Tom Nyama v Salini Construttori Spa (CIV APP 36 of 2007) [2011] SLCA 34 (15 July 2011)

CIV. APP. 36/2007 de INTHE COURT OF APPEAL OF SIERRA LEONE BETWEEN: TOM NYAMA - APPELLANT (doing business as TEKO AGRICULTURAL PROJECT) AND SALINI CONSTRUTTORI SPA - RESPONDENT (SALCOST)

Coram

Hon. Ms. Justice S. Koroma J.S.C. Hon. Mr. Justice P.O. Hamilton J.S.C. Hon. Mr. Justice A. N. B. Stronge J.A. SOLICITORS: ‘A. S. Sesay Esq for Appellant N.D. Tejan-Cole Esq for Respondent 15° —, [ENT DELIVERED ON THE _DA\ OF. 2011. KOROMA JS.C. KOROMA JS.C.~ This is an Appeal against the Judgment ofthe Honourable Mr, Justice

1. E. Massaly J. deceased delivered by the Honourable Mrs. C. L. Taylor on the 9" of June 2006.

Background

‘The facts of the case according to the evidence is that in may of 1992 Salini Construttori SPA (SALCOST) a foreign company doing business in Sierra Leone the RespondenvDefendant (hereinafter called the Respondent) entered into an agreement with Tom Nyama (doing business as Teko Agricultural Project) the Plaintff7Appellant (hereinafter called the Appellant) 10 undertake the clearing ofthe catchment area of the dam and reservoir at Bumbuna which is being constructed by the Respondent. The pares signed the agreement in May 1992 and the contract period was from 1 May 1992 1030" April 1994. The terms and conditions ofthe contract were detailed

3t in the Letter of Intent signed by both parties. It was indicated the leter of intent would serve as the contract until a formal contract was drawn up. (On the 21" August 1993 the Respondent drafted a letter headed “Bumbuna falls Hydro Electric Project - Object: - Reservoir clearing project ~ claims, settlement and works suspension”. The gist ofthe leter was for a temporary suspension of the contract and it was also indicated thatthe Respondent could not fix a date for resumption of the works. Each party's obligations in the contract were set out in detail. Both parties signed the agreement. On the 23" June 1995 the Respondent again wrote to the Appellant suggesting that the contract be terminated because since the suspension in 1993 no date could be envisaged for resuming the works and with the added difficulties of the war it was pointless 19 continue with an indefinite suspension of the works. ‘The Appellant was opposed to the termination ofthe contract and proposed continuation of the indefinite suspension of the contract. Subsequently, by leter dated 21" August 1995 the Respondent terminated the contract. The contract had lasted 15 (fifteen) months, The Appellant issued a Writ dated 24" April 1996 against the Respondent for Damages for breach of contract and consequential loss upon such breach of contract and for costs. ‘The High Court action came before the Honourable J. E. Massaly J. now (Deceased) and he, after reviewing the evidence gave Judgment in favour ofthe Respondent. It is against that Judgment thatthe Appellant has appealed to this Court on three (3) grounds. ‘The Grounds of Appeal are as follows: 1. ‘That the Leamed Trial Judge's conclusion that documents Tendered in Exhibits“

“Li and °M" were not a unilateral conduct on the part of the Defendant, and

therefore dismissed the matter is erroncous - in that the suspension was not an

issue, but the termination of the contract.

2, That the Leamed Trial Judge erred in that he did not address the question off termination of the contract which is the thrust of the Appellant's case

3. That the Judgment is against the weight of the evidence Before considering the grounds of Appeal I wil briefly deal with the issue ofthe contract between the parties. The transaction between the pasties started with a letter from the Respondent by its Site Manager on a day in May 1992 addressed to the Appellant. This was headed “Letter of Intent”, ‘b’ of the preamble of the Letter of Intent stated “This Letter of Intent is Being issued as a temporary substitute pending signing of @ formal contract o enable work on the Reservoir area clearance fo commence immediately”. “The letter contained all the terms and conditions ofthe parties pertaining to the clearance of the dam/reservoir area. Most importantly the duration of the project was spelt out to commence on the 1" of May 1992 and end on the 30° April 1994 — in effect a period of two years. Both parties signed the Letter of Intent and for all intents and purposes the paris regarded tis asthe contract document of the project. As fr asthe records B9 no “formal contract” was thereafter signed. Neither party has disputed the validity of the document signed. Ground 1 (One) ‘The Appellant's contention is thatthe suspension of the contract was the unilateral act of the Respondent. The suspension of the contract was dealt with in Exhibit ‘H’ in leter drafted by the Respondent dated 21" August 1993 which both parties subsequently signed. For claity’s sake, I will reproduce two short portions ofthat document headed “Object: Reservoir clearing project ~ claims settlement and works suspension”. “Concerning the above project, we inform (sc) that you, that due to various reasons we ‘are forced to suspend the works. We assume thatthe activities will be resumed ata later stage, but we are not able to fix «a date at the present moment. Therefore we wish to make the following proposal for @ temporary suspension of the works and ofthe subject agreement”.

ee ee ee eee

The letter went on to detail the obligations of both the parties, and it ended with the following two paragraphs “The Contractor will sign a copy of this letter for acceptance of all the above clauses and receipt of outstanding balance due him. The Sub-Contractor Teko Agricultural Project declare also that by signing the subject letter has nothing else to claim from SALCOST Sierra Leone for the whole contractual period and during the suspension of the works, in connection with the agreement signed May 1992”. It is clear from the two quoted segments of Exhibit ‘H' that the suspension of the contract ‘was proposed by the Respondent, but Exhibit ‘H’ clearly showed that it was however a negotiated agreement reached by both parties and this was further confirmed by Exhibit ‘M" in which the Appellant dealing with other issues thereafter stated “I further stressed that I was comfortable with an indefinite suspension for as long as SALCOST considered it unsafe for us to resume the clearing operations”. In the light of this I find the Learned Trial Judge was correct in his conclusions that the suspension of the works and contract was not a unilateral act ofthe Respondent. I find no ‘merit in ground one (1) of the Appeal. Ground 2 (Two) This is a ground worthy of more consideration. The Learned Trial Judge found that both the suspension and termination of the contract were not unilateral conduct of the Respondent. I beg to differ. The issue of the termination of the contract is ofa different nature from the suspension of the contract which was endorsed by the Appellant. The Respondent addressed a letter Exhibit ‘J’ to the Appellant on the 23° June 1995 which stated: “As the works are suspended since 1993 and no date can be envisaged “for resuming the project, thus also considering the added difficulties created by the war ‘situation in the country we formally suggest to mutually convene a termination to our agreement. You will agree that it is now pointless to continue with an indefinite suspension of the works”

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