Osman Thomas Sons & Bros v Bastone & Firminger Ltd (SC CIV APP 7 of 1981) [1983] SLSC 26 (28 April 1983)

ye N THE 2 SUPREME COURT OF STERXA LEONE

Coram

The Honourable ‘able Mr, Justice E, Livesey Luke,C\J, - Presiding

‘The Honoural

Honourable Mr, Justice C.A. Harding = 3.8.0. The Honourable Mrs.Justice A.V.

Justice A.V.A,Awunor-ienner = J.S.C.

‘The Hono . :

ionourable Mr, Justice S, Beccles Davies = J,8.C. The Honourable Nr, Justice F.A, Short 'geat 8.0, CIV. APP. NO. 7/81

OSMAN THOMAS SONS aliD BROS, LTD, = APPELLANTS.

AnD

BASLONE & PIRKINGER (EXPORT) LTD, = RESPONDENTS J.B, JENKINS-JOHNSTON BSG., FOR THE APPELLANTS F.R, ANTHONY BSG., FOR THE RESPONDENTS JUDGIANT DELIVENED ON 28%h DAY OF APRIL, 1982 Livesey Luxe, C.Jut-

The responaents to this appeal (hereinafter ealied Bastone) issued a specially indorsed writ of summons against the appellants to this appeal (hereinafter, ealted oeman Thomas) on 7th Septenber, 1977 claiming the sun of 078,877.66 a8 amount due And owing for Goods 5014 and aeiivered, Zt will be useful to give a narrative in sone detain of the various procedural steps taken uP f° the dorivery of judgment in the High Courts Appearance was

cored on behalf of Osman Thomas, On 6th October, 1977 ‘entered on beha! ‘or summa ent under pursuant to an application for sun ry judgm ules, amo J. after » order x(1) of the High Court Runes wand ne, granted leave to Bastone to jnearing counse) for Bastones Ere te for the um of 1078,499.58 with enter final judemen' ¢ per’ annum from the date a¢ the teoue interest at 7 per cent P ¢ summons plus costs $F be taxed, Osman - fe writ of summon: alee presented at the hearing of he appliear as were not repress? heme juaguent aitiough these eoitoster had been on for summary Judeme’ Loaheed ma and affidavit in support. a with the summer duly serve figs

- 13th December, 1977 solicitor for Osman Thonas filed a moe inter alia that the order dated , granting Bastone leave to enter final

Judgment be set aside and that Osman Thonas be at liberty to defend the action, In the affidavit in support of the Notice of Motion, it was deposed inter alia that Osman Thomas had a good Defence to the action and a proposed Defence was exhibited to the affidavit, The motion was heard by Williams J,.in the presence of counsel for both parties, The hibaring took three days during which the depohent of the affidavit 4n support of the application was eross-examined and counsel made submissions. At the end of counsel's submissions on 17th February, 1978, the Learned judge ordered inter alia that the judgment ordered ‘on 6th Ostober, 1977 be set aside, that leave be granted to Osman Thomas to defend the action as a short cause, that the sction be set down for speedy hearing by him, and that the date for trial be then fixed by consent of counsel having regard to the convenience of his court; gnat the costa thrown avay be paid by Osman Thonasy and that the gests of the application, agreed at 10200, Pe pata by Osman Thonas, The Judge then added "Adjourned to hou,78." Presumably that was the date fixed by counsel paving regard to the conventense of the court in accorianee vath the order previously sentioned,

me case was called before Williams J, on th APrity 1978. Gounsei for both parties vere presents By consent fan adjournment was tsken to 17th April, 1970+ The next game the once vas called was not 17¢h APFily 1978 but on Gin suse, 1978 before WaLitane J, On that occasion counsel tor Bastone was present but there war Re appearance by oF ‘on penaif of Ooman Thomas. The rearned Judge adjourned to igen June, 1978 and ordered that Notice be served oboe

solicitor for Osman Thomas, When the case wes called before Williams J, on 26th June, 1978 counsel for both Parties were present. Counsel for Bastone then proceeded to open his case in the course of which he asked leave to abandon part of the claim and ended by saying that the Fevised claim amounted to Le23,530,02, Counsel for Osman Thomas then made certain submissions in the course of which he applied for an adjournment to the following day. The Judge granted the application and adjourned to 21st June,

On 21st June, 1972 when the case was called before Willians J. counsel for Bastone proceeded to call two witnesses. The first witness vas Terrence John Calcutt a Direetor of Bastone, In the course of his evidence in chief he deposed about the various transactions between nis company and Osman Thomas and produced a number of invoices and other documents, The witness was cross~ examined by counsel for Osman Thomas, The second witness vas a formal witness one Randy Deon @ clerk of the Adminis grator & Registrar General's Department, At the end of the evidencesin-chief of that witness, counsel for bastone . ejoaed the plaintiff's case, The case vas then adjourned,

on th July, 1978 counsel for Osman Thomas called yan Lasite Thomas, the General Kanager ef onan Thomas, te gave evidence on the transactions between the parties.

we vas cross-examined by counsel for Bastone, at the end

ar viien counsel for Osman Thonas closed the case for the Derence, The judge then adjourned the case to 5th July, 1978, Counsel for both partion addressed the court 4 tneiz turn on 5th July, 1978 at the ond of which the Learned juags reserved his judguent. The earned juage denavered ue judgment on 12th Gotober, 1978 diantesing the piaintstrt qiain with costs, Bastone appeaied to the Court of Appeal Geainst that judgnent. : prires

he ®ppeal was heard by y the Court of 1981. Judgne Appeal in Nareh nt vas delivered " on 16th Apri, the appeal and setts + 1981 allowing jotting aside the ju The court ordered Judgment of Wiltiens J, ed inter alia that the Master & X or bia Deputy nota egistrar an inquiry into the transaction bet: the parties and inte the ss Accounts made by the pl to determine what plaintiffs der. at amount if any had been paid by the jefendants to the plain plaintiffs with Liberty to both parties to surcharge or falsity. Osman a sman Thomas have appealed to this court against the decision o cision of the Court of Appeal on the following grounds:~ 1, That the learned Justices of the Court of Appeal failed to consider adequately or at all the burden of proof which lay on the Respondent herein in the High Court especially having regard to the principle of law contained in the maxin "Ei incumbit probatio, qui diest, non qui negat." 2, That the learned Justices of the court of Appeal failed to consider adequately or at ali the Defence of tne Appellants herein in the High Court, 5, Tat the Learned Justioes of the court of Appeal were wrong im 2aw to nave ordered an anquixy between tne parties having regard to the totatity of the evidence Led in the High Court. be That the Learned Justices of $88 Coat of Appeal vero wrong 1m 18¥ cotave set aside the Judgment of re insane J. an the High Court 30 the vignt of ali the evidence whieh Yae cetore the Learned Trial Judces [Bees

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