Native Consurtion think Tank v Africell & Others (CC 17 of 2018) [2023] SLHCGD 1 (10 January 2023)

The Honourable Mr Justice Fisher J:

Introduction

1. This case raises two central issues of significant public interest. The first can be summarised as the failure or otherwise by the 1st, 2nd and 3rd defendants, hereinafter referred to as “the defendants”, to provide quality telecommunications services in their role as telecommunications service providers in Sierra Leone and the effect of such failures on consumer protection. The second issue is whether the 4th defendant, failed or neglected to exercise and perform its statutory functions to enforce compliance by the 1st, 2nd and 3rd defendants of their duty at common law and statute to ensure the provision of quality services to consumers, thereby leading to loss and damage to the plaintiffs as a class of persons, who are subscribers to telecommunications services in Sierra Leone.

Background facts

2. These long-drawn-out proceedings arose as a result of complaints by the 1st and 2nd plaintiffs allegedly by members of the public to the defendants and the 4th defendant about poor services being provided by the defendants in the provision of telecommunications services. Notwithstanding these complaints, it is alleged by the plaintiffs that the defendants failed to take appropriate steps to improve their services and that failure is continuing and that the 4th defendant also failed to comply with its statutory duty to regulate the defendants in accordance with those statutory duties and their failure amounts to negligence on their part. The plaintiffs then subsequently commenced an action by way of a writ of summons dated January 2018 which is now the subject matter of this case. The matter however did not commence until October 2018.
3. The case experienced considerable delays, particularly on the part of the plaintiffs who failed to comply with several directions issued by the court. It is expedient that I set out in some detail the procedural history of the trial, which had previously been presided over by three different judges. A default judgement was entered by the plaintiffs in July 2018, which was later set aside on the 9th day of November 2018. The matter was equally characterised by delays and ultimately no progress was made. The matter was only assigned to me in February 2021 for further proceedings.
4. When the matter came before me on the 24th day of February 2021, the 4th defendants complained that the 2nd plaintiff had been calling the 4th defendant to settle the matter “under the table” and had been harassing the Director General by various postings on social media. I ruled that the parties should abstain from conduct calculated to interfere with the administration of justice.
5. Mr Showers for the 1st defendant also raised a similar concern about the conduct of the 2nd plaintiff, Edmund Abu Jnr, and his postings on social media which would cause some embarrassment for the 1st defendant. And he prayed for the court to grant an order restraining publication of inappropriate material about the matter on social media by the 2nd plaintiff, Edmund Abu, Jnr as well as inappropriate contact with the 1st defendant. The matter was sub judice and the 2nd plaintiff ought not to make adversarial and prejudicial comments about the matter. He submitted that the plaintiffs should have confidence in this tribunal that justice will be done. The postings of the 2nd plaintiff were unfairly prejudicing the trial of the matter.
6. As a result of these concerns and the nature of the publications emanating from the 2nd plaintiff and his conduct in making unwarranted approaches to the defendants, I gave the following orders on the 26th day of February 2021:

1. That publications and comments shall be limited to accurate publications of the proceedings in court and no more.
2. Publications that fall outside of this order may attract both criminal and civil penalties.
3. Parties should only contact each other through recognised legal representatives with the involvement of the court. Acting contrary to these orders may also attract civil and criminal penalties.

7.  Further evidence of the delays in these proceedings was an application filed by the plaintiffs for summary judgement in 2018 as well as another application filed by another solicitor on behalf of the plaintiffs, seeking mandatory reliefs which were never moved by the parties. Mr Showers had applied for an unless order that the matter be struck out unless the solicitors for the plaintiff appeared to deal with the applications they had filed. On the 25th day of March 2021, I ordered the plaintiffs to proceed with the matter without delays, failing which the matter would be struck out.
8. On the 2nd June 2022, I ordered costs of Le 70,000,000.00 against the plaintiffs for delays in proceeding with the matter. As far as this court is aware the costs remain unpaid. Prior to that I had previously ordered costs of Le100,000,000.00 against the defendants in favour of the plaintiffs on the 22nd March 2021, which was paid to the 2nd plaintiff Edmund Abu jnr on behalf of all the other plaintiffs. Further issues of delays on the part of the plaintiff can be seen in the several orders made on grounds of non-compliance that are set out in the record of proceedings.

The Plaintiff’s case.

9. It is important that I set out the basis of the plaintiffs’ claim in order to give greater clarity to this judgement. As I have pointed out in earlier rulings of this court, delays have characterised the prosecution of this claim by the plaintiff.  In my ruling of the 22nd March 2021, I dealt with the issue of delays at paragraph 31 which I will reproduce here below:

1. “ ….. That the plaintiffs did not act expeditiously in seeking an interim injunction, having regard to the fact that the defendants had allegedly breached the undertakings they gave at the Bintumani conference in 2017.

10. In my ruling of the 2nd June 2021, I again dealt with the issue of delays and non-compliance by the plaintiffs at paragraph 2-7, of that ruling, in the following terms:

(2) “ The Orders I gave were directions for the future conduct of the proceedings. These directions were not complied with by the plaintiff and most notably the 4th defendant. An extension was sought by the plaintiff which was granted for compliance with Order 1 of the Order given by this court on 22nd March 2021 and for further directions on the matter.  Having heard the reasons for non-compliance, I considered that the reasons for non-compliance with the orders of the court were wholly unsatisfactory and unacceptable. Nevertheless, in the interest of justice, I granted the said amendments to the original orders.

(3) It was regrettable to say the least that the plaintiff and the 4th defendant did not comply with the orders of the court. The 1st defendant now prays for an order striking out the proceedings.

(4) Before me, Mr Showers who appeared for the 1st defendant submitted that the matter should be struck out as the plaintiff had failed to comply with directions without any reasonable excuse. 

(5) Mr STM Navo for the plaintiff submitted that he has only been recently instructed to take over conduct of the case and consequently he was yet to receive the relevant documents from the previous solicitors. I pointed out to Mr Navo that he had had enough time to peruse the file and advised himself as to the situation. I was clear that I was not minded to accept any excuses for non-compliance with the orders of the Court. 

(6) Mr Navo pleaded for time to obtain the file and apprise himself of the situation, after which he will be ready for trial.  Mr Sawaneh on behalf of the 4th defendant also conceded that they had not complied with the directions of the court and attempted to give reasons for the non-compliance.

(7) I have concluded that there was no acceptable reason for the non-compliance with the orders of the court, in the face of nonchalance on the part of the plaintiff and the 4th defendant. However, in view of the fact that this is a public interest action, I am prepared to exceptionally grant the final extension for compliance and it must be clear that there will be no further extension granted.

11. I awarded costs of seventy million Leones against the plaintiffs,