Tunumbu & Another v. Michael Foray (Trading as Futurecom) (C.c. 338/07 2007 T NO 11) [2007] SLHC 39 (17 August 2007);

C.c. 338/07   2007  T      NO 11





MISS LAURETTA KAMARA                                                            - PLAITIFFS/APPLICANTS




J. B. JENKINS- JOHNSTON FOR THE                                            PLAINTIFFS/APPLICANTS

C. PEACOCK FOR THE                                                                    DEFENDANT/ RESPONDENT


The application before me is for summary judgement to be granted to the Plaintiffs/Applicants as per the sums contained in the Judge Summons dated 18th May 2007.The application is supported by the joint affidavit of Melrose Tunubu and Lauretta Kamara sworn to on the 18th May 2007. The Exhibits attached to the said affidavit included the writ of summons in this action, copies of the calculations by the Ministry of Labour and letters on behalf of the plaintiff's demanding payment of End of Service benefits.

After several adjournments at the instance of the defendant, an affidavit in opposition sworn to by Michael Foray on the 12th day of June 2007 was filed.                                           

Counsel for the plaintiff's submitted that he was asking for leave to enter final judgment against the Defendant for the sum of Le 5,159,966.00 and Le 3,953,500.00 respectively with interest on the said sums at the rate of 28% per annum from the 9th January 2007 until payment in full.

On the other hand, Counsel for the Defendant submitted that the plaintiff's cannot apply for and obtain final judgement for both liquidated and unliquidated demands under Order 11 of the High Court Rules 1960. He also contended that the action herein ought not to have been brought by a writ of summons, as the action was an industrial action for which there are set procedures. In writing this ruling I must firstly state that the application was filed under the old High Court Rules but that I shall deal with it under the present High Court Rules, 2007. I must hasten to state that I am certain my ruling would be the same even if I apply the old High Court Rules.

The application before me and the arguments by counsel on either side raise some interesting questions Is this a suitable application to be made under Order 16 of the High Court Rules 2007 or Order 11 of the High Court Rule 1960? Counsel for the Defendant insists that the plaintiff's cannot ask for the final summary judgement for a combined liquidated and unliquidated claim This submission urged me to peruse the judge's summons more carefully. A was submitted by counsel for the plaintiffs, the summons prayed for leave to sign final judgement in respect of stated sums plus interest. The claim for damages for breach of contract contained in the writ was not included in the judge's summons. In my view therefore the only "unliquidated" claim that counsel for the Defendant may be complaining of would be the interest prayed for in the judge's summons in addition to the stated sums.

I now pause to ask the question: can one claim, and does the court have jurisdiction to award, interest in addition to liquidated claim in an application for leave to sign final judgement pursuant to Order 16 of the High

Court Rules? This question was clearly and emphatically answered in the cash of GARDNER STEEL LTD-V-SHEFFIELD BROTHERS (PROFILES) [1978] 3 ALL ER 399, CA where it was held that indeed the court has jurisdiction 1m award interest in such application for summary judgment. ORMROD LJ had this to say in his judgement ( at page 401-402):

"The practice hitherto of regarding interest, on RSC Ord 14 judgements, and being excluded by the terms of s 3 of the Law Reform (Miscellaneous Provisions) Act 1934 seems to me, with respect, to depend on a faulty construction of the section. The relevant part of the section reads:

'(i) In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall by included in the sum for which judgement is given interest at such rate as thinks fit ...”

There seems to be no logical reason at all for construing that statutory provision in such a way as to draw a distinction between proceedings in which the court hears oral evidence and those in which the court gives judgment on affidavit evidence. There can be no possible reason for allowing interest is the one case and not in the other. The practice must have persisted out of punt conservatism. It was not the practice, as one or two cases indicate, before the 1934 Act to award interest under RSC Ord 14, and so everyone has gone on a before. But now the point has been raised I entirely agree with all that Stephenson LJ has said. I respectfully also agree with the observations made by Lord Denning MR in Wallersteiner v Moir (No. 2). But I would base my judgement simply on the construction of s3 of the 1934 Act. 'Tried' must mean 'determined' in that context and here the court has decided that there is no defence. It seems extraordinary that where there is a defence and the court has decided that the defence fails it can order interest; but where it has decided  that there is no defence it cannot award interest. I think it is wholly illogical So the opportunity having now arisen, it seems to me a convenient case for saying that in appropriate cases the judge can order interest on an RSC Ord 1 summary judgement".

I find the above passage very instructive and relevant especially so when the relevant part of section 3 of the Law Reform (Miscellaneous Provisions) And 1934 referred to is ipsisima verba Section 4(i) of the Law Reform (Miscellaneous Provisions) Act Cap 19 of the Laws of Sierra Leone 1960.

I have read the case of KRISHNAKUMAR-V-MOHAMED JUM JALLOH Civ. App No. 415/96 C.A. I do not find this case helpful as it was one dealing with a judgement obtained in default of defence, which is quit different from the present case before me.

I shall now proceed to deal with the second contention by the Defendant, that is to say, that the present action being an industrial action ought not to have been begun by a writ of summons. I am afraid counsel for the Defendant has not furnished the court with any authority supporting the contention. I have read section 133 (2) and (3) of the Constitution of Siera Leone Act No. 6 of 1991. I have also perused the High Court Rules 200 particularly Order 5. There is nothing in the above authorities that preclud-one from commencing actions as this one by a writ of Summons. I note that Counsel has not suggested how this action may or ought to have been commenced other than by Writ of Summons. In any event Order 2 Rule 1 (3 ) provides that "the court shall not wholly set aside any proceedings or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by originating process other than the one employed".

As I said earlier, Counsel for the Defendant has not suggested the correct method to be employed nor has he convinced me that the preset method employed is wrong. Besides, as pointed out by counsel for the plaintiff's there are a host of similar actions that were begun by writ of summons in this jurisdiction. This in 'my view is consistent with the provisions of the High Court Rules 2007 and it is for counsel for the Defendant to furnish me with any authority that suggests otherwise.

For the above reasons I find no merit in the submissions and objection of counsel for the Defendant.

This brings to another observation, that is to say, that there is defence filed or proposed defence exhibited on behalf of the Defendant. Apallante from the above submissions on his behalf there does not seem to be any others facts or allegations showing cause or defence on the merits on the part of the defendant. I am therefore only left with the plaintiffs' affidavit in support ( i their application to enter final judgement for the sums indorsed in the judge summons herein. Having perused the said joint affidavit of Melrose Tunub and Lauretta Kamara sworn on the 18th May 2007 and the exhibits attache ! thereto, I am satisfied that all the requirements contemplated by Order 16 rule 1 and 2 and especially rule 3 have been complied with. I also note that the Defendant had entered an appearance in the action. I therefore order that judgement be entered for the plaintiff's against the Defendant as hereinafter provided, that is to say:

(a) that the Defendant do pay to the 1st plaintiff the sum of Le5,195,966.00 plus interest on the said sum at the rate of 28% per annum from the 9 day of January 2007 until payment in full

(b)That the Defendant do pay to the 2nd Plaintiff the sum of Led3,953,500.00 plus interest on the said sum at the rate of 28% per annum from the 9th day of January 2007 until payment

(c) That the cost occasioned herein assessed at Le500, 000 .00, be borne be the Defendant.