Salini Construction Spa V Sierra Leone Road Transport Corporation (CIV APP 54 of 2005) [2014] SLCA 7 (27 March 2014)

} q + CLV APP 54/2005 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: SALINE CONSTRUCTION SPA ~ APPELLANT AND SIERRA LEONE ROAD TRANSPORT CORPORATION . - RESPONDENT COUNSEL: ND TEJAN-COLE ESQ for the Appellant ELVIS KARGBO ESQ for the Respondent

Coram

THE HONOURABLE MR JUSTICE S A ADEMOSU, JUSTICE OF APPEAL

(now Deceased)

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE € € ROBERTS, JUSTICE OF APPEAL * JUDGMENT DELIVERED sue 1 Bay OF MARCH,2014.

1. This is an Appeal brought by the Appellant, Salini Construction SPA, : otherwise known as SALCOST, against the Judgement of the late RASCHID,J, delivered on 21 July,2005.

2. The Grounds of Appeal as amended, are to be found at page 138 of the “ramen —es ote cord, and in the Notice of Additional Grounds of Appeal dated 16 September,2009. They are, as follows: i, General Damages and special damages are distinct types of | damages. The latter must be specifically pleaded and strictly proves: and the Learned Trial Judge erred in law when he awarded tthe sums of Le46,167,094 as the value of the Plaintiff's bus on 29" November 1993 and loss of revenue of Le41,359,000 from date of accident for eight months thereafter respectively, as general damages when these amounts were pleaded as special damages. The special damages were not proved at all as no evidence was led ii, Notwithstanding the demise of the Defendant's driver at the scene of the accident and the absence of the whereabouts of the only eye-witness for the Defendants because of the 10 years war in ; Sierra Leone, the defence in its cross-examinations raised series

. fo of issues of law, facts and mixed law and facts relating to the road

1 accidents at main road, junctions, cross- roads, wrong side of road, side roads, stopping and parking, rule of the road, speeding and error of Judgment and yet none of these was reflected in the

Judgment

iii, Tre writ of summons alleges that the accident occurred on the 26"" November 1993 yet the evidence of the Plaintiff and the Judgment deal with incident on the 29" November,1993. No amendment was sought or obtained..

iv. The Learned Trial Judge did not consider adequately or at all the defence.

y. The Learned Trial Judge failed to evaluate the evidence adduced before it and further, failed to resolve facts in issue and also failed to assign reasons for accepting one version of the evidence against the other.

vi, Tr was the duty of the Trial Judge to reject inadmissible evidence hich had been received, with or without objection, during the trial

° when he came to consider his judgment.

f vii, The Judgment included preliminary finding of facts which were not

i supported by evidence and the Judge also took into account matters that were irrelevant in law and excluded matters which were necessary.

viii, The Judgment was against the weight of evidence.

4. counsel on both sides filed their respective synopses of arguments, and

| they relied on them during the oral hearing.

4. The case is about an accident which occurred on 29 November,1993 at an area'known os Limba Corner on the Freetown/ Masiaka Road. One of the ‘Appellant's Grounds of Appeal is that the writ referred to the 26" of November, 1993 and not to the 29" and that the wrif was never amended until the trial was concluded. We do not think this was material. There was never any contention raised by the Appellant at the trial as to the “Jote of the accident, The Appellant has not disputed the occurrence of the accident, be it on the 26" or the 29" of the month. This Ground therefore fails.

5, There were two trials. The first one was conducted by the late EBUN

¥ THOMAS, J, The trial had got to the stage of addresses, when it aborted

(t

. on 21 May 1997, whilst Ms Yasmin Jusu-Sheriff, then Counsel for the Defendant was addressing, EBUN THOMAS, J - page 65 of the Record. ‘As we would all recall, there was a coup deetat a few days later, and a

