GOMEZ v SIERRA LEONE NATIONAL SHIPPING CO (C.C. 503/03 )  SLHC 11 (10 November 2008);
2. The Plaintiff was Defendant, and the 1st Defendant herein was Plaintiff in an action intitled:
C.C. 503/03 2003 G. No.10
ALBERT GOMEZ - PLAINTIFF
SIERRA LEONE SHIPPING COMPANY - DEFENDANT
In which the 1st Defendant herein claimed, inter alia, the sum of Lel05,833,736/00 as retirement benefit. The Plaintiff defend the action in its pleadings and in proceedings for summary judgment brought by the 1st Defendant.
3. On or about the 2nd day of October, 2003 the Plaintiff paid to the 1st Defendant the sum of Le18,057,531/00 in part settlement of the 1st Defendant's claim.
4. By Judgment dated the 24th day of November, 2003, the 1st Defendant was awarded the sum of Le50,000,000/00 and costs of Le2,500,000/00, and on or about 28th November, 2003 the Plaintiff made a further payment of Le15,000,000/00 to the 1st Defendant leaving an outstanding balance of Le35,000,000/00 in respect of the Judgment debt, which amount the Plaintiff promised to pay within 3 months of January, 2004.
5. By Order dated the 11th day of December, 2003 the 1st Defendant was awarded interest on the respective sums of Le 68,000,000/00 with effect from 1st September, 2001 to 30th September, 2003 and Le50,000,000/00 with effect from 1st November, 2003 to the date of judgment at the rate of 20 per centum per
annum respectively. The respective amounts of interest payable were not stated by the Presiding Judge nor in the drawn up Order.
6. On or about 11th June, 2004 the Plaintiff paid to the 1st Defendant the sum of Le8,000,000/00 in further satisfaction of the judgment debt, thereby leaving an outstanding balance on the same of Le27,000,000/00.
7. Despite the fact that the balance on the principal amount of the judgment debt stood at Le27,000,000/00 on 2nd July, 2004 the 1st Defendant sued out a Writ of Fieri Facias directed to 2nd Defendant issued his Warrant dated 6th July, 2004 for execution to levy on the Plaintiff for the sum of Le52,500,000/00.
8. The 1st and 2nd Defendants did not levy execution on the chattels and other personal property of the Plaintiff, but rather, the 2nd Defendant on or about the same day i.e. 6th July, 2004 printed and published a Notice of Sale of the
Plaintiff's properties situate at and known as 2A and 4A Off Spur Road, Wilberforce, Freetown.
9. On or about 29th September, 2004 the Plaintiff paid to the 1st Defendant the total sum of Le29,500,000/00 being full and final settlement of the principal amount of the judgment debt and costs. This payment rendered nugatory and/or otiose, the aforesaid Writ of Fieri Facias and Notice of Sale respectively as the amount demanded in both of them, i.e. Le52,500,000/00 had been paid in full.
10. On or about 1st October, 2004 the 1st and 2nd Defendants procured and obtained a purported valuation of the Plaintiff's said properties, the same being appraised at a "considerable undervalue" at Le200,000,000/00. As of that date, the judgment debt had been paid in full as stated in paragraph 8 supra.
11. On 5th October, 2004 the 1st Defendant through his Solicitor acknowledged receipt of the said sum of Le29,500,000/00 and for the first time, notified the
Plaintiff that the interest payable in respect of the said Judgment and Order was the total sum of Le30,416,660/00. The Plaintiff through its Solicitors, disputed the said computation, and by letter dated 14th October, 2004 addressed to 1st Defendant's Solicitor, requested that payment of whatever interest was agreed upon be deferred to 31st January, 2005. The Plaintiff heard nothing further from 1st and 2nd Defendants.
12. The 1st Defendant did not sue out a fresh Writ of Fieri Facias levying execution for the sum of Le30,416,660/oo as was required by law; nor did the 2nd Defendant issue a fresh Notice of Sale in the event that execution on the personal estate of the Plaintiff failed to satisfy in full, the amount levied.
13. The 1st and 2nd Defendants having failed and/or neglected to sue out a fresh Writ of Fieri Facias and to issue a fresh Notice of Sale, the Plaintiff was prevented from exercising the right accorded him in Section 7 of the Execution Against Real Property Act, Chapter 22 of the Laws of Sierra Leone, 1960, to wit: "free election by itself as to what portion of the said houses, lands, hereditaments. Shall be sold sufficient to satisfy the monies due and payable on such execution....."
14. Further, the said sum of Le52,500,000/00 in respect of which the 1st Defendant sued out a Writ of Fieri Facias having been paid in full by 229th September, 2004, and no other Writ being sued out by the 1st Defendant, any further levy of execution was unlawful.
15. On 11th January, 2005 the 3rd Defendant wrote to the Plaintiff's tenants at 2A and 4A Off Spur Road, Wilberforce, Freetown notifying that that he had purchased the said properties on 7th January, 2005 pursuant to a Writ of Fieri Facias dated 2nd July, 2004 thus confirming the Plaintiff's contention in paragraph 11 & 12 supra that no fresh Writ of Fieri Facias was sued out by the 1st Defendant. A copy of the letter was addressed to the Plaintiff by the 3 rd Defendant.
