Marie Stopes Sierra Leone v Gloria Mac Conteh (CIV APP 30 of 2010) [2019] SLCA 22 (5 January 2019)

. to 7 crv APP 30/2010 e IN THE COURT OF APPEAL OF STERRA LEONE BETWEEN. MARIE STOPES STERRA LEONE - APPELLANT AND GLORIA MAC-CONTEH - RESPONDENT i CORAM: THE HONOURABLE MR JUSTICE NC BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE V M SOLOMON. JUSTICE OF THE SUPREME COURT THE HONOURABLE MRS JUSTICE A SHOWERS JUSTICE OF SUPREME COURT (Acting) (now retired) COUNSEL: ADY MACAULEY ESQ for the Appellant : JB JENKINS-JOHNSTON ESQ (since deceased) for the Respondent Neffercal JUDGMENT DELIVERED THE Shoay OF FEBRUARY,2019 ee BROWNE-MARKE, JSC THE HIGH COURT JUDGMENT

1. This is an appeal brought by the Appellant, Marie Stopes, Sierra Leone, ‘ogainst the Judgment of CL TAYLOR, J delivered on 15" July,2010. At the outset, I must state that the most outstanding feature of the Judgment, is its brevity: no attempt was made by the Learned Presiding Judge to analyse the merits of the case before her, nor, to refer to any Principle of law, relating to the cause of action before her, or to the ‘manner in which applications for summary judgment under Order 16 of the High Court Rules,2007 ~ HCR,2007, should be dealt with. This is the whole of the Judgment as found on page 160 of the Record “Court Ruling UPON HEARING L. JENKINS- JOHNSTON of Counsel for the plaintiff /applicont by way of judge's summons dated 4" June, 2010 : together with the affidavit in support sworn to on the 4! June,2010 and

at eae the supplemental affidavit sworn to on the 9" July,Z010 with the exhibits attached thereto:

4 UPON HEARING Ady Macauley of Counsel for the defendant/respondent on the affidavit in opposition sworn to on the 30” June,2010 together with the exhibit attached thereto;

— AND having considered the submissions made by both Counsel and « authorities cited I hereby order as follows:

= L. That the Defendants do pay to the Plaintiff the sum of Le31,377,066

being salary and leave pay to which she is entitled up tof" January,2012. (

2. That the interest thereon is at 25% per annum as from the 5* February,2010 until payment.

3. That the damages for breach of contract are assessed at LeSm.

4. That the cost of this action assessed at Le3m is to be borne by the defendants.”

2. There is no indication as to how the Learned Presiding Judge arrived at these conclusions, No evidence was led as to what rate of interest she should award, nor how she came to the conclusion that Le5m was a fit and proper sum to award as general damages over and above the sum of Le31,377,066 awarded as specific damages.

THE APPEAL

3. The Appellant's Notice of Appeal was filed on 16" July,2010 though the

appeal itself was only heard in 2012. It is at pages 1634

164. The

Grounds of Appeal are as follows:

(1) That the decision of the Learned Trial Judge is against the weight of the evidence.

(2) That the Learned Trial Judge erred in Law in giving judgment in favour of the Plaintiff in an application for summary judgment, notwithstanding that the Defendant has shown cause against the application and there being sufficient evidence before the Court to ‘show that the Defendant has a defence to the action

(3) That the judgment of the Learned Trial Judge dated the 15" day of July,2010 is a vacant judgment in that the Learned Trial Judge failed to give reasons for her decision (ratio decidendi) and failed to state which case authority cited by Counsel or an Order of the

" High Court Rules she relied on in granting the orders as contained

in the said judgment

4, The reliefs sought by the Appellant are as follows:

(1) That this Court grants a stay of execution of the Judgment of - dated 15" July,2010.

(2) That the Judgment be set aside.

(3) That the Appellant herein be given leave to defend the action.

(4) Any further or other relief

(5) Costs ‘

5. They reliefs sort in this Court, are really the sort a party would seek ina Court of first instance, not in an appellate tribunal. The setting aside of a ‘ judgment of a lower Court by an appellate tribunal automatically results in {a stay of execution of that judgment, because it would no longer stand. ‘Also, this Court is not in the business of granting any other relief. It may, if the circumstances so warrant, make any Order it may deem fit or, necessary. Also, the use of the expression, vacant judgment’is not one which Counsel should properly use in describing a Judgment of any Court. Where is the so-called vacancy? The best he could have done, was to have said, for instance, that the judgment lacked legal or juridical basis. Having made these preliminary points, we shall now turn to the substance of the appeal itself THE HIGH COURT PROCEEDINGS

6. The Respondent sued the Defendant by way of writ of summons issued on 7° May,2010 (pages 1-3) for the sum of Le31,377, 066/00 being salary nd leave pay to which she was entitled up to 1*" January,2012: interest on this sum at the rate of 25% per annum with effect from 5™ Februcry,2010 until payment; Damages for breach of contract assessed at Le20m; any further or other Order: and the Costs of the action. The Respondent was employed as a Project Assistant by the Appellant on a fixed term basis, by letter dated 19" December,2008. The contract was to subsist from 2" January,2009 to 1" January,2012, a period of three years, On 1" October,2009 her appointment was confirmed in writing, On 5” February,2010 the Appellant terminated her employment by reason of redundancy. The Respondent claimed that there was no provision for redundancy in her contract of employment, and that in any event someone else had been appointed to the office after she had been terminated. She averred further that the redundancy was a deceit ful " ploy to get rid of her. The Ministry of Labour intervened and requested the Defendant to either reinstate her, or pay her all monies due her i

. under the fixed-term contract of employment. The Appellant insisted it 43 had a right to terminate her employment. Appearance was entered for : and on behalf of the Defendant on 17 May,2010. There was a preliminary skirmish: the Appellant applied to the Court to set aside the writ on the ground of irregularity in that the address of the Plaintiff was not stated on the writ as required by Order 6 Rule 1(2) HCR,2007. On 18th June,2010 TAYLOR, J refused the upplication on the ground that . the Plaintiff's address was stated on page 3 of the writ. SUMMONS FOR SUMMARY JUDGMENT ‘

7. By Judge's Summons dated 4” June,2010, but filed on 7 June,2010, pages 17 - 39, the Respondent applied for summary judgment to the Court below in the terms stated in the writ of summons. The Summons was Supported by the affidavit of the Respondent. Exhibit A, pages 20 -22, was the letter of appointment. Clearly, it was a fixed term contract, Paragraphs 13 and 14 at page 21, deal with discipline & grievance and notice period. “13, Please refer to MSSL's Disciplinary and Grievance Policies & Procedures. The notice period is to terminate your employment by either you or MSSL are as Follows: During Probation ~ the appointment can be terminated by either of the two parties with one month's notice. 14, After Probation - Support Staff - 1 (one) month's notice or salary in lieu of notice. MSSL shall also give the above notice period or salary in eu, where employment is terminated except in the case of summary dismissal which may include termination without notice.” ‘So, there was provision for an early termination of the contract. Exhibit 8, page 23, was the letter dated 1" October,2009, confirming the Respondent in her position.

8. Exhibit C, was the letter of redundancy dated 5" February,2010. Part of it reads as follows: “Dear Gloria, Letter of Redundancy We write to refer to the above and to conversations (in Dec 2009 & Jan 2010), and interview test (22.01 2010) you took and had with the Team Development Manager, National Programmes Manager & the Finance & ‘Admin Director in the respective and latter case. The various and respective discussions held were inclusive of the following u

The pages read for this report end here. The judgment continues in the PDF.