Mr. Adnan Youssch Wanza (Appellant/Plaintiff) was a friend and

 

a good customer of the father of Mr. Ibrahim A.H, Basma (the original Respondent/Defendant) from whom he purchased various goods and,  I guess, at various times. Mr. Wanza is a businessman and  so  was  Mr. Basma. Prior to 1994 there had been a number of  money  lending transactions between Mr. Wanza and  Mr.  Basma  by  which  Mr.  Wanza lent money to Mr. Basma. Mr. Wanza could not remember the number of occasions prior to 1994 and the respective amounts involved. Mr. Basma himself did not provide the court with the number of the money lending transactions or the amounts  involved  before1994.  What  is  clear  is  that the transactions  were  on  diverse  occasions  and,  at  least,  span  as  far back as 1986. In 1994 Mr. Wanza and Mr. Basma agreed to evidence  the debt in writing. As a result Mr.. Basma acknowledged the debt in the document                       titled: ACKNOWLEDGEMENT OF                       DEBT  (Exhibit  Al)                                 and issued same to Mr. Wanza. In 1997 the debt account between  the  parties was  updated   by   taking   into   account   interest   that  had  accrued                         and payments made. The current debt  was  then  acknowledged  by Mr.  Basma in a document titled: ACKNOWLEDGEMENT of A DEBT (Exhibit Bl) and issued same to Mr. Wanza. The breakdown of  the  debt  on this  occasion was evidenced at the back of exhibit  Bl  and  reflected  the  debt  account into separate Leone and Dollar components. Both exhibits Al and B1 indicated the debt acknowledged into Leone and Dollar components. The loans were made before Mr. Wanza left Sierra Leone in 1992 for the USA; and he remained overseas upto 1997.  The documents,  exhibits "Al" and "Bl", were prepared and executed before a notary  public  in  England  in 1994 and 1997 respectively.

 

On the 17th November, 1999, Mr. Wanza caused a writ to issue claiming against Mr. Basma the following:

 

1)Money due and owing to the Plaintiff (Mr. Wanza) in the sum of US $ 395057-00 or its equivalent in Leones due under a deed dat€d the 30th January 1997.

 

 

2

 

2)Money due and owing to the plaintiff in the sum of Le 438,725-00 due under a deed dated  the  30th  January 1997.

 

1. Interest on the said sums, at the prevailing  bank  rate  from the 1st day of July, 1997.
2. Any further or other reliefs.

 

The claim is based, simpliciter, on the acknowledgment of the debt evidenced in exhibit B1 and this fact is reflected by the  particulars  of claim. Mr. Basma in his defence pleaded the provisions of the Money lenders Act Cap. 240 of the laws of Sierra Leone 1960.  Mr.  Basma pleaded, further or in the alternative,  satisfaction  of  the  debt  and payment in excess and counter-claimed for the excess payment. In  the Reply and Counter-claim Mr. Wanza joined issue with  Mr. Basma  and also denied the Counter-claim. The pleadings, in my view,  could  have been crafted to better reflect the issues in controversy.

 

In his judgement the learned trial Judge went to great length  in  restating the pleadings and narrating the evidence of the  witnesses  and  the  addresses of counsel. This covered pages 159 to 174 inclusive.  Thereafter he proceeded upon what he called a consideration of the provisions of the Moneylenders Act, 1960, Cap 240, by reproducing sections 2 to  5, inclusive, and then repeated some portions of the evidence relating to the loans and percentages of interest charged. Thereafter,  he  cited  some foreign cases relevant to the issue of moneylending.  The  learned  trial Judge then concluded thus:

 

"Having considered the evidence in its entirety, I have to ask myself this question. As it (sic) established that the plaintiff gave a  friendly  loan  to  the  defendant considering  the  extortionate  and  oppressive  interest rates on the loan of  one  hundred  percent  per  annum? The only opinion I am able to form is that in no stretch

