Mohamed Bangura v Dalian Shengai Ocean Fishing & Ors (SC CIV APP 1 of 2018) [2019] SLSC 2 (29 November 2019)

IN THE SUPREME COURT OF SIERRA LEONE SC.CIV. APP 1/2018 BETWEEN: MOHAMED BANGURA Appellant And DALIAN SHENGAI OCEAN FISHING CO. 14st Respondent ABIE ARUNA KOROMA 2nd Respondent MONZA FISHING COMPANY 3rd Respondent

Coram

Hon Justice E. E. Roberts JSC Hon, Justice G. Thompson JSC Hon. Justice A. B. Halloway JSC Hon. Justice Sengu Koroma JSC Hon. Justice E. Taylor-Gamara JA Mr. E.T. Koroma fer the 1st Appellant Mr. Umaru Napoleon Koroma for the 1st Respondent Mr. Africanus Sesay and Ms Sadia Bakarr for the 2nd and 3rd Respondents

JUDGMENT OF THE HON.MR JUSTICE E TAYLOR-CAMARA, JA DELIVERED THE 29"" DAY OF NOVEMBER 2019

1 My Lords, the facts of this matter have been set out in the severally judgments of my fellow Justices and | refer to them in this Judgment only to the extent relevant to the issues.

2. In its Judgment dated 13 February 2017, the High Court (A S Sesay, JA, as he then was) held that Mr Michael Wang was the Vice-President of the 1** Respondent company, Dalian Shenghai Ocean Fishing Company Limited, and that in that capacity he was an authorised representative of the 1°" Respondent, as was Mr David Wei. The Judge found that Mr Wang in particular, had ostensible authority to enter into agreements which bind the company and that in 2013 he did enter into an agreement with the Appellant pursuant to which, the Appellant agreed to act as the local agent for the 1** Respondent and in pursuance thereof, undertook certain activities in furtherance of the establishment and development of the 1° Respondent's fishing business. The judge held further, that Mrs Abie Aruna Koroma, the 2" Defendant, who is the chief executive officer of her company, Monza Fishing Company, the 3° respondent, with full knowledge of the agreement between the Appellant and the 1* Respondent, induced the 1%" Respondent to breach its contract with the Appellant resulting in loss and damage to the Appellant.

3. By its decision of 28 December, 2017, the Court of Appeal, by a majority, reversed the decision of the High Court. The Court of Appeal held that.

a) There was no consensual agreement between Messrs. Wang and Wei on the one part. and the 1‘ Respondent on the other, under which Messrs Wang and Wei could have agreed to act as agents for the 1*' Respondent company, because the said company was not incorporated or doing business in 2013, the period during which the Appellant Claims the agreement between he and the 1% Respondent company took place.

b) For the same reason, the Court held that neither Mr Wang nor Mr Wei could have had ostensible authority to, nor did they enter into the alleged agreement on the 1° Respondent's behalf so as to bind the 1* Respondent.

c) It followed from the above, that the 2° and 3° Respondents could not have induced a breach of a contract that did not exist, and so they were not liable.

4 The principles governing the review of findings of fact by appellate courts are well known They were set out in English cases such as Watt (or Thomas) v Thomas [1947] SC (HL) 45; [1947] AC 484, and Benmax v. Austin Motors Co. Ltd (1955) 1 ALL E.R. 326,

5. In a statement that has become the classic enunciation of the principles upon which an appellate court can interfere with decisions of the trial judge, Lord Thankerton, in Thomas v Thomas, said

“(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

(2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

(3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

6. This statement was adopted by this Court in the case of Dr. Seymour Wilson v Musa Abess Civ. App. No 5/79 (Unreported), which case has been subsequently cited in our courts in cases like Wurie v Shomefun and Another (CIV. APP. No. 8/81) [1983] SLSC 9 (29 December 1983), Okekey Agencies Ltd v Lahai and Another (CIV-APP 32/2005) {2007} SLCA 7 and Bangura and Another v Kamara (Civ. App. 44/05) [2009] SLCA

12. In these latter cases, the Court (Tejan-Jalloh JSC, and Hamilton JSC respectively) quoted Livesely Luke CJ in the Seymour Wilson case, where, after considering Watt (or Thomas) v Thomas [1947] AC. 484 and Benmax v. Austin Motors Co. Ltd (1955) 1 ALL E.R. 326 he said:

" There is no doubt that an appellate court has power to evaluate the evidence led in the court below, reach its own conclusions, and in a suitable case to reverse the finding of fact of the Trial Judge. But these powers are exercisable on well-settled principles, and an appellate court will not disturb the findings of fact of a trial judge unless those principles are applicable. The appellate court is, however, free to

reverse his conclusion if the grounds given by him, therefor, are unsatisfactory by reason of material inconsistencies or inaccuracies, or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen or heard the witnesses, or has failed to appreciate the weight and bearing of circumstances admitted or proved”.

