Eric James v Sea Board West Africa Limited (CIV APP 1 of 2001) [2006] SLSC 2 (11 October 2006)

lob : CIVAPE 2001 . INTHE SUPREME COURT OF SIERRA LEONE

c BETWEEN, ERIC JAMES (CARRYING ON BUSINESS AS JAMES INTERNATIONAL ENTERPRISES) <7 APPELLANT AND SEABOARD WEST AFRICA HIMITED 3 RESPONDENT

Coram

THE HONOURABLE JUSTICE DR. ADE RENNER-THOMAS- Cd bal be JUSTICE SIR JOHN MURIA - Isc “ 7 MR. JUSTICE E.C. THOMPSON-DAVIS - Jsc . Sad MS. JUSTICE U.H. TEJAN-JALLOH - JA * 8 MRLJUSTICE ANB. STRONGE GA AF, SERRY- KAMAL Esq. for the Appellant A. Tejan-Cole Esq, with him M.B. Michael Esq. for the Respondent it | Judgment delivered the day of October 2006 RENNER-THOMAS C.J. ‘This is an appeai by Eric James (carrying business as James International Enterprises) (hereafter referred to as the Plaintiff/Appellant) against a decision of the Court of Appeal for Sierra Leone dated 12" January 2001 setting aside a Judgment of the High Court given in favour of the Plaintiff/Appellant on the’2" ¥ day of August 1986. ae

1O4F . In his statement of claim the Piunull/Appellant pleaded inter alia as fiollows:- "

1. By an agreement dated the 27" day of June 1985 between the defendant x voinpany of the one part and the plaintiff of the other registered as number 126/85 in volume 38 at page 105 in the Book of Miscellaneous Instruments kept in the office of the Registrar General for Sierra Leone the defendant appointed the plaintiff as Distributor of its “Life Flour” in Sierra Leone on the following terms:

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(4) Seaboard appoints James sole Distributor of “Life Flour" in Sierra Leone and hereby undertakes not to sell “Life Flour” to any other person at anytime during the currency of the agreement subject (0 the terms and conditions hereafter set forth”.

(2) Seaboard shall sell an initial number of 100,000 bags of 50 pounds each of “Life Flour” to the Distributor during the currenc y Of this agreement and the Distributor agrees to buy the first 100,000 bags of such flour milled by Seaboard after {the] date hereof”: “(3) Seaboard shall sell “Life Flour” at the government approved price to the Distributor and the Distributor shall pay 3 U.S. dollars as the price per bag based on the current official exchange rate to a bank account as designated by Seaboard the remainder of the price f shali be paid in Leones as directed by Seaboard” “(#) The distributor shall take delivery and collect daily from Seaboard’s premises Cline Town the bags of flour in such quantities as Seaboard shall from time to time mill”. “©! The distributor shall pay 10 Seaboard the price herein before "mentioned in the manner...... hereinbefore described on or before it ¥ collects and takes delivery of the bags of flour from Seaboard"

cal:

(6) Upon the request of the distributor made at any time before the ‘ distributor shall have taken delivery and paid for ninety thousand ’ bags of “Life Flour" Seaboard agrees to sell to the distributor a - further one hundred thousand bags of flour on the same ternis and conditions as the original one hundred thousand bags of flour afier the distributor has taken delivery and paid for one hundred and ninety shousand bags since the inception of this contract, Seaboard will discuss with the distributor if the distributor so desires the sale of and additional quantity of flour under the terms and conditions as

se herein”.

“(2) Any variation of the terms of this. agreement shall be valid provided such variations is made in writing and mutually agreed to by the parties”.

“@ If any dispute or difference shall arise between Seaboard and the distributor with regard to this agreement'then in every such case the dispute shall be referred to an Arbitrator in the case of the parties mutually agreeing on one otherwise three'‘Arbitrators are to be appointed one by each party and the third who shall be chairman appointed by the two appointees of the parties. the award of the

Arbitrator or Arbitrators shall be binding on both parties”. | “() This agreement shall be governed by the laws of Sierra : Leone” “(10) Either party shall have the right to terminate this exclusive "arrangement upon any defieult by the other party not cured within ten days or by written notice”. b. That sometime in 1986 the said agreement was varied to allow the naa parties to agree to the price of flour to be paid in leones or dollars.

" c. That the Defendant, the Respondent in this appeal, in breach of the agreement proceeded to recruit other distributors. ‘The " Plaintiff/Appellant elected to keep the agreement alive and agreed to accept in lieu a commission paid by the Respondent for all’ flour produced und sold through various distributors. 4, ‘That subsequently on or about September 1992 the Respondent stopped supplying flour to the Plaintiff/Appellant and refused to pay the Plaintiff/Appellant any further commission. In his prayer the Plaintiff/Appellant claimed:- 1. _ -Arrears of commission already earned before the breach of the revised contract; Il. Loss of commission or profgektrom September 1992 until payment; Ill. That an account be taken of all bags of flour sold’by the Defendant since the revision of the contract; IV. Specific performance of the revised agreement; V. Any further of other relief; and VI. Costs. i In the defence filed on behalf of the Respondent it was contended inter alia that:- | a) The Plaintift/Appellant in fact breached the agreement.by failing to pay” } US3/00 per bag of the flour as required by clause 3-of the agreement and : by failing to pay in advance for flour supplied tothe Plaitif/ Appellant he Respondent as required by clause 5 of the agreement; b) That there was never any variation of the agreement as alleged or at all; ¢) “As regards paragraph 4 of the statement of claim, the defendant denies te that the said Mr. Leslie Thompson acted in breach of the agreement as : Bae

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