 

of the imagination can these loan transaction be called friendly loans"

 

With due respect to the trial Judge, I do not think he gave due consideration of the evidence by carrying out a proper analysis of the evidence and there from making primary findings of fact relevant in the application of the law relating to Moneylending in  the  determination of  the several issues pertaining to the claim, not the least, answers  to questions that can lead to the conclusion whether a lender is a  money lender or not under the provisions of the Moneylenders Act, 1960, Cap

240. The exceptions are what amounted to findings of fact of high interest rates reaching 100 percerit per annum on some of the loans and that the loans were not friendly due to the "extortionate  and oppressive interest rates". These findings of fact led the learned trial Judge to conclude that Mr.Wanza was a moneylender and, since there was evidence that he had no moneylender's licence, he further concluded that the loans to Mr. Basma were illegal and therefore void.

 

In the judgement of the Court of Appeal the Court held the view that "the main issue at the trial was whether the transaction was a money lending transaction which offended the  MoneyLenders  Act Cap 240 of the laws of Sierra Leone,  and  if  it  does  was  illegal  and void". The court then reproduced section 2 of  the  Moneylenders  Act, 1960, which defines "Moneylender" under the Act and proceeded to illustrate who is and who is not a money lender by quoting dicta from foreign sources. In conclusion, the presiding  Justice  concluded  that  in  his opinion Mr. Basma "has led no evidence to raise  the  claim  of  a money lender on the part of Appellant (Mr. Wanza) as such the exceptions in section 2 of the Act does not arise  for consideration". The presiding Justice proceeded to deal with the issue of interest and repeated the quotation by the trial Judge of the dicta of Lord Deolin  in Hone V. Choong Fah Rubber Manufactory ( 1962) AC 209 at pp. 218 and

219 thus:

 

31.

"Where it is found that a person has  lent  money  at interest  or  has   lent  money  in consideration  of  a larger

'

sum  being  repaid  such person is  under section 3 of the

money   lenders ordinance  presumed                                                                    to  be                                                                     a money lender unless he proves the contrary"

 

Of course Lord Deolin was not referring to our Moneylenders Act, 1960, which has no similar section. This was correctly pointed  out  by  the learned presiding Justice and who also concluded that an ("extortionate and oppressive interest rate") on a loan does not make one a moneylender. This may well be so but is it not legitimate to consider drawing the inference from the charges of "extortionate and oppressive interest rates", especially where the rates in many of the instances exceeded or exceeded by far the bar set by law, that the loan transactions were not friendly in the ordinary &ense of the word and thereby reflect business transactions by a moneylender - hopefully not of the  perjorative  or offensive term that FARWELL J. had in mind in the quotation from Litchfield Vs Dreyfus (1906) 1KB 584 at PP 589 - 590 by the presiding Justice.

 

In my view the Court of Appeal did not  consider or evaluate  the facts of  the case. The Court considered the law relating to what constitute a moneylender and then concluded that charges of "extortionate and oppressive interest rates" on loans  do  not  make  someone  a moneylender under the provisior,:; of the Moneylenders Act, 1960. Apart from the question of interest, there are other factors to be considered in determing whether Mr. Wanza was carrying on the business of a money lender, such as, the number, frequency and regularity of the loan transactions to connote "a system and continuity" and whether the establishment of such a system 2'1d continuity of loan transactions in respect of one borrower can  amount  to a  moneylending  business  under the Moneylenders Act, 1960. Failure to consider or properly evaluate the

 

..s   .

evidence as it pertains to the issues in the controversy or that need to be determined by the trial court opens the way for the appellate court to evaluate the evidence and make findings of fact necessary for a proper application of the relevant law and for the determination of the issues

 

Like the trial Judge and the Court of Appeal,  I  am  very much  interested in the issue of the interest charges.  The interest  of  the  trial  Judge  and that of the Court of Appeal in the  issue of the interest charges was  based on their relevance in determining whether Mr. Wanza was a moneylender under the provisions of the Moneylenders Act, 1960. My interest in the issue of  the  interest  charges  is  directed  to  the  question  of  their legality/ illegality. However, my perception of the  issue is bi-faceted  and so will be my approach.