7 In Wurie v Shomefun and Another, Tejan JSC, referring to the Thomas case principles said “The above propositions make it abundantly clear that before an Appellate Court can properly reverse a finding of fact by a trial judge who has seen and heard the witnesses and can best judge not merely of their intention and desire to speak the truth but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption of its correctness which must be displaced.”

8 The Thomas principles have been restated and developed in several cases since. In the recent English Supreme Court case of In the matter of B (a Child) (FC) [2013] UKSC 33, Lord Neuberger said:

“where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it Lord Reed in another Supreme Court case, Henderson v Foxworth Investments Ltd [2014] UKSC 41, similarly said “in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. *

9 The Court of Appeal appears to have accepted and premised its decision on the arguments advanced by the 1* Respondent herein, to wit, that the 1s Respondent did not, and could not have entered into agreement with the Appellant on the terms claimed by the Appellant because the 1** Respondent company had not been incorporated nor had it otherwise come into existence until 2014, whereas the Appellant's claim was that the alleged agreement was entered into between the Appellant and the 1* Respondent sometime in 2013. In effect, the Court of Appeal made a critical finding which ran counter to that found by the trial judge and proceeded to hinge its decision on that one finding. The question this Court has to ask and answer, is whether the Court of Appeal was correct to do so.

10 In deating with this matter, the Court of Appeal, in its majority judgment, said (at P3):

“The Respondent says that he came in contact with the 1% Appellant through a Chinese National named Michael Wang in January 2013. That same night in January 2013, Mr Michael Wang introduced the Respondent to a certain Mr David Wei who in turn told the Respondent that he is representing Dalian Shenghai Ocean Fishing Company. However, Dalian Shenghai Ocean Fishing (SL) Limited was incorporated on 9" June 2015.

“The Learned trial Judge noted that the 1* Appellant Company was duly registered as a Company incorporated in China but he did not indicate the date of incorporation. {t is Counsel for the 1% Appellant who indicated that his client's certificate of Registration in China is dated 5" May 2014. Ineffect, the 1* Appellant started operations in 2014

“Can it now be said that Mr Michael Wang or Mr David Wei as the case may be, were lawfully acting for and on behalf of the 1* Appellant who accordingly was not in existence in 2013? | do not think so...”

11 On the question whether the Appellant had established that there was in law and in fact, an agency agreement between the Appellant and the 1** Respondent, the Court of Appeal said that what needed to be established was that there was consent (consensual agreement) between the principal and the agent. in this case it considered whether there was such agreement between Messrs. Wang and Wei on the one part and the 1* Respondent on the other part. The Court asked itself whether Messrs. Wang and Wei were appointed as agents by the 1" Appellant to act for and on its behalf, and if so, did they consent to so act and

conduct themselves such that their actions could be perceived as being those of the 1* Appellant? The Court concluded that they could not, “for the simple reason that it was not established that the 1* Appellant was in existence prior to 2013."(P6) 12 The Court went on to say that: Even if agency is to be implied, it is still defeated by arguments that the appellant was not in existence as at the time Mr Wang or Mr Wei made representations to the Respondent in 2013.”

13. On the question whether Mr Wang had ostensible authority to enter into a binding agreement with the Respondent on the 1* Appellant's behalf, the Court said that “for the principle of ostensible authority to be effective, it is imperative that the 1: Appellant's company should have been in existence prior to 2013 when Mr Wang and Mr Wei made representations to the Respondent. “If that had been the case, the 1** Appellant would have been bound by the acts of Messrs. Wang and Wei in the application of the principle of ostensible authority.”

14. The Court concluded that in the circumstances of the case, it failed to see how that could be the case here. *

15. The Court of Appeal reversed the High Court decision on the ground that the first Respondent was not in existence when the agreement was said to have been made i.e 2013. This was a critical finding of fact on its part. The trial judge whilst finding that the agreement was entered into in 2013, did not appear to consider the actual date on which the contract was made an issue or primary fact on which to base his decision. What was important from his point of view was that there was an agreement between the parties which the Appellant says was breached by the 1* Respondent, such breach being induced by the 2" and 3 Respondents. The Defendants did not raise the issue of the date as part of their pleaded Defence. They simply denied or declined to admit the claims and put the Plaintiff/Appeltant to strict proof of his case. It was only in their closing address at the end of the trial, and sudsequently in their grounds of appeal, that the Defendants raised this as an issue. The Court of Appeal proceeded to view this issue of the date as a critical finding,

indeed the fynchpin on which to base its majority decision. Was the Court of appeal correct?

