Allie B. Koroma v Amadu Kamara (CIV APP 16 of 2005) [2008] SLSC 5 (20 June 2008)

Ss) B

Judgement

v CIV. APP. 16/2005 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: ; ALLIE BADARA KOROMA - APPELLANT AND AMADU KAMARA - RESPONDENT

Coram

HON MS JUSTICE U.H. TEJAN-JALLOH - J.S.C. HON MS JUSTICE SALIMATU KOROMA - J.A. HON MR JUSTICE ADEMOSU - J.A. HEARING DATE: 16" NOVEMBER, 2006.

20" JUNE, 2008. ADVOCATES: A.F SERRY-KAMAL ESQ. FOR RESPONDENT E.E.C. SHEARS-MOSES FOR APPELLANT

DELIVERED ON 20 DAY OF JUNE

TEJAN-JALLOH — J.S.C. - This is an appeal against the decision of ¢ the High Court contained in the Judgement of Hon. Mr. Justice A.B x

r= * Rashid, of March, 2005. The appellant being dissatisfied with the decision filed four grounds of appeal, namely: a ‘The learned trial Judge wrongly evaluated the evidence in holding that the plaintiff gave the Defendant money to procure a visa to travel abroad and ignored the fact that the agreement was for the defendant to assist in getting his son to travel.

Il. The learned trial Judge failed to consider the evidence by both sides and.that the Defendant did all that was practicable to assist the plaintiff's son travel to Europe.

Ml. The learned trial Judge failed to consider that there was an intervening factor (novus interveniens) which prevented the plaintiff's son from getting to his destination having embarked on the Journey.

IV. The learned trial Judge failed to consider whether the agreement was to do acts contrary to immigration rules for the plaintiffs son fo enter a European country illegally which would be contrary to public policy.

V. The decision is against the weight of the evidence.

The main complaint which could be discerned from the grounds of appeal filed on behalf of the appellant is that the contract or transaction was illegal

From the material point of the pleadings filed on behalf of the parties ba it. appears clearly enough that thé°scle issue is whether or not the appellant was liable to refund the sum of U$ 2,800.00 (Two Thousand Eight hundred — US dollars) received from the respondent. It is essential that a pleading if it is not to be embarrassing should state the facts which would put those against whom it is directed on their guard and feel them what is the ease which they will have to meet c per Lord cotton L.J. in Phillips V Phillips (1878) 4 QBD 129 Page 139 Each party must plead all the material facts on which he means so rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success. For instance when the evidence at the trial establishes fats different from those pleaded and which constitute a radical departure from the case as pleaded the action will be dismissed (Waghorn V George) Wimpey & Co Ltd (1969) 1 WLR 1764, (1970) 1 All. ER.

474. Even in pawding V London Brick Co. (197) 4 KIP 2007 where the plaintiff succeeded on findings of fact not pleaded by him the judgement not allowed to stand. It was said that the Court of Appeal could either discuss the action or order a new trial. Similarly, a defendant may be prevented from relying at the trial on a ground of defence not pleaded by him. (Davie V New Merton Board Mills Ltd (1956) 1 WLR 233, (1956), 1 ALL .E.R.

379. In the case in hand it

7 was at the trial not in his pleadings that the defendant raised the issue of illegality : The law is well settied that certain matters must be ‘Specifically pleaded. Our High Court Rules are clear on it. The law requires a defendant in any pleadings subsequent to a statement of claim to plead specifically any matter, for example, performance, release, the expiry of any relevant period of limitation, fraud or any facts showing illegality, (a) Which he alleges makes any claim or defence of the opposite party not maintainable, etc. etc. The requirement for a party to plead illegality is mandatory (Shell Chemicals. U.K. Ltd V Vinul Ltd) formerly Vinyl Products (1991) 135 SJ 412 (1991) The Times March 7 C.A.) At the discretion of the court, a party may be debarred from raising a case totally inconsistent with and contradictory to the case previously argued: Exp. P. Reddish, Re Wilson (1877) 5 Ch. D1

882. Counsel for the appellant quite rightly referred to the evidence of the appellant, which is that the transaction was illegal, but in my view the learned trial Judge was entitled to ignore it as he right did, because if he had taken cognizance of it he would have been accepting a case contrary to and manifestly inconsistent with that which the parties had pleaded. In the words of Lord Normand, that would amount to

Se

* condemning a party on a ground of which no fair notice has been given; .

= Esso Petroleum Co. Ltd V Southpor-Corporation (1956)

Ac. 218 at page 239 (House of Lords). And — Oloto V Williams (1944) 10 WACA 23.

In these two case, the court accepted a case contrary to and manifestly in consistent with that which they pleaded. There can be no doubt that the purpose of giving the appellant money was to enable PW2, Agustin Marco Kamara to travel to Holland; The evidence before the learned trial Judge revealed that no attempt was made by appellant to obtain the Visa therefore consideration for which the money, was given to appellant totally failed. | share the view that the respondent is entitled to a refund of his money. The issue has been rightly disposed of by the learned trial Judge. | do not intend to repeat the other various contentions in the synopsis filed as they are irrelevant. For all the reasons we have already stated, the conclusion we have reached is that we see no merit in the appeal: it is therefore dismissed; no order as the costs. =f U.H. TEJAN-JALLOH ~ J.S.C

B83 HON MS JUSTICE SALIMATU KOROMA - J.A. — | AGREE HON MR JUSTICE A.N.B. STRONGE J.A. - | AGREE