 

The learned trial Judge, unlike the Court Appeal, did make a  finding  of fact in regard to the rates of interest  charged;  he concluded  that  rates  up to 100 percent per annum were charged. I have read the evidence, particularly that of Mr. Wanza and Mr. Basma, and have come to the conclusion that  the  loan  transactions  started  way back  in  1986  and since then a "running loan account" was  established  between  the parties. The evidence shows that the loans were not one off "loan"  in which a loan was given and subsequently payment concluded  before another loan was  granted  but  that  accrued  interest  and  further  loans were added and these too bore interest. (See the evidence of Mr. Basma (DWI) from pages 47 to 52 of the record). From the same  body  of evidence, I conclude that the interest  rates charged  were  varied  and  that at the initial stages interest of 100  percent  per annum  were  charged  by Mr. Wanza (Sec P. 47 L 32-33; P 48 L 16-17 and  L 22;  P 49  119-20 and L

35; P 50  L  1 7  and  L 28;  P 51  129; P 52 12) but  these gradually red uccd  as   the   quantum  of  the   debt  increased.   Under  cross-examination  (Sec PP

71 to 74 of the record), Mr. Basma  was  not  challenged  as  regard  the rates of interest charged and of the nature  of  the  accumulation  of  the debt. Mr. Edwards, of Counsel, in cross-examining Mr. Basma, appeared

 

•

more interested in establishing the debt as acknowledged by the acknowledgement of the debt (Exhibit  B1) and  not  as  to  how  the  debt came about and accumulated.  The  evidence  of  Mr.  Basma  on  the  high rates and changing rates of interest is given credence by the almost total absence of evidence by Mr. Wanza on  the  interest  rates  charged  and  the lack of any definitive rate of interest claimed on the writ.  In  conclusion, I  find that interest rates ranging from 100 to 48 percent per annum  were charged; and only after the debt account was converted into a Leone  and Dollar components that the rates for the Leone and Dollar components stabilized at about 48% and 19% respectively.

 

I would have to consider the effect of the provisions of section 12 of the Moneylenders Act, 1960, which provides:

 

12(l)The interest which may be charged on loans, whether by a moneylender or  by any  person other than a moneylender shall not exceed the respective rates specified hereunder, namely:

(a)  one loans secured by a first charge on any real or personal property, or by the indemnity or personal guarantee of a third party, simple interest at the rate of 15 per centum per annum for the first £500 or part thereof and at the rate of 12½ per centum per annum on any amount in excess of£500;

(b} on loans secured by a second charge on any real -or personal property, simple interest at the rate of 17½ per centum  per annum  for the first £500 or part thereof and  at the rate of 15 per centum per annum  on any amount in excess of£500;

 

34.

(c}      on   unsecured    loans simple interest at  the rate of 48 per centum per annum

 

 

Even the rates  charged  and/or  compounded  contravened  the  provisions of section 12. In fact, which-ever way you look at the rates charged they simply exceeded the rates stipulated in paragraphs (a) (b)  and  (c)  of section 12. Even Mr. Wanza's  Statement  of  Case  admits  rates  higher than the rates permitted by section 12(1) (a) and (b) bearing in mind that  the loans were secured by cheques from Mr. Basma.  For  instance paragraph 2.9.6. of Mr. Wanza's Statement of Case dated  the  11th November, 2008 states:

 

"compound interest was then calculated on  the  said sum at the rate of 42.5% percent per annum for the period 30-6-1992 to 30-6-1994. This constitutes the Leone acknowledgement of debt by the Appellant (Mr. Bas ma) at page 184 of the records"

