SIERRA LEONE No. CC 378/06   2006      C

NO.26

IN THE HIGH COURT OF SIERRA LEONE

CIVIL JURISDICTION

 BETWEEN: -

TOMMY CAULKER 6A OLD

ABERDEEN ROAD CRAB TOWN LUMLY                                 - PLAINTIFF

AND

MR LAMIN TURAY

CRAB TOWN

LUMLEY                                                                                             - DEFENDANT

DAVID GUSTAVUS THOMPSON               - For the Plaintiff

MUSTAPHA TURAY

BRIMA KOROMA

E/E. C. SHEARS-MOSES                               - For the Defendant

JUDGMENT DELIVERED THIS 2"" DAY OF April 2009 By JUSTICE D. B. EDWARDS J.

THE CLAIM

1. In this case the plaintiff's claim against the defendant is for the following:

a)  for the detention of a Mazda 626 vehicle with registration number AAH761

b) damages for the wrong detention of the car

c) Delivery of the said vehicle

d) Interest on the amount due at the rate of 25% per annum until payment or judgment

e) Costs

THE PLEADINGS

2.  The plaintiff elaborated on his claim by paragraphs 1-9 of the statement of claim. Suffice it to say that the allegations of the plaintiff as gleaned from the pleadings was that he was and is the owner of Mazda 626 vehicle with registration No AAH761 and that because of an accusation of witchcraft by one Junior Anderson against him and his family he and his family were summoned to the Limba Tribal Administration to answer to a charges of witchcraft. At Paragraph 6 of the claim the plaintiff avers that the defendant informed the plaintiff that the plaintiff and his family had been named as witches therefore the plaintiff and his family must pay the sum of Le200, 000 each, a total of Le800,000.00 to secure the services of a ''medicine man" to determine their guilt. At paragraph 7, the plaintiff averred that when he refused, the defendant maintained that it was imperative that the "medicine man" be summoned in consequence of which the defendant would provide the sum of Le 800,000.00 as was needed, but hold on to the vehicle until the plaintiff pays back the said amount. In paragraph 8, the plaintiff pleaded that the defendant did not send for the "medicine man" nor did he proceed with the said proof of witchcraft and at paragraph 9 the plaintiff averred that the defendant detained and continued to detain the said vehicle and wrongfully deprived the plaintiff of the said vehicle and of the use and enjoyment thereof in consequence of which he suffered damages constituted by the loss of earnings for the use of the vehicle as taxi at Le 40,000.00 per day from the 20th day of August 2005 to date.

3. The defendant reacted by filing a Defence and Counterclaim which gave a different version of what had transpired leading up to the taking of the vehicle with registration number AAH761 purportedly owned by the plaintiff. At paragraph 8 of the DEFENCE AND COUNTER CLAIM the defendant averred in

further answer to paragraph 6 of the plaintiffs particulars of claim that he never told the plaintiff to pay Le200,000.00 for each of his family members, including himself in order to secure the services of a "medicine man" but that it was the plaintiff who agreed voluntarily to pay the sum of Le 200,000.00 after the father of Tina Anderson who had earlier on accused them of witch craft offered to pay Le 200.000,00 to secure the services of a "medicine man". At paragraph 9 of the defence the defendant denies paragraph 7 of the particulars of claim and averred that it was the plaintiff who met one Morlai and pleaded with him to beg the defendant to loan him Le800,000,00 to pay for the services of the "medicine man" as the plaintiff was broke and desirous of clearing his name and that of his family. At paragraph 10, he averred in further answer to paragraph 7 of the plaintiffs claim, that it was the plaintiff who personally came with his car to the premises of the defendant and voluntarily handed over same and all documents to the defendant as security for a loan of Le 800,000.00 which the defendant signed for and he undertook in writing on the 20th of August 2005 to repay this loan on the 26th of August 2005. The defendant counterclaimed for the money he paid to the plaintiff.

