George Beresford Cole v Sahr Mendekia (SC APP 43 of 1973) [1974] SLSC 8 (29 October 1974)

EL WUE supngne cot oF $).auna tone “| GT BETWEEN: SUVRG); BERESFORD COLE — APPELLANT au SwliR HNDEKTA = RESPONDUIN

Coram

Hon Hr Justice $C W Betts ~ JSC, (Presiding) Acting Chief Justice Hon Hr Justice E Livesey-Luko,- JSC Hon Mr Justice NB Browne-tlarke ~ JSC lion Hr Jnstice ¢ A Harding = JA lion Mra Justice & V A Awunor-Renner ~ JA : Dr WA Marcus~Jones for the Appellant G Gelagi-King Esq for the Respondent supcitenr perverse wurs 24 Sav or Ohteror On the 1th October, 1970, the Plaintiff, Sahr Hegteta, (smom T horosnafter refer to aa‘thy Respondent), issued a Writ of Sunnona occompaniod by a Statomént of Claim against George Beresford Cole, ‘whom I shall;hereinaftor rofor to as the - Appellant), for brouch of a written contract dated 3rd December, 1960, ‘The weitton contract provided, inter alia, that- the Appellant would construct a two~storeyed building of four-self contained flats for tho sum of Ui2h,000 (twenty-four thousand * ”, , leones) within a maximum period of six (6) months, that™{s to aan by June, 1969. he Respondent paid the Appellant an advance of Is1y,000 (fourteen thousand leones), and agreed to pay the | balance on or before the 20th of Fobruary, 1969. As a matter of fact, the balance of 110,000 (ten thousand loones) was paid on |) the 16th Decombor, 1968, After the expiration of the tine for 4 ‘the performance of the contract, the Appellant, according to the! Regpondent 's evidence, asked for one’ more month to complete the . building, that 42 to say, in July, 1969. The Respondent sata ho”

a2 accepted, The building however was still incomplete at the end of July, 1969. ‘ Litigation started by a Writ of Summons which was filed i on the 13th Octolur, 1970, followed by a Statement of Claim. The Appellant filed a Statenont of Defence and counter-clain “ on the 26th April, 1971. By loave of the Court, an amended Statement of Claim was delivered and filed on the 3rd of November, 1971. ‘The Respondent cluimed damages - general and : special - for broach of contract. ‘The action was tried by Ken Py During, J, (as ho then was) who gove judgment on the 10th April, a 1972, éismissing both the Respondc.it's claim and the Appollant's . «| counter-claim, The Respondent appealed against that judgment 3 and the Court of Appoal (Percy R iavies, JA, 0 BR Tojan, JA ‘and Rowland Harding, J,) allowed the appeal on the 11th July, £ 1973, and ordered the Appellant t. pay the Respondent le14,085 =-(fourteon thousnd and ‘eighty-£1v. Leones) as gonoral danages; 4500. (five hundred loones) as afeial damages and costs of the © i faction in’ the’Wligh Court and the vourt of Apseal.. ‘ “—gye present appeat is agains! the judgment of the Court of "Hi Appeal and the following tasues wore raised: ile (a) Vas’ the Appollant a grotuitous Agent of the i Ii Rospondent? ie + (p) Was Hmaibst 1B! a contract oF a recospt? ie (ce) If 4t was a contract, was thore a breach of it? ae [a) Was the Respondent ontitied to the denages he Ie was iivarded or to any damages at all? tt Tt will bo vserul at this stage to set out Exhibit 1c! as st sie raised. : } if | EXIIBIT 10" 4 AG AEOSIVED THE SUM OF 121,000 (FOURTEEN THOUSAND LOWES) “ it FROM AML LKUUIL MENDEKTA, IQ, PARNER of 27 Yeredu 77, te | Fond, Kosdu Youn, Kono Distvict, in the Eastea Prov = |'f ince of Slorra Leone, botnr: part payment of ed dim (ft) |

[of

of Le2h,000,00 (TUENEY-FOUK ‘VIKHANI HAT) Lor the costs of construction of a I'W0-STORKYED BUILDING with DOYS! QUANEKS AUD CAR POI on 914907 acre of Ini situated off Kissy byo Pasa Road, Kisy Villaye xa more fully deseribea and elinoated on tho Diroctor of Surveys and Lands Plan 13 1070/60 datud 20th Novomber, 1968 to be Duilt and constructed with the best labour ahd materials available within a maximum period of (6) six calendar months from the date hereon; the said structures to contain the following:~ TWOASTOREYED BUILDING: | (FOUK) SELP-COUTA! lush BAD Letegr Alu HLA Ee GROUND VOOR: No 1 = Lounge Cum dining, room Two bedrooms. One bath and vator oset. Estimated Unit vost La},1}00.00 Plat No 2 = Louryje eum dining room Yhreo bedrooms Ono bath and water ciosot.. Kitchen Bstimated Unit cost ~ 1,600.00. . PIRST FLOOR:-. Mat to 3 = LOUNGE CUM DINING ROOM ‘Two bedrooms Ono bath arid water closet, Kitchen Estimatod unit, vost - dy,400.00 PLAT WO k: Lounge cun dini.sy oom, three bedrooms ono buth and water closot. Kitchen Kstimated unit cosl. - 16,000.00 BOYS! QUARTENS AND CAR POI: 10¥S* qUARYERS:- “wo bedroons One water closet and Shower vA FOI: Covere:t aecommodation for four curs Watimated-unit cost: - 2,200.00 a Hxtgoacies = 600.00 : “oral cost 12,000.00 I, Sahr Lobbie Mondokia aforesnid for myself my heirs and Successors in title do horeby contrnct and agree with my agent, Goorge Perosford ‘clo, Noal Estate Agent, of 23 Iaverpool ?

ay.

; +e he Stroet, Freetown, Sivrra Leone, t+ pay to lim tho balance of 110,000.00 (tet thousand loonos) in full on or before the 28th February, 1969, for the fulfilment of tho purposes end inbefore contuined. Dated in Freetown this 3rd duy of Docembor, 1968. (sga) George Beresford Cole Neal Estate Agent Read over and fully explained to Sohr Lebbie Hondekia by KAI MOSSAY Wo 77 Yaradu Road, Koidu, TRADER. When ho, Shar Lol-bie Mendekia seemed perfectly to understand tho same bofore insoribing his mark and/ or thumbprint hereon. (sya) TP ef Sahy tobbie ‘Hondolia. tlavings sol out Kxhibit 1" + propose Lu construe it to Acvermine vhether ibs intention as to appoint the Appellant ‘as an agont or to cronto an‘uyony. If one or the other, kind of relationship can bo useribod Lo tho document as a result of the construction, thon that is the end of the matter, in regard to the ugent or agotey excluding other incidents. ; pat 4f not, Bxhibst *C' will be subject to further construc tion to determine if st is wcontract or & recespt, This * * accepted that the wd fagont’ iu capable of boing used in mumvor of ways and sn these procoodings it was sought to uso dt by the Appollant's counsel ao a ‘eonduit pipe’ merely +2 cs effect the trensportation of the terms of acrooment between tne Respondent and sone othor third party, lssbury's Sn? EAition, Voluno T at page 16 and paragraph 351, states that an agent has Veen dofined ao a “nonson primarily onployed for the purpose of plnckny tho pwiinr ijl in contnactuel OF other a

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