Justice Kumba Sillah Camara of the Banjul High
Court Thursday delivered a judgment in favour of TK Motors Limited and Tarek
Musa 2nd and 1st defendants respectively, against Al Alamia Import and Export
and SO. P. CO International Sarl 1st and 2nd plaintiffs.
The judge also awarded cost of D50,000 to the defendants.
Counsel Y.H. Cox represented the plaintiffs while senior Counsel A.A.B. Gaye represented the defendants.
According to the claims in the suit by the 1st and 2nd plaintiffs, the plaintiffs claimed the sums of US$400,000 being the value of a consignment of cement wrongfully converted by the defendants, loss of profit, damages for procuring the wrongful interference with the cement shipped by the plaintiffs onboard the vessel M/V CUITA.
It further claimed damages for detinue and conversion, interest at the rate of 25 per cent per annum from 1 January 2003 until date of judgment, cost, and such other orders as the court shall deem fit to make.
Delivering the judgment, Justice Kumba Sillah-Camara said the plaintiffs commenced this suit by writ of summons dated 6 January 2004 which was placed on the undefended list, but later placed on the general cause list.
The plaintiffs thereafter, filed an amended statement of claim on 5 July 2006 claiming interalia the above.
A summary of the plaintiffs’ case was that on 30 November 2002, the 1st plaintiff shipped a cargo of 7,099,580 metric tonnes of cement on board the vessel M/V Panciu for transportation from Alexandria in Egypt to Conakry in Guinea.
On 20 November 2002, the 1st plaintiff acting for the 2nd plaintiff shipped a cargo of 6,000 metric tonnes of cement from Alexandria to Conakry.
Contrary to the terms of the charter party between the 2nd plaintiff and the owners and masters of M/V Panciu, the vessel M/V Panciu, after loading the cement consignment did not sail for Conakry, as it ought to have done. The owners of the said vessel changed its name to M/V Cuita.
The 2nd plaintiff discovered that the vessel which was carrying the cement consignment was diverted to the port of Banjul without authority by the owners and masters of the said vessel to the defendants, thereafter, the 1st defendant bought the said consignment of cement at a price of US$500,000 from the owners and masters of the said vessel.
The defendants had wrongfully failed and refused to return the said cement as demanded by the plaintiffs, and have thereby converted it to their own use.
The defendants filed their address on 30 November 2011 and the plaintiffs filed theirs on 12 December 2012.
The defendants raised seven issues for determination as follows:
Have the plaintiffs sued the proper parties? Assuming without conceding that the proper parties have been sued, does the 1st plaintiff have any reasonable cause of action against the defendants? Is the 1st defendant a proper and necessary party to this suit?
What is the effect of the 2nd plaintiff’s failure to give evidence and or call witnesses? Can the 1st defendant be held liable in the absence of any suit against the person who might have been a proper and necessary party? What is the legal effect of paragraph 2, 3 and 4?
“The plaintiffs also raised one issue on whether the plaintiffs have made out a case against the defendants to entitle them to judgment on the claim?” the judge said.
She said counsel for the plaintiffs reformulated the issues to read: “Is there a cause of action for conversion and or detinue made out against the defendants, and has there been a conversion of the plaintiffs’ goods by the defendants.
It follows, therefore, the judge went on, that a plaintiff in such a case had the burden of establishing his claim upon relevant and credible evidence that was conclusive, and that commands such probability that is in keeping with the surrounding circumstances of the case in hand.
Since both plaintiffs are suing together and not separately, one credible witness surfaces to prove their claim.
However, in this case, the issue was whether the parties sued were the proper parties to be sued in the case.
“In the light of the above, I hold that the 1st and 2nd plaintiffs have failed to sue the proper party in this suit; therefore, their claim lacks merit and it is not maintainable.
“The plaintiffs’ case failed, and it is hereby dismissed with cost of D50,000 awarded to the defendants against the plaintiffs,” the judge declared.