(Brackets provided)

 

Page 184 depicts exhibit "Al" - the acknowledgement of  debt  by  Mr. Basma to Mr. Wanza. Again at  paragraph  2.9.12  Mr. Wanza admits  in  his said Statement of Case as follows:

 

"Compound interest on the Leone account was initially 42.5% which by the year 1997 when the Appellant (Mr. Basma} failed to liquidate his indebtness to the respondent (Mr. Wanza} dropped to 40%"

(Bracket Provided}

 

Both the 42.5% and the 40% rates exceed the stipulated rates in section 12(1)(a) and (b) without even bringing into play the compound nature of the rates charged. Further, the admissions do not even take into account that the debts predate 1992 and that prior 1992 when the debts were

 

3.s.

first incurred interests was charged upto 100%. (See the evidence of Mr. Basma at P. 48 L 17 and 22 of the record).  It  was  these  loans  and accrued interests in the running loan account that were computed and acknowledged in exhibit "Al" and further updated in exhibit "Bl".

 

It is clear from the provisions  that  the rates Mr. Wanza  charged  interest on the loans, secured or unsecured, granted  to Mr.  Basma  contravened  the provisions of section 12 of Moneylenders Act. The loans could rightly be said to have been secured (guaranteed) by the cheques issued by Mr. Basma to Mr. Wanza (See P 48 L 6 of the record) Section 12 only permits simple interest. Mr. Yada Williams, of counsel for Mr. Wanza, had ably argued that contravention of section 12 merely  attracts  a  fine  as  a  penalty under section 13 which states:

 

"13 any money lender who loans at a rate of interest higher than that authorized by this Act shall be liable on conviction to a penalty not exceeding fifty pounds in respect of each such loan"

 

He further argued that the loan is not void by reason  of  such a  breach. This may well be so but I fail to see how the argument can be extended to protect the illegally/unlawfully obtained gains of Mr. Wanza from acts which the Moneylenders Act, 1960, is intended to prevent in order  to protect people from being over charged interest. The provisions of section 13 is no bar to the Court ordering the interest, or excess interest, void; or order forfeiture of such ill gotten gains; or refusing to allow Mr. Wanza to continue to enjoy benefits derived from illegal acts or advantages.

 

It is clear that Mr. Wanza breached the provisions of section 12 of the Moneylenders Act, 1960, in terms of the interest rates charged  being  higher than permitted by the section and that he also breached  the provisions by charging compound interest. That Mr. Wanza did charge compound interest is not contested but Mr. Yada Williams argued with

 

characteristic lucidity that an agreement to charge compound interest, or evidence of a course of dealings between  the  parties, makes the charging  of compound interest lawful and enforceable and,  in  the  instant  case, takes that element of the  transaction  outside  the  ambit of  the  provisions of the Moneylenders Act, 1960, in particular, section 12(1) (c). Mr. Yada Williams referred to the two documents (Exhibits Al and B1) acknowledging the debt as evidence of an agreement to charge compound interest and/ or manifest a course of dealing between Mr. Wanza and Mr. Basma. In support of the submission, Mr. Yada Williams cited Halsburys laws of England, 4th edition, at P. 53, paragraph 107, under the rubric "compound interest" and also cited a few ancient case law.

 

Mr. Yada Williams exposition of the  law  on  compound  interest,  in  my  view, is a reflection of case law or the common law and has  no  negative impact and does not reflect the law on statutory provisions, in  particular, section 12 of the Moneylenders Act, 1960. The quotation of  the  learned authors of Halsburys laws of England, 4 "edition; ibid, made by counsel

and stated thus: "compound interest will not be allowed except there is an agreement, express or •'mplied, to pay it or where the debtor

has employed the money in trade and has presumably earned it, or unless   its                 allowance              is    in    accordance     with                 the  usage             of   a particular trade or business" does not advance the argument of  Mr. Yada Williams in terms of the meaning and effect of section 12 of the Moneylenders Act, 1960 - statutory provisions as opposed to case law. Clearly, that the quotation is based on case law is made manifest by the numbered references in the quotation of decided cases dating back to the 1800s. The quotation is better appreciated in the broader  context  of when interest is payable at common law and, in  this regard  note what the learned authors of Halsburys laws o(England, 4th Edition, at P. 54, paragraph 108, had to say:

 

"At common law interest is payable (1) where  there is an express agreement to pay interest; (2) where an

 

31,

agreement to pay interest can  be  implied  from  the course of dealings between the  parties  or  from  the nature of the transaction or a custom of the trade or profession. concerned; (3) in certain cases by way of damages for breach of contract (other than a contract merely to pay money) where the contract if pe,formed, would to the knowledge of the parties have entitled the plaintiff to receive interest.

 

Except in the cases mentioned, debts do not carry interest at common law".

 

 

It is trite law that a common law position can be modified or altered or extended or replaced by or incorporated within a statute and that  as  a matter of law statutory provisions override case law or the common law. The cases cited by Mr. Yada Williams merely reflect the  interpretation of the common law by judges in relation to the principles of law applicable where interest is charged. The cases cited generally did  not  deal  with loans  regulated  by statute  but dealt with  debts  that  arose out  of business

transactions  or dealings.    The circumstances  of  the  cases are not similar

•   to the circumstances and the  material  issues  of  the  present  case. Take for instance the cases of Bruce  and  others v Hunter  1813, 3 CAMP 486  and Newell and Another v Jones 1830, 4 CAR and P. 123 It has been established under the common law by a line of cases, such  as  the above, that if a person in an action for money lent, can prove that there was agreement between them  to charge  interest  and/ or that  it was the course of dealing between them to  calculate  the  interest  every  year,  and  add that to the principal, and the next year to calculate upon the total, the plaintiff would be entitled to the claim. These cases established the principles upon which interest and the nature by which interest can be calculated under the common law. It  should  be observed  that  the interest in the cited cases is added to  principal  at  the  end  of  each  accounting year and then the total bore interest for the following year. The situation

11

 

1s  akin  to  a  fresh  loan of the    accrued interest to the Defendant. The principle is miles apart from  the  common  practice  of adding the interest at the end of each day on the principal and, which then, starts to attract interest upon the day following. It is these common law principles as they relate to moneylending that the· Moneylenders Act, 1960, modified  in terms  of               its               provisions.  It                is               significant   that                  section               12   of     the Moneylenders Act, 1960, deals specifically with loans and not debts or money  advances      that   arose   in  the  course  of   business   or  trade                      or professional dealings.

 

The Moneylenders Act, 1960, is intended to regulate the business of a moneylender within a certain legal framework; and section 12 of the Act specifically regulates the rates and nature  of  the  interest chargeable  for the specified different loan transactions. The language of section 12 is simple and direct; and the meanings the section conveys are clear and unambiguous. There is no allowance in the language for the charging of interest rates higher than those specified for the stated types of loans determined by the security given or not given and for compound interest; higher rates of interest  than  those  authorized  cannot  by any  stretch  of the imagination be read into the section. This view is reinforced by the

I                                       provisions   of   section   13  which  criminalizes   acts   that  contravene the

provisions of section 12.

