Owners MV Mascho Star v Richab S.A. and Anor (CIV APP 6 of 2000) [2009] SLSC 3 (3 March 2009)

),,. IN THE SUPREME COURT OF SIERRA LEONE CIV.OPP 6/2000 BETWEEN: THE OWNERS OF THE SHIP "MV MASCHO STAR" AND RICHAB S.A. AND ANOR. APPELLANTS RESPONDENTS A.J.B. GOODING ESQ. AND BERTHAN MACAULAY JNR. ESQ., FOR THE APPELLANTS YADA WILLIAMS ESQ. AND OSMAN JALLOH ESQ. FOR THE RESPONDENTS CORAM: HON. MS. JUSTICE U.H. TEJAN-JALLOH HON. MR. JUSTICE G. SEMEGA-JANNEH HON. MR. JUSTICE M.E. TOLLA THOMPSON HON. MS. JUSTICES. KOROMA HON. MR. JUSTICE E. ROBERTS CHIEF JUSTICE J.S.C. J.S.C. J.S.C J.A. JUDGMENT DELIVERED THE 3rd DAY OF MARCH, 2009. JUDGMENT TEJAN-JALLOH, C.J. This is an appeal from a judgment of Sierra Leone Court of Appeal delivered on 5th day of April 2000 restoring the judgment in default of Appearance of Hon Mr. Justice L.B.O Nylander dated 7th June, 1990 which had earlier been set aside by an order of the same Judge dated the 22 nd day of April, 1991. This appeal turns on issues of non-compliance with the Rules relating to service of tile originating process of litigation, meaning of liquidated and unliquidated damages, award of damages and costs in Foreign Currency; rate of interest to be awarded in Foreign Currency. The grounds of appeal are:- j (i) The Court of Appeal failed to consider the Cross Appeal and gave no , ca - _ for dismissing the Cross Appeal in the light of the evidence before it, to wit (a) The affidavit of Edward Fynn sworn to on the 5th day of June 1990 and the 28th day of June 1990; and the affidavit of Ade Renner -Thomas sworn to on the 28th day of June 1990. (b) The indorsement at the back of the Writ of Summons herein maue by the same Edward Fynn. (c) The oral testimony given by the same Edward Fynn. (d) The Oral testimony of Edward Kamanda Bongay (the Under -Sheriff) which contradicted that of Edward Fynn. Thereby wrongly holding "I have no reason to disbelieve. the totality of his evidence" referring to the evidence of Edward Fynn, the Court Bailiff, who served the Writ of Summons. (ii) Further and in the alternative, if it held that the Court of Appeal considered the Cross Appeal the Court was wrong to uphold the learned Trial Judges· ruling that the service of the Writ of Summons was valid even though the said service failed to c omply w·1th the provisions of Order 9 Rule 12 of the Supreme Court Rules of England 1960. (iii) The Court of Appeal erred in law when it held inter alias as follows ''There is no contention that the action before me is Admiralty Action in rem which arose out of the jurisdiction of the High Court. Our High Court Rules are silent on the Rules governing any such action We therefore need to know which of the Rules of Court would apply The Respondents are urging me to hold that since there are no specific rules governing Admiralty Action in Rem, the general orders applying else where in our Rules would apply to such action. ' ' I must here state that I have noticed a conspicuous fallacv in their argument with regards to the rules to be applied to the application Learned Counsel Mrs. Lisk had this to say, "since there are no specific rule governing admiralty action in rem the general orders applying else where in our Rules would apply to such actions". That cannot be true. when our rules are silent we have a legal obligation to go to the English Rules of Court of England for the year 1961. By Order 13 of the Supreme Court Rules of England 1961 under which in an appropriate action a Plaintiff (sic) final judgment against a Defendant for liquidated demand where the Defendant has failed to enter an appearance after the time fixed does not apply to an Admiralty action m rem.... In admiralty action in rem, judgment for any defendant can only be obtained by motion". In that it failed to have regard to and/or apply the provision of Order 10 Rules 5 of the High Court Rules which is in the following terms - "Where Writ is indorsed with claim for pecuniary damages only or for the detention of goods with or without a claim for pecuniary damages and the defendant fails to appear the Plaintiff may enter interlocutory judgment and a Writ of inquiry shall issue to assess the value of the goods and the damages or the damages disclosed by the indorsement on the Writ of Summons". The High Court Rules are not silent regarding rules relating to procedure in admiralty action in rem. Most of these rules are general provisions applicable to all actions including Admiralty Actions in Rem. In particular the provisions of the afore-mentioned rule, apply to all actions including an Admiralty Action .in rem, which was the instant case. It was therefore not necessary to resort to Order 52 Rule 3 of the High Court Rules thereby invoking the Rules of the Supreme Court of England 1960. (iv) The Court of Appeal erred in law when it held inter alias as follows - "To say, as the learned Judge wrote in his ruling that the Plaintiff ought to have entered an inter locutory Judgment and have damages assessed by the Court is wrong and without any foundation in law" In that it failed to have regard to read/or apply the provision of Order 1O Rule 5 of the High Court Rules. (v) The Court of Appeal erred in law restoring the decision of the learned Trial Judge when he awarded damages to the Plaintiff in United States Dollars, when the evidence disclosed that the loss suffered by the Plaintiff/Respondent was in Leones The Court had no jurisdiction to award damages in Foreign Currency to the Plaintiff/Respondent. (vi) The Court of Appeal erred in law in restoring the decision of the learned Trial Judge when he awarded "interest" till payment. Such award been in excess of the jurisdiction of the Court having regard to the provisions of section 4 of t he Law Reform. (Miscellaneous provisions) Act Cap 19 of the Law of Sierra Leone 1960. (vii) The Court of Appeal erred in law in restoring the decision of the learned Trial Judge upon motion for judgment in that the latter awarded interest upon a Foreign Currency judgment (United States Dollars) without the Plaintiff/Respondents leading any expert evidence to prove what was the rate of interest in that currency (viii) The Court of Appeal erred in law in restoring the decision of the learned Trial Judge when he awarded interest at the rate of 15 per centum per annum which is higher than the interest rate of 12 per centum per annum indorsed on the Writ of Summons without making any amendments to the statement of claim. (ix) The Court of Appeal erred in law in restoring the decision of the learned Trial Judge when he awarded cost of the action to the Plaintiff/Respondent in United States Dollars (USD 37,000/00) for costs incurred by the Plaintiff/Respondent in Sierra Leone there being no legal basis for the award of costs for work done in Sierra Leone. (x) On the question of the service of the Writ one Edward Fynn a Court Bailiff was called to give evidence before the learned Trial Judge as to the participation in the service, he was examined before the Court and in the end of it all, the learned Trial Judge said:- "I have no reason to disbelieve the totality of his evidence. I have to accept the learned Trial Judges conclusion on the point, he was in a good position to see the witness, evaluate his evidence and watch his demeanor as far as the service of the Writ is concerned the Cross Appeal therefore fails'' The Court of Appeal misdirected itself when it dismissed the Cross Appeal and upheld the learned Trial Judge's decision that the service of the Writ of Summons was valid without a proper consideration and evaluation of the evidence documentary as well as o:al. relating to the service of the Writ. The appellant in their Cross Appeal substantially relied upon the Judgment of the learned Trial Judge dated 7th June 1990 which was subsequently set aside on the 22nd of April 1991. The Cross Appeal was dismissed by the Court of Appeal, on the ground that as far as the service of the Writ was concerned the Court held that the learned Trial Judge's reason for setting aside his previous decision of 7th July 1990 was wrong. Looking at the panel of eminent Justices in the Court of Appeal. I have no doubt that the Court must have averted their minds to the dicta of Lord Justice Thankerton in the famous case of Watts (or Thomas) v Thomas (1947) page 582 at Page 587. Their Lordship must have considered the test laid down in the case before coming to their conclusion in agreeing with the findings of the learned Trial Judge. With respect to Counsel for the Appellant, the argument urged on the issue as to whether or not the service of the Writ was proper is no longer of any moment by reason of the fact >- that the original Writ of Summons had been