Bank of Credit & Commerce International v Charge D' Affaires of the Republic of the Ivory Coast Embassy in Sierra Leone Acting for and on behalf of the Republic of Ivory Coast, Freetown (MISC APP 3 of 1980) [1983] SLSC 11 (21 September 1983)

“4 MIS6. APY. NO.3/82 7 4 IN THE SUPREME COURT OF SIERRA LEONE |}. SE OUR T OF SIERRA LEONE q H ‘ ay coRAms a a The Hon. Mr, Justice C.A. Harding, 3.5.0, — Prosiding ean The Hon, Mr. Justice O.8.R. Tejan - 38.0, ne The Hon. Mr. Justice S, Beccles Davies ~~ 3.5.C, oe 4 BETUEEN: 4 The Bank of Credit & Commerce i International ~ Applicante My and 8 The Charge D'Affaires of the os Kepublic of the Ivory coast i Embassy in Sierra Leone Acting y for and on behalf of the Republic a of Ivory Coast, Freetoun ~ Respondent q Garves J. Setts, Esq.,(with him Miss Patrice Wellesley-Cole) % for tho Applicents f 4 T.M. Terry, Esq., for the Respondent RULING DELIVERED THIS 21ST OAY OF _SEPTEMSER, 1983 : REL IUENED THIS 2157 OAY OF SEPTEMBER, 1983 a Ch. HARDING, 3.5.C.:- The Applicants herein were the & Sef HARDING, 325.0.) i 4 Respondents in Civil Appeal 60/81 before the Court of Appeal L 8 end the Respondent herein was the Appellant. The application A before us ie for special leave to appeal to this Honourable a Court againet the Judgment and Order of the Court of Appeal ’ dated 15th April, 1982 made therein and for a stey of es execution and or proceedings on the Judgment and Order aforesaid on terms ponding the hearing of the proposed appeal. . The events leading up to thie application may be ae catalogued as follows:- On 29th June, 1981, tho Kespondent took out a specially } ¢ Andorsed Writ claiming, inter alia, repayment of the sum of

, be.18,000/00 plus interest from the,pplicants. Service : _ OF the Urit ves effected on that same day on the kppldeante A Cie who enterod appearance thereto on 6th July, 1981, ee, On Sth Dctober, 1981, the Kespondent obtained Judgment ee in default of Defence and causod a Writ of Fi-Fa to be , ak issued against the Applicants. On ths following day in ae Fesponse to the Writ of Fi-Fa tho Applicants issued a ake cheque mace payable to the Master and Kegistrar for the sum = fe of Le.21, 606.10. “Qe On 7th October, 1981, before clearance for payment of . ag tes the said cheque was effected, on an Ex-parte application : 3 : made by the Mpplicatns inter alia (1) to set aside tho writ Es Ss of Fivra (2) alternatively for an interim stay of the oe Urit cf Finfa pending an application to set aside the . S ES Judgment in Default and ali subsequent proceedings (3) es: hag that the Judgment in Default of Oofence be set aside and j : 4 Z (4) that ieave be granted to file a defence to the writ a x of Summons, Thompsen-Davis, 3. ordered (a) that the : 4 5 Sefeult Judgment and all subsequent proceedings including @ t the Writ of Fi-Fa be stayed for a period of five days and a * (b) that the application by Motion be served on the other 3 i side i.e. on the fespendent, and the matter adjourned to a 13th October, 1981. 4 ’ On 9th October 1981, before ever the motion was heard A counsel for the Respondent sought leave of the learned 3udge : a to appeal to the Court of hppeal against the interim order i made on 7th October 1981; leave was granted on 21st October,

3 On 15th *pril, 1962, the Court of Appeal allowed the ; 4 appeal, eat aside the Orders of Thompson-Oavis, J, and " Substituted therefor an interim order for a stay of . EE proceedings, on the Applicants, on or bofore the 16th of

Poo q . | April, 1981, paying to the Hespondent the sum of Le.21,606.10,

the Respondent to give a written undertaking to repay the 4 a Seid amount to the applicants or any amount that may be ordered to be paid by any competent Court in Sierra Leone to the Applicants after the final determination of the 3 action, It further ordered that on payment of the said ¥ a amount the Master and Kegistrar of the High Court was to { : Place the original Motion brought by the Applicants to set aside the Default Judgment before Thompson=-Devis J. or Smother Judge of the High Court for hearing inter partes. +> On 16th Kpril, 1982, the Applicants sought leove of the Court of Appeal to appeal against the Orver of 15th : April, 1982, to this Court, but the application vas refused ‘ 8nd counsel has now applied to this Court for special leave to appeal against the aforesaid Order, 2 Ae stated above, before ever the Applicants original ‘4 Motion was heard by the High Court the Raspondent on 9th October, 1981, appealed ageinst the intorim Order made on 7th October, 1981 to the Court of Appeal. The grounds of 4 Sppeal may be summarised as follows:= :

(1) B4ee on the part of the learned trial Judge, he being the lessor of tho Responuent.