16. The Plaintiff cause a search to be carried out at the Registry, and the search revealed that by Indenture dated 7th January, 2005 and duly registered as No.4/2004 (sic) at Page 14 in Volume 582 of the Record books of conveyances kept in the said Registry, the said properties had been sold to him by the 2nd Defendant at the "considerable undervalue" of Le350,000,000/00. The 1st and 2nd Defendants had in effect sold property, by their own estimation worth Le350,000,000/00, to recover a sum less than 10 per centum of the sum, to wit: the sum of Le30,416,660/00.
17. As a result, the Plaintiff commissioned a valuation of its properties. The value of the land and building was estimated to be in the region of Le827,000,000/00.
18. In the premises, the Defendants have been guilty of "Unconscionable Conduct" and the Plaintiff has suffered loss and damage.
The 1st Defendant by his Solicitor filed a defence on the 11th of March 2005. It consisted in denials and averments portraying a different picture to the proceedings involving the writ of fieri facias and all subsequent proceedings which the plaintiff would want declared null and void and the sale of 2A & 4A Off Spur Road Wilberforce the plaintiff's properties which the plaintiff would want set aside .The 2nd Defendant too defended the action filing his defence through the Law Officers' Department on the 1st of March 2005. It too consisted in denials and averments portraying a different picture to the proceedings which are being challenged by the Plaintiff. The 3rd defendant defended the action and was the first to file a defence dated 23rd February 2005. It consisted in denials, averments and raised legal issues. More on these as the Judgment unfolds.
BRIEF FACTS OF THE CASE
The facts of this case are that the 1st defendant herein brought an action in the High Court of Sierra Leone intituled CC 503/ 03 2003 G NO 10 ALBERT GOMEZ VS SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED,
against the Plaintiff herein, therein the defendant . This was a case of where the 1st
defendant herein ALBERT GOMEZ claimed outstanding end of service benefits and Judgment was given in his favour.
Problems arose, however, when after the Judgment was delivered firstly on the 24th of November 2003 and later on the 11th of December 2003 which assessed the interest at 20% of the Le 68,000,000 with effect from the 1st of September 2001 to the 30th of September 2003 and 20% of the Le 50,000,000.00 with effect from the 1st of November 2003 to the date of that Judgment, plus the payment of costs in the sum of Le2,500,000, the plaintiff, after a series of part payments, eventually paid the full amount but not the interest despite being aware of writ of fieri facias which called for payment of the Judgment debt at Le50,000,000.00, costs of Le 2,500,000 and interest and a notice of sale of the Plaintiff's properties situate lying and being at 2A &4A Off Spur Road Wilberforce. Meanwhile the 1st defendant not being bothered that there was need to take out a fresh writ of fieri facias for the said interest, caused the under Sheriffs office to go ahead with the sale of the Plaintiff's properties notwithstanding that the full amount of the Judgment debt less the interest had been paid. The 2nd defendant went on with the sale by public auction and sold to the 3rddefendant, a Mr. Martin Michael pursuant to the said Notice of sale dated 6th July 2004 for a sale to take place on the 16th of October 2004. The actual sale only took place on the 23 of December 2004 and a Conveyance was executed by the Sheriff of Sierra Leone to the 3 Defendant Mr. Martin Michael. In consequence of all this, the plaintiff is seeking the aforementioned reliefs.
The evidence in this case consisted in the oral testimonies of the Plaintiff's witnesses and the defendant witness together with the several documents admitted in evidence as exhibits . The plaintiff called 6 witnesses as follows:
PW 1 SYLVESTER BUNDAR FOMBA: He was the Managing Director of the
Plaintiff's Company . He stated that the plaintiff owned 2A & 4A but on the 7th of January 2005 they received a copy of a letter written by the 3 defendant claiming ownership of their properties. Under cross examination by the 1st defendant Solicitor he
stated that he did not know that the said properties were sold by the Sheriff of Sierra Leone, the 2nd defendant herein . He also did not know that a Notice of Sale was affixed at their properties. Under cross examination by the 3rd defendant PW1 produced and tendered the letter dated 11th January 2005 received from the 3rd defendant as Exhibit A.
PW2 MR EKUNDAYO PRATT
Was not able to testify until after pw3 and gave his testimony as follows He produced and tendered the certified copy of the Conveyance in this action marked Exhibit G. 1 It was a Deed of Conveyance dated 7th January 2005 executed by the Sheriff of the Republic of Sierra Leone BRIMA ACHA KAMARA as vendor to the 3rd defendant herein and registered as No 4/2004 at page 14 of Volume 582 of the Record Books of Conveyances kept in the Office of the Administrator and Registrar General in Freetown. He also produced and tendered Exhibit H which is the conveyance showing that the plaintiff were the owners of properties situate lying being at 2A & 4A Off Spur Road Wilberforce the same which was registered as no 971/75 at page 99 in volume 279 of the Record Books of Conveyances . Under cross examination this witness noted that the signature of the vendor the Sheriff of Sierra Leone was proved on the 7th of January 2005 and that it was an error that it carried a registration number 4/2004 as if it was registered in 2004.