amended pursuant to Order 24 Rule 2 of the High Court Rules before it was served. On the question of service of the Writ, one Edward Fynn, a Court Bailiff testified as to how he effected the service. He was examined before the Court and the learned Trial Judge concluded that on the totality of the evidence he had no re2son to disbelieve the witness. In Riger -Benue Transport Co Ltd. v Marumal and Sons (Nigeria) Ltd. (1989) LP (Comm) 185 cited by Counsel for the Appellant, the Supreme Court of the Federal Republic of Nigeria was dealing with a situation where the Trial Judge's decision was based on his evaluation of the credibility of the witness, manner and demeanor. At Page 91 the Court said:- "A Court of Appeal will not normally interfere with tl1e findings of fact of a trial Court unless such findings are perverse If the findings are based on the credibility of witnesses a Court of trial which has the advantage of seeing and watching their demeanor 1s in a dominant position. If however, the complaint is as to non evaluation or improper evaluation of the evidence tendered before the trial Court the Court of Appeal is in a good position as the trial Court". I wish to observe that though Counsel for the Appellant had said some disparaging things about the testimony of Mr. Fynn, he failed to prove that the findings of fact based on the evidence of the demeanor of Mr. Fynn and Mr. Bongay, who was the Under Sheriff and the documentary evidence presented before him were perverse. The Court of Appeal rightly appreciated the fact that in such a situation the learned Trial Judge was in a dominant position. In Joint Venture Construction v Conteh (1970-71) ALR SL. 145; the Court of Appeal reiterated the same well ,mown principle of law that Judges findings made after hearing the witness and observing their demeanor are entitled to great weight and should not be disturbed unless it is clear that they are unsound. Suffice it to say that the complaint about the findings has not been justified. Learned Counsel for the Appellant placed great reliance on the case of the Mane Constance (1877) Maritime Law cases which involved service of Writ of Summons 1n action in rem and also in the case of Prince Bernard (1963) P.D 117. The service was held to be irregular, because it was not nailed to the Mast of the Vessel in accordance with O rder IV Rule 10 of the Rules of Supreme Court. In that case the Writ was served on the Master on board the Ship. The Judge insisted that the Writ of Summons should be served in a proper manner. In this appeal, there is evidence which the learned Trial Judge accepted tha t the amended Writ of Summons was pasted on the Mast of the Ship as was in the above cases. This view of mine is reinforced by the evidence of the Bailiff where he deposed as follows - "When we went on board the Customs officer asked for the Cap tain of the vessel. We went to his Cabin or office. I appraised him of our mission to arrest the ship "MASCHO STAR". I asked for the Mast of the ship We climbed up the Mast and I affixed the Writ of summons for a short time. I came down with if". The law relating to such service it to be found on Order 9 r 12, which states as follows: "In Admiralty Action in rem service of a Writ of Summons or Warrant aga111st ship freight or cargo on board is to be effected by nailing or affixing the original Writ or Warrant for a short time on the main Mast or on the single Mast of the Vessel and on taking off process leaving the true copy of it nailed or fixed in its place". In my view the Court of Appeal quite rightly accepted the learned trial Judge's conclusion on the evidence of the Bailiff, who effected service of the Writ, because they appeared to have followed the guidelines laid down in Watt or Thomas v Thomas. The cases of the Glannibanta (1876) 1 PD. 283 at page 287; Grace Shipping Inc. and Another v CF. Sharp & Co. (Malaya) P T.E. Lid. (1987) LRC (Comm) page 550 at page 563. Armagas Ltd. v Mundogas S.A. (The Ocean Frost (1985) 2 Lloyd's Report at page 57. Benmax v Austin Motor Co. (1955) A.ER. 326 at page 328 and Coglan v Cumberland (1896) 1 Ch D 704 - all of these cases deal with the same general principles and circumstances in which an Appeal Court was entitled to interfere with the conclusions of a trial Judge. I opine that none of them laid a new ground or different principle of law. The situation which should warrant the Court of Appeal to interfere with the findings of a trial Judge does not exist here, and in my own judgment I am satisfied that the requirements as regard proof of service was fully complied with by tl1e Respondent This therefore leads me to say that the case of Barclays Bank of Ghana Ltd. v Ghana Cable Co Ltd. and Others (1998 and 1999) GLR1 and Brakowa v Awuak Yewa (1956) 2 WALR 164 both of which turn on how service should be proved are irrelevant to the matter on an appeal by reason of the fact that the issue of service was adequately addressed and pr oved. The conclusion is that there is no merit in grounds 1, 2 and 10 of the appeal. I think it will be idle to contend that our High Court Rules of 1960 are not silent as regards Admiralty action in rem if ii had not been silent it would have made provis ion for obta ining Judgment in default in Admiralty action in rem Order 52 Rule 3 of the High Court Rules 1960 saves the situation by providing as follows: "Where no other provision is made by the rules the procedure practice and forms in force in the High Court of Justice in England on the 1st day of January 1960 so far as can be conveniently applied shall be in force in the High Court." In the circumstance s the need to resort to the pertinent provisions in the English Supreme Court Rules 1961 arises. It is, therefore, apposite to refer to Order 13 r 12A which provides as follows: "In Admiralty action in rem if the defendant does not appear within the time limited for appearance upon filing by the plaintiff of the proper affidavi t of Service (emphasis mine) and a statement of claim and a certificate of non- appearance the action may on the expiration of twenty -one days from the service of the Writ be set down for judgment by default". It is stated in the Rules that such service gives the Court Jurisdiction to pronounce Judgment (The Nanlik (1895 p. 121). Order 13 Rule13 Default in Admiralty Action • This Rule briefly stated says that in Admiralty action in rem upon default of appearance if. when the action comes before him, the Judge is satisfied that the plaintiff's claim is well - founded he may pronounce for the claim and may make such order as he shall think Just It is observed that Counsel for the Appellant who had been arguing against the resort to Order 52 Rule 3, when he entered his appearance he made it appearance under protest which does not exist in our High Court Rules. It is a conditional appearance that 1s normally used in Admiralty proceedings. How then can Counsel be heard to complain about the use of a wrong procedure when his own appearance under authority of the law which he had cited to wit; B.M Dakhlallah v Horse Import and Expor t and Others CC. 4 92/04 amounted to a nullity. In that case the Court said a conditional appearance is not sanctioned by our High Court Rules. Muria J.A at Page 6 held that it is an irregularity of substance and concluded that in law there was no appearance at all in place. This decision which the learned Counsel placed reliance upon rendered his appearance under protest a nullity and that being so he cannot claim to have a locus in this matter. But being aware of the dictum of Liversey-Luke JSC in Sierra Leone Oxygen Factory v PB Pyne-Bailey (Judgment dated 10th May 1974 Unreported page 20. He said inter allia "The Rule making body in its wisdom has made provision for dealing with cases where there has been non-compliance with the Rules. Order 50 Rule 1 of the High Court Rules provides as follows. Etc etc. This rule empowers the Court to disregard the irregularities and to decide on the material question The Court is thereby enabled to do justice without placing undue premium on technicalities." Adopting the above dictum the irregular appearance entered by Counsel for the Appellant may be overlooked inorder to do justice and shed away technicalities. I am satisfied on the available evidence that the Respondent has complied fully with the necessary provisions of the rules requiring:- I) 1. filing of a proper affidavit of service 2. filing of a statement of claim 3. filing of certificate of non-appearance before ... 4. setting down the action for judgment by default Perhaps I should elaborate on the above requirements As regards the filing of a proper affidavit of service that issue was adequately dealt with both in the Court of trial and the Court of Appeal 1. There is no doubt that there is a statement of claim. 