Sierra Leone Commercial Bank v Daniel Caulker (CivApp12/2024) [2024] SLCA 8 (17 December 2024)

CIV. App No. 12/2024 1 F APPEAL OF LEON! CIVIL DIVISION

BETWEEN SIERRA LEONE COMMERCIAL BANK LIMITED - APPELLANT/APPLICANT 29/31 SIAKA STEVENS STREET FREETOWN AND . DANIEL CAULKER - _ RESPONDENT/RESPONDENT 35D FUDIA TERRACE OFF SPUR LOOP WILBERFORCE FREETOWN

Coram

HON. MR. JUSTICE MONFRED SESAY - JA

HON. MR. JUSTICE MOHAMED MOMOH-JAH STEVENS — JA

HON. MR. JUSTICE MICHAEL PATRICK HINDOLO MAMI - JA ADVOCATES S. NICOL ESQ. FOR THE APPELLANT/APPLICANT A.T. TURAY ESQ. FOR THE RESPONDENT/RESPONDENT JUSTICE MONFRED MOMOH SESAY - JA

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Introduction

By Notice of Motion dated the 215t day of March, 2024, the Appellant/Applicant applied to this Court, inter alia, for a stay of execution of the judgment of Honourable Justice Tonia Barnett — JA dated the 22" January, 2024 pending the hearing and determination of this application and the appeal.

The application is supported by the affidavit of Shaun Nicol, Solicitor of 1 Madongo Town, Freetown in the Western Area of the Republic of Sierra Leone and sworn to on the 21% day of March, 2024.

Attached to the Affidavit in Support are the following exhibits, namely:

i) a copy of the judgment of Honourable Justice Tonia Barnett JA dated the 22°4 January, 2024 marked Exhibit “SN1”

ji) a copy of the Notice of Appeal dated the gt February, 2024 marked Exhibit “SN2”

iii) copies of the Notice of Motion dated the gth February, 2024 and the affidavit in support applying for a stay of execution of the said judgment dated the 224 January, 2024 and marked Exhibit “SN 3”

iv) copy of the Affidavit in Opposition sworn to on the 6% March, 2024 opposing the application for stay marked Exhibit “SN4”

v) _ acopy of the order dated the 13" March, 2024 granting stay on terms marked Exhibit “SN5”

This matter first came before us on Tuesday the 7" May, 2024 but our brother, Justice Mohamed Momoh-Jah Stevens JA was unwell and so we adjourned the matter to Tuesday, the 14% May, 2024, but again, nothing happened as both my brothers Justice Mohamed Momoh-Jah Stevens and Michael Patrick Hindolo Mami JJA were otherwise officially engaged and so I adjourned the matter to Tuesday, the 4'” June, 2024 and before adjourning, I granted an interim stay of the said judgment. After another adjournment for want of a quorum for the panel, the matter came up on Tuesday, the 2" July, 2024 and as soon as Learned Counsel for the Appellant/Applicant commenced moving the Court on the application, Learned Counsel for the Respondent/Respondent, A. T. Turay Esq raised a preliminary objection on the grounds that the Appellant/Applicant had been granted a stay already by the trial Court below in an order dated the 13" March, 2024 staying the execution of the said judgment dated the 22°¢ January, 2024.

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Counsel submitted that the present application therefore offended the provisions of Rule 64 of The Court of Appeal Rules, 1985 PN 29 of 1985 (i.e, The Rules) Learned Counsel also relied on the cases of Firetex International Co. Ltd v. Sierra Leone External Telecommunications Ltd ruling delivered on the 26 June, 2003 and Nigeria National SI Ltd v. Abdu Ahmed (Trading as Abdul Azziz Enterprise) 1989 . Counsel also submitted that the application was an abuse of the process. S. Nicol Esq. of Counsel for the Appellant/Applicant, in his reply, submitted that indeed the trial Court below had granted a stay but that the terms were onerous and amounted to a partial fulfillment of the judgment. Learned Counsel relied on the case of Misc. App. 2/94 Between Africana Tokeh Village v. John Obey Development Investment Co. Ltd. He concluded that the stay granted was so onerous that it amounted to a refusal. Learned Counsel A.T. Turay Esq, in answer, submitted that the terms of the stay granted were not onerous as liquidation normally granted stay with undertakings. ‘After hearing both Counsel, we then reserved Ruling which we now deliver.

Background

The Appelant/Applicant was the employer of the Respondent/Respondent and that in the course of his employment, the Respondent/Respondent reportedly breached security protocols by issuing money to a receiving cashier without a special mandate causing the Appellant/Applicant to lose Le317,800,000. The Appellant/Applicant then terminated the services of the Respondent/Respondent for which the Respondent/Respondent sued the Appellant/Applicant at the High Court for unlawful dismissal and the High Court held that the Respondent/Respondent’s termination was unlawful. The Appeliant/Applicant was dissatisfied with that judgment and filed a Notice of appeal dated the 8" February, 2024 and subsequently applied for a stay which was granted on terms which terms the Appellant/Applicant complains are onerous.

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The issue before this Court for consideration and determination is whethi

the terms of the stay granted by the trial High Court dated the 13t Marc 2024 are onerous. mh, To be able to determine that, I think it is useful to consider both the orders of the judgment of the 224 January, 2024 and juxtapose that with the terme of the stay.

The orders in the judgment gg exhibited as “SN1” is in the following terms: “Bi (ABLE MRS TOi BARNI

DATED THIS 22"? DAY OF JANUARY, 2024

IT IS THEREFORE ORDERED:

1) Five months’ salary be paid to the Plaintiff by the Defendant in lieu of Notice using the current salary of the Head of Vault Control.

2) Interest on the said sum at the rate of 12 percent per annum from the 30* day of September 2016 on the date of this judgment.

3) Terminal benefits, bonus, allowances and any other benefits the Plaintiff was entitled to (less than any amount already paid if any) from the 30% day of September, 1987 to the 30" day of September, 2016 using the basic salary of the Terms and Conditions of Service in existence at the time of his dismissal.

4) Interest on the said sum of the rate of 12 percent per annum starting from the 30" day of September to the date of this judgment.

5) Cost is to the Plaintiff to be taxed if not agreed.

In the counterclaim, Defendant claims that Plaintiff is indebted to him in view of a loan he took from the bank during his employment. He further asked for interest on the said sum till payment. The Plaintiff admitted that he is indeed indebted to the Defendant but that his failure to pay the sum was due to his unlawful dismissal by the Defendant. This Court is a Court of equity and therefore will not condone illegality. Since the dismissal of the Plaintiff is declared unlawful by this Court, it will be unconscionable for the Court to order interest to be paid on the principal sum when it was by the deed of the Defendant that payment of the loan and interest was stalled. However, this Court will order thus:

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The pages read for this report end here. The judgment continues in the PDF.