PW3 MR CROMWELL NEDDY COKER; He was the Admin and Personnel manager of the Plaintiff Company. He said he knew the aforementioned property and that the same was a 3 storey building divided up into 3 apartments and that up to December 2004 the building was leased to one HUSSEIN HAMOUD. The said building was however sold for Le 350,000,000 but that this company had nothing to deal with the sale. My Company did not authorize any one to do the sale. He testified to the fact that his Company had some dealings with the 1st defendant regarding his claims for benefits and produced and tendered the following documents as exhibits:
Letter referenced PD48/CNC/RNB dated 2nd October 2003 as Exhibit B1;
Letter referenced AMD29/RNB dated 18th November 2003 as Exhibit B2;
Letter referenced AMD025/MAT dated 11th June 2004 as Exhibit B3;
Letter referenced PD55/CNC/RNB dated 29th September 2004 as Exhibit B4;
Letter unreferenced dated 14th October 2004 from Berts and Berewa Solicitors to Yada
Hashim Williams esq as Exhibit B5.
He stated that his Company only knew about the interest of Le 30,416,660.00 on the 14th of October 2004 and that it was only after receipt of exhibit A that his company knew that its properties had been sold to the 3rd defendant.
Under cross examination this witness stated that he was aware of the Judgment of this Honourable Court on the 24th of November 2003 and 11th December 2003 but that his company had complied with both Judgments .He also produced and tendered exhibit C which is a letter dated 5th October 2004 and stated that exhibit B5 was the reply by the Plaintiff to exhibit C which was written by the 1st defendant's solicitor . This witness produced the letter of 14th October 2004 as exhibit D
PW4 MR. JOHN JARRET: He produced and tendered Exhibit E .This was a file from the Under Sheriff's office which contained the following documents viz
i) Writ of fieri facias dated 2nd July 2004
ii) Warrant dated the 6th of July 2004
iii) Notice of sale dated 6th July 2004 by public auction of properties situate lying and being at 2A &4A Off Spur Road Wilberforce otherwise known as Scan Drive
I have chosen to give a full text of this witness' testimony and hereby reproduce it verbatim.
"I am here in response to subpoena dated 9th February 2006. I have with me the official file in respect of C.C. 502/03 2003G. No.10 BETWEEN ALBERT GOMEZ AND SIERRA LEONE SHIPPING COMPANY which I produce and tender as exhibit E. I see in exhibit E a warrant dated 6th July 2004 for Le 52,500,000.I did not issue any other warrant in this matter. I see in exhibit E a notice of sale dated 6th July 2004 for the sale
of house and land at Off Spur Road, Wilberforce. I did not issue any other notice . I see in exhibit E a writ of fieri facias for Le 52,000,000.00plus cost of execution besides Sheriff's poundage, office fees, cost of levying and all other legal and incidental expenses. The fi.fa is dated 2nd July 2004. No other writ of Fifa was sent to me in respect of the matter I have referred to. I carried out the sale on the 8th January 2005at the site. The buyer was the 3rd Defendant. The reserved price was Le 200,000.00 based on the valuation certificate by Mr Olu Campbell. I see a receipt for the purchase price dated 10 January 2005. I have not seen exhibit B4. If I was aware of exhibit B4 I would not have proceeded with the sale."
Under cross examination by the 3rd defendant PW4 stated as follows: "I agree that the sale of the properties was carried out pursuant to a valid writ of Fi.fa.. When I sold the properties there was no order stopping me from carrying out the sale. Between December 2004 and January 2005 my office carried out two sales of real Property .Those sales were done at Scan Drive .One of those sales took place on the 23rd of December 2004.That sale is the subject matter of this case. I made a mistake when I said earlier that that the sale of the properties in this case was on the 8th of January 2005. Prior to the sale, I did not receive any communication from the plaintiff about satisfaction of the Judgment debt. I see exhibit E. there is a receipt attached to exhibit E dated 10th January 2005 for the sum of Le 350,000,000.00 paid by the Sierra Leone National Shipping Co. The Sierra Leone National Shipping co never paid that amount. That amount was paid by cheque drawn on Rokel Commercial Bank No 705316. The normal practice on the payment by cheque is that cheque is paid into the Sub Treasury a day or two after the presentation of the cheque. My office never executes a Conveyance in the case of sale of Real Property before payment. In the instant case the Conveyance was executed after receipt of payment. The 3rd Defendant paid by cheque as purchaser. I see a document which is a deed in accordance with schedule B of the Execution Against Real Property Act Cap22 of the Laws of Sierra Leone 1960 which I produce and tender admitted and marked F
Under re-examination PW4 sated that the amount on exhibit E was paid by the purchaser the 3 rd defendant.
PW5 MR VICTOR WILLIAM HORTON: He produced and tendered the case file in the matter intituled C.C. 503/03 2003G.No.10 BETWEEN ALBERT GOMEZ AND SIERRA LEONE SHIPPING COMPANY as exhibit J.