16. The evidence is that the 1** Respondent, Dalian Shenghai Ocean Fishery Co. Ltd (hereafter Dalian China’) is a company incorporated and registered in China. No direct evidence was ‘ed as to when it was incorporated or who it was established by, but Mr Wang, in evidence did say: “I know the actual owners/shareholders of the 1° Defendant. The shareholders are Mr Shidong.....the second shareholder is Yugon Chu, | cannot remember the name of the 3° defendant shareholder. | am not the third shareholder.” .

17. Dalian China is different from Dalian Shenghai Ocean Fishery (SL) Ltd. (hereafter “Dalian SL’), which is a Sierra Leonean registered company that was incorporated in Sierra Leone ‘on 9 June 2015 and established by two Chinese businessmen by the names of Yang Yufeng and Ying Shidong. Whilst the names of the two companies may be similar, they are not identical and there was nothing before the Court which should have led anyone to assume that Dalian China and Dalian SL are one and the same company. Indeed it is palpably clear that they are not the same and cannot be the same. Whilst it is possible that there was/is some co-ownership of the two companies, no direct evidence was led on this and no such suggestion was advanced in argument. There is no evidence either that Dalian SL is Dalian China (a foreign company) registered in Sierra Leone, or a wholly-owned subsidiary of Dalian China. If. Dalian SL were a foreign registered company, then its Certificate of Registration would have indicated as much and it would be registered under its own name - Dalian Shenghai Ocean Fishery Co. Ltd. This is not the case here. (see Exh. A at pages 543 and 544 of the court record). If Dalian SL was a subsidiary of Datian China, then Dalian China should have appeared as a subscribing member of Dalian SL. This is not to say that Dalian China could not have subsequently become a member of Dalian SL, but the fact is that on incorporation, there was no evidence of Dalian China being a member of Dalian SL and so there was no basis for concluding that Dalian China is in any way connected to, let alone the same as Dalian SL.

18. Despite the fact no evidence was led as to the date of Dalian’s incorporation, the Court of Appeal was nonetheless content to accept the statement of counsel for the 1°" Appellant as evidence that the company was registered on 5 May 2014. As stated earlier, the Court said that:

“it is Counsel for the 1% Appellant who indicated that his client's Certificate of Registration in China is dated 5" May 2014.

19. The Court appeared to regard that statement from counsel as evidence and accepted it as a fact. That in my view, was an error, for reasons | will shortly explain.

20. Dealing first with the Court of Appeal's reference to Dalian SL however, it is clear that the Court made a mistake in referring to Dalian SL, appearing to confuse it with the 1* Respondent. Indeed it appears to have been a confusion shared by others including counsel for the parties, leading to unnecessary arguments about whether the Appellant was a promoter of “the 1%* Defendant” or not. It is correct that Dalian SL was incorporated in Sierra Leone on 9 June 2015, some two years after the agreement between the parties is said to have been entered into. This however, has no bearing on the issues at hand. Dalian SL is not Dalian Shenghai Ocean Fishery Co. Ltd, a party to the litigation, nor do any of the allegations made by the Plaintiff touch and concern it. The Plaintiff's action was not against Dalian SL but against Dalian China. Nowhere in his pleadings or in the evidence, does the Plaintiff mention Dalian SL, and for the good reason that it was not, as the Court of Appeal rightly said, in existence at the time of the events. If therefore the Court of Appeal was confusing Dalian SL with Dalian China, and thus basing its decision on the fact that Dalian SL was not incorporated in 2013, then whilst it may have been correct from a factual point of view, it would be a totally irrelevant fact because there was no claim or allegation levied by the Plaintiff against Dalian SL ie. it did not matter that Dalian SL was not in existence in 2013 because the Plaintiff was not claiming against it. The claims are against Dalian China and there was therefore no reason to mention Dalian SL.

21 Turning now to the Court's acceptance of counsel's statement regarding the date of incorporation of Dalian China. In my view, this was an error. Statements from the bar by counsel and not made under oath, in an affidavit, or in a Witness Statement, are not admissible evidence of the facts stated. So counsel's statement ought never to have been accepted by the Court as a fact. There was no Certificate of Incorporation or other documentary evidence submitted or admitted into evidence by the 1% Defendant establishing that Dalian China was incorporated or registered in 2014, nor did Mr Wang, the only witness for the 1* Defendant, make such statement in his oral evidence or in his tendered Witness