COURT: SUPREME COURT OF SIERRA LEONE
CORAM:
HON. MR.JUSTICE S. BECCLES DAVIES CJ
HON. MR.JUSTICE S.C.E WARNE JSC
HON. MR. JUSTICE E.C THOMPSON JSC
HON. MR JUSTICE G. GELAGA-KING J.A
HON. MR A.B TIMBU J.A
SC. CIV. APP. 2/87
JUDGMENT DATE: 14th JULY 1995
BETWEEN
HARRY MASON
AND
OLATUNGI WILSON
REPRESENTATION
DR. ADE RENNER-THOMAS FOR THE APPELLANT
DR. H.M. JOKO-SMART FOR THE RESPONDENT.
FACTS
The plaintiff, a Broker of precious metals, Bullion dealer and Refiner resident in London, through a series of correspondences contracted with the defendant in Sierra Leone for the purchase of 10 kilos of alluvial gold. The plaintiff performed his own side of the contract by paying USD79,620 into the account of the defendant in October,1984. When the defendant failed to perform his own side of the contract, the plaintiff brought an action for recovery of the sum and interest. At the Court of first instance, judgement was entered in favour of the plaintiff. The defendant however appealed.
The Court of Appeal overturned the decision of the Court of first instance and found in favour of the appellant/defendant on the basis that the contract was tainted with illegality because the parties failed to contract with each other through the Chamber of Mines in Freetown as per section 3(1) the Exchange Control (Amendment) Act No.27 of 1965 and hence, the contract was unenforceable based on the ‘ex turpi causa non oritur actio principle’. The Plaintiff/applicant then applied to the Supreme court on the grounds that the Court of Appeal was wrong in resting its decision solely on a ground not set forth by the appellant and without the parties having had sufficient opportunity of contesting the case on that ground and that the decision of the Court of Appeal on the question of illegality was wrong in law having regard to the absence of evidence that the plaintiff acted outside the law.
ISSUES
The issues for determination before the Court were:
1: whether the Court of appeal was wrong in resting its decision on a ground not set forth by the Appellant and without the parties having had sufficient opportunity of contesting the case on that ground.
2: whether the several conclusions of the Court of Appeal on the question of illegality are wrong in law particularly having regard to the absence of evidence that the plaintiff acted outside the law.
FINDINGS ANALYSIS
The Supreme Court in determining the above- mentioned issues, said that in as much as a party may not have set forth a ground related to the findings of facts, the Court of Appeal can make positive findings of facts on the case but must provide evidence to support same. This notwithstanding, the Court of Appeal ought not to interfere with the findings of facts by a lower court unless those findings of fact are wrong and cannot be supported in law pursuant to the decision in the case of Benmax v Austin Motor Co. Ltd (1955) 1 All ER 326. As such, the Court of Appeal should have provided evidence for its finding of fact on illegality. However, the court said that when the question or issue of illegality was raised, both counsels were given sufficient opportunity to contest it and if they needed more time, could have made the application.
The Supreme Court also found that the Court of Appeal was wrong in its application of Section 3(1) of the Exchange Control (Amendment) Act No.27 of 1965 upon which the finding of illegality was based. This according to the learned judge is because the Act only confers powers and imposes duties and restrictions. In addition, the contract was entered into in Sierra Leone, Sierra Leone being one of the countries listed as a scheduled territory pursuant to the First Schedule of the Act. As such, the parties acted within the law.
ORDERS OF THE COURT
The appeal was allowed and the decision of the Court of Appeal was set aside. The judgment of the High court was restored by Sydney Warne JSC.
Written by: Khadija Kowa
Edited by: C.M Jonah