PW6 KADRI AYOUBI: He stated that he knew the buildings the subject matter of this action and that he was mandated to inspect them for the purpose of preparing a valuation certificate. This was done and the said valuation certificate was produced and tendered as Exhibit K. Under cross examination this witness stated as follows:
"I first went to the buildings one or two years before I prepared Exhibit K. I went to the buildings in respect of another valuation .In respect of Exhibit K. I went to the properties on the instructions of the Plaintiff. The plaintiff did not tell me that a valuation certificate had been prepared in respect of the buildings in exhibit K. I did not ask the plaintiff whether there had been a previous valuation report in respect of the buildings in Exhibit K. Exhibit K is dated 2nd January 2005"
The defence only called one witness in the person of YADA HASHIM Williams. DW1.MR YADA HASHIM WILLIAMS testified as follows:
"I know the defendant who was employed by the plaintiff up to August 2001. The 1st defendant was my client and I had instructions to write and demand end of service benefits which were about 2years outstanding. I see a copy of the letter I wrote which I produce and tender, admitted and marked Ext L. I also wrote four letters on behalf of the 1st defendant which I produce and tender admitted and marked Exhibit M1-4. I received two letters from Solicitor for the plaintiff which I produce and tender, admitted and marked Exhibit N 1-2. I see also letters written by the Plaintiff to Messrs Betts and Berewa Solicitors which I produce and tender admitted and marked Ex 01-2. I see letter
from the 1st defendant to Plaintiff which I produce and tender, admitted and marked Exhibit P. I made several attempts to execute a writ of Fi.fa against the personalties of the plaintiff but I was unsuccessful. In January 2004 I obtained a Garnishee Nisi and evidence from the Rokel Commercial Bank (SL) Limited revealed that the plaintiff's were 40-50 million leories overdrawn . I knew that a valuation was done by a Mr Campbell which is part of exhibit F. The Plaintiff's were present in court when exhibit J was delivered and I served the judgment on the plaintiff indicating the interest. The plaintiff agreed with my computation of the interest. When the properties at Scan drive were sold there was an out standing amount owing to the 1st defendant in excess of Le 30,000,000.00 . Plaintiff made unfulfilled promises to pay the out standing balance up to October 2004."
Under Cross examination by the Plaintiff's Solicitor, Mr. Williams said he is not a party to this action. "I was solicitor for the 1st Defendant in the action in exhibit J. I do not know whether the under Sheriff filed any returns to the writ of fi.fa. The quantum of the interest is not stated in the Order of court dated 11th December 2003 . I see exhibit C which indicated the interest due. That was the first time I indicated the computation of the quantum of the interest. On exhibit E the Sheriff's warrant, the quantum of the interest is not stated. By the Judgment dated 11th December 2003 the interest ordered is 20% from the 1st November 2003 to the date of Judgment. I see exhibit B5 which disputes my calculation of the rate of interest. I did not enquire from the plaintiff whether they had any property which they could put for sale to satisfy the claim for interest.
Under cross examination by the 3rd defendant the DW1 said in the action in exhibit J the firm of Betts and Berewa were solicitors for the defendant. In this action the firm of Betts and Berewa are solicitors for the Plaintiff. The defendants in exhibit J are the same as the Plaintiff in this action . I did inform Betts and Berewa on several occasions that the properties at Scan Drive will be sold if the plaintiff failed to pay. I kept the plaintiff notified of the intention to sell the properties at Scan drive. There was no attempt to stop the sale.
The 2nd defendant did not testify or call any witness. The 3 rd defendant too did not testify or call witnesses.
Having considered the pleadings and the evidence adduced by the Plaintiff and the 1st defendant together with the various exhibits admitted in evidence the following cannot be denied and are otherwise well established.
That the sum of Le 68, 000,000 was adjudged to be end of service benefits due and owing to the 1st defendant in the action intituled C.C. 503/03 20003 G No. 10 - ALBERT FOMEZ, PLAINTIFF AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED, instituted at the instance of the 1st defendant herein.
By Judgment dated the 11th of December 2003, this Honourable court assessed and awarded interest at 20% of the Le 68,000,000 with effect from the 1st of September 2001 to the 30th of September 2003 as the plaintiff made a payment of Le 18,057,531 on the 2nd of October 2003 and 20% of the Le 50,000,000.00 with effect from the 1st of November 2003 to the date of Judgment as gleaned from exhibit J.
At the payment of Le 15,000,000 on the 28th of November 2003, which was just after the Judgment of 24th November2003 which adjudged that they pay the Le 50,000,000, the plaintiff premised to pay the balance Le 35,000,000.00 within three months but never paid a single cent thereafter within the next 3months. This status quo continued unabated until the plaintiff was forced to file apraecipe for a writ of fieri facias on the 10th of June 2004. It was not until the 11th of June 2004 that the plaintiff decided to make the next payment which was minimal and in the sum of just Le 8,000,000.00. As the praecipe was already filed the plaintiff followed it with a writ of fi.fa dated the 2nd of July 2004; this was followed up with a warrant dated the 6th of July 2004. Thereafter a Notice of sale of the properties in question ensued on the very same day and it was pursuant to the said Notice that a sale of the aforesaid properties was finally concluded on the 23 of December 2004 and a conveyance executed on the 7th of January 2005 by the Sheriff of Sierra Leone to the 3rd defendant with no fresh writ or notice of sale issued or put out.
Against this backdrop of the execution proceedings the issue that calls for attention is whether noting the above, the reliefs prayed for could be granted.
1. Declaration that the Writ of Fieri Facias and all subsequent proceedings in the action intituled C.C. 503/03 20003 G No. 10 are null and void and/or of no effect:
The 1st relief prayed for is A Declaration that the Writ of Fieri Facias and all subsequent proceedings in the action intituled C.C. 503/03 2003 G No. 10 - ALBERT FOMEZ, PLAINTIFF AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED, Defendant are null void and/or of no effect.
