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Having said all, I am done. I could only order as follows:

l.Stay execution of the judgment entered against them on the 28 February 2007, pending the herein and determination of this application is lifted

2.The Setting aside of the order made by this court on the 28th of February 2007 striking out the defence of the defendants dated the 15th day of May 2006 and entering judgment for the plaintiff is refused

3. Defence filed on the 15th day of May 2006 cannot be restored

4. No order as to costs

Hon Justice Desmond Babatunde Edwards J.

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