EVIDENCE

4. The plaintiff gave evidence on his own behalf and called 2 witnesses. All of them gave evidence much different from what they had said in their witness statements filed. The plaintiff for instance in his witness statement stated:

"1 was molested, assaulted and subsequently physically detained with my family. That whilst I was so subjected to this disgraceful treatment the defendant told me that my family and myself had been named as witches and wizard, and therefore 1 should pay Le200,000.00 each and I must pay Le800,000.00 to secure the services of a "medicine man" to prove my guilt or innocence . That 1 told him I have no money, and that even if I have I would not give as

it is for the person who have accused us to solicit the services of the medicine man. The defendant pronounced that it was very necessary and imperative that the "medicine man" should be summoned, therefore he would provide the said amount of Le800,000.00 and he ordered his guards at the court to get the car keys from me. He then said he would hold onto the vehicle until I pay back the Le 800,000.00."

5. In his oral testimony he stated on the contrary.

"I was told by the defendant that I am a witch together with my wife and children as a consequence of which 1 was asked to pay a fine of Le 200,000.00 each totaling Le800,000.00. I told the defendant thai you have not found me a witch but then you are asking me to pay Le200, 000.00; I will definitely not pay same. I told him the defendant that he was seizing advantage over me. I was told by him that he docs not want to know, all he is concerned with is that 1 have been declared a witch and the police have no hands in it. I still nonetheless refused to pay in consequence of which he told me, my wife and children to sit on the floor. Refusing still to pay my car keys were removed from my hands. The defendant however decided that he will pay the sum of Le200, 000.00 each totaling Le800,000.00 as fine on our behalf. I later went to the Lumley Police Station to report the matter. I was told it was a civil matter in consequence of which they will not investigate. The key is in respect of a Mazda vehicle 626 Registration No AAH 761. I am the owner of this vehicle."

6. The two other witnesses called by the plaintiff gave evidence much along the same line as the plaintiff in their witness statements but this was

completely at variance with what they said in their oral testimonies. The defendant gave evidence in his own behalf and also called 2 witnesses, The defendant stated that the plaintiff and his family i.e. Onike Thompson, his wife Elizabeth Caulker and Emmanuel Caulker were summoned to his court to answer allegations of witchcraft. The plaintiff surrendered to the court and told the court that he was not a witch and that it was unacceptable for him to be regarded a witch. As a result of this the plaintiff informed him that he was ready to 'Put swear' meaning to lake an Oath. After this the following happened as gleaned from the testimony of DW1.

"The plaintiff then called the chairman of the Court Barray and went to speak with him. When they were speaking I went back to my house. After speaking with the plaintiff Mr. Morlai went to meet me in the parlour of my house. He reported to me that after speaking with the plaintiff, the plaintiff had asked that you stand by him by paying in view of which the car which he owns will be pledged to me as guarantee for the loan. I however refused. The court chairman. Mr. Morlai begged me to accede to their request. When the plaintiff came into my parlour, the plaintiff then begged me to credit him an amount. I then agreed to credit him the amount. He asked for Le 800,000.00 so I credited him Le 800,000.00....................After this Mr. Tommy Caulker went and brought his car. He called Mr Morlai and gave him the car keys, life card and documents of the car. He told me that he was pledging this car to me for 1 week. He said after 1 week "if I failed to pay the amount and collect the car let me sell the car to recover the money." Prior to this day, I had never known Mr. Tommy Caulker the plaintiff or that he had a car. After all this had transpired in the parlour I went into the .Barray and informed the court officials as to what had transpired. I informed them to made a document as to what had transpired. Abdul Fofanah my clerk prepared the document for the plaintiff to receive the money. Mr. Tommy Caulker and his family accused of witch craft" signed the document in the presence of the chiefs I had earlier mentioned ........................................ I gave Mr. Morlai Le 800,000.00 to give to the plaintiff. The Plaintiff and Anderson then arranged to go and bring the "medicine man". Four days later they came with the "medicine man." Mr Anderson came with the "medicine man"; with the herbalist man was with them. He is called OSMAN. They sent to call the plaintiff who came the following day with a letter stating that Mr. Caulker is a creole and would not swear. But the swearing took place."