For the plaintiff to succeed on this claim he must be able to prove that the writ of fieri facias was a nullity, fundamentally flawed ab initio and destitute of any legal effect. The writ of fieri facias otherwise called a writ of fifa may have been irregular or defective but this is not the same as saying that it should be declared null and void. The Plaintiff has prayed that it be declared null and void; this requires a close examination of the writ of fieri facias sued out in the action intituled C.C. 503/03 2003 G No. 10 - ALBERT FOMEZ vs SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED. On a careful and proper examination of this writ of fieri facias dated 2nd July 2004 (part of exhibit E)which was sue out By Mr. Yada Williams as Solicitor for Albert Gomez in those proceedings, this court notes that it was in accordance with form and regularly issued out of the High Court in that action . There was no obligation under law for it to state and It did not state the exact quantum of the interest payable but it stated that interest was payable reference to the Judgment of 11th December 2003 which was the only Judgment that assessed and awarded interest at 20% of the Le 68,000,000 with effect from the 1st of September 2001 to the 30th of September 2003 and 20% of the Le 50,000,000.00 with effect from the 1st of November 2003 to the date of Judgment.
The fact that the interest was wrongly calculated as could be gleaned from the evidence of DW1 under cross examination should not be of any fatal coincidence as interest was
charged on the writ and some amount of money as interest had to be paid and was out standing when the writ was issued. In this case even with a rough calculation one could see that it was still a huge amount. The writ of fieri facias may however had been defective in that at the time it was issued which was the 2nd July 2004, the plaintiff had by then paid the sum of Le 23,000,000.00 of the Le 50,000,000 outstanding leaving a balance of Le 27,000,000 plus cost of Le 2,500,000 and interest; thus the writ of fifa should have been issued for the balance as herein presented. This was not done and was wrong and irregular in the circumstances.
In the case of CLISSOLD VS CRATCHLEY (1910) 2KB 244 it was held that it was wrongful to issue a writ of fieri facias after payment and the person who does this may be liable for trespass or for damages for improperly levying execution provided that in both cases malice is proved.
Similarly, it was held in the case of CUBIT VS GAMBLE (1919) T.L.R. 223 that it was wrong to issue a writ of fieri facias after a valid tender.
By necessary implication, this means that if the sum of Le 23,000,000 out of the sum of Le 50,000,000.00 has been paid, it would be improper to join that amount in the writ of fieri facias suing out for the sum Le50,000,000.00 against that same person, as the sum already paid is supposedly inclusive of that amount. I take support for this from the notes in the ENGLISH ANNUAL PRACTICE 1999 UNDER THE RUBRIC ENFORCEMENT OF MONEY JUDGMENTS BY WRIT OF FIFA : TIME FOR ISSUE OF WRIT OF FIFA AT PAGE 783 PARAGRAPH 45/1/5 where it is stated that it is wrongful to issue a writ of fi.fa for a sum greater than the amount actually due at the time of its issue. It could however not be doubted that this was what the 1 st defendant then Plaintiff's solicitor did on the 2nd July 2004 when he issued the writ of fieri facias in the action intituled C.C. 503/03 2003 G No.10 - ALBERT FOMEZ, AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED.
Be that as it may, such irregularity does not in the opinion of this court tantamount to a reason why it would be necessary to declare that the writ of fieri facias null and void The reasons for this are Firstly, that what was being sued out was what was reflected in the Judgment, not more, not less, except that, at that time, the amount for which execution should be levied had reduced, because it had, by then, been paid. Surely this cannot be something that should nullify the proceedings. If the amount sued out by the writ was a sum quite higher and different from the Judgment from which the power to sue out the writ ensued, then the writ would have been baseless and destitute of any effect. But at things stood Mr. Williams was enforcing the Orders of a Competent court which had not been carried out in full.
Secondly Section 50(1) & 50 (2) of our High Court Rules 1960 dealing with Non compliance provide as follows:
"50(1) Non compliance with any of these rules , or with any rule of practice for the time being in force , shall not render any proceedings void unless the court shall so direct but such proceedings may be set aside either wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as the court shall think fit.
50(2) No Application to set aside any proceedings for irregularity shall be allowed unless made within reasonable time . nor if the party applying has taken any fresh step after knowledge of the irregularity."
According to the ENGLISH ANNUAL PRACTICE 1960 PAGE 1986
"The effect of these provisions is that a distinction is to be drawn between proceedings which are null and void and proceedings which are merely irregular in the sense that they involve non
compliance with any of the rules of the High Court or with any rule of practice. In both cases an application should generally be made to the court to set the proceedings aside. Both rules 1&2 of this Order do not apply to the 1st class of case but only the 2nd. The first class of case the party is entitled ex debito jusitae to have the proceedings set aside without condition, for they are nullity, though the court retains its discretion as to costs of application and may refuse them."
I have applied the non compliance provisions in the Old rules because this case was concluded at a time when those rules were in force. It would, however, not make any radical difference if is was considered under the new Rules .
The effect of such authorities is that an application even if is to declare the writ null and void should be made in the action from which writ of fi.fa emanated . Thus I should think that the proper time for praying for such a relief is not at this stage but at a stage long past and spent with shocking inaction from the plaintiff. The plaintiff had an opportunity as defendant in the action intituled C.C. 503/03 2003 G No.10 - ALBERT FOMEZ, vs SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED to have applied for the proceedings to be declared null and void but did not do so or even to have applied for the writ to be set aside wholly or in part and to even ask for a stay of the execution against their properties but failed to do so. Instead what is noted is that from the date the writ was issued they made an attempt to pay the full amount thereby taking a fresh step after being aware of the irregularity.