(2) That the learned trial Judge ought not on i an Ex-parte application to have made on | interim Order staying the Default Judgment end all subsequent proceedings including ' the Writ of Fi-Fa for a period of five days

(3) That there was no longer in existence a . j writ of Fi-fa as the said Writ had already : been executed on 6th October, 1981 and in consequence the Order of 7th October, 198 4 setting aside the urit of FisFo vas one made in vain, > q The Court of Appeal made no adjudication as regards (3) but as regards (1) and (2) held respectivoly that there was nothing to warrant their coming to the conclusion that there j wae @ likolinood of bias if the learned triel Judge set ae re a

he did et the hearing of tho Exeparte Motion and that the | jearnec trial Judge had power to grant interim stay on ‘ | terme, Nevertheluss the Court proceeded to set aside the ? Orders of the learned trial Judge and to Order payment of the amount claimed to the Kespondent by the *“pplicants, on a the Kespondent giving a uritten undertaking to repay if 80 d ay ordered by any competent Court in Sierra Leone as a condition 4 for listing the original Motion bofore the High Court for “| hearing. a Botn in the affidavit in Support of the original Motion 2: and in that in Support of the present one, the Solicitor 2 aS for the Applicants had deposed that beéause of the . 4 Respondent's diplomatic status any money once paid may not on be recovsrable by legal process. *1s0, in the affidavit in “ae Support of the present application before us it was stated op that the Applicants were prepared to pay into Court the Tag amount claimed pending the hearing and determination of a this application as well as the proposed appeals oa Counse for the Miplicants hae urged that the matter ‘a is one of sufficient public importance to warrant this a Court granting special leave to appeal against the Judgment 3 of the Court of Appeal dated 1Sth kpril, 1982, Ho roforred a to Sec.3 of the Diplomatic Immunities and Privileges Act, | ; No.38 of 1961 and to Halsburys Laus of England 3rd Edition, ioe Volume 16 paragrayn 19 and Volume 7 paragraphs 7, 571 and H 576 and also to the case of OUFF DEVELOPMENT CO. vs ‘ E KELANTAN GOVERNMENT (1924) A.C. 797, Ha submitted that the : 4 Aesuing of a Writ and a submiesion to the jurisdiction made 4 by a foreign envoy does not amount to a waiver of execution. 4 He submitted further that on analysis of the Judgsent and 4 tha Court of Appeal Order they did not consider that the 4 Motion before the High Court was ripo for hearing because | by such an Order the High Court was precluded from making y

. any Order which it might have felt disposed to make and ‘ | thereby the Court of appeal was usurping the functions of { the High Court beeause by so doing they were determining t the Motion which was before the High Court, Counsel for the Kespondent submitted that before leave , to appeal is granted to tho npplicants it must be shown by them that there is an arguable appeal or that there is a t prima facie case or that the Court from whose decision leave . to appeal is sought must have committed an error on a point of lew or has failed to exetcise ite discretion lawfully or 7 ©n wrong grounds. He contended that the proposed grounds of ° appeal prima facie do not disclose go0d grounds nor can it : be said that the Court of hppeal committed an error of lev er failed to exertise its discretion judicially or that the decision was based on urong principles. He submitted that if loave to appeal is granted this should not operete as a stay of execution, that the Applicants have not made out a “ i cose for depriving the Kespendent of the fruits of his Judgment and that a stay will not accord with the justice of the case. lI have perused the proposed grounds of Appeal (six in all) and I am satisfied that they raise important issues j which should warrant this Court to exercise the power conferred on it by Kule 6(2) of the Rules of this Court, : J will accordingly grant the Applicants special leave to appeal to the Suprome Court and I so order. I also make : the following Orders:- (a) That the grounds of appeal be as follous:— "4, That the Court of 4ppeal was wrong in law to have set aside the Ordor or Orders of the High Court dated 7th October, 1981 in the Judgment 5 dated 15th april, 1982 uhen the Appellant's first ground of Appeal J had been rejected by the Court of

| \e “ppeal and there had been no finding , by the Court, that the learned trial judge in the High Court had exercised | his discretion urongly or non ; 4 judicially, in granting the Defendants in that Court a stay of proceedings pending service of the ex-parte motion on the Plaintirr,

2. That by its decision in setting aside the order of Thompson—Davis, J. dated 18th kpril, 1961, tho Court of Appeal

’ impliedly held, and wrongly in law, that the High Court may not properly grant an ex~parte order, or must

q necessarily do so only on the sppellant's undertaking. .