2. Certificate of non-compliance is found on page 33 of the records dated the 6th day of June 1990 and signed by A Showers - Master and Registrar 3. As for setting down the action for judgment. This means on motion for Judgment The requirement is that the original Writ must be annexed to the affidavit of service before judgment in default can be obtained (The Eppos (1885). The learned Counsel for the Appellant cited the cases of in the Estate of F-c1rker (Deceased) Hagen and Another v John and others (1920-36) ALR (SL) 21. and Poku and Another v Kwao and Another (1989-90) GLR 82 both of which can be said to saying, in the case of the earlier one that the absence of the English provision in our Rules could be deliberate, whilst the latter one is a Ghanaian case where the Court found that their Rules are not silent on the particular point. The result is that these two cases are distinguishable from the situation in the matter on appeal Learned Counsel for the Appellant in an attempt to buttress his contention that the Court should not have resorted to Order 52 Rule 3 found comfort in relying on Order 1O Rule 5 of the High Court Rules, which in his opinion is the appropriate rule for the Admiralty Act,0n in rem. To use his words he said: 10 "I submitted that resort to English Rules for judgment in default in this ac tion was unnecessary since there is an adequate provision under our Rules and under Order X for default judgment in Admiralty Actions. Counsels con tention is that switching should not be automatic and whole- sale switching must be selective. I therefore urge your Lordships to hold that my interpretation of Order 53 Rules 3 of the old Rules is the corr ect interpretation I subm it that their contention that since this case is an Admiralty Action in rem action Or der 10 in particular Rules 5, 3 and 11 are inapplicable is a wrong statement of the law". On the other hand the Respondent's side contends quite rightly that Order 10 Rule 5 does not apply to these proceedings because it provides thus "Where the Writ is indorsed with a claim for pecuniary damages only or fo1 detention of goods with or without a claim for pecuniary damages·· In my view, this is a correct statement of the law, when one views it against the background of the Respondent's original claim, which is for both a liquidated and unliquidated amount The original claim is for the sum of U$469,500/00 which was amended to the sum of U$290,300/00 being the resale value of the goods short -delivered and/or damaged and consequential loss plus interest on the amount at the rate of 12 per centum per annum. The record shows that judgment in default obtained by the Respondent was for only the liquidated part of the claim. I hold the view that it would have been inappropriate if the Respondent had proceeded under Order 25 or whatever other rules in our High Court Rules. For all the reasons I have endeavoured to state above, I dismiss grounds 3 and 4 of the appeal. Ground 5 - Award of Damages in United States Currency Counsel for the Appellants contended that the learned trial judge had no Jurisdiction to award damages in foreign currency i.e. U.S. when the only evidence disclosed was that the preponderant (98%) loss suffered by them was in Leone Currency. He submitted that to frame your claim in foreign currency without proof of loss in such currency ought no to be countenanced by the Court. He derived support for this view in the case of Castrol Limited 11 .. v John Michael Motors Limited SC Civ. App. No.1.198 where Or. Ade Renner-Thomas Chief Justice said at page 30 said: "It is clear in this case that the currency in which the Respondent called on business in Sierra Leone was as at all material times the Leones. The only time a foreign currency came into the reckoning was when John Michael Motors had to settle Castro's invoices for the supply of the products It seems to me that this decision must be restricted lo its facts and circumstances and s ave that I respectfully agree with the judgment as a correct statement of the law and as it accords with commercial sense. I agree with the Respondent's side that thi s case is distinguishable from the instant case. Counsel for the Appellant also relied on the following cases: 1. Alex Hawni Factor Ltd. v. Modern Injection Moulds Ltd. (1981) 3ALLE.R.658 which dealt with the issue of jurisdiction to include interest in default jud gment and whether Court having jurisdiction to award interest up to entry of judgment 2. Jefford and Anor v. Gee [1970) 1ALL.E.R.1202. This is a case where the Cou11 considered the principles applicable in awarding interest on special and general damages in Personal Injury and Fatal accident case. In my view this case is irrelevant to the issues in this matter. A mass of other authorities was cited and relied upon by the Appellant's Counsel. I have devoted some time to read them through and discovered that most of them lay down principles of law which are general and clear and others relate to the application of principles to certain circumstances which are not the same as those in the instant case In my opinion, with due respect to Counsel for the Appellant, I think a good deal of his argument is beside the point; for example, Counsel drew our attention to the Bill of Lading Having relied upon it he cannot then be heard to say that new matters are being raised Counsel submitted that because the Bill of Lading was endorsed to the first plaintiff for the 2nd plaintiff, the first plaintiff was the owner of the consignment of rice destined for sale in Sierra Leone. He contended that the Currency of his business must be presumed to be in Leone Currency. This contention seems to me to ignore what the Bills of Lading itself says Respondents Counsel drew attention to second page of the Bill of Lading, where it Is endorsed to the 2nd Plaintiff investment Sierra Leone & Development Holdings Ltd for Richab S.A. It is their contention that the property in the goods remained with Richab SA a foreign Company doing business in Switzerland. Attention is also drawn to the fact that the Bill of Lading states the Currency of the contract between the Appellant and the Respondents and the freight is expressed to be payable as per Charter Party dated London 31/1/1990 Respondents Counsel submitted that the property in the goods was never transferred to Sierra Investment Development Holding Ltd. In support of this subm1ss1on Counsel derive support from Halsburys Laws of England 4th Edition paragraph 1355 at page 1048 under rubric "Transfer to Agent" where the learned Author stated the law as follows: "A Bill of Lading may be transferred to an agent merely for purposes of convenience to enable him deal with the goods specified in it on behalf of the owner. as for example, where he is authorized to take delivery of them to stop them in transit Counsel also relied on the dictum of Lord Ellenborough in Warin v Cox (1808) 1 Camp 369 on the issue of indorsement of a bill of lading: He said- ·'No case has gone so far as to decide that a bill of lading transferable like a bill of exchange and that the mere signature of the person entitled to the delivery of the goods prima facie passes property in them to the indorsee.. There must be value upon the indorsement of a bill of lading or no property in the goods is thereby transferred." In order to satisfy the demands of modern Commercial transactions in a situation like this the Courts have allowed the recovery of the full value represented by any negotiable instruments. For instance, in a contract of carriage of this nature, I think it is reasonable to expect damages for loss or b reach to be calculated in currency in which the loss was felt or which most truly expresses his loss. See The Despina R. (1979) 1 ALL ER. 421 at page 429. I think ii is important to note that the consignment of rice in the instant case could not have been purchased with Leones. I will take judicial notice of the fact that in this jurisdiction, award in Admiralty Action in rem has unusually been in foreign currency Examples of this can be found in the cases of MV. Sylt Schiffahrtsge Sell Shart and other v Gambia National Line and Another Civ. App. Nos. 3 and 4 of 90) No.25 (unreported) CC 487 96 Ibrahim Bazzy and Sons. (A firm) v The Owners and/or Person interested in the Vessel "The Santiago De Cuba (unreported) among many others. It is my view that the "Texaco Melbourne (1994) 1 Lloyds. Report 473 is not on all fours with the facts in the instant case. In that case the goods shipped were not delivered, whereas in the instant case the