Was there a necessity to issue another writ levying execution for the sum of Le30, 416,660 as interest as the plaintiff in the current action would want this court to believe? I would think not, for the writ of Fieri facias as it was, covered interest and the plaintiff was expected to have known that. The said Writ of Fieri Facias dated 2nd July 2004 was still subsisting right up to the time of sale of the Plaintiff's properties as the interest mentioned in the Judgment of the 11th December, 2003 and the Writ of Fieri Facias were
not satisfied as no interest was recovered pursuant to the writ in circumstances were it called for interest and no return made in this regard. While this was the scenario the writ of fieri facias still subsisted especially as it was never set aside for irregularity, declared null and void and /or the execution stayed. It was therefore not necessary to issue a fresh Writ of Fieri Facias.
Thirdly, I note that Berts and Berewa Solicitors were the same throughout exhibit J and even in the current matter before this court. They cannot now be saying by a separate fresh action that that writ of fi.fa ought to be declared null and void when the action is spent. There ought to be finality in litigation and the proceedings thereon in the matter intituled C.C. 503/03 2003 G No.10 - ALBERT FOMEZ, AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED becomes a fait accompli in so far as the High Court is concerned. Even if, at all, there is a case for challenging and/or reversing these proceedings it cannot be by a court of concurrent jurisdiction but by the Court of Appeal. The writ without it being challenged in the manner as described above becomes a means to an end; a means to enforce the orders of a competent court reference to its Judgments and the end has surely been accomplished with the final recovery of the interest through the sale of properties whether legally or illegally. How then could a court of concurrent Jurisdiction declare it as not having an effect when it has had the effect for which it was commenced, the action spent and no stay of execution in place? In short, the proceedings involving writ of fi.fa becomes a fait accompli and could not be reversed and or declared null and void by this court but only by the Court of Appeal.
It is my humble opinion that the seeking of such a relief, against this background and in the same High Court, which was seized of the matter and had successfully disposed of it, is an abuse of process. This court has powers to dismiss an action or stay the proceedings under its inherent Jurisdiction where an action is brought which is frivolous vexatious or an abuse of the process of the court. See the case of CASRO VS MURRAY 1895 10EX 213
I am sure that it would not have been inappropriate for the defendants in this action to have applied by motion for a stay of proceedings or for the action to have been dismissed after entering appearance. The fact that this was not done does not in any way take from the fact that what was done was an abuse of process.
According to the ENGLISH ANNUAL PRACTICE 1999 page 352, para 18/19/18 under the rubric abuse of the process of the court it is stated that "the categories of conduct rendering a claim frivolous , vexatious or an abuse of process are not closed, but depend on the relevant circumstances and for this purpose consideration of public policy and interests of Justice may be material." It is the view of this court that as a matter of public policy and interest of justice it would be quite improper for a matter which has been concluded in the High Court in a matter intituled C.C. 503/03 20003 G No. 10 -ALBERT FOMEZ, AND SIERRA LEONE NATIONAL SHIPPING COMPANY LIMITED to be opened again in the same High Court with a fresh action to reverse the proceedings because the defendant therein, now plaintiff in the fresh action is dissatisfied with the proceedings in the action in which he was defendant and the proceedings against him. With such considerations, I would hold that the relief prayed is untenable against the defendants jointly and severally and therefore must fail.
2.An Order setting aside the sale of properties situate at and known as 2A and 4A Off Spur Road, Wilberforce, Freetown to the 3rd Defendant
Turning to 2nd relief which was prayed to wit: An Order setting aside the sale of properties situate at and known as 2A and 4A Off Spur Road, Wilberforce, Freetown to the 3rd Defendant, the above considerations would equally hold, but that could be hardly all.. Over and above that, this court holds the sale which took place on the 23rd of December 2004 was a genuine and valid sale and the conveyance executed in pursuance of the said sale by the 2nd defendant effectively conveyed the Plaintiff's title to the properties situate lying and being at No 2A & 4A Off Spur Road, Wilberforce , Freetown to the 3 rd defendant.