3. That the order of the Court of Appeal that “the Master and Kegistrar of the . . High Court do place the motion to set ay aside the Default Judgment brought by ° the Kespondent* only after payment of 4. the said amount of Le.21.606.10 cente was wrong in law in so far as the said 4 order could not in lsw have properly ee been mace by the saic Court. . a

4. That in all the cirsuuetances of the ease, the Court of 4rpeal vas wrong in : lav to grant a ntay on condition which compelled the ippellants, the Respondente i a before the Court of Appeal to pay the i § entire omount of the judgment award to E the Respondents horein on the Respondente a undertaking to refund the same, on the 3 eventual determination of the action, 5] when to the knowledge of that Court, i there was a motion ripe for hearing 3 before the High Court, seeking to eet fe aside the Yosnondents Writ of Fi-Fa in the action on the grounds irregularity. q S. That the Court of Appeal vas wrong in ¥ law to have made any order compelling ¥ payment of the Judgment award to the ‘ “espondent, when the High Court had not 4 adjudicated on the motion before it to | “Ay set aside the Writ of Fi-Fa in case as i a irregular as well ae the judgment in : default of defence. 2

6. That the Court of ‘ppeal was wrong in Fe law to order payment of the judgment monies to the Rosponcent because of a the comity of nations when the Court. of Apneal knew thet there is in law no process to compel a foreign envoy to > Bs estore monies once paid and especially 4. in view of the fact that the Judgment FH relied on was a defavlt judgment.”

| as (5 i (b) That tha Applicants lodge the Notice of : sppeal within 10 days from date hereof, A | (c) That the “pplicants deposit the sum of . Le.5,000/00 or enter into recognisance for the payment of the said amount in one surety, as security for costs. qe (d) That the Applicants deposit the sum of ; Le.1,000/00 for the costs of the fKecord. on (ce) That the amount of Le.21,606.10 already lodged by the Applicants do remain in Court F pending the determination of the proposed appesl, q (f) That a stay of execution and/or proceedings on the Judgment and Order of the Court of : “ppeal made and dated the 1Sth day of April, a 1981 is hereby granted pending the hearing 5 and determination of the proposed appeal. poe ‘ a

(9) Costs of this Application to the Reepondent 4 assessed at Le.350. (Sos) Ge Qvoustine Mardiog.. 2 Won. re “Justice C2Al haraiags 3.S.C., Presiding)

{ TEJAN, 3.5.C,:- In order to appreciate the application lye ' me before this Court, 1 think it is necessary to deal briefly ‘ Ae Big with hintory of the events which necassitated the application, Bee and these can be stated thus: On the 29th day of June 1981 a ey the respondent issued a writ of summons against the saps, q Es applicants cleimings . qe : age (a) Demages against the applicants for loss a le: end damage caused by tha applicants by Pe Feason of the fact that the applicants ge negligently and/or in breach of contract be eg paid a cheque of Eightean Thousand Leones oe (Le.48,000.00) purporting to be draun by Be ea tha respondent payable to bearer and ae negligently debited the said account of the ae Tespondont with the sum of Le,18,000.00 AEE (b) A decleration that the applicants are not abe entitlod to debit the respondent's account gee vith the amount of Le.18,000,00 #8 i \, A declaration that the respondent is ie a entitled to the repayment to him of the Tae sum of Le.18,000/00 plus intereat at the oat rate of 16%. “aS, be? Bs (d) Such further or other relief as may be just. SF

