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

— fo*ee CIV.APP. 1/2001 IN THE SUPREME COURT OF SIERRA LEONE 2 erwees ERIC JAMES (CARRYING ON BUSINESS AS JAMES _ INTERNATIONAL ENTERPRISES) : APPELLANT AND. SEABOARD WEST AFRICA LIMITED: < RESPONDENT

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IIE HONOURABLE JUSTICE DR. ADE RENNER-THOMAS- C3 = wd JUSTICE SIR JOHN MURIA - JSC a bed MR. JUSTICE E.C. THOMPSON-DAVIS - JSC i bak ‘MS. JUSTICE U.H. TEJAN-JALLOH - JA Ls a MR. JUSTICE A.N.B. STRONGE - JA A.P, SERRY-KAMAL Esq. for the Appellant A. Tejan-Cole Esq. with him M.B. Michael Esq. for the Respondent is | Judgment delivered the day of October 2006 RENNER-THOMAS C.J. This is an appeal by Eric James (carrying business as James International Enterprises) (hereafter referred to as the Plaintifi/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°° r day of August 1986. ey )

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In his statement of claim the Plaintiff/Appellant pleaded inter alia as follows:

“ a, By an agreement dated the 27" day of June 1985 between the defendant company of the one part and the plaintiff of the other registered as 7 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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(1) 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 to 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 currency 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 Distribuor and the Distributor shall ‘pay 3 U.S. dollars as the price per bag based on the current official exchange rate toa bank account as designated by Seaboard the remainder of the price shall be paid in Leones as directed by Seaboard”.

“(4) The distributor shall take delivery and collect daily from Seaboard’s premises Cline Town the bags of flour in such quantities as Seabvard shall from time to time mill”.

“(5) The distributor shall pay to Seaboard the price herein before

7 ‘mentioned in the manner...... hereinbefore described on or before it collects and takes delivery of the bags of flour from Seaboard”.

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(6) Upon the request of the distributor made at any time before the [® castributor shall have taken delivery and paid for ninety thousand ae bags vf “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 after | the distributor has taken delivery and paid for one hundred and | ninety thousand bags since the inception of this contract, Seaboard will discuss with the distributor if the distributor so desires the sale of and wdditional quantity of flour under the terms and conditions as se herein”. “(7) 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”. |

(8) 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 t0 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”. |

(9) 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 default 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 ; } parties to agree to the price of flour to be paid in leones or dollars.

d {et | c. That the Defendant, the Respondent in this appeal, in breach of the * agreement proceeded to recruit other distributors. The Plaintiti/ Appellant elected to keep the agreement alive and agreed to \> accept in lieu a commission paid by the Respondent for all’ flour produced and sold through various distributors. | . ‘That subsequently on or about September 1992 the Respondent stopped supplying flour to the Plaintiff/Appellant and refused to pay the Plaintifi/Appellant any further commission.

In his prayer the Plaintifi/Appellant claimed:~ L Arrears of commission already earned before the breach of the revised contract; Il, Loss of commission or profgettrom September 1992 until payment; lll. 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. In the defence filed on behalf of the Respondent it was contended inter alia that:- ' a) The Plaintifi/Appellant in fact breached the agreement by failing to pay j U$3/00 per bag of the flour as required by clause 3 of the agreement and : by failing to pay in advance for flour supplied to the Plainttt/ Appellant he Respondent as required by clause 5 of the agreement; s 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 * that the said Mr. Leslie Thompson acted in breach of the agreement as ae

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