This is so because it appears to me that the 1st defendant and the 2nd defendant adopted the proper procedures in order to effect the sale of the properties. Following the issuance of the writ of fi.fa and warrant on the 2nd and 6th of July 2004 respectively, the 2nd defendant followed it with a Notice of sale pursuant to section 10 of the EXECUTION AGAINST REAL PROPERTY ACT CAP22 OF THE LAWS OF SIERRA LEONE 1960. At the time the Notice of sale was issued which was on the 6th of July 2004, a huge amount of the Judgment debt to wit Le 27,000,000.00; cost of Le 2.500,000.00 and interest were still unpaid and outstanding. Even if the interest should have been less than Le30, 416,660 as the Plaintiff's solicitor would seem to imply from his cross examination of DW1 nothing was paid. What was to have been paid if not the Le30, 416,660 was to have been close to it. Also even though there appears not to be any time difference between the warrant and this notice of sale the law is that if the goods and chattels prove in sufficient, then the personal estate lands and tenements and hereditaments would be executed upon. The testimony of the 1st defendant's solicitor is that they did and in fact they instituted Garnishee proceedings which came to nothing as the account of the plaintiff was 40-50 million leones overdrawn. But as I understand the claim of the plaintiff, it is not whether this was done at any other time but specifically the period between the 2nd and 6th July 2004, after the writ and the warrant were issued. The words on the warrant as far as I can see from exhibit E are clear as to the order of precedence with regard to execution i.e. money, if no money, chattels if no chattels, then lands; and for you to execute on land the necessary notice should be given . Thus I should believe that the denial to paragraph 8 that there was nothing according to the Under Sheriff to execute upon could be believed in the circumstances. On the other hand, I should think that because of the averment of the plaintiff in paragraph 8, it was incumbent on the plaintiff to prove that he did have chattels which were lying some where and could be executed upon. This was however not proved as there is no evidence before me that the goods and chattels were sufficient but not executed upon. But, even if, they were sufficient, Section 9 of the EXECUTION AGAINST REAL PROPERTY ACT CAP 22of the Laws of Sierra Leone 1960 provides as follows:
Where executions shall issue under the provisions of this ordinance against the goods and chattels lands and tenements of
any defendant , if such defendant shall have goods and chattels which may become levied upon sufficient to satisfy such debt damages and costs recovered , the lands and tenements of the said defendant shall not be levied upon ; and where there shall not be goods and chattels sufficient to satisfy such debts , damages and costs , and the lands , tenements and real estate shall be taken into execution , the Sheriff or other officer shall not proceed to the sale of any such land or tenement until he shall have given the notice hereinafter required or unless by the desire of the defendant signified to him for that purpose
In the case of LAHAI TAYLOR VS THE SHERIFF AND ZIZER 1968/69 ALRSL page35-44 the COURT OF APPEAL held that the effect of the above provision is directive rather mandatory.
The decision was predicated on the decision in MONTREAL STREET RAILWAY CO VS NORMANDIN 1917 A C PAGE 170 where Sir Arthur Campbell said:
"The question whether provisions of a Statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the Statute must be looked at. The cases on the subject will be found collected in MAXWELL ON STATUTES, 5th Edition, p596 and the following pages. When the provisions of a Statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only,
the neglect of them, though punishable, not affecting the validity of the acts done."
On these authorities there is no reason for me to hold that if there is non observance of a public duty by the Sheriff of Sierra Leone to execute on the chattels rather than the land pursuant to section 9 and he failed to do so but instead published a notice to sell and did sell to a bonafide purchaser who has no control over the actions of the Sheriff, the bonafide purchaser should suffer prejudice. In short the Sheriff of Sierra Leone peradventure he did not comply with the provisions as contained in section 9 should not be taken against the 3rd defendant.
Looking at exhibits M1-M3 and the Notice of sale issued and/or dated on the 6th of July 2004, we note that despite a desperate attempts by the 1st defendant not to sell but rather to recover the interest outstanding by his constant postponement of the sale initially from the 16th to 20th and later to the 23 rd of October 2004, the plaintiff was not bothered by such information and approached the same with a seeming careless abandon. Even before these letters and after the Notice of sale dated 6th July 2004 which met with no action from the plaintiff in paying any interest, by exhibit M4, the 1st defendant reminded them of the proposed sale but to no effect . There is evidence also in the form of exhibit N1 that the plaintiff knew that the sale was to be conducted on the 16th of October 2004 but yet approached the whole process with careless abandon and consequently failed to pay the money due as interest and was proposing to defer the payment of interest at whatever amount, not withstanding the long delay, to the start of the ensuing year and never availed itself of the opportunity to signify in writing their election as to what portion the plaintiff would want sold to satisfy the debt. Thus the allegation that the plaintiff was prevented from exercising its election cannot be true.
Section 7 of THE EXECEUTION AGAINST REAL PROPERTY ACT CAP 22 OF THE LAWS OF SIERRA LEONE 1960 is on these terms.
"Any defendant whose houses, lands , hereditaments or real estate shall, or hereafter may, be taken into execution shall have free election by himself, his attorney, his executors administrators as to what part or portion of the said houses lands hereditaments or other real estate shall be sold sufficient to satisfy the monies due and payable on such execution by signifying the same in writing to the officer who is to make the sale at any time 20days before such sale is made"
What this section does is to put an obligation on the defendant owner of the property the plaintiff herein who was to be executed upon to elect and not on the Sheriff or under Sheriff to request him to signify. The right to election is only exercisable after the notice of sale is given and once the notice is issued informing of the day of the sale, the defendant would have been given an opportunity to avail itself of that opportunity to elect. The plaintiff herein was given the notice on the 6th of July 2004 and they had up to the 26th of September 2004 i.e. 20 days before the notified date of sale on the 16th to had elected but did not do so .
Even at the end of the period the 1st and 2nd defendants did not sell the Plaintiff's properties. Against all the promises by the Solicitor that they were going to sell as reflected in exhibits B and M and with the interest not far different from what the 1st defendant had stated in actuality one wonders what the plaintiff was doing the whole of November and part of December 2004 without making the payment against an impending sale in its compound and allowed the sale of its properties to go on before it could react.