Respondent's claim is for short delivery. Again in the Texaco Melbourne both plaintiffs' were Ghanians doing business in Ghana, where cedis is their currency In sum. I am not persuaded that Respondents are not entitled to claim in United States Dollars as they did. Ground 5 of the appeal therefore fails. Coming to ground 6 which turns upon the construction of section 4 Cap 19 of the Laws of Si8rra Leone 1960. Appellants Counsel's contention is that the High Court erred in law when it awarded interest until payment. The relevant section provides as follows Section 4(1) "In any proceedings tried in any Court of record for 11:e recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as It thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment." (emphasis mine). This is a correct statement of the law and happily enough the Respondents have conceded the point. The result is that ground six of the appeal succeeds. GROUNDS 7 AND 8 What seems to be the issue here is not that interest cannot be awarded on a foreign currency judgment. Appellant's contention is whether or not it is necessary to call Expert witnesses. I share the view that there is nothing in Section 4 of Cap 19 - Laws of Sierra Leone Reform which requires calling of Expert witnesses before interest local or foreign is awarded. In deed our Courts have adopted the principle enunciated in Miliango S. V. George Frank (Textiles) Lid. No.2 (1976) 3 ALL ER. 599 as regards the fixing of interest. The principle was applied in M/V Sylt (supra), see also Commercial Enterprises Ltd. v I4 , Whitakers Property Ltd. and Donald Macaulay Civ. App. 23191. In that case the Court of Appeal reduced the rate of interest from 45% to 12% without any witnesses being called on the issue. The law is settled that where the rate of interest is 11ot fixed by statute. agreement or usage there is no hard and fast rule as to the amount that will be allowed depending on the circumstances of the particular case - see Halburys Laws of England 3rd Edition Vol.27 at Paragraph 12 Page 11. As regards the entering of judgment for less than the amount pleaded From my knowledge and experience one can complain about entering judgment for over and above what is claimed, but I have not come across any law which precludes a plaintiff from entering judgment for less than what he had originally claimed. It is when it is above that one has to file an amended Writ or claim. I agree with the learned Counsel for the Appellant that the interest which should have been awarded is 12% as claimed in the Writ of Summons It is my view that the authorities cited by the Appellant's Counsel are not appropriate Grounds 7 and 8 are hereby disposed of. GROUND 9 On ground 9 the complainant by the appellant is that: "The Court of Appeal erred in law in restoring the decision of the learn ed trial Judge when he awarded cost of the action to the Plaintiff/Respondent in United States Dollars (U$37,000I00) for cost incurred by tile Plaintiff/Respondent in Sierra Leone there being no legal basis for the aware! of cost in foreign currency for work done in Sierra Leone". The reason for quoting the above ground in extenso will be apparent later in this judgment It is generally said in legal parlance that 'costs follow the event,' this phrase simply means that success in the litigation being followed by the award of costs. In the case of Donald Campbell & Co Ltd. V. Pollock 1927 AC. 732. It was held that "A Judge ought not to refuse cost to the successful party except for reason connected with the case”. Also cost is at the discretion of the Judge in the exercise of this discretion, that is, he has that element of latitude to award cost. However, this is not to say that an appellate court is excluded from int erfering with the award of cost whether there is an appeal against the award or not. The issue here is the award of costs in foreign currency for work done in Sierra Leone have no wish to say or write anything which might seem to fetter the discretion of the learned trial Judge, as it appears to me that in this case the facts on the record of proceedings are plain and straight forward - most of the work done was done in Sierra Leone. The institution of the action, filing of the motion, and the documents in support thereto were all done here in Sierra Leone. Again purchase of empty bags, handling and re- bagging survey etc. took place here. There fore in my view, since all these activities took place in Sierra Leone cost awarded should have been in Leones instead of dollars. Taking all this into consideration in my judgment, this is not a proper case for the award of cost in foreign currency. I agree with Mr. Gooding that there is no legal basis for the award in foreign currency. I do not intend to rest this ground here, as I wish to address the issue of the quantum awarded as cost. But can I do so when there is no appeal on quantum? The answer lies in the 1991 Constitution and the general powers of the Court of Appeal Rules. Section 122(3) of the Constitution states: "For the purpose of hearing and determining any matter within its jurisdiction and the amendment execution or the enforcement of any judgment or order made in any such matter and for the purpose of any other authority or by necessary implication given to it, the Supreme Court shall have all the powers authority and jurisdiction vested in any Court established by this Constitution or any other law" r 32 of the Court of Appeal Rules states: "The Court may from time to time make any order necessary for determ11Hng the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the Court below to enquire into and certify its findings on any question which the Court think fit to determine before final judgment in the appeal and may make any interim order or grant any injunction which the Court below is authorized to make or grant and may ...) \ direct any necessary enquires or account to be made or take and generally shall have full jurisdiction over the whole proceedings as ;f the proceeding had been instituted and prosecuted in the Court or Court of 1st instance and may rehear the whole case or remit it to the Court below to be reheard or to be otherwise dealt with as the Court may direct." .., In reliance on the combined effect of those two provisions, I think this Court is eminently placed to assume jurisdiction and power to deal with the issue of quantum in this appeal The learned trial Judge awarded the sum of U$37,000/00 in United States Dollars as cost to the Plaintiff/Respondent. The judgment which attracted the said amount was a Judgment in default of appearance. The action was not tried on its merit and so the substantive consideration like the importance and difficulty of the case, the attendance and exami nation of witnesses, which should have been taken into account in the assessment of the cost to be awarded were absent. I dare say the judgment in default of appearance was based on c1 technical matter of procedure. In my view, these are aspects which the learned trial Judge ought to have taken into consideration in making an award. In the result. I consider the sum of U$37,000/00 inordinately high and in any event ought to have been assessed in Leones. In the circumstances, (1) In the circumstances, there will be Judgment in favour of the Respondents for the sum of U$290,300/00 to be paid in Leones equivalent at the prevailing Bank rate being the resale value of goods short delivered (2) Interest on the said amount at the rate of 12% per annum from the 24°' day of April. 1990 to the date of this Judgment. (3) As regards the costs in the High Court I award the sum of thirty mi/Inn Leones (Le30,000, 000/00). (4) Costs of this Appeal to the Respondent such costs be taxed. SUPREME COURT OF SIERRA LEONE CIV.APP.NO:6/200 BETWEEN: THE OWNERS OF THE SHIP "MV MASCHO STAR" AND RICHAB S.A. SIERRA INVESTMENT AND DEVELOPMENT HOLDINGS LTD APPELLANTS RESPONDENTS CORAM HON. MS. JUSTICE U.H. TEJAN-JALLOH - J.S.C. HON. MR. JUSTICE G. SEMEGA-JANNEH - J.S.C. HON. MR. JUSTICE M.E.T. THOMPSON - J.S.C. HON. MS. JUSTICES. KOROMA - J.S.C. HON. MR. JUSTICE EKU ROBERTS - J.A. COUNSEL: A.J.B. GOODING ESQ. FOR THE APPELLANTS YADA WILLIAMS ESQ. FOR THE RESPONDENTS JUDGMENT DELIVERED ON THE 3RD DAY OF MARCH, 2009. SEMEGA-JANNEH - J.S.C. INTRODUCTION This case was commenced by the issuance of a Writ of Summons dated the, 20th April 1990, and since, it had found its way slowly indeed extremely slowly ► I ,---,. -/- ) !,, ..._, 32.. ......,. ··················································..