FTCC 014/13 2013 B. NO. 14

IN THE FAST TRACK COMMERCIAL COURT OF SIERRA LEONE (COMMERCIAL AND ADMIRALTY DIVISION)

BETWEEN:

ZENITH BANK (SL) LIMITED
18-20 RAWDON STREET FREETOWN

PLAINTIFF/APPLICANT
 

AND

 

SEA-LAND INVESTMENT CO. LTD
24 AFRICANUS ROAD

KISSY, FREETOWN

15T DEFENDANT/RESPONDENT

SEA HOLDING INVESTMENT CO. LTD

27 BAI BUREH ROAD KISSY, FREETOWN

COUNSEL:

2ND DEFENDANT/RESPONDENT

 

 

.......

G. K. THOLLEY ESQ, for the Plaintiff/Applicant

VANDIE S. NABIE ESQ, for the Defendants/Respondents

RULING DELIVERED ON THE 23rd OF MAY, 2014 BY THE HON . JUSTICE A .H. CHARM , J

This Application is by Judges Summons dated 27th February, 2014 and is for the following orders:

1. Recovery of the sum of

Le1,833,

901, 326.48 from the

Defendant/Respondent being

the

sum overdrawn by the

 

 

Defendant/Respondent on its Bank Account Number 6010300184 held at the Plaintiff/Applicants Bank; and

2. Recovery of interest from the 1st Defendant/Respondent on the sum

of Lel,833,901,326.48 pursuant to section 4{1) of the law
Reform (Miscellaneous Provisions) Act (Cap 19 of the Laws of Sierra Leone, 1960; and

 

3. Recovery of the sum of Le872,083,680.02 from the
Defendant/Respondent being the sum overdrawn by the 2nd Defendant/Respondent on its Bank Account Number 6010300894 held with the Plaintiff/Applicant Bank; and

 

4. Recovery of interest from the 2nd Defendant/Respondent on the sum of Le872,083,680.02 pursuant to section 4(1) of the Law Reform (Miscellaneous Provisions) Act (Cap 19 of the Laws of Sierra Leone, 1960; and

 

5. Any other or further order(s) as this Honourable Court may deem fit and just in the circumstances;

 

6. Costs

 

On the 20th of February, 2013 the Plaintiff herein issued a Writ of
Summons against the Defendants/Respondents and two others for the recovery of the various sums of money loaned to them by the
, Plaintiff plus interest on the said amounts. on the 30th of April,

2013 the Defendants/Respondent herein entered appearance to

the

said writ

 

3rd d th as an

Defendants respectively. A Request

for

 

further and better Particulars was sent by the Solicitor of the defendants/Respondents herein to the Solicitor of the Plaintiff which was followed by the Defendants/Respondents Defence filed on the 28 h o!May, 2013.

By a Notice of Motion dated 21st October, 2013 the plaintiff discontinued its claim against the 1st and 2nd defendants on the writ dated 201th February, 2013 thus leaving the Defendants/Respondents herein as the 1st and 2nd Defendants• In compliance with the Order granted pursuant to the Notice of Motion dated 21•t October, 2013 the Plaintiff filed an Amended Writ against the Defendants/Respondents herein to which they filed an Amended Defence dated 25th November 2013 on the 27th of same.

On the 27th of February 2014 the Plaintiff filed this Application praying for the Orders as stated above. The Application was moved on the 28th of March, 2014 in the absence of Counsel for the Defendants/Respondents and thereafter several adjournments were

granted

and

notices duly

sent to

Counsel for the

Defendants/Respondents to either file an affidavit in opposition or reply to the Application but all proved futile as Counsel repeatedly failed to appear in Court.

The Application is supported by the affidavit of Ekpenisi Igumbor, an employee of the Plaintiff/Applicant Bank, sworn to on the 27th of February, 2014. There are four exhibits attached to the said affidavit: exhibit A is the Amended writ of Summons herein; exhibit B is the Amended Defence filed by the Defendants/Respondents and exhibits C and 0 are photo copies of the Defendants/Respondents respective Bank Account Statements. The application is made pursuant to Order 16 rule 1 sub rule 1 of the High Court Rules
2007.

.

 

Counsel for the Plaintiff's contention is that the defence filed by
the Defendants/Respondents herein lacks merit; in other words, that
j
the Defence is a sham and therefore the Plaintiff is entitled to

judgment on his claims.

 

Order 16 rule 1 sub rule 1 provides:

"1. (1) Where in an action to which this rule applies a defendant has been served with a statement of claim and has entered appearance, the plaintiff may, on notice apply to the Court for judgment against the defendant on the ground that the defendant has

no defence to a claim included in the writ, or a particular part of the claim except as to the amount of any damages claimed.n

Rule 2(1) thereof provides as follows:

 

"2 (1) An application under rule 1 shall be made by summons supported by an affidavit verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of any damages claimed.n

The Defendants' Amended Defence is exhibited to the supporting affidavit herein as exhibit "B”. The said defence contains admissions of the Defendants indebtedness to the Plaintiff in the sums claimed in the writ. What the Defendants are however contending is that the repayment of the said amounts is contingent upon the American Embassy paying the Defendants for the supply by them of fuel as per the "Standing Agreement between them (the Defendants and the American Embassy) through the Defendants'

Accounts with the Plaintiff Bank. In paragraph 6 of their Amended

Defence, the Defendants avers as

follows: The Plaintiff (which

should have read Defendants") denies paragraph 9 of particulars of claim and would aver that the US Embassy aforesaid owes an outstanding $300,000 to the 1 st and 2Defendants to the knowledge
of the Plaintiff and part of the facility aforesaid." In paragraph

7 thereof the Defendants further aver as

fo11ows:

The Pla'1ntiff

has not suffered any loss and damages as alleged in paragraph 10 or

at all."

Taking the defense in its totality, it is my considered view that it does not have any iota of merit. What the Defendants have sought to do in their defense is to tie the repayment of the loans to the payment by the United States Embassy for the supply of fuel by them. The Defendants ingenuity in using their Agreement with the United States Embassy to hoodwink the Plaintiff into granting them the credit facility cannot in my considered view be a defense to their not repaying the loans on the basis that they (the Defendants) have not been paid by the United States Embassy for the
fuel supplied by them. The United States Embassy is not privy to

the credit facility extended to the defendants nor do they (United States Embassy) stand as guarantors for the repayment of the said credit facility. The fact that the Defendants are claiming that the United States Embassy owes them an outstanding balance of USD300,000.00 is not a defense for not discharging their obligation
to the Plaintiff Bank.

 

For the reasons stated above I hold that the Defendants do not have a defense to this action and I hereby give judgment to the Plaintiff as per its statement of claim to wit:

 

 

1. That the Plaintiff recovers from the lst Defendant the sum of
st

Le l, 833, 901,

326.48 being the sum overdrawn

by the 1st

Defendant/Respondent on its Bank Account Number 6010300184 held at the Plaintiff/Applicant Bank.

2. That the 1st Defendant to pay interest on the said sum of Lel,

833, 901, 326.48 at the rate of 35% per annum until full payment of the amount.

3. That the Plaintiff to recovers from the 2nd Defendant the sum of Le872,083,680.02 being the sum overdrawn by the Defendant/Respondent on its Bank Account Number 6010300894 held with the Plaintiff/Applicant Bank.

 

4. That the 2nd Defendant to pay interest on the said sum of Le872,

083,680.02 at the rate of 35% per annum until full payment of the amount.

 

5. That the Plaintiff shall have the costs of this action which is assessed at Le20, 000,000.00 to be borne by the Defendants jointly and severally.

Hon. Justice Abdulai, Charm