Alimu Barrie & Another v Abdul M. Koroma (CIV APP 60 of 2015) [2020] SLCA 34 (30 January 2020)

* CIV. APP.60/15 : IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: . ALIMU BARRIE - FIRST APPELLANT 28 FEMI TURNER DRIVE GODERICH FREETOWN AND SEIDYA GROUP - SECOND APPELLANT 6 MADONGO TOWN MAIN MOTOR ROAD PREETOWN AND. ABDUL MALIK KOROMA RESPONDENT

2. KALLAY DRIVE MARJAY TOWN GODERICH FREETOWN

Coram

HON. MR. JUSTICE MONFRED MOMOH SESAY — 3A HON. MRS, JUSTICE MUSU DAMBA KAMARA -JA HON. MR. JUSTICE JOHN: BOSCO ALLIEU IA ADVOCATES. Finmanuel Teddy Koronns Psy forthe Firat & Second Appellants : Ibrahim Sorie Yih Hey for the Respondent

% JUDGMENT DELIVERED ON THEO pay or Donwory,, 220 HON. MR. JUSTICE MONFRED MOMOH SESAY - JA By Notice of Appeal dated the 4"" November, 2015 and filed in the i Registry of this Court on the 5" November, 2015, the Appellants appealed against the decision of Hon. Mr. Justice Alusine S. Sesay J (as he then was now Justice of the Supreme Court of Sierra Leone) delivered on the 7 day of July, 2015

The grounds of appeal as appear at pages 124 ~ 125 of the Court Records

are as follows:

i, That the Learned Judge was wrong in law in failing to appreciate the provisions set out in Order 22 Rule 11 of The High Court Rules of

ii, That the Learned Judge was also wrong in law and therefore misdirected himself in his Ruling dated the 4"* November, 2015 by ignoring the arguments of Counsel for the Appellant herein which was argued in the alternative that is:

(a) The Default Judgment obtained on the 7" July, 2015 was obtained irregularly as set out on the face of the motion dated the 7" August, 2015.

(b) Secondly and in the alternative assuming without conceding that the said Default Judgment was obtained Regularly it would be set aside on terms as the Defence filed and exhibited shows triable issues which ought to be determined on its merits.

iii That the Lcamed Judge was wrong to have completely ignored the

Defence filed on behalf of the Appellants herein on the byesis that it

i amounts tot mere denial and misdirected himsel

‘i PARTICULARS OF MISDIRECTION a) “That the Defendants are not denying that they are not indebted to the Plaintiff and have paid all that which is due and owing 7 They have failed to show any proof of having settled the entire sum due and owing,” b) “...... the defence though arguable has not disclosed a defence on its merits and the defendant is still indebted to the Plaintiff.”

iv. That from the aforesaid misdirection if the Defence is arguable then this is more the reason why an opportunity should be given to the Appellants to be heard on the strength or weakness of their case.

v. That the Judge was wrong in fact and in law that the Appellants have not shown any proof of having paid all that which is due and owing the Respondent; as a transfer to the Account of the Respondent was exhibited and letter confirming such payment of Le200,000,000.00 (Two Hundred Million Leones) and other Receipts signed by the Respondent himself acknowledging receipt of payment with an excess of US $1000 (One Thousand United States Dollars) which the Appellants never counter-claimed on.

vi. ‘That the Judge also failed to appreciate the law of evidence, that he who asserts must prove as from all the Documents exhibited there is nothing exemplifying the faet that the Appellants are indebted to the Respondent either more or less the Principal sum as contained in the

Appellants’ Defence.

vii. That the Judlze was also wrong, in kaw in holding that notwithstancling the improperly published Writ of Summons on the

: 23" June, 2015 that “the whole essence of publication of'a Writ of Summons is to put the Defendant on Notice that an action hies been instituted apssinst the Defendant” failing: to realize that the

* Publication itself is pursuant to an order of the Court and based on the presumed fact that the Plaintiff is unable to serve the Defendant (5) personally, therefore the said Writ must be published in its 9 entirety given sufficient notice to the Defendant and to enable him respond accordingly. viii, That the Default Judgment dated the 7" day of July 2015 and the Ruling dated the 4" November, 2015 are unreasonable, unjust and could not be supported having regard to the Affidavit evidence in the lower Court.

Background

‘The Respondent, Abdul Malik Koroma, was at all material times, a businessman dealing in general merchandise whilst the First Appellant, Alimu Barrie, was also a businessman and owner of the Second Appellant, Scidya Group which was a company involved in stone excavation and operated in Kono and Kabala. In September of 2013, the First Appellant sought a loan of Seventy ‘Thousand United States Dollars (US$70,000,00) from the Respondent to help him set up a quarry business. By an agreement between them, the said amount was granted as a loan to the First Appellant by the Respondent for the eflective operations of the Second Appellant The loan was reportedly granted on one condition that the First Appellant would pay the sum of Ten Thousand United States Dollars (US$10,000.00) every month until the principal amount of US$70,000,00 was fally Hiquidated As at January, 2014 i.e. alter a period of fificen (15) months alter the said * Joan agreement, the First Appellant had reportedly breached the agreement in the payment of both the principal amount and the interest is 4

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