 

 

The   claim    by    Mr.    Wanza   1s    grounded    on   exhibit   Al.                                                                             the acknowledgement of the debt. by Mr. Basma. An action on an acknowledgement of a debt is valid and judicially recognized process. In Barons Dictionary of legal terms, an acknowledgement of  a  debt  1s defined as "an acceptance of responsibility or undertaking an obligation to pay a  debt owed to claimant".  In  the  Oxford  Dictionary of Law, Sixth Edition, 2006, an acknowledgement of a debt is defined as "the admission by a debtor that a debt is due or a claim  exists". Usually, an acknowledgement of a debt is in writing; and may extend  the life of a debt beyond the ordinary period allowed by statute for bringing a

12

 

claim on a debt. Exhibit Al, per se, is a valid document  upon which  to base a claim or action; and it is this option that Mr. Wanza properly exercised in commencing this action. However, Mr. Basma in his defence introduced          in              the  action   other  elements, such           as,      how the debt acknowledged was created and how it contravened the provisions of the Moneylenders Act, 1960. This properly brings in issue the make up of the debt (sums) stated in exhibit A1; how it came to be so constituted and whether in the process, the provisions of the  Moneylenders  Act,  1960, were contravened and, if  contravened,  the legal  consequences.  It is clear to me that the origins of the debt comprise of principals; simple interests charged and the compounding of the interests charged. I could have been inclined to separate the  sum  (or  sums)  that could  properly  be attributed to the excess on the authorized interest rates charged from the  sums claimed, assuming Mr. Wanza was not caught by  the  definition  of  a money lender under the Moneylenders  Act,  1960,  and  allow  Mr. Wanza to  enjoy  any        sum      (or  sums)   of   accrued   interest   calculated           at the maximum rate of interest authorized.  But, alas,  I find  doing  this difficult, if not    impossible,   because of  the         long  history  of  the   loans  and the changing interest rates over the period; principals and  accrued  interests have become enmeshed and blended into a paste so that separating  the wheat from the chaff is well, nay, impractical. In the  premises this Court will  not    allow      Mr.           Wanza to    enjoy     benefits               derived     from   his illegal/unlawful acts of charging interest above the stipulated rates  and, also, compound interest.

 

In respect of the appeal by Mr. Wanza numbered S.C Civ.  App  No.  6/2007 Mr. S.M. Sesay, of counsel for Mr. Basma, raised a preliminary objection on the ground that the  appeal  was  intended  to  be  a  cross appeal to the appeal numbered SC. Civ. App No. 4/2007 against the judgement of the Court of Appeal dated the 24th day of May 2007 and, therefore, the appeal is void since the provisions of rule 27(1) of the Supreme Court Rules, 1982, which provides:

 

 

13

 

 

 

•

 

40.

"A respondent may cross appeal by lodging a notice of

• cross appeal within one month from the date  of  the service of the Notice of Appeal on him"

 

have not been complied with. However evidence of when the Notice of Appeal was served on Mr. Wanza was not  provided  and  the Court is left to assume that the appeal filed by Mr. Wanza  was  over one  month  after he was served with the Notice of Appeal filed on behalf of Mr. Basma. Another misconception of the appeal filed on behalf of Mr. Wanza is the unwarranted assumption by Mr. S.M. Sesay  that  the  appeal  by  Mr. Wanza was intended to be a cross appeal. The  question  that  arises  is: what is the basis of such an assumption? Again the basis  for  the assumption is not provided to the  Court  and  yet  Mr.  S.M. Sesay wants the Court to adopt the same assumption.

 

The appeal filed on behalf of Mr. Wanza is drafted and filed as a Notice of Appeal and the backing states clearly: Notice of Appeal. Mr. S.M. Sesay seems to agree when he submitted that the Notice of  Appeal  by  Mr. Wanza numbered SC. Civ. App No. 6/2007 "as it is cannot be a cross appeal. It is an original appeal on its own right". In that case he

• argued the appeal is out of time since it was filed over three months after the judgement of the Court of Appeal dated the 24th May 2007 in contravention of rule 26 of the Supreme Court Rules, 1982. But what the objection failed to observe  is that  the appeal is against  the order/decision of the Court of Appeal dated  the  11th  July 2007 as  clearly stated in the  first paragraph in the body of the Notice of Appeal. The grievance of Mr. Wanza did not arise when the Court  of Appeal  judgement  was delivered on the 24th May 2007 but only arose at the time the judgement was "completed" by the order/ decision of the Court of Appeal made on  the  11th July 2007 when the judgement awards were determined,  became  a part of the Court of Appeal's judgement and failed to include an award of interest on the sums awarded on the 11th May 2007.

