Mohamed Bangura v Dalian Shangai Fishing Cooperation [2018] SLCA 1270 (6 August 2018)

Judgment

The background to this is that the Plaintiff now Respondent on this Appeal is a fishmonger and Businessman for over twenty-five years in the fishing industry. The 1 st Defendant, DALIAN SHANGAI Fishing Company was incorporated in China with an incorporation certificate dated 5 th May, 2014. This company was to undertake fishing activities in Sierra Leone through a Local fishing Agent or Partner in the form of a locally incorporated company registered in Sierra Leone. Prior to this the 1st Defendant/Appellant contacted a Chinese Businessman Mr. David Wei who was operating his own business in Sierra Leone about the venture asking him to conduct a testability studies as to the prospects of the business Mr. David Wei then introduced another Chinese national called MICHAEL WANG to the subject to help him out. Records has it that sometime in 2013 Mr. Wang introduced the fishing venture to his friend MR. MOHAMED BANGURA the Plaintiff/Respondent MR. WANG then told him he is an agent for 1 st Defendant/Appellant a company operating a Fishing Business in the Peoples Republic of China. That he is Vice President of the said company. The Plaintiff/Appellant has it that Mr. Wang then appointed him to be their sole agent and promoter of the company that was to be incorporated in China. There was now an oral agreement between himself and Representatives of the said company. It was agreed as terms and conditions of the business for him to provide a local fishing storage facility, a conducive atmosphere for the operation of the business and protect the captain and crew during the operation of the fishing activities. He was then told that for the company to be incorporated in China these conditions agreed upon were to be satisfied and Chinese government was ready to provide a loan of 8 fishing vessels (trawlers) for the fishing activity if he can meet the said conditions. According to the Plaintiff/Respondent he then went in to action as per agreement. He then introduced the said Representative of the 1 st Defendant to a MR.ALLIEU THORLU BANGURA owner and proprietor of a local fishing company called Union Fishing 2007Company Limited. He then told them that for the purposes of the business they shall be

utilizing the storage facilities of Union fishing 2007 company Limited and all correspondences shall be done in that regard through him which was accepted. So on the 17 th day of January, 2014, he wrote a letter to the Director of Fisheries and Marine Resources on the letterhead of Union Fishing 2007 Company Limited. The said letter contained permission for fishing vessels to participate in the fishing Industry of Sierra Leone, the partnership between the Plaintiff/Respondent and 1 st Defendant/Appellant a request for clearance and for the vessels to enter the ports of Sierra Leone. By a letter of reply from the Director of Fisheries and Marine Resources dated 17 th day of January 2014 the Ministry acknowledged receipt of the said letter. The Plaintiff/Appellant then took representatives of the Chinese economic and commercial bureau on a conducted tour of the facilities of Union fishing 2007 Company Limited. Which were in fulfillment of the condition precedent to the grant of the loan. As a result of the Plaintiff/Respondent consideration/effort, it was agreed that on the arrival of the vessels/trawlers in the Sierra Leone waters, the different species of fishes normally sold in the Sierra Leone markets (local markets) which form the catches during the fishing process would be handed over to the Plaintiff, sold by the Plaintiff/Respondent and the proceeds of sale be retained by the Plaintiff. At the same time all other species of fishes sold in international markets be retained by the 1 st Defendant/Appellant. By the said agreement the Plaintiff/Respondent was to incorporate a company for the business. It was later understood that the storage facility at Union Fishing 2007 Company was unavailable. The Plaintiff/Respondent was later informed by the Ministry that 2 nd Defendant/Appealant had applied for fishing for the 8 vessels. He then wrote a letter of protest to the Ministry, Plaintiff/Respondent then took the complaint to one Honourable Alimamy Kamara to find a solution. Honourable Alimamy Kamara who happens to be PW.2 called the Plaintiff/Respondent and 2nd Defendant/Appealant to a meeting in the presence of one FEREMUSU SESAY alias Baby and one MR. SAIDU O. JALLOH. Baby