7. DW2's oral testimony up to a point confirms with DWl's testimony. I note that from DW2 s evidence the money was given to the plaintiff but that it was only after he refused to pay the amount that the plaintiff willingly surrendered his Vehicle for the repayment of the amount. This is definitely not what according to DW1 transpired but this court notes that what actually transpired as between the plaintiff and defendant was only witnessed by DW3 except for the part when the document exhibit B was made when DW2 was present . Thus I am not surprised that DW2 inspite of being absent at the material time at DW1 parlour stated that the plaintiff told the defendant that if he failed to make payment as against the 26th of August 2005: the defendant was allowed to sell the vehicle and deduct the Le 800,000.00 from the purchase price. At this point all that transpired was recorded in the form of an agreement which he later signed as exhibit B. in the presence of DW2 as the court clerk. After D\V 2 bad stated in his witness statement that that the keys and documents were handed over to the defendant as security for loan, he staled under cross examination that they were handed over to

Mr Morlai the court speaker. Under re examination the defendant was able to establish that the keys and document were handed to Pa Morlai but that it was the defendant who kept the document and keys. The testimony of DW3 however confirms what the defendant has stated in his Oral testimony .

8.From the stale of the pleadings, the plaintiff it would seem, wants to convey to this court an impression that he was arrested, man handled and detained by the tribal administration as a result of which he was compelled to enter into a contract for the provision of a "medicine man" who was to determine his guilt or otherwise . From the totality of evidence before me especially noting the testimonies of PW2 AND PW3 including their cross examinations and juxtaposing same with DW1 DW2and DW3 and their cross examinations there is no case on the balance of probability to suggest that the contract was extorted from him by terror or violence constituting duress and it would appear that it was the plaintiff who voluntarily requested for the sum of Le800,000.00 as credit or loan to secure the services of a "medicine man". Also 1 must categorically stale that this court is not concerned with the allegation of witchcraft. Such allegations do not show a course of action. I also perceive from the pleadings that the plaintiffs claim was limited to the detention of the vehicle. So that while a huge part of the plaintiffs claim might have been necessary to explain how the purported detention happened, this court is only concerned specifically with the payment of Le 800,000. by the defendant to the plaintiff for a particular purpose, to wit. to secure the services of a medicine man; interestingly there is no claim for failing to secure the services of the medicine man which the plaintiff said was never provided. If he did not secure such service his claim would have been for money had and received for consideration that has failed but the evidence is clear that the medicine man was provided; whether there was a deadline to repay the loan or at all and why and how was the vehicle taken from the defendant and whether the vehicle has been returned.

9. On the evidence this court notes the witness statements of the Plaintiffs witnesses. It is however pertinent to observe that the witness statements of the plaintiff witnesses run at tangent instead of in tandem with their oral testimonies. Be that as it may. the plaintiff has not been able through his oral testimony and that of his witnesses to lead evidence to prove what has been stated in his particulars of claim. The witness statement is much in line with what has been slated in his particulars. The claim of the plaintiff against the defendant is for the Detention of a motor vehicle with registration number A AH 761; damages for the wrongful detention of the car and Delivery of the said vehicle . Central in all this would be whether the plaintiff received Le 800,000.00.to secure the services of a ''medicine man." According to his claim and as evinced by the witness statements, the plaintiff was saying against my will or you the defendant forced me to take a loan for Le800,000.00 from you to secure the services of a "medicine man"; it was not voluntarily taken . The answer to this assertion by the defendant by his oral testimony clearly was that it was the plaintiff who voluntarily sought for this loan. This comes from the testimony of DW1 and DW3 . This court by virtue of the abundance of evidence by DW1 and DW3 is inclined to hold that this was the case such that it is safe to conclude that the plaintiff did take a loan of Le 800,000 and in the process pledged his car. The evidence from DW1- DW3 and exhibit B arc clear on the point that the plaintiff offered mazda vehicle registration number AAH761 purportedly owned by him as security for the loan which he was to pay on or against the 26th of August 2005. But even if this were not the case and the car was taken from him as security for the loan against his will 1 do not think it would make a difference in the plaintiffs favour for in given out a loan the defendant could take possession of the plaintiffs properly as security for the loan.

10.  In the normal context of life, a person may be desirous of owning a used Mercedes Benz ML320 2007 version costing US40,000.00. A bank may have on offer several facilities which include giving out a loan of US$50,000, This offer of a loan may be couched in such a way that you may not see the strain that it would put on your finances but if your placid desire is to meet up with your peers in society, at all cost, you may be forced to conclude an agreement for a loan After concluding the agreement you are compelled to pay it. The issue then is not whether you were forced to enter into the agreement or whether the loan agreement was voluntarily entered into; you arc bound to pay it. It is the same here the plaintiff chose to take loan of Le 800,000.00, the purpose is irrelevant; it was to secure the services of a medicine man; the issue is not whether he actually secured the services of the medicine man but the evidence is that he did but actually decided to opt out of the tribal court barray. The fact of the matter is that he look the loan and it must be repaid and repaid within a specified time as per the terms of the Loan Agreement. Against repayment he secured the loan by pledging a Mazda Vehicle registration number AAH761 purportedly owned by him.

