Christian Ogoo V Huawei Technologies Ltd & Cellcom Telecommunications Sierra Leone Limited (CIV APP 31 of 2012) [2012] SLCA 25 (3 February 2012)

CIV.APP 31/2010 INTHE COURT .PPEAL OF SIERRA LEONE ¥ BETWEEN:- CHRISTIAN OGOO: DATATEL NETWORK GS M (SL)LTD = APPELLANTS/APPLICANTS. AND HUAWEI TECHNOLOGIES LTD -1" RESPONDENT CELLCOM TELECOMMUNICATION (S.L) LID - 28°RESPONDENT

Coram

HON. MRS. JUSTICE A. SHOWERS,JA |... . HON. MS. JUSTICE V. M. SOLOMON, JA HON. MR. JUSTICE A. S. FOFANAH, J Advocates E. E, C. Shears Moses Esq. for the Appellants C. Macauley Esq. for the Respondents JUDGEMENT DELIVERED THE $<! DAY oF Februsy 2012 SHOWERS, J.A.: This is an appeal against the Ruling of the Hon. Mr. Justice N.C. Browne-Marke, JA dated the 10" day of November, 2009. ‘The brief facts of the case are that the Appellants who are in the business of telecommunications in Sierra Leone entered into a contract dated 15" April 2005 with a company operating in China and dealing in the business of telecommunications equipment. The party with whom the ‘ Appellants contracted according to the contract is Huawei Technologies Co. Ltd.

| ‘The goods supplied were GSM/CDMA/Microwave equipments to the

value of about USS6, 101,349.00 and the equipments were shipred to the

y Appellants who installed them. The Appellants allege that because they found the industry very competitive for that reason they obtained further credit facilities from Huawei Technologies Co. Ltd. ‘The Appellants at this point offered equity holdings to the general public ‘and the 2™ Respondent showed inteiest to buy majority shareholdings which was communicated to Huawei Technologies Co. Lid who approved the transaction. This led to an agreement between the ‘Appellants and the 2" Respondent dated 13° July 2007. ‘The Appellants further allege that the’ Respondents did not press for payment but issued a writ of summons dated 8" September 2009 for the recovery of the sum of USS 4,881,232 or the equivalent in Leones due and owing by the Appellants to the Respondents, liquidated damages at the fixed and or agreed rate of 0.05%; in the alternative recovery from the Respondents of all telecommunications equipments supplied and installed by the Appellants pursuant fo the Agreement dated 15" April 2005 for the benefit of the 2“ Respondent; damages for breach of contract; interest on the said sums and costs. ‘The Appellants entered appearance to the said writ of summons and a

+ defence dated 13% October 2009 was also filed on their behalf. In the said defence the Appellants admitted owing the 1* Respondent the sum of USS 4, 881,232 and based ar: those admissions,

B the 1* Re§poiident applied for judgment to be enis-rd in its favour for the * said sum, which application was granted on 10" January 2011. In an earlier Notice of Motion dated 21" October 2009, the Appellants had applied for the writ of summons dated 8” September 2009 to be struck out for want of jurisdiction. The application was refused by Mr. Justice N. C. Browne-Marke who also refused leave to appeal to the Court of Appeal against his Ruling. The Appellants later applied to the Court of Appeal for enlargement of time within which to appeal which’ was granted and they also obtained leave to appeal and thereupon filed their Notice of Appeal dated 19" July

After filing the said Notice of Appeal;-the-Appellants alleged that as a result of the several applications coming before the court, they were put on inquiry and they embarked on some investigations the result of which caused them to apply for leave to adduce fresh evidence and amend their

Grounds of Appeal

The applications were granted and they duly filed an amended Notice’ of Appeal’ dated'21 February 2011 and ‘an affidavit sworn to by the 1" Appellant, CHRISTIAN OGOO adducing fresh

Evidence

‘THE GROUNDS OF APPEAL “GROUND I : ‘The Appellants allege that the Ist Respondent is not a legal person and . therefore lacks the capacity to bring an action before any court in this country, This is fresh evidence disclosed in the affidavit filed on behalf of the Appellants. Counsel for the Appellants argued that there is evidence obtained from the Registrar General of Sierra Leone and exhibited to their said affidavit that the 1 Respondent is not a company registered in Sierra Leone. He contended that the said 1" Respondent cannot therefore bring an action in the courts in this country. He further contended that it would have capacity to sue only if

(1) It is a Company incorporated and registered in Sierra Leone “with the Registrar of Companies. (2) __Itis a foreign Company that has been registered to do business in this country. Counsel relied on s. 485 of the Companies Act, No. 5 of 2009 for his submission. He referred the court to the Certificate of Registration of the said 1" Respondent in the Peoples Republic of China where the Company is registered as SHENZHEN HUAWEI TECHNOLIGIES CO. LTD Exh “CO4B'to the said affidavit. He also referred to the list of countries é in which the contracting party‘has offices - Exh “COS” and stated that Sierra Leone is not listed amongst them, nor does it have a branch office ov subsidiary in Sierra Leone.

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