The plaintiff is harping on the issue that a fresh notice should have been issued. There is however no legal basis for this. In fact the Notice was properly issued at a time when there was an amount as Judgment debt and interest outstanding and there appeared nothing to fall on to recover the monies except the Plaintiff's properties aforementioned which were eventually sold. At the time the full amount of the Judgment debt was paid there was still a huge amount due as interest which if paid could have averted the sale. No
attempt was made to pay a single sent of it .There was further no order stopping the sale and the sale was never cancelled even though postponed several times in the plaintiff's interest. An interested Defendant would have tried to avert the sale. Noting that section 10 was directory and not mandatory and the fact that the interest was still outstanding the notice of sale given pursuant to section 10 subsisted until the date of the actual sale to the 3rd defendant not withstanding that the date was originally set for the 16th of October 2004, as no return had been made on the execution proceedings with reference to the interest which from day 1 was of part of judgment dated 11th December 2003, and the writ of fieri facias dated the 2nd of July 2004. Against this back ground the 2nd relief must also fail.
3. A Declaration that the Plaintiff is still the owner of properties situate at and known as 2A and 4A Off Spur Road. Wilberforce, Freetown.
On the 3rd relief prayed for a short thrift of it is permissible in that the reliefs in 1 and 2 supra having been refused and noting that the sale of was pursuant to or according to law and held under the orders of a competent court the plaintiff lost what was originally its property. Consequently it cannot continue to be owner of properties situate lying and being and known as 2A and 4A Off Spur Road, Wilberforce, Freetown.
The evidence of PW1 and PW3 show that they were ignorant of court proceedings and thought well "their property is their property" and there was no way it could be sold when they had not sanctioned it. Well this is a layman's view but they had solicitors who unfortunately, it would seem, did not advise them otherwise.
4. Plaintiffs request to cancelled and or annulled and be expunged from the records Conveyance dated 7th January 2005 and registered as No 4/04 at page 14 in volume 582 of the Record Books of Conveyances
On the 4th order prayed this court notes that exhibit G 1 was the certified true copy of the Conveyance dated 7th January 2005 and registered as No 4/04 at page 14 in volume 582
of the Record Books of Conveyances kept in the office of the Registrar General in Freetown executed by the Sheriff of Sierra Leone the 2nd defendant herein to the 3 rd defendant. The Plaintiff claims that those properties as represented in the said conveyance are their properties and want the same cancelled and or annulled and be expunged from the records for non compliance with Sections 7, 9 and 10 of the Execution Against Real property Act Cap 22 of the Laws of Sierra Leone 1960; and on the ground that the defendants were guilty of unconscionable conduct.
After all that have been said by me with reference to Sections 7, 9 and 10 of the EXECUTION AGAINST REAL PROPERTY ACT CAP 22 LAWS OF SIERRA LEONE 1960 it is clear to me that the 2nd defendant did not breach any of these sections. In particular section 7 did not create an obligation for the Sheriff or Under Sheriff to ask the Plaintiff to signify his election but rather on the defendant owner now plaintiff to signify in writing through itself or its solicitor etc what portion it would desire execution to be rendered upon; Sections 9 &10 of the said Act did create obligations but the same were only directive and not mandatory such that even if the 2nd defendant breached those provisions the 3rd defendant could not be made to suffer for the negligence of the 2nd defendant . But even so from the pleadings and fact before this court the 2n defendant did not breach those provisions.
In TAYLOR VS THE SHERIFF AND ZIZER 1968/69 ALR SL PAGES 35-44 the Court of Appeal upheld the decision of the High Court presided by TEJAN SIE CJ where he dismissed the action of the LAHAI TAYLOR who claimed that the provision of section 10 was mandatory and not directory holding that both sections 9 and 10 were directory and not mandatory.
That apart, I note the defence of the 3rd defendant which raised legal issues to wit that he purchased property situate lying and being at SCAN drive Off Wilkinson Road Freetown at a Public auction for valuable consideration ; that he is not guilty of" unconscionable conduct " as alledged, or at all, and that he is bona fide purchaser for value without notice; that he relies on the provisions of the Execution Against Real Property Act Cap22
of the Laws of Sierra Leone 1960 in particular sections 5, 6 and 8 of the same which offers him protection and that as a bonafide purchaser he acquired a good and perfect estate of the said land and that reversal of the said writ of fieri facias and all subsequent proceedings shall not operate against the 3rd defendant or invalidate the said sale
It is clear to me that the 3rd defendant only came into the picture after publication of the notice of sale and was a bonafide purchaser without Notice. It was also neither averred in their pleadings nor proved by the plaintiff nor is there any evidence to show that there had been collusion or fraud in the sale of the property which took place on the 23rd of December 2004. The sale was by public auction on the spot, that is at the plaintiff properties, the same which was advertised postponed on several occasions as way of given time to the plaintiff to satisfy the debt without its property being sold, but for which the interest of Le30, 416,660 or less, hence the judgment of the court, remained unsatisfied up to the time it was sold for valuable consideration in the sum of Le 350,000,000.00. The property was not sold at considerable undervalue as it was sold way above the reserve price and consideration need not be adequate provided it is sufficient.
In TAYLOR VS THE SHERIFF AND ZIZER 1968/69 ALR SL at page TAMBIAH JA SAID AT PAGE 44.
"A sale which takes place on the orders of a competent court should not be lightly interfered with by this court."
In DAVID DURING VS THE ADMINISTRATOR AND REGISTRAR GENERAL CIV APP JUDMENT DELIVERED ON THE 14™ OF JULY 1980 UNREPORTED JUSTICE SAMUEL BECCLES DAVIES stated as follows:
"The revocation of a grant of letters of administration would not affect the title of a purchaser who has acquired any interest in real or personal property pursuant to an order made under the statutory powers of the court . See Section 70 of the Conveyancing and Law of Property ACT 1881."