·..,, ............. Hor\. Ms. Justice U.H Tejan-Jalloh - Chief Justice . ? ,' 1'' ·¾--;7 '7.1.. C-1 ,.,-'/ ' (/ '\ : Agree ················ ································································ Hon. Mr. Justice G. Semega- Janneh J.S.C. I Agree ···················································································· Hon. Mr. Justice M.E. Tolla Thompson J.S.C. I Agree ·······································································.......... Hon. Ms. Justice S. Koroma J.S.C / • • • • • • • •.•.••• • • •. •.••.•.,I,••••••:•....•.•.• • • • • .•. ....... ,..,• , . , , . , , ustice E. Roberts J.A. REF: CJ/HJ I ) • 2 through the High Court, the Court of Appeal and now rest before this Court The case arose out of a bill of lading concerning the consignment of rice which v1as short delivered and/or damaged. Usually, cases of this nature, speaking from experience, are qui ckly settled through negotiations and, if negotiations fail the Courts try to dispose of the matter quickly. Why the case lasted so long in the Courts beats the imagination: but. I am hoping, it will find a final resting place in this Court. THE FACTS The Respondents (Plaintiffs in the High Court) were entitled to a consignment of rice under a bill of lading shipped to Freetown. Sierra Leone, on board the vessel "MV Mascho Star". The consignment was short delivered and/or damaged An action in rem was commenced in the High Court against the Appellants (Defendants in the High Court) on the 20'h April 1990 for the sum of US$689,750.00 being resale value of 30,000 bags of rice, short delivered and/or damaged, inclusive of the sum of US $17,750.00, for purchase of empty bags, payment of labour and survey fees, and interest thereupon at the rate of 12 per centum per annum from the 1st April 1990 till payment (see pages 25 and 26 of the Main Records (M.R)). On the 24 th April 1990 the Writ of Summons, with the indorsed statement of claim, was amended, reducing the sums claimed to US$469,500.00, reflecting the resale value of 20,000 bags of rice instead of 30,000, inclusive of USS21 .500. for purchase of empty bags, labour and survey fees (see pages 1-3 of Supplemental Records (S.R)). No further amendments were made to the Writ of Summons and the indorsed statement of claim. On the 24th April 1990, pursuant to Court Order made on the 23rd April 1990, the vessel "MV Mascho Star' was arrested and, at the same time, the amended Writ of Summons was served by Mr. Edward Fynn, a process server. • • 3 On an Ex-parte Motion for Judgment in Default of Appearance dated the 6t June 1990 and supported by affidavit, judgment was pronounced by the learned Judge on the 7'h June 1990 in favour of the Plaintiffs (Respondents herein) for the sum of US$290,000.00 with interest thereon at the rate of 15% per annum from the 24th day of April 1990 till payment and costs assessed at US$37,000 00 The rate of 15% per annum was prayed for on the .face of the Ex-parte Motion (See page 25 of the M.R.). The Defendants (Appellants herein) entered appearance under protest on the 15 th June 1990. On the same date, they filed a Notice of Motion to set aside the Default Judgment on objections stated on the face of the Notice of Motion and reproduced hereunder as follows:- 1. That the service of the amended Writ of Summons dated the 24 th day of April 1990 herein and all subsequent proceedings be set aside for irregularity on the following.grounds:- (a) That the said amended Writ of Summons was served on Captain Mukadom of the MN "Masco Star" contrary to the rules and practice of the Court. (b) Further or in the alternative the copy of the original amended Writ of Summons was neither affixed on the mast of the said MN "Mascho Star" nor affixed inside the wheel house as required by the rules and practice of the Admiralty Court. 2. Further or in the alternative that the Judgment entered by the Plaintiffs on the 7th June 1990 in default of appearance be set aside for irregularity on the following grounds - J (a) That the Ex Parle application for Judgment in Default elated 6th June 1990 and the affidavit in support herein did not comply with the rules and practice of the Court in t hat t he Affidavit of Service of the amended Writ of Summons was not annexed to the application. (b) The Affidavit in support of the application did not annex the original Amended Writ of Summons as required by the Rules of Court. (c) The amended Writ of Summons was not served on the Defendants in accordance with the Rules and Practice of the Court in that it was served on the Captain of the MN "Mascho Star" (d) That the Affidavit of Service did not annex the original amended Writ of Summons (e) That the claim for damages and breach of contract indorsed and prayed for in the Amended Writ of Summons are for unliquidated damages and for which the Judgment in Default of Appearance Rules require either a Writ of Inquiry to be issued or damages assessed by the Court and cannot be awarded as a result of an Ex Parte Notice of Motion In consequence of the application. the learned trial Judge set aside the Judgn1ent in Default by Order dated the 22nd April. 1991. Aggrieved by the decision of the High Court. the Plaintiffs (Respondents herein), by Notice of Appeal dated the 20"' May 1991. appealed to the Court of Appeal The Defendants (Appellants herein) cross appealed by Notice of Appeal dated June1991 The appeals were heard together on the 20"' February 1992 and on diverse dates thereinafter by the Court of Appeal, constituted by the Hon. Justice EC Thompson-Davis J.S.C., Justice M.O. Adophy J.S.C. and Justice M 0. TaIu- Deen J.A. On the 5th April 2000, the Court restored the Judgment in Default in favour of the Respondents herein. The Appellants herein, being dissatisfied with the decision of the Court of a ppeal appealed to this Court by Notice of Appeal dated the 3 rd July· 2000 on the following grounds: 1 The Court of Appeal failed to consider the Cross Appeal and gave no reasons for dismissing the Cross Appeal In the light of tl1e evidence before it, to wit:- a. The affidavits of Edward Fynn sworn to on the 5 th day of June 1990 and the 28th 1 day of June 1990: and the affidavit of Ade Renner-Thomas sworn to on the 28th day of June, 1990 b. The indorsement at the back of the writ of summons herein made by the same Edward Fynn; c. The oral testimony given by the same Edward Fynn before the Learned trial judge on the 13"' July 1990: d. The oral testimony of Edward Kamanda Bongay (the Under - Sheriff) which contradicted that of Edward Fynn thereby wrongly holding "I have no reason, to disbelieve the totality of his evidence", referring to the evidence of Edward Fynn the Court Bailiff who served the Writ of Summons. (ii) Further and in the alternative, if it is held that the Court of Appeal considered the Cross Appeal the Court was wrong to uphold the Learned Trial Judge's ruling that the service of the Writ of Summons was valid even though the said service failed to c:ompiy with the provisions of Order 9 Rule 12 of the Supreme Court Rules of England 1960. (iii) The Court of Appeal erred in law when it held inter alia, as follows:- "There is no contention that the action before us is an Admiralty Action in rem which arose out of the jurisdiction of the High Court. Our High Court rules are silent on the Rules governing any such ac tion. We therefore need to know which Rules of C ourt would apply. The Respondents are urging me to hold that since there are no specific rules governing Admiralty action in rem, the general Orders applying elsewhere in our Rules, would apply to such actions. I must here state that I have noticed a conspicuous fallacy in their argument with regard to the rules to be applied to the application. Learned Counsel Mrs . Lisk had this to say "Since there are no specific rules >- 7 governing admiralty action in rem, the general orders applying elsewhere in our rules would apply to such actions". That cannot be true, when our rules are silent we have a legal obligation to go to the Englis h rules of court for the year 1961. By order 13 of the Supreme Court Rules of England 1961 under which in an appropriate action. a Plaintiff fin al Judgment against a Defendant for a liquidated demand where that Defendant has failed to enter an appearance after the time fixed, does not apply to an Admiralty Action in rem ... In an admiralty action in rem, judgment for any defendant can only be obtained by motion· 1n that it failed to have regard to and/or apply the provisions of Order 10 Rule 5 of the High Court which is in the following terms - "Where the writ is indorsed with a claim for pecuniary damages only or for the detention of goods with or without a claim for pecuniary damages, and the defendant fails or the defendants. if more that one, fail to appear. the Plaintiff may enter interlocutory judgment and a writ of inquiry shall issue to assess the value of the goods and the damages or the damages disclosed by the indorsement on the writ of summons." The High Court Rules are not silent regarding rules relating to the procedure in an Admiralty Action in Rem. Most of these rules are general provisions applicable to all actions including Admiralty Action in Rem In particular the provisions of the afore-mentioned rule, apply to all actions including an Admiralty Action in rem. which was the instant case. It was therefore I .) 