Osman Jalloh v Bassam Ibrahim Basma (45 of 2013) [2015] SLCA 1122 (12 March 2015)

<a CIV APP 45/2013 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: OSMAN JALLOH - APPELLANTS JIHAD SWAID AND BASSAM IBRAHIM BASMA + 1" RESPONDENT Administrator of the estate of IBRAHIM ABDUL HUSSEIN BASMA (Deceased Intestate) HUSSEIN HUBBALLAH - 2" RESPONDENT. ‘Attorney for NADIA BASMA ZEINA BASMA NABILA BASMA MIRVAT BASMA COUNSEL: YH WILLTAMS ESQ for the Appellant AF SERRY-KAMAL ESQ for the Respondents

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THE HONOURABLE MR JUSTICE NC BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF THE SUPREME COURT THE HONOURABLE MRS JUSTICE A SHOWERS, JUSTICE OF APPEAL THE APPEAL ne TUDGMENT DELIVERED THELL-DAY OF MARCH 2015, |

1. This is an appeal brought by way of Notice of Appeal filed on 23 | Tuly.2013 by the Appellants, Mr Osman Jalloh, a Barrister and Solicitor, of the High Court of Sierra Leone, and Mr Jqhad Swaid, against the Ruling of EDWARDS, J delivered on 3 July,2013, The Notice of Appeal is | at pages 124 - 126 of the Record, Henceforth, all references to page | rumbers, should be taken as references to pages in the Record.

2. The Grounds of Appeal are as follows:

1. Having correctly stated the law in regard actions relating to disclosed principals to wit: that "while I accept the law that a contract made by an agent acting within the scope of his ‘authority for a disclosed principal is in law the contract of the principal and the principal and not the agent is the proper person to sve”, the Learned Judge was wrong in law and misdirected himself in holding that a claim can be maintained cogainst the 2" and 3" Defendants who had in so far as the matter before the Court is concerned, acted as agents for disclosed principals. PARTICULARS i, That the 1" Appellant having acted throughout the course of the transaction relating to the sale of Nos 16, 16A Sani Abacha Street and No.9 Rock Street, Freetown respectively 1s solicitor for the purchasers of the soid property, a fact uncontroverted, the Learned Judge, in holding that there is a cause of action against the 1 Appellant failed to appreciate the law relating to acts in regard disclosed principals thereby arriving at a flawed conclusion. ii, Thet the Learned Judge erred in law and in fact and was wrong to hold that the four beneficiaries of the property at Nos. “lan 16A Sani Abacha Street and NoRock Street, Freetown respectively acted through the 1* Appellant herein in receiving their share from the 2” instalment of USD500,000 in view of the facts before the court.

2. That the Learned Judge erred in law and in fact and misdirected himself when he held that the action is founded on ‘the 1 Respondent's role as administrator. PARTICULARS | ‘That the Learned Judge completely misconstrued the fact that the 1 Respondent did not throughout the course of the trasaction | in regard the properties at Nos 16, 164 Sani Abeaha Street and No Lock Street, Freetown respectively, act as Administrator but | acted merely as a beneficiary of the estate of his deceased father. | 3, That the Learned Judge erred in law when he held that once the 4 beneficiaries of the aforesaid properties had appointed

the 2” Respondent it was not open to them to appoint another person to act for them in regard the estate of their deceased father.

4, That the Learned Judge gave his decision per incuriam,

3. The relief sought by the Appellants is: (@) that the Ruling of EDWARDS, J of 3 July,2013 be set aside (b) That the statement of claim of the 1 Respondent be struck out and the action against the Appellants be dismissed on the following

Grounds

i. The 1 Respondent does not have a cause of action against the Defendants.

ji, The action is an abuse of the process of the Court and is frivolous and vexatious.

iii, That the said Appellants having acted to the knowledge of the 1 Respondent as agents for disclosed principals, an | ection cannot be maintained against them.

(©) Any other order(s) that this court may deem fit and just. | (d) That the costs of this oppeal and the action below be borne by the 1" Respondent personally, such costs to be taxed and paid by the 1* Respondent to the Appellants. |

4, We note that Counsel who settled the grounds of appeal, has used the descriptions ‘Defendant and ‘Respondent interchangeably, but we think and we understand that he is referring in all of these cases to the 2° Defendant in the Court below, as the 1” Appellant in this Court, and to the Plaintiff in the Court below, as the 1 Respondent in this Court.

The Writ of Summons

5. By writ of summons - (pages 1-5) - issued on 26 March,2013, the 1st Respondent brought a claim against the Appellants and the = Respondent. The 1" Respondent sued in his capacity as Administrator of the estate of his deceased father. The 2% Respondent was sued in his capacity as Attorney for the Mother and sisters respectively, of the 1” Respondent. The claim was for the recovery from the Defendants therein, jointly and severally, of the sum of USD48,000 plus interest on that sum at the rate of 8 per centum per annum with effect from 30 ‘September, 2012 until payment, The particulars of the claim ~ (pages 2 -3) - were as follows: On 30 September 2012 there was a meeting in the chambers of the Plaintiff's then Solicitor, where certain conclusions were

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reached as regards the sole of the properties belonging to the estate of the deceased intestate, Ibrahim Basma, and as to the distribution of the proceeds of sale. Pursuant to the agreement reached between the participants at that meeting , the 1" Respondent sold these properties. A deposit of USD500,000 was paid to him. Out of that amount, he paid out USD220,000 to the 2" Respondent. The remaining sum was paid out as fees to Solicitors and/or agents. At the time, the 1" Appellant was - Solicitor for the purchasersof the property, but was not present at the’ meeting in Mr Charles Margai's office. The second instalment of [USD500,000 was paid over to the 1” Appellant by the purchasers, The 1” Ne ‘Appellant wrongfully, did not pay over this amount to the 1" Respondent. Instead, he wrongfully paid over the sum of 'USD320,000 to the 2% Appellant. The 1 Respondent also deducted the respective sums of USD100,000 as payment to the National Revenue Authority: USD77,000 to Mr Margai; and the sum of USD3,000 in his favour. The 2™ Appellant wos not related to, nor was he the appginteg Atgorney of the hs beneficiaries resident abroad. The Bence a no power to make ‘and to receive these payments, and had thus turned themselves into ‘Administrators de son tort'by their conduct. According to the agreement reached at the meeting, each beneficiary, including the 1" Respondent, was to receive the sum of USD125,000. The 1” Respondent | only received the sum of USD77,000, and the sum of USD48,000 was therefore due and owing to him, The 1" Respondent, through his Solicitors, demanded payment of this latter sum ‘of money from the 2° Respondent (the 1 Defendant in the Court below) - not the 1” Appellant | ~ but the 2” Respondent has failed or refused to make good the same,

Entry of Appearance

6. On3 April,2013 C F Edwards esq, entered appearance for the 2" Respondent, and gave notice of the same to the 1" Respondent's Solicitors the same day. On 4 April,2013, Yada Williams & Associates, of which, the 1" Appellant is partner, entered appearance for both Appellants, and gave notice of the same to 1” Respondents’ Solicitors the same day. APPELLANTS’ NOTCIE OF MOTION OF 9 APRIL,2013

7. By Notice of Motion dated 9 April,2013, the Appellants applied to the Court below for certain Orders, to wit, :

(1) That the statement of claim u

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