then explained the matter between Plaintiff/Respondent and Michael Wang who was now residing on the premises of 2nd Defendant/Appealant ABIE ARUNA KOROMA. Mr. Wang then told PW.2 Alimamy Kamara he was a representative of 1 st Defendant/Respondent Company and offered him his complementary card. At the end of the meeting, 2 nd Defendant Abie Aruna offered to give Plaintiff/Respondent the sum of Le 50,000,000/00 to settle the matter as between brother and sister. The Plaintiff/Respondent later on learnt that fishing license has been granted to 2 nd Defendant/Appellant as the local agent of the 1st Defendant/Appellant to carry on fishing activities with the 8 vessels without the consent of the Plaintiff/Appellant. It also turned out that Monza fishing Company, the 3 rd Defendant in this action owned by Abie Aruna Koroma 2 nd Defendant/Appellant has been granted license to operate the said fishing business with the 8 vessels. But before this time 2 nd Defendant had met with Mr. Michael who it is alleged had been staying in a hotel in Freetown. Mr. Wang was introduced to the 2 nd Defendant/Appellant by the Plaintiff/Respondent. Later in Mr. Wang ended up residing on the premises of 2 nd Defendant/Appellant as a tenant. The nature of the tenancy was not clarified. Mr. Wang then introduced 1st Defendant/Appellant DALIAN SHANGHAI FISHING COMPANY for the first time to the 2nd Defendant/Appealant. The Executives of 1 st Defendant/Appellant company then came to sierra Leone and then appointed 2 nd Defendant/Appellant as an agent for the 1 st Defendant/Appellant company by letter dated 12th day of January, 2015. A cooperation agreement was the executed between the 1 st Defendant/Appellant and 3 rd Defendant/Appellant dated 1 st day of April, 2015. These arrangements were made for 2 nd and 3rd Defendants/Appellants to proceed with the fishing enterprise in Sierra Leone. 3 rd Defendant/Appellant meanwhile was then registered as a fishing company in the same 2015 by 2nd Defendant/Appellant. The 3 rd Defendant/Appellant then started operating the fishing business with 1st Defendant/Appellant’s vessels.

The Plaintiff having had knowledge about the operation of the business by the Defendants/Appellants then opened legal proceedings against them. He instituted an action against them by writ of summons dated 24 th day of July, 2015 before the High Court of Sierra Leone. An application was then made to the High Court for an arrest of the vessels which was granted but was later released on recognizance. The business was then put to a grinding halt. 1 st Defendant/Appellant been disillusioned, disenchanted terminated the contract with 2 nd and 3 rd Defendants/Appellant dated 5th day of October, 2015. The action against the 1 st, 2 nd and 3 rd Defendants/Appellants by the Plaintiff/Respondent was for the court to declare him the sole agent and promoter of the 1 st Defendant in respect of fishing business in Sierra Leone pursuant to an oral agreement entered into between the Plaintiff/Respondent and the 1 st Defendant/Appellant in 2013 etc. Against the 2nd Defendant/Appellant for inducing a breach of contract entered into between the Plaintiff/Respondent and the 1 st Defendant/Appellant in the year 2013. A photocopy of the said writ of summons (statement of claim and particulars of claim) is contained at pages 660-665 Vol. II of the book of records on this matter. The 1 st, 2 nd and 3 rd Defendants then filed in defences to the said writ of summons. The 1 st Defendant/Appellant Company filed in a defence to the action. The substance of the Defence was that there is no oral agreement at any point in time between the 1st Defendant/Appellant or any representative whatsoever appointing the Plaintiff/Respondent as their partner, sole agent and promoter in Sierra Leone. The 2nd and 3rd Defendants/Appellant in their defence denied knowledge of the existence of any oral agreement appointing plaintiff/Respondent as sole agent and promoter of 1 st Defendant/Appellant Company talk less of a contract or agreement. That she did not induce a breach of any agreement neither procure it. So she cannot be held liable for any breach of an oral agreement nor any inducement of it. The said defence of