8 not necessary to resort to Order 52 rule 3 of the High Court Rules thereby invoking the Rules of the Supreme Court of England 1960. (iv) The Court of Appeal erred in law when it held, inter-alia, as follows - "To say, as the learned judge wrote in his ruling that the Plaintiff ought to have entered an interlocutory judgment and have damages assessed by the Court is wrong and without any foundation in law". in that it failed to have regard to and/or apply the provision of Order 10 rule 5 of the High Court Rules. (v) The Court of Appeal erred in law in restoring the decision of the Learned Trial Judge when he awarded damages to the Plaintiffs in United States Dollars, when the evidence disclosed that the loss suffered by the Plaintiffs/Respondents was in Leones. The Court had no jurisdiction to award damages in foreign currency to the Plaintiff/Respondents vi) The Court of Appeal erred in law in restoring the decision of the learned trial judge when he awarded interest "till payment", such award being in excess of the jurisdiction of the Court having regard to the provisions of Section 4 of the Law Reform (Miscell aneous Provision) Act Cap 19 of the Laws of Sierra Leone 1960. vii) The Court of Appeal erred in law in restoring the decision of the Learned Trial Judge upon motion for judgement in that the latter awarded interest upon a foreign currency Judgement (United States Dollars) without the Plaintiffs/Respondents leading any expert evidence to prove what was the rate of interest in that currency. 9 .,.. viii The Court of Appeal erred in restoring the decision of the learned Trial Judge when he awarded interest at the rate of 15 per centum per annum. which is higher than the interest rate of 12 per centum per annum indorsed in the writ of summons, without making any amendment to the Statement of Claim. ix) The Court of Appeal erred in law in restoring the decision of the Learned Trial Judge when he awarded costs of the action to the Plaintiffs/Respondents in United States Dollars (US$37.000 00) for costs incurred by the Plaintiffs/Respondents in Sierra Leone, there being no legal basis for the award of costs in foreign currency for work done in Sierra Leone. x) "On the question of the service of the said writ one Edward Fynn a Court Bailiff was called to give evidence before the Learned Trial Judge as to his participation in the service, he was examine(j before the Court and in the end of it all, the Learned Tria l Judge said· I have no reason to disbe lieve the totality of his evidence". I have to accept the Learned Trial Judge's conclusion on the point, he was in a good position to see the witness. evaluate his evidence and watch his demeanor, as far as the service of the writ is concerned. The Cross Appeal therefore fails" The Court of Appeal misdirected itself . when it dismissed the Cross App eal an d upheld the Learned Trial Judge's decision that the service of the W rit of Summons was valid without a proper consideration and evaluation of all the evidence, documentary as well as oral, relating to the service of the writ. THE ISSUES In their amended case dated the 12th November, 2007, the Appellants ha•;e stated eight (8) proposed issues for consideration and resolution by this court ! have essentially accepted the proposed issues but with some modifications I y .,.. which, in my view, more properly reflect the issues to be determined by this court. They are as follows: 1. Whether or not the Court of Appeal has the Jurisdiction to re-examine, reconsider and evaluate the evidence given in the High Court and, if the answer is in the positive, was the court right in not vacating the conclusions of the High Court and replace t11em witl1 its own conclusions 2 Whether or not the High Court Rules (now revoked) provides a procedure for obtaining judgement in Default of Appearance in Admiralty Action in rem and, if not, consequently resort had to be made to Order 52 Pule 3 of the High Court Rules and adopt the relevant procedure of the English Rules of 1960. 3. Whether or not a judgement obtained in default of appearance in an Admiralty Action in rem by motion for Judgement supported by affidavit evidence pursuant to the relevant rules of the English Rules of 1960 is regular and, if not, what is the effect 4. Whether or not a court of record has Jurisdiction to aw ard damages in foreign currency and, if the answer 1s in the positive, can the court do so in the circumstances of this case. 5 Whether or not the court has the jurisdiction, in the circumstances of this case, to award the same rate of interest up to the date of payment of the judgement sum. 6 Whether or not the court has the discretion to fix a rate of interest on a foreign currency judgement sum without first receiving evidence of the rate at which the foreign currency could be borrowed in the country in which the said judgement sum originated ; y 11 7. Whether or not the learned trial judge had jurisdiction to award a higher rate of interest on the judgement prayed for 1n the amender! statement of claim. 8. Whether or not the learned trial judge had jurisdiction to assess legal costs in foreign currency ORDER 52 RULE 3 OF THE HIGH COURT RULES AND RESORT TO THE ENGLISH RULES OF 1960 Order 52 rule 3 of The High Court Rules (as amended) which provides '3 when no other provision is made by these rules the procedures. practice and forms in force in the High Court of Justice in England on the 1st day of January 1960, so far as they can be conveniently applied, shall be in force in the Supreme (now High Court) Court" is broadly and simply crafted This provision is not unique or peculiar to S1erizi Leone. Other former British Colonies. including the Gambia. Ghana and Nigeri a had similar provisions. The courts in this jurisdiction. have appl1ec strict interpretation or construction of the provision, which I understand to be. for t11e purpose of restricting or narrowing its application since the Sierra Leonean cas e of Re Parker (DCD) 1920-36 ALPS L 21. I will now analyse some of the authorities supplied for a better appreciation of tile methods of interpretation employed by our courts in attempts to achieve a ◆ restricted application of the provision In the Sierra Leonean case of Re Parker the plaintiffs by originating summons sought an order under Order 55 rules 3 and 4 of the English Rules of 1908 pursuant to Order 65 rule 2 of the Local Court rules I )' 12 (which is now Order 52 rule 3,) that account, enquiry and relief should be taken. made and given The local Order 52 (LII) incorporated a paraphrase of Order 54;, (LIVA) of the English Rules with its heading "DECLARATION ON ORIGINATING SUMMONS" and Order 51 (LI) incorporated a paraphrase of Order 54 of the English Rules with its heading "APPLICATIONS AND PROCEEDINGS AT CHAMBERS". The legislature, in incorporating the paraphrases of the said English Rules, omitted the whole of Order 55 (LV) of the English Rules w: \h its heading "CHAMBERS IN THE CHANCERY DIVISION which was subdivided into parts, of which Part II, beginning with rule 3, had a sub- heading "Administrations and Trusts; Foreclosures and Redemption". The full court refused to permit the importation of rules 3 and 4 of Order 55 of the English Rules of 1905 through the portal of Order 65 rule 2 of the local rules for the reason that 1) The draftsman having intentionally included one form of procedure under originating summons the remaining forms cannot be imported through Order 65 rule 2 of _the local rules on the ground "that no provision is made" by the local rules, and (2) The fact that the draftsman deliberately omitted the whole of Order 55 dealing with chambers in chancery the procedure could not be conveniently applied to the circumstances of the colony· meani ng Sierra Leone. (See Re Parker at page 25 lines 18 - 26) The conclusion reached by the court through the judgments of McDonnell, Ag. J, and of Sawney -Cookson, J, was that the questions and matters that the originating summons sought to be dealt with concerned administration matters and, since Order 55 of the English Rules was deliberately omitted, the legislature must have intended that the said questions and matters must be dealt w ith by administration