(0) Coste. “ap: Ra oa On the 6th day of July 1981, the spplicants entered an 4 oe unconditional eppoarance. The applicants, having Failed to nae ‘ Ae file © defence, the respondent obtained a judgment in defeult : ag of defence on the Sth day of October, 1981. On the 6th day as : be ba of October 1981, the respondent levied execution by a urit | a i 6frfieri facias against the epplicants. The epplicants | oy a issued a cheque for the sum of Le.21,606.10 in the namo cA of the Master and Negistrar on the same day, The respondent | ‘a presented the cheque for special clearance but the cheque a : 4 wee cancelled by the applicants on the ground of superfloue > E indersement, On the 7th day of October 1981, an oxparte 4 motion was filed by tha applicants in the High Court praying for the following orders:=

| "(1) That the urit of Fiors Facias be set | aside on the grounds of (a) non-compliance . } with the Form of Writ of Fieri Facias ae prescribed in the Schedule & of Chapter 4 | 22 of the Lous of Sierra Leone, or alter= ‘ natively Form No.1 in Appendix H of tho Kules of the Supreme Court; (b) In so far as the urit is directed to the wrong legal Person, that is to say, Bank of Credit and Commerce International rether than the Genk of Credit and Commerce (Overseas) International Limited, the proper Dafandants in . ap this action, ae

(2) In the altornative, an interim stay of the | writ of Fieri Facies herein pending an i application in thia motion contained to , Sot aside the judgment in dafault and i 4 subsequent proceedings, end that tho : 1 defendants be allowed to defend this action. a

(3) That tha defendants be at liberty to move ae *he court exparte, on such terms as to i sts as the Court may think juet. 4

(4) That the judgment in default of Gafence : herein be set aside. ao

(5) That the defendants be at liberty to file | @ defance to the writ of summona in this ea action. E

(6) Such further or other orders es to ths : Bi Court msy seem just.” : q To this motion, an affidavit was attachad in support. This Ee offidavit was euorn to by Mies Wellesley-Cole. The motion ; effo before Thompson-Davie, 3, who mada the follouing orders:= : "(1) That the dorauit Judgment and ell ce subsequent proceedings including tho F writ of Fi-Fa atayed for a period of 4. five days. |

(2) It is further ordered that this application by motion is ordered to be sarved 4 on the other side end matter is adjourned 3 to 13th October 1961." 3 Tt 4e to ba noted that the ox-parte application was heard on the same day the notice of motion ues filed. The > : Feapondent, being aggrieved by the orders made, appealed 4 against the orders without delay to the Court of Appeal, The eppeol was heard by During, Navo and Turay 33. of Appeal, | and on tho 15th day of april 1962, the Court of Appeal

| do@ivered judgment. | 7 In a passage of the judgment, the Court of Appeal aly "In the Court below, apparent in the affidavit of Miss Wellesley-Cole in support of the Ex : parte application and before us was argued it is clear to my mind that the Kespondent only wants stay because they are of the opinion that they might not be able to recover any amount nN paid aver the applicent should in case an order of for repayment is made by our Courts. I must L state that it seems to ma to be very add that 4 2 reputeblo benk would make aut a cheque due : for payment on demand and not in future and then 4 attempt to stop execution of a Writ of Fi-Fa on y the ground that it might not recover any money paid to a Judgment Creditor on a reolar q Judgment if Diplomatic prévilege or immunity is - claimed by the Judgment Creditor who hae eubmitted to tho Jurisdiction of our Courte. It appears to q me that the Respondent when they made out the cheque to the Sheriff had no intention to honour the same on demand for payment. I think I am ebsolutely right in saying that our Courts must take judicial notice of the fect that the Ivory Coast is a friendly country. ks far ae Sierra Leone is concerned it ie not a hostile country f or an enemy of State in so far as the ralation— ship between our country and the [uory Coast is concerned and diplomatic relotionship still existe between the tuo States. I sec no reasons uhy we @hould start with a prasumption that the appellant would not behave in sccordance uith 4 the comity as exists between the tuo States in a simple matter like this before us. I am of q the opinion that the Kespondent the applicant an ; the Court below should heva besn put on terms.” 4 During 3.8. further seid: "I would set aside the orders of the leerned Judge and make an order granting interim stay : of proceedings on the faspondent on or before \ Friday the 16th of Kpril 1982 paying to the ! Appellant to give an undertaking in writing to i repay the seid amount of Le.21,606.10 to the \ i Reepondent or any smount that may be orderad ' to be paid by any competent Court in Sierra . 4 Leone to the respondent after the final determination of the said action. On the payment of the seid sum of Le.21,606.10 on terms ae stated above I would direct the Master and Kegietrar of tho High Court to put the motion to ect aside the Default Judgmant brought by the Kespondent before the seme Judge or anothar , Judge of the High Court for hearing inter partea. Liberty to apply to this Court."