 

14

 

 

•

 

41.

How Mr. Wanza can  be expected  to appeal against an  order/decision that I  has        not  been                     made                       beats     the                             imagination.         An         appeal  against an order/ decision can only be made after such an order/ decision is given.

The order/ decision that Mr. Wanza is aggrieved of was delivered on the 11th May 2007. The confusion may have arisen out of a misconception of what a judgement entails and against what  an  aggrieved  party  may  appeal against under rule 6 (1) which provides:

 

"An appeal shall lie from a judgement,  decree or order of the Court of Appeal to the Supreme Court"

 

This right is also reflected in section 123 (1) of the Constitution, 1991. Coming back to the rules of the Supreme Court, "Judgement" is defined under Part 1 - Interpretation  Section  to  "include  decree,  order sentence or decision of the Court of Appeal or any Court, Judge or Judicial Officer". Without going into the complexity of dating a judgement I am of the ·view that the broad definition of ''judgement" covers the appeal filed on behalf of Mr. Wanza. Perhaps there should have been an

application  to consolidate  the  two appeals  but  this is of  no  moment now

•

in the circumstances.

I

 

We had overruled the objection and  promised  to incorporate our  reasons in the Court's judgement. The  aforesaid  arc  the  reasons  for  dismissing the objection.

 

From the discourse of the appeal filed on behalf of Mr. Basma numbered SC. Civ. App No. 4/2007, it becomes clear that the appeal numbered SC. Civ. App No. 6/2007 is untenable. However, I would deal briefly with the award of interest under Section 4(l)(b) of the Law Reform Miscellaneous Provisions) Act, 1935, which  provides in effect  that the Court's discretion to grant interest under Section 4(1) shall not affect a claim3-nt's right to interest payable as of right whether by virtue of any agreement  or otherwise.   In  my  view,   for   a   party  or  claimant   to   benefit  from  the

15

 

42-

prov1s10ns  of  paragraph  (6)  of  subsection  (1)  of  section  4 of  the  Act, he

• must plead and prove the agreement which includes the rate or rates of interest agreed upon. In the statement of claim endorsed on the writ, the

pleading relating to an agreement  on interest  is that  interest  had accrued at the time the debt was acknowledged in exhibit "Al" and this was duly incorporated in the sums awarded in line with the claims on the writ. As regard continuing interest on the said sums,  the  claim  for  interest  was not, by all intent and purpose, based on  any  agreement  between  the parties to pay any specified rate or rates of interest but rather on the discretion of the Court that flows from the  provisions  of section  4(1) of the Law Reform (Miscellaneous Provisions) Act, 1935. This  conclusion can be clearly deduced from the wording of prayer 3 which claims:

 

"Interest on the said sums at the prevailing bank rate from the 1st day of July, 1997".

 

There is no evidence that the Parties agreed to pay interest  at  the  prevailing bank rate; and even if the Court was  disposed  to grant interest on the prevailing bank rate, no evidence was  adduced  by Mr. Wanza  of the current bank rate and, therefore, the Court was not in the position to

'            grant interest as claimed.

In the premises:

1.I allow the appeal numbered SC. CIV APP NO 4/2007; set aside the judgment of the Court  of  Appeal  dated  the  24th May 2007 and, accordingly, dismiss  the  appeal  numbered SC. CIV. APP. NO 6/2007.

 

1. Order (4) made by the Court of Appeal in  its  judgement dated the 24th day of May 2009 is hereby specifically set

-···

aside. Payments of costs, if any, made pursuant to the

said order, to be refunded to Mr. Basma.

 

 

16

 

1. Parties to bear their respective costs in this Court and in

• the Courts below.