suit. I The reasoning that the existence of one form of Originating Summons in our Local rules, disqualifies the importation of another form of the Originating Summons (in this case, as used in Chancery in the English Rules) on the basis that the one in our local rules qualifies as another provision under Order 52 rule 3 is attrac tive, but, I can only accept the reasoning or argument if the form (or procedure) in our local rules, or some other provision, can appropriately be used instead of the intended importation. If there are rules that can be appropriately and/or conveniently applied or used in dealing with the questions or matters to be dealt with, then that rule of procedure should be used. This seems to have been the suggestion or conclusion reached by Sawrey-Cookson, J when in his judgement in Re Parker, he concluded: ....and that the questions and matters here sought to be dealt with by originating summons must be dealt with by a method which the legislature must be taken to have decided in its wisdom was the better suited t9 the requirements and conveniences of the colony, i.e. by administration suit" An appropriate avenue was available to the plaintiffs in Re Parker in the local rules for the questions and matters raised in the originating summons to be dealt with. One can reasonably conclude that the decision in Re Parker was in reality based on the fact that another provision was made in the Local Rules of 1908 No authority is provided to show that any of the former colonies gives the provision a strict interpretation, and if any did so, whether it follows the line t aken in this jurisdiction. On the contrary, the foreign cases cited seem to have been decided on the basis of an understanding of the provision. as stated in their respectiv e jurisdiction, in its ordinary and natural meaning. Our own provision is even more simply stated and it avoids the phrase "for the time being" which has generated a great deal of controversy as to its meaning in some 1urisclict1011s Simple words and phrases are used in the provision Why impose further I I .J restrictions in the applicability of the provision, other than those explicitly stated in the provision, on the basis of assumed intentions of the draftsman? What practical or good purpose does it serve7 Prevent the utilization of a procedure for which there is not another in our local rules, that can be conveniently applied to the circumstances of Sierra Leone? I am of the view that the provision should be understood in its ordinary and natural sense, and the court's should concern themselves in determining: (1) whether there is another provision to the intended importation in our local rules and, if there is none. (2) whether the intended importation can be conveniently applied in the circumstances, always bearing in mind that the circumstances of Sierra Leone today is significantly and materially different from its circumstances when the local rules were enacted McDonnell, Ag. J's concerns (at page 25, lines 10 - 16 in Re Parker) of “the 64 orders of our rules" being a superfluous redundancy" and the possible undermining of "the principle of selection of English Orders suitable to local use can be properly and adequately addressed by proper application of the restrictive principles (criteria) contained in the provision Orders (or rules) that fit the said principles can be imported but those that do not fit can be rejected this Is the selective process envisaged in the provision, in my view The suggestion or conclusion of the passage quoted from the Judgement of Sawrey - Cookson, J. is partially reflected in the Ghanaian case of Poku and Another V Kwao and Another (1989-90) 2 GLR P 82. Ghana has a similar provision provided by the High Court (Civil Procedure) Rules, 1954 (L N1404A) Order 74 which states that: 4 l 5 "Where no provision is made by these rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court (now High Court) of the cold coast' (brackets provides) In Poku's case, supra, the Applicants (Plaintiffs) commenced action by an originating summons in what purported to be an interpleader action. Upon the originating summons being served on the claimants they deposed their case in affidavits. As the affidavit raised t he determination of the issue as to whether or not the lands had been sold to the applicants, the trial court Judge ordered pleadings to be made and to which all the parties acquiesced The trial Judge gave judgement. An appeal was made to the Court of Appeal The Court of Appeal held that the commencement of the proceedings by originating summons was proper as sanctioned by English rules of pra tice applicable to Ghana by virtue of Order 74 of LN 140A which permitted the Ghana Courts to have recourse to English rules and procedure where the Ghana rules were silent on an issue. On further appeal by the defendants from the decision of the Court of Appeal, the Supreme Court, in essence, held: (1) the commencement of an interpleader suit by an originating summons was sanctioned by Order 57 rules 5 of the High Court (civil procedure) Rules 1954 (LN 140A) but on the facts of the case it was not an interpleader action. The applicants were therefore bound by Order 2 rule 1 to commence the action by writ of summons. Instead of ordering the parties to file pleadings, the trial judge ought to have struck out the proceedings with liberty to the applicants to issue a writ, particularly as the matter was an obvious case of declaration of title and not an action for the construction of any statute, deed, instrument or document I 16 (2) resort by the Court of Appeal to Order 74 of LN 140A to save the procedure from collapsing was misconceived, because that rule only came to play when no provision was made by the rules. But Orders 1, 54 and 54A made ample provisions for commencing all actions by writ except those for which some other mode, such as an originating summons. was required. There is a distinction between Re-Parker and the Poku case in that in Re Parker a different mode for which the originating summons could be used in the local rules was imported to initiate the action, whereas, an appropriate procedure was available by administration suit. In the Poku case an existing procedure in the local rules was used but when it was realized that the procedure was wrong. an attempt was made to correct the error by importation from the English rules The use of originating summons was available in the local rules. The nature of an action is not determined by the label that one dec ides to give it but Is determined by the facts. The facts of the Poku case were such that the court concluded they were not indicative of an interpleader claim; and also by the endorsement of the claim on the originating summons, it was clear that no question of construction of any document or statute or instrument was involved. The facts revealed matters in controversy that ought to have been determined by a trial commenced by writ. There was no need to import a corrective procedure; the "correction" could have been done by striking out the action with liberty to the Applicants to issue a writ. I appreciate the second reason for the rejection of the importation in Re Parker The inference I deduce from the reasoning is that the intentional omission of the whole of Order 55 was because it could not "be conveniently applied to the circumstances of this colony" meaning Sierra Leone. McDonnell Ag.J. in his judgement posed the question "why were some orders included and others rejected". He gave the answer at page 25 in these words: I- .. 49 17 "One can well believe that the procedure in chancery chambers was considered unsuitable to the needs of this colony (Sierra Leone) and that omission to provide for it was intentional" (Brackets Provided) The belief may be well founded but could the omission not have been based on other well founded or plausible beliefs? Could it not have been that the omission of Order 55 (and other Orders) was that, at that moment in or period of time, actions for which the omitted Order could have been used were not common, if at all, in the small colony of Sierra Leone and, as a result, the draftsman did not want to burden our local rules with Orders that would be infrequently used, if used at all. an d could be resorted to in the rare needs for its application or, indeed, resorted to more frequently in the future as the circumstances of the colony (Sierra Leone) require more frequent application of the Order?. In short, the circumstances of Sierra Leone might change in the course of time (as it certainly has since Re Parker) to make it practicable for the omitted orders (or rules) to be conveniently applied to the new circumstances. Notwithstanding the likelihood of other probable and/or well founded beliefs for the omission, I may willing to accept the reasoning of McDonnell, Ag J, as stated, provided that the omitted Order does not bear a relationship with or is not of the same genre as any of the Orders in the local rules, and is only made or placed in a different Order in the English rules as a matter of convenience. What would be difficult to accept is if the reasoning is extended to cover omissions of some aspects or rules of the English Order that is embodied into the local rules. If the reasoning. with such an extension, is accepted, it would most certainly have the effect of barring the importation of any English rule or Order and would render Order 52 rule 3 of the High Court Rules redundant and, therefore, raised the question: Why was the Order 52 rule 3 provided in the first place? 