11. Never mind the background which is shrouded in witchcraft allegations a perfectly commercial transaction was entered into in the form of Loan Agreement and bailment in the form of a pledge. A passage from R.M. GOODE COMMERCIAL LAW is instructive on this.

"The earliest form of security was the pledge in which the creditor took possession of the debtor's assets as security until payment of the debt. The common law understandably attached great significance to possession for this was the principal indicium of ownership, and to allow the debtor to grant security over his assets whilst remaining in possession was the surest way to facilitate fraud on his other creditors , who might be forced to lend money on the strength of the debtors apparent continued ownership of the assets in question. Hence in the early davs of the common law the taking of possession by the creditor was almost sine qua non of a valid security interest. To this day. the pledge remains the most powerful form of security interest known to English law, for though the pledgee's interest is a limited one, his possession gives him a legal right to that interest, with an implied power of sale in the event of default."

POLLOCK AND WRIGHT IN POSSESSION IN THE COMMON LAW (1888) at page 163 defines BAILMENT as

"any person is to he considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an undertaken with the other person either to keep and return or deliver to him the specific thing or to convey and apply the special thing according to the directions antecedent or future of the other person."

CTI1TTY ON CONTRACTS 23 EDITION VOLUME 2 SPECIFIC CONTRACTS AT PAGE 231 making reference to DONALD VS SUCKLING (1866) LR 1Q. B. 585 AT 594 and JONES VS MARSHALL (1889) 24 QBD PAGE 269 AT 271

defined a pledge otherwise known as a Pawn as "a Bailment of goods by a debtor to his creditor to be kept by him til! the debt be discharged ; the bailment is intended to be security for some debt or engagement. Making reference to the ease EX PARTE MUBBARD (1886) 17 Q.B.D.690,698, the learned luminary noted that the general property in the goods pledged remains in the pledgor, but the special properly in them passes to the pledgee in order that he may be able to sell the goods if the right to sell arises.

12. It is clear to me from the evidence adduced before this court by DW1 DW2 AND DW3 together with exhibit IB that the plaintiff secured a loan of Le 800,000.00 from the defendant to secure the services of a medicine man whose duty was to determine his culpability or other wise under the allegations of witch

craft levied on the plaintiff and his family by the Limba tribal Administration. The plaintiff then undertook to make repayment within 6 days thereafter, on or against, the 26th of August 2005. and guaranteed the repayment of this loan by giving possession of a mazda vehicle registration number AAH761 purportedly owned by him to the defendant with the expressed mandate that the defendant sells the vehicle in case of failure to pay the debt as against the 26th of August 2005. This no doubt brings the transaction within the class of commercial transaction described above as bailment specifically in the form of a Pledge and this court has no alternative but to consider it as such.

13. The Plaintiff has claimed for detention of Mazda vehicle registration No AAH 761. As against this background where there was a bailment and or pledge-reference to the vehicle being purportedly detained, any claim for detention must be considered against this background. Put simply do the facts of this case support the claim for detention and damages for same? A claim for detention is a claim under the tort action of detinue. It is the wrongful retention of the possession of a chattel/personalty or title deeds of land. According to P. H. WINFIELD ON TORTS 3RD EDITION AT PAGE 339 it does not matter how the possession of the chattel may have been acquired; it may have been by a bailment and then (he bailee is liable in detinue if he holds over after the bailment is determine, or it may be by finding and then the finder is liable if he wrongfully refuses to give up the chattel to the owner, or it may be any other mode of acquisition. The plaintiff must first prove that he is entitled to immediate possession of the chattel, and if there is any defect in his right to immediate possession he must fail. See the case of JARV1S VS WILLIAMS (1955) 1 WLR 71 ; TAPPENDEN VS ARTUS (1964) 2 O.B 185. where it was held that bailment or pledge constituted a defence for a claim of detention. Secondly, that the defendant detained it after demand has been made for its restoration. See GLEDSTANE VS HEWITT (1831) lCr &J 565, at page 570. If the plaintiff is successful in detinue, this court would be enjoined to give judgment in his favour ordering that he recovers either the goods or their value, and in any event, damages for their detention; but as the gist of the grievance is mere unlawful detention, the damages will be nominal unless the plaintiff proves that he has suffered special damages. SEE ANDERSON VS PASSMAN (1835)7 C &P 193.

