First International Bank (SL) Ltd v Sigma Engineering & Construction Services Limited And Another (CIV APP 1 of 2014) [2017] SLCA 1228 (2 March 2017)

L CIV. APP 12014 IN THE COURT OF APPEAL OFSIERRA LEONE BETWEEN: - FIRST INTERNATIONAL BANK (SL) LTD. - APPELLANT AND SIGMA ENGINEERING AND CONSTRUCTION SERVICES LTD ~ RESPONDENT AND INTERNATIONAL PROCUREMENT AND CONSTRUCTION SERVICES - THIRD PARTY

Coram

HON MRS JUSTICE N. F. MATTURL-JONES , JSC HON MRS JUSTICE A. SHOWERS, JSC HON MR JUSTICE M. F. DEEN-TARAWALLY, JA ADVOCATES Miss M. Dumbuya for the Appellant J.B, Jenkins-Johnston Esq.(now deceased) for the Respondent

nr JUDGMENT DELIVERED THE 2"? DAY OF MARCH, 2017. SHOWERS, JSC The Appellant herein has appealed against the judgment of Edwards J (as he then was) dated 16" April 2013 refusing the Appellant leave to defend the action instituted in the High Court by the Respondent against the Appellant. Judgment was accordingly granted the Respondent for the recovery of the sum claimed, interest thereon and costs. The facts of the case are briefly that by a contract dated the 17" August 2010 made between the Appellant Bank therein called “the Employee” and the Respondent Company therein called “the Contractor”, the Appellant employed the Respondent's services to complete the construction of the Makeni Government Hospital Phase 1 and complete the additional facilities for the Makeni and Moyamba Government Hospitals Phase 2, therein called “the Works”. It was agreed that the Employer shall make payments to the Contractor as and when agreed and when a certificate has been presented for such payment by the Consultant who were TEDA of 63 Wellington Street Freetown employed by the Appellant. The Appellant made an advance payment of Le280, 730, 025 upon the Consultant presenting a certificate for the said payment. On the 26" November 2010 the consultant presented a payment certificate to the Appellant for the sum of Le378, 872, 586, The Appellant refused to pay the said amount despite several demands made by the Respondent through its solicitors.

B ‘The Respondent commenced this action in the High Court by writ of Summons dated 18" December 2012. See pages 1-4 of the Records. The Appellant entered appearance datéd 18" January 2013 pages 8-9 of the Records and issued a third party notice dated 28" February 2013, pages 35-36 of Records against the International Procurement and Construction Services (IPCS) on the ground that the contract between the Appellant and the Respondent herein was secondary to a contract between the Government of Sierra Leone and the third party, IPCS for which the Appellant granted IPCS overdraft facilities to undertake and complete the construction of the Makeni Government Hospital Phase 1 and additional facilities for the Makeni and Moyamba Government Hospitals Phase

2. The Third Party defaulted on its obligations under the said ——eontraet-with-the- Government of Sierra beome amt consequemty Works On the said projects at the Makeni and Moyamba Government Hospitals came to a halt. ‘The Respondent filed a judges summons dated 31* January 2013, pages 10-32 of the Records praying that judgment be entered in its favour against the Appellant for the amounts claimed in its writ of summons in the sum of Le378, 872. 586 owed it as payment for the construction of the Makeni Government Hospital phase 1 and the completion of additional facilities for the Makeni and Moyamba Government Hospitals phase 2; interest on the said sum at the rate of 25% per annum from the 26" November 2010 to the date of judgment.

The said judges summon was supported by an affidavit swom to by GEORGE PAJU HAMILTON, Managing Director of the Respondent Company. He deposed to the facts leading to the institution of the action and to the fact that the Appellant, the Defendant therein has no defence to the action.

On 1 March 2013 the Appellan| (a) Defence and Counterclaimpages 37-39 and also filed an affida N@@happeAion to the judges summons filed on behalf of the Respondent. The affidavit in opposition - pages 40-53 was swom to on 1% March 2013 by CHIKA CHIKEZIE, banker at the Appellant's bank. He deposed that the contract dated 17" August 2010 was secondary to an agreement between the Government of Sierra Leone and IPCS, the Third Party herein for the construction work concerned. That the said Third Party was a customer of the Appellant Bank and was granted overdraft facilities by the said Bank to facilitate the said construction work. That the actual construction work was subcontracted to the Respondent by the Third Party. That by the 16” ‘August 2010 the said construction work remained incomplete. That the Appellant Bank with a view to eventually recovering the loan granted to the Third Party when the said work was complete entered a Tripartite arrangement with the Respondent and the Third Party whereby the Appellant would provide the sum of Le600 million for the completion of the said construction work on the guarantee by the Third Party that all fees to be paid by the Government of Sierra Leone for work done at the said Government hospitals would be paid into the Third Party’s account at the Appellant bank.

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