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.