18 In my view, Order 52 rule 3 was included into the local rules for u seful and pr actical purposes. By comparison to the English Rules, our Rules are not detailed or all embracing. It may be said with truth, echoing the words of Mac0onnell. Ag J in the Re- Parker at page 24, that the rules are an abridgement of the White Book embodying such of the provisions of the latter as were considered suitable for a small country. It must be borne in mind that Sierra Leone is no longer a small country in contrast to the time of Re Parker. In fact even the English Orders t hat have been made into our Rules are generally a paraphrase of the correspon ding English Order or Rule. I am of the considered view that Order 52 Rule 3 is meant to save a situation for which there is no appropriate procedure (that is. no other provision) in the local rules provided it can be conveniently applied to the circumstances. The Courts ought to approach the use of Order 52 rule 3 in a practical manner, as they have done in other situations, with a view of avoiding the frustration of justice by reason of gaps or inadequacies in our local Rules that can easily and conveniently be overcome by resort to the English Rules, 1960. The objections nationalistic or otherwise, in respect of Order 52 Rule 3 of our local rules, and similar provisions, i n other jurisdiction, could have long been resolved after independence by our legislatures. This long standing failure on the part of our legislatures, and in the case of Ghana the presence of the phrase "for the time being" which seems to allow th e importation of the English Rules as they are changed, amended or extended from time to time over the years gave rise to the strident nationalistic outcry of Taylor J S.C in the Poku case at pages 91-9 in these words: "It seems to me that the provision (Order 74 of LN 140A) if applied in this case must be considered to be unfortunate and certainly an ill-foundation in modern conditions on which to rest decisions of the courts of a sovereign Republic. Its continued existence in our statute law , must be due to the lethargic manner in which our post -independence legislatures regard and carry out their duties. Such lack of realism will make our legal system to mirror the aspirations of non-Ghanaians and foreign jurists and h 19 undermine our legal order as a reflection o f the social and economic conditions existing in our own society I have indicated elsewhere in judgments I previously delivered that I deprecate the approach to legal reasoning which mandatorily forces us to be bound by fluctuations in thinking in other ju dicial forums" (BRACKETS PROVIDED) One strongly identifies with this cogent statement but until our legislatures are galvanized into action, as they have now done in this jurisdiction and some others with a similar provision, the Courts must continue to interpret and deal with situations arising out of or connected with such Order or similar Orders. In the High Court case of B.M. Dakhlallah and Horse Import and Export and Others C.C 492/04, Muria J.A. held that the conditional appearance entered by the 1st Defendant was of no effect since our local rules did not have a provision for conditional appearance, following the decision of Doherty, J , in the Cup Company Limited v Sierra Leone Airlines (81 November 2004). He capped his reasoning by making reference to the case of Davies and Co. v. Andrea and Co. [1924] OB 598 No power to enter conditional appearance when it is not provided for. Muria J.A, with all respects to him, in my view, wrongly extended the reasoning 1n Re Parker, for the rejection of the importation of the whole of an English Order. which, it was presumed, had been intentionally omitted by the draftsman in the local rules, to also cover situations in which a rule (or some rules) of an English Order is omitted in the embodiment into our local rules, when, in the Judgment at page 4, he states "there is no conditional appearance under our High Court Rules The provisions for appearance contained in 0. 9 which adopted some, but not all, of the provisions of 0.12 of the English Supreme Court Rules as 111 force on the 1st January 1961. One of those provisions omitted was conditional appearance. I think it is correct to assume that the draftsman ; 21 "One can well believe that the procedure in Chancery Chambers was considered unsuitable to the needs of the colony (Sierra Leone) and that omission to provide for it was intentional? To interpret 0.LXV, r 2 (now 0.52r 3), in such a way as to enable any provision contained in the White Book (the English Rules) 1905 to be applied here would, be in my opinion, lead to an absurdity, by making the preceding 64 orders of our rules as superfluous redundancy and would be repugnant to the principle of selection of English Orders suitable to local use, upon which our rules appear clearly to be based and when the draftsman has as we must again suppose, deliberately omitted the whole of 0.LV (55) dealing with chambers in the Chancery Division, we must, I hold, refuse to import any of its rules on the ground that, to use the words of the conclusion of 0.LXV (65) r 2, they cannot "be conveniently applied to the circumstances of this colony (Sierra L one)" (BRACKETS AND EMPHASIS PROVIDED) In addition to my views already expressed, I say that McDonnell a. g. J. was entitled to conclude, and might have correctly concluded, that rules 3 and 4 of 0.LV (55) of the English Rules of 1905 could not "be conveniently applied to the circumstances of the colony (Sierra Leone)" (Brackets provided) but what if, for example, on 7th June 1990 and thereafter, they could be conveniently applied to appropriately changed circumstances of the Republic of Sierra Leone? Notice must be taken in that even in Re Parker it was noted that at a former sitting of the Full Court a contrary opinion to that in Re Parker was expressed on grounds not set forth on the record. Albeit, a contrary decision was given by the same Court and this, clearly, demonstrates an opening for other views or understanding of the Order. 2,0 deliberately omitted those provisions of the English Rules that cannot "be conveniently applied" to the circumstances of the country I am of the firm view that the position expounded in Re Parker. is different from the interpretation given to it by Muria, J.A by his extension of the reasoning to cover situations not in the context of the second reason given in Re Parker with significant repercussions. In Re Parker, McDonnell, a.g. J., in his Judgment, was referring to Orders, specifically Order 55 of the English Rules of 1905 of which there was an attempt to import rules 3 and 4 when the whole Order 55 was omitted by the draftsman in embodying a paraphrase of the White Book (the English Rules) into our local Rules. This can be clearly discerned in the passage f ound in the judgment. page 24, reproduced hereunder as follows:- "Now the Legislature in approving our rule inserted in 0..L 11 (52) a paraphrase of O.LIVA (54A) with the heading "DECLARATION ON ORIGINATING SUMMONS", it inserted in 0.L1 (51) a paraphrase of 0.LIV (54) with its heading "APPLICATIONS AND PROCEEDINGS AT CHAMBERS" and omitted, I cannot but suppose deliberately, the whole of O.LV (55) with its heading "CHAMBERS IN THE CHANCERY DIVISION'. which is subdivided into parts, of which Part II, beginning with r 3, has a sub-heading "Administration and Trusts; Foreclosure and Redemption' Why were some Orders included and others omitted." (BRACKETS AND EMPHASIS PROVIDED) It can be observed that the omission was of the whole of Order LV (55) of the English Rules of 1905 and that emphasis was placed on the procedure contained in the Order, that is, the procedure that applied in English Chancery Chambers To buttress the point McDonnel proceeded further to state: