The West African Regional Director & ANOR V Leonard Cheshire International & ANOR (CIV 12 of 2007) [2009] SLCA 17 (18 June 2009)

a IY. APP. 12/2007 . IN THE COURT OF APPEAL OF SIERRA LEONE ! + .BETWEEN: > . . ‘ “°"cTHE WEST AFRICAN REGIONAL DIRECTOR & LEONARD CHESHIRE INTERNATIONL = - 1°" APPELLANTS AND LEONARD CHESHIRE INTERNATIONAL - 2“? APPELLANT AND ABDUL RAHMAN JALLOH - RESPONDENT

Coram

Hon. Mrs. S. Bash-Taqi, JSC (Presiding) Hon. Ms. S. Koroma, JSC Hon. Mr. E.E. Roberts, JA Barristers J.B, Jenkins-Johnston, Esq, for the Appellant Y. H. Williams, Esq. for the Respondent RULING DELIVERED ON THE 18™ DAY OF JUNE 2009 ‘S. BASH-TAOI, JSC:- This is an appeal by the Appellants against the Judgment of Edwards J. delivered on the 28" day of February 2007. The said judgment appears at pages 64 -65 of the Records of the proceedings: Brief History of the Case The attjon commenced by Writ of Summons dated 21" February 2006 in which the Respondent (then Plaintiff), owner of a Tipper Lorry Reg. No AAI 384 brought an action against the Appellant (then Defendant) in the High Court for negligence arising out of a Road Traffic Accident on 19th December 2003. The said accident involved the Respondent's Tipper Lorry AAl 384 and the Appellant’s Toyota Hiace Mini Bus Reg. No ABD

617. In the said action the Respondent claimed ‘Le 60,000,000.00 cost of his Tipper Lorry; Le14,060,00 the value of the goods lost as a result of the accident; Le 2,960,000.00 per month loss of use of the said vehicle from 19 December 2003, the date of the accident, tntil payment and interest. ‘The Appellant enfered an appearance to the Writ of Summons by their Solicitors on 9" March 2006 and of 15" May 2006 filed a Statement of Defence. The Respondent delivered his Reply on 27" May 2006 and thereafter the action was entered for trial on 27" May 2006 before the High Court Holden at Freetown, On 15* September 2006, the Respondent took out a Summons for Directions which was heard on the 26" September 2006 by Taylor J. She gave several directions in accordance with Order XXB.

The directions are:

1. “That a list of witnesses to be called at trial be exchanged between the parties; 2, That written statements of the oral testimony which the parties intend to adduce ‘on any issues of fact be exchanged between the said pasiics

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3. That the parties do discover and exchange all relevant documents to be used at the said trial;

4. That the said list of witnesses, the written statements of witnesses and exchange of all relevant documents to be used at the trial be done within 21 days from the date of this order,

5. That liberty is hereby given by this Honourable Court for further directions to be given, in action herein, if and when necessary,

6 That Tuesday the 24" of October 2006 is hereby fixed as the date for the hearing of the action herein;

“4. That the costs of this application be costs in the cause.” On 24% October 2006, the date fixed for the trial ofthe action in the said order, the action did not commence as both parties had not complied with the directions of the Judge. The case was therefore adjourned to 24" November 2006. On the adjourned date (24" October 2006) when the matter came up before Taylor J, the parties had again not complied with Directions. Counsel deputizing Mr. Yada Williams for the Respondent applied for an extension of time within which to comply with the order, and Taylor J, extended the time to 14" December 2006. Counsel for the Appellant was not present at this hearing, ’ On 13% December 2006, Counsel for the Respondent complied with the Judge's Directions and filed and served on the Appellant's Solicitors the Court bundle containing the Respondent's documents to bbe used at the trial as ordered. Wherlthe matter came up for hearing on adjourned date, of 14% December 2006, both Counsel were resent. Counsel for the Appellant not having complied with the Order on the Summons for Directions, applied for an extension of the time for him to comply with the directions; the application was granted and the time for compliance was again extended to 9 January 2007, ‘The matter next came up in Court on 5" January 2007, instead of 9" January 2007, and this time before Showers J.*in the presence of Mr. Jenkins-Johnston Esq. Mr. Yada Williams for the Respondent did not attend, Mr. Jenkins-Johnston then requested a further adjournment to Tuesday 6" February 2007. The application was granted and notice was ordered to be served on Mr, Yada Wilfiams notifying him of the adjourned date. On 6" February 2007, the matter was not mentioned and there is no record of what transpired, “ On 13" February 2007, the case was reassigned to Edwards, J, and when it was ced up on that day Counsel for the Appellants had again failed to comply with the Court Order. In the result, Edwards J. made the following order:

‘an “Court notes that the defendant has failed refused and or neglected to comply with the orders of Justice Taylor dated 26" September 2006, 24° November 2006 and 14 December 2006, In the circumstances the court orders that unless the defendars! complies with the order of court dated 26" September 2006 within 7 seven days after service of this sstrder the defence filed will be struck owind judgment entered for the plainti.””

‘The matter was then adjourned to Wednesday 28" February 2007. The order of Edwards, J, was drawn up, filed and served on the Appellant's Counsel on 16 February 2007. On the 28° February 2007, when the matter next came up for hearing before Edwards J, in the Pt the rdeone Counsel it was clear that Counsel for the Appellant had again failed to comply With the Judge's, “unless order’. Edwards J. thereupon struck out the Appellant's defence, ented ‘Judgment for the Respondents against the Appellants and made the following orders: “Court notes that there is an affidavit of service of the court order of 13° February 2007 on the file..." Court: The Defendants failed to comply with the Court order dated 13" day of. February 2007 it is this day ordered as follows:

(1) That the Defence dated 15 day of May 2006 filed herein be struck out ‘and judgment be entered for the plaintiff as follows: (@) Le 60,000,000.00 as the cost of the plaintiff's tipper lorry with registration number AAL 384, : (©) Le 14,060,000.00 the value of goods lost in the accident. (©) Le 2,960,000.00 per month for loss of use of the said vehicle from the 19 December 2003 until payment. @ Interest be assessed. “© Cost to be taxed ifnot agreed by the parties. On 6% March 2007 Counsel for the Appellant filed a Notice of Motion applying for the following

Orders

(1) that the Judgment of 28° February 2007 beset aside (2) tha the Appellants’ defence be restored; (3) that the Appellant be granted an enlargement of time within 7 days to comply with the Order of Taylor, J; and (4) that execution of the Judgment of 28" February 2007 be stayed. The Motion was supported by the‘Affidavits of James Blyden Jenkins-Johnston swom on 6 March 2007 and that of J.B. Jenkins-Johnston sworn on 8 March 2007, giving rewwons for the delay in complying with Faylor J ‘s Court Order of 26" September 2006. The Motion came up before Edwards, J, on 29" March 2007 who refused the application, including the application for stay of execution, in a detailed Ruling delivered on 3" April 2007.

The next day, that is, on 4" April 2007, pursuant to the said Judgment, the Respondent took out garnishee proceedings to recover the judgment debt. The motion came up before Edwards, Jon 9" i April 2007, who granted a Decree Nisi, returnable on 25" April 2007. On 17° April 2007, the Appellants Solicitors fled a Notice of Appeal to the Court of Appeal against Edward J, ‘s said Order and Judgment of 28" February 2007, and on 23" April 2007 applied by ied Notice of Motion for a Stay’of Execution of the judgment pending the hieariag and determination of ra the Appeal filed in the Court of Appeal. The motion was fixed for 25" April 2007; an interim stay of execution was granted pending the hearing thereof on that date. On 25" April 2007, Edwards, J, heard the Motion and refused to set aside his Judgment of 28 February 2007 and the Stay of Execution ofthe said judgment. On 3" May 2007 the Garnishee Order Nisi was made absolute, and the Respondent recovered part of the Judgment debt of Le192,000,000.00 from the Appellant's bankers, It is against this background that the appeal came before us. The ‘grounds of appeal filed on 17” April 2007 are as follows: (© That the Learned Trial Judge exceeded his Jurisdiction and was wrong to have entered Judgment against the Defendants herein for failure to comply with the Order made on the Summons for Directions by Taylor J. on 26" September 2006 as Order XXB dealing with Summons for Directions in the High Court Amendment Rules C1. No. 3 of 2006 MAKES NO SUCH PROVISION for Judgment to be entered in such circumstances. (ii) That the Judgment was against the weight of the evidence (ii) The relief sought from the Court of Appeal are: 8) that the Order and Judgment of 28" February 2007 entered by Hun Justice D. B. Edwards J against the Defendants herein be set aside. 2) That the Defence of the Defendants dated 15" May 2006 which was struck out by the Learned Trial Judge be restored. 3) That the Defendants be given such time as the Court shall direct to comply with ~ the Order on the Summons for Dircetions; 4) That the action be remitted to the High Court for Trial; ~5) That the costs of the Appeal be paid by the Plaintiff/Respondent. On the 6" December2007, wien the appeal came up for hearing, Counsel for the Appellants, Mr. J. B. Jenkins-Johnson, applied for leave to amend his first ground of appeal in the manner underlined in th Notice of intention to amend dated 29" May 2007. Leave wus granted accordingly and the amended appeal reads as follows: (i) ‘That the Learned Trial Judge exceeded his Jurisdiction and was wrong to have entered “ Judgment against the Defendants herein for failure to comply with the Order made on the Summons for Directions by Taylor J. on 26" September 2006 as Order XXB dealing with Summons for Direetions in the High Court Amendinent Rules CL. No. 3 of

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