Umaru Zoker & Others v Lincoln Construction & Logistics & Another (MISC APP 19 of 2022) [2024] SLCA 4 (28 February 2024)

‘MISC. APP.019/22 2022 Z. NO.1 IN THE HIGH COURT OF SIERRA LEONE COMMERCIAL AND ADMIRALTY DIVISION) EAST TRACK COMMERCIAL COURT

BETWEEN:

UMARU ZOKER & OTHERS - PLAINTIFFS/RESPONDENTS 32 CANTONMENT ROAD

FREETOWN

AND

LINCON CONSTRUCTION & - DEFENDANTS/RESPONDENTS & LOGISTICS & ANOTHER

BOTH OF 75°SMART FARM

OFF WILKINSON ROAD

FREETOWN

JUDGEMENT DELIVERED BY THE HONOURABLE JUSTICE M.P. MAMI |.A DATED 28" DAY OF FEBRUARY, 2024. COUNSEL ‘TEJAN-COLE, YILLAH & PARTNERS -FOR THE PLAINTIFFS/APPLICANTS HARDING, SESAY & PARTNERS -FOR THE DEFENDANTS/RESPONDENTS

This court is seised of an application dated 4* of August 2022 filed by Messrs. Tejancole, Yillah & Partners solicitors for the plaintiff/applicant praying for the following orders, as contained on the face of the motion to wit:

1. Whether the defendants are in breach of the agreement otherwise described as a memorandum of understanding dated 23" September, 2016 expressed to be made between the plaintiff herein on the one part and Lincon Construction & Logistics (represented by the second defendant herein) on the other part

2. Whether the plaintiffs are entitled to recover the sum of $121,000/= (One Hundred and Twenty-one Thousand United States Dollars) being the sum due and owing the plaintiff by the defendants.

3. Whether the plaintiffs are entitled to interests on the said sum?

4. Whether in light of the breach of the said agreement the plaintiffs are entitled to damages from the defendants, for the breach of the aforementioned agreement?

In light of the above questions, the plaintiffs seek the following relief: -

1. Recovery of the sum of 121,000/= (One Hundred and Twenty-one Thousand United States Dollars) being the sum due and owing the plaintiff by the defendants.

2. Interest from the date sum was due until judgement

3. Interest from the date the judgement until payment pursuant to the law Reform Miscelleanous Provisions Act Cap.19

4. Damages

5. Any further order (s) that this Honourable court may deem fit and just in the circumstances

6. costs.

‘The application is supported by the affidavit of Umaru Zoker, one of the plaintiffs herein with the following exhibits. Exhibit “UZK" = A photostat copy of the memorandum of Understanding Exhibit “UZ2" - A photostat copy of breakdown of funds transferred by the government of Sierra Leone to the defendants Exhibit “UZ3” ~ A photostat copy of the letter of demand,

Background

The matter proceeded to ADR on with the initial agreement of the parties, on the 218 March, 2023, and same was terminated by mutual consent of the parties as they were practicable impossibility between the parties to proceed with same. The matter thereafter proceeded to full trial, with the consent of both parties,

* With leave of this court a supplemental affidavit was filed to the affidavit in support, * with the following exhibits attached thereto. Exhibit “UZ4” A photostat copy of the M.0.U. Exhibit “UZS” ~ A photostat copy of the Bank of Sierra Leones exchange rate for the month of March, 2022 There is an affidavit in opposition filed by M.S. Legal Advisory solicitors for and on behalf of the defendants herein with the following exhibits Exhibit “HAEA 112” - A photostat copy of the M.0.U Exhibit “HAEA 2”- A photostat copy of contract agreement Exhibit "HAEA 4” - A photostat copy of a letter dated 5 April, 2021. There is a supplemental affidavit filed with leave of this court dated 11% day of July, 2023 with exhibit "MBS" - A copy of the termination letter. There is notice to cross-examine Habib Abess Eli-Ali on his affidavit sworn to on the 23" day of January, 2022 There are also four (4) affidavits in reply sworn to by Umaru Zoker, one of the plaintiffs herein, the other by Emmanuel Eddie Watts a human resource coordinator, Ibrahim Sillah trained and experience contractor. ‘The 1* plaintiff Umaru Zoker was cross-examined on his affidavit by counsel for the defendants to the following effect in its full, all of which I will rehash herein to wit: Umaru Zoker (SOK) XX Yes, I consulted my solicitors to institute the action. XX Yes, I gave to Mr. Thomas, the M.0.U. XX Yes, I decided to litigate based on issue in the M.0.U. (Witness referred to Clause 7 of the M.0.U) XX Yes, am familiar with the name Moi Moi Sakwee. He was one of the engineers that worked on the site (Witness asked to peruse the exhibits attached to the affidavit in support) XX The M.O.U was prepared before Mr. Sakwee came in (Witness referred to exhibit UZ 2) XX I procured an engineer on the site XX We were all working as a group so there was no need for a separate contract.

XX The date on the M.0.U is 23" September 2016. This M.O.U was prepared before we started the contract. (Witness asked to Read U2 in its entirety) XX That's your opinion that is making of a registration number. XX The M.0.U was registered XX We all worked asa team, save that we had differences which brought us before this court. XX I was aware that Mr. Sakwee a sub-contractor with the defendant company to fulfil the demonstration as a site administration, (END) (Re-examination by Mr. Tommy) XX Mr, Sakwee’s role is that site was to administer and be in charge of the site, and pay workers, hire machines, Mr. Watt was his assistant. So all the funds government gave that went into the defendant's accounts, I then asked Mr Sakwee an estimate for the main accounts, so he submitted the accounts. XX I then said we should search for a reliable, dependable that the contract would have been completed within the timelines XX The 2é plaintiff recommended the defendant company, which is the 1*t defendant. I gave him four (4) days to search for the person, we sat down there and so discovered, the 1 issue I raised was for us, and we had pre-contractual issues. XX Sillah was there, Mammoi was there and there were other engineers (myself and the 2-4 plaintiff brought Sillah and the other engineers. (END) (Cross-examination) (DW1) XX Yes, I signed the affidavit in opposition dated 23" January, 2022. (Witness referred to paragraph 3 of the affidavit in opposition) also referred to the M.O.U clause 7) XX In the first instance, this M.0.U was prepared by mygoodself with the understanding that the defendant company will do the whole job at the site, because it was my company, which had the contract and I signed the contract.

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