the three Defendants/Appellants are contained at pages 666-668 of the book of records on this matter. The matter was then later on set down for trial or hearing after all the preliminaries had been done by both parties and their solicitors. The solicitor for the Plaintiff/Respondent was KAIFALA CONTEH & CO. the solicitors for the 1 st Defendant/Appellant was UMARU NAPOLEON KOROMA and solicitors for the 2nd and 3rd Defendant/Respondents was TANNER LEGAL ADVISORY. The evidence before the High Court adduced by both parties was twofold. They were both oral and documentary. In relating the Plaintiff/Respondent’s case before the High Court. Three witnesses were called to testify. They were PW.1 – MOHAMED BANGURA Plaintiff/Respondent, PW.2 – ALIMAMY KAMARA of 147A Lower Kandeh Drive, Off Wilkinson Road, Freetown and PW.3 – SAIDU O. JALLOH of No.23 Guard Street, Freetown. The testimonies of the said three witnesses and documents tendered are contained at pages 794-809 Vol. II of the book of records on this matter. The Defendants stated their defence by two witnesses. DW.1 was MICHAEL WANG of a High Broad Street, Murray Town. DW.2 – ABIE ARUNA KOROMA of No. 54 Old Adonkia road, Bush Water, Goderich, Freetown. Their testimonies and documents tendered can be found at pages 810-820 of the record book on this matter. At the close of the Plaintiffs case and that of the Defendants, counsels representing both parties addressed the court on the merits of their cases based on established principles of law. The address of the plaintiff’s case by counsel KAIFALA is contained at pages 821-833Vol. II. The address of the 1 st, 2nd and 3rd Defendants/Appellants are contained at pages 83-866 Vol. II of the book of records. Having heard the addresses of both counsels with their respective parties, Honourable Justice Alusine Sesay, JA delivered a judgment on the 13 th day of February, 2017 in favour of the Plaintiff case against the 1st, 2nd and 3 rd Defendant/Appellants. The said judgment is contained at pages 867-899 Vol. II f the book of records.

Aggrieved by the decision of Hon. A. Sesay, JA, counsels for the Defendant/Appellants appealed to this honourable Court on a notice of appeal dated 16 th day of February, 2017 contained at pages 972 – 975 of the book of record Vol. II. The said appeal was filed by solicitors of the 1 st, 2 nd and 3 rd Defendants in the name UMARU KOROMA Esq., of Brewah and Co. chambers, 2 Siaka Stevens Street, Fretown for 1 st Defendant/Appellant and AFRICANUS SESAY of Tanner Legal Advisory of Red Lion Building, 1st floor, 65 Siaka Stevens Street, Freetown for 2nd and 3 rd Defendant/Appellants.

Grounds of Appeal

1. That the learned trial judge erred in law and fact and failed to properly analyze and consider the evidence before him when he held that there was an oral agreement between 1 st Defendant and plaintiff in 2013 which said agreement was made by MR. MICHAEL WANG who was never part of 1 st Defendant company in 2013 and which said company was never formed in 2013.

2. That the learned judge erred in law and fact to hold that there was a contract of Agency between the 1 st Defendant and the Plaintiff even though 1 st Defendant had not given any actual authority to the plaintiff to Act on its behalf on 2013 when the 1st Defendant had not been incorporated as a company.

3. That the learned trial judge erred in law and fact by holding that a mere business card in the name of MICHAEL WANG was sufficient to show that the said WANG has ostensible authority of the 1 st Defendant even though MICHAEL WANG denied to have ever issued such a business card to the Plaintiff and even though he stated clearly that he had no such authority to act on behalf of the 1 st Defendant and that he never appointed the Plaintiff as an agent for 1st Defendant.

4. That the learned trial judge erred in law and fact by holding that a company law grant ostensible/Apparent authority and not actual authority as required for a juristic person like a company.

5. That the learned trial judge erred in law and fact and completely misapplied the rule in “Thurguards Case” which was developed in the case of Royal British Bank v. Turguard (1856) 6E and B 136 and failed to appreciate the modifications raised a concern about MR. ALLIEU THORLU BANGURA not coming to testify

6. That the learned trial judge failed to appreciate the evidence of the 1 st Defendant and despite the inconsistencies in the evidence of the plaintiff held that he was correct in everything he stated without any document to support his claims against the 1st Defendant

7. That the judgment is against the weight of evidence

8. That the learned trial judge gave his judgment per incuriam Reliefs sought by the Appeal: a. That the judgment dated 13th day of February, 2017 be set aside, dismissed or quashed. b. That judgment be entered for the 1st Defendant c. That the plaintiff pays the cost in this court and the court below. EXAMINATION OF GROUNDS OF APPEAL: Ground One – The grounds of appeal filed by the 1 st, 2 nd and 3 rd Defendant/Appellants especially the first and 2nd grounds of appeal seems to be the omnibus grounds of this appeal. They are whether there was an oral agreement in 2013 between the Plaintiff/Respondent and the 1st Defendant/Appellant Company, DALIAN SHANGAI through Mr. Wang DW.1, based on the evidence before the court below. The other grounds are also important and

shall be addressed accordingly. It should however be pointed out that grounds of appeal of the 2 nd and 3 rd Defendant/Appellant are damages for inducing a breach of contract entered into between the Plaintiff/Respondent and the 1 st Defendant/Appellant in the year 2013. The grounds of appeal of the said 2nd and 3 rd Defendant/Appellants are to a large extent dependent on the grounds of appeal of the 1 st Defendant/Appellant, although the evidence before the lower court against the 2 nd and 3 rd Defendant/Appellants is different. According to counsel for the 1 st Defendant/Appellant UMARU KOROMA there was no evidence before the court to show that there was an oral agreement between the Plaintiff/Respondent and 1st Defendant/Appellant which said agreement was struck by Mr. Wang – DW.1 in 2013. Who was never a part of the 1 st Defendant/Appellant Company in 2013. Also that of the inconsistencies in the evidence of the Plaintiff/Respondent, in his evidence in chief and crossexamination viz a viz his witness statement. He went on to submit that in the evidence in chief and cross-examination of DW.1 – MR. WANG he categorically denied ever knowing the 1 st Defendant/Appellant in 2013, the time the Plaintiff claimed he was appointed by the 1 st Defendant/Appellant as its sole agent and promoter. That no evidence was led to correct MR. DAVID WEI that Plaintiff testified about. That the 1 st Defendant/Appellant was incorporated in China on the 5 th of May, 2014 and the 15 th of June as their date of registration in Sierra Leone. That by incorporating the said company in Sierra Leone it gained the full capacity and a legal person capable of engaging in business in Sierra Leone. This he submitted is in compliance with the companies Act of 2009 Sections 484 and

485. But prior to the said registration in 2015 in Sierra Leone 1 st Defendant/Appellant lacked the capacity to act. He then relied on a Sierra Leonean case of CIV.APP.31./2010 – CHRISTIAN OGOO AND HUAWEI TECHNOLOGIES, CELLCOM TELECOMMUNICATIONS (unreported). So it follows that Mr. Wang can never be appointed to act for 1st Defendant/Appellant in 2013, except when he was appointed in 2015 by 1st Defendant/Appellant to act as an interpreter.

Counsel for the Plaintiff/Respondent – KAIFALA submitted that the trial judge was right to hold that there was an oral agreement between the Plaintiff/Respondent and 1st Defendant/Appellant company on the grounds that the said Plaintiff/Respondent did certain acts in furtherance of the agreement between himself and 1st Defendant Company which was ratified by conduct of the 1 st Defendant/Appellant. These were as follows:- i. The formation of a the company ii. Search for a storage facility iii. He introduced them to Union Fishing 2007 Company Limited iv. Advising the 1 st Defendant/Appellant as to what vessel they should build and the accepted his advice v. He introduced them to 2 nd Defendant which was not denied by 2nd Defendant/Appellant. Plaintiff/Respondents counsel went on to submit that the conduct of the 1 st Defendant/Appellant was a sufficient ratification of an agency relationship created by Mr. Wang to a third party who happens to be the Plaintiff/Respondent on this appeal. Now having looked at both submissions on this matter, what remains doubtful why should the Plaintiff had done all what he did and what the witnesses said of the Plaintiff and Mr. Wang engaging on a joint venture to do fishing business in Sierra Leone, although Mr. Wang and 2 nd Defendant/Appellant had denied every bit of it or dismissed it as a farce. It is trite law that the onus is on the Plaintiff to prove his case on the balance of probabilities which is not a very high standard. If the Plaintiffs/Appellants case is such that he acted on the representations of Mr. Wang and relied on it, then so be it. The evidence of the Plaintiff/Respondent and two witnesses are contained at pages 793-809 of the book of records Vol.II. Their evidence seems to suggest that there were some arrangements between Plaintiff/Respondent and Mr. Wang for a fishing enterprise in Sierra Leone on behalf of 1 st Defendant/Appellant. Let us turn out a little bit to what chitty on