This being the law it behoves this court to apply the law to the facts. As has been staled the plaintiff must be able to prove right to immediate possession .The first thing that comes to mind is that for you to show a right to immediate possession you must be the owner of the vehicle you have claimed was the subject of the detention or the person who has immediate right to possession. It is a fact that the plaintiff is claiming to be the owner of Mazda vehicle with registration number A AH 761. There is no proper or sufficient evidence to support that he is the owner. The Life Card of the vehicle which is the only valid evidence of title with respect to ownership of vehicles clearly shows that it is one S. A. Sankoh that is the owner of the Vehicle with registration number AAH761 . Even the latest license done on the 11th of August 2005 shows that it was the said S.A Sankoh that did same and there has not been any change of ownership to the plaintiff herein However since JUS TERTH is generally no defence to a bailee, the defendant herein, who is sued in detinue by the bailor, the plaintiff herein is estopped from disputing his bailor's title, SEE WINFIELD ON TORTS 8™ EDITION AT PAGE 489. It is but clear to me that notwithstanding this apparent defect in the plaintiffs title to Mazda Vehicle with registration No AAH761 by reason of the JUS TERTH being no defence coupled with the fact that he was the driver of this vehicle and in custody of all the relevant documents should I think make him the person entitled to immediate possession. This notwithstanding, noting that bailment in the form of a pledge was created, this would constitute a valid defence to the claim of detention if the bailee did not hold over after the bailment is determined. The bailment is determined when the conditions of bailment is performed. In this case the bailment would be determined when the debt is discharged by the repayment of the loan and if after such payment the defendant continued to hold over the vehicle, he would be detaining the vehicle in which case the defendant would be liable for detention. However, the evidence before this court is that the plaintiff pledged the vehicle purportedly owned by him in security for a loan of Le 800,000.00 and gave an undertaken to pay back as against six days time on the 26th of August 2005. To date this sum has not been repaid. This means that the defendant as from the 27th of August 2005 had a right to the said vehicle until the debt is repaid as the general property in the vehicle, if at all, remained with the plaintiff but the special property passed unto the defendant empowering him to sell. Interestingly notwithstanding this power to sell which is by virtue of the special possession gained and the fact of default in making the repayment, the plaintiff expressly stated that the defendant must sell, if he failed to pay this debt against the 26th of August 2005. This being the case, the vehicle purportedly owned by the plaintiff is not being wrongfully detained by the defendant, for while it could only have been released after repayment within the stipulated time i.e. the 20th -26th which never took place, the plaintiff lost the right to redeem it after failing to make the repayment as required. But yet we see that the defendant was ready and willing to return the vehicle and when all seemed lost, never kept it or used it. which he then had power to do, but handed it over to the police. Against such background the action by the plaintiff ought to fail

The defendant has counterclaimed for the Le 800,000.00. Against what has been said for the defendant there can be no doubt that he is entitled to it with interest. It is clear to me that the plaintiff would not be able to pay same without return of the vehicle. Noting that the defendant had always wanted the return of the vehicle I would therefore temper justice with mercy by allowing the vehicle to be returned to plaintiff with the hope that the same could be put back on the road.

Predicated on the totality of the evidence this court gives Judgment in favour of the defendant and orders as follows:

a) claim for the Detention of a motor vehicle with registration number AAH 761 is refused as the detention of the said vehicle was never wrongful

b) Notwithstanding a) supra Leave is granted to the plaintiff to collect Mazda vehicle with registration number AAH761 from the Sierra Leone Police notwithstanding the life card and other documents arc not in his name.

c) Repayment of the sum of Le800,000.00 at the rate of 10% from the day the action arose till judgment

d) Costs to be taxed

HON MR. JUSTICE DESMOND B. EDWARDS