G. The case was then re-assigned first, to the late NYLANDER.J, before

whom, no proceedings were taken: and then to the late RASCHTD,J, who started the trial de novo, At page 67 of the Record, the Learned Trial Judge, RASCHID, J noted on 5 April 2000: *D & Thompson for Plaintiff. ‘Me V Horton - PA to Master and registrar. The exhibits in this case have ‘not been brought to Court. Jongopie my Registrar alleges that at the inception of the case, he received the exhibits from Jenkins the exhibits clerk, This was corroborated by D Thompson, Counsel for the plaintiff. ‘Tongopie said that at the end of the day's proceedings, he returned the exhibits to Jenkins. Jenkins denies this. He says he never set eyes on the ‘exhibits, Please investigate. Adjourned to 17/4/2000" We have quoted this minute in full, as one of the grounds of appeal, is that the Learned

- Trial Judge relied on evidence which was inadmissible. Mr Tejan-Cole has

5 argued that the Learned Trial Judge, in coming to his decision of Special Damages, relied on evidence which had not been tendered during the trial

) before, but which was indeed tendered in evidence at the first trial.

7. Our view is, and this is confirmed by the practice, that when a trial

starts de novo before a second Judge, all the evidence has to be taken afresh, It is of course open to Counsel, when a trial is stopped before Tudgment, to agree before the second Judge, to adopt the evidence Which has been led in the first trial, When this is done, there is in effect, ‘a continuation of the trial, But where the trial starts de novo, and the evidence already given at the first trial is not adopted by the second Tudge, then the second Judge and Counsel can only utilise and rely on the evidence led and tendered before him, He cannot, in his Judgment, rely on evidence which was not led, nor tendered before him. Counsel for the Respondent should have ensured that ell the documentary evidence tendered before EBUN THOMA,J was re-tendered before RASCHTD.J. The Judge's minutes at page 67 of the Record, quoted above, show that he was aware of the absence of the exhibits. His duty therefore, was fo. have called witnesses afresh, who would, as it where, re-tender these

. same documents. Going through the Record, we have found out that

y (2 . exhibits B, C & D respectively, which deal with the value of the bus damaged, were not re-tendered before RASCHID,J. Also, Hudson Lennox Sesay, the Respondent's then Corporation Secretary, who testified before EBUN THOMAS, J as PW 5 - see pages 46-48 of the Record, was not re-called to testify before RASCHID,J. There was therefore, no evidence before RASCHID,J relating to any special damage, the Respondent may have suffered and he ought not to have awarded special damages. Mr Tejan-Cole, has set out correctly what we believe is the true state of the law on special damages at page 6 of his synopsis, *....where the Plaintiff in a claim for special damages succeeded in proving both the subject matter and the value, he was entitled to be awarded the value he claimed, However, where he succeeded only in proving the subject matter but failed to prove its value, the Plaintiff would be entitled to nominal damages which should be a reasonably fair approximation of the predamage value of the property. Therefore, where it wes only proved that the vehicle was destroyed beyond repairs, the nominal damages to which the Plaintiff is entitled was the market or replacement value of the Vehicle... The value or replacement value cannot be determined by this Court now when the special damage has not been strictly Proved.” ~———-—-— 3 cauiisel Bit Bath Sides Have decurately quoted the Law: Special Damages——e-—ne--m—— must be specifically pleaded, and specifically proved. They cannot be inferred from the evidence led. Failure to prove these damages specifically, will result in the claim for the same failing. The Appellant therefore succeeds on this Ground of Appeal.

9. In order ta deal with the finding made by the Court below as to whether ‘the Appellant was liable in Negligence to the Respondent, we must ‘examine the facts as found by the Learned Trial Judge. On 29 November,1993 Santigie Sesay, PW1 was the driver in control of the Respondent's Mercedes Benz bus, WR23879. He was detailed to take passengers to Kabala, He had 18 passengers on board, including Julius Ayo Peters, PW2, and Alusine Sesay, PW3. When he got to Mile 42, the road was being rehabilitated by the Respondent company. A linesman directed him to stop. While his vehicle was in a stationery position, he saw the Respondent's Dumper truck coming from tle opposite direction at high speed. The linesman jumped aside. His vehicle was hit on the left hand . side, He fell unconscious. He regained consciousness at the Connaught

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