Bank of Sierra Leone v Abdul Aziz Sowe

Jurisdiction

Sierra Leone

Court

High Court of Sierra Leone (Commercial and Admiralty Division)
Fast Track Commercial Court

Presiding Judge

Honourable Justice M.P. Mami J.

Date of Judgment

30 July 2020

Case Number

1 of 2020, SLHC 45

Legal Area(s)

Commercial Law; Contract Law; Mortgage Law; Default Judgment; Civil Procedure

Procedural Posture

The Plaintiff, Bank of Sierra Leone, filed an ex-parte Notice of Motion supported by affidavit seeking leave to enter judgment in default of appearance by the Defendant, Abdul Aziz Sowe, who failed to appear or file a defense in this civil action for recovery of outstanding loans. The matter came before the High Court Fast Track Commercial Court for determination of the Plaintiff’s entitlement to judgment and reliefs sought.

Facts of the Case

The Defendant was an employee of the Plaintiff Bank from 15 November 2010 to 6 March 2019.
The Defendant held the position of Director of the Internal Audit Department before being redeployed to the Governor’s office on 1 March 2019.
The Plaintiff operated a housing loan scheme for employees, under which the Defendant was granted a housing loan of Le 770,000,000, secured by a legal mortgage dated 19 May 2017 over property at No. 3 Bailey Street, Brookfield, Freetown.
The Defendant also received payment of professional training fees amounting to Le 137,548,109.74, repayable under the Plaintiff’s training policy.
In August 2015, the Defendant was granted a vehicle loan equivalent to $20,000 under the director’s vehicle loan scheme, formalized by a loan agreement dated 13 August 2015.
The Defendant purportedly resigned in early March 2019, but his resignation was rejected by the Bank Governor. The Defendant ceased attendance and was dismissed effective 6 March 2019.
The Defendant failed to repay his loans and outstanding debts, which after review amounted to Le 924,761,973.27.
The Plaintiff initiated recovery proceedings by writ of summons served by substituted service published in the Focus newspaper on 27 March 2020.
No appearance was filed by the Defendant; the Plaintiff therefore sought default judgment by ex-parte motion supported by affidavit evidence and multiple exhibits including the loan agreements, mortgage deed, training policy, resignation and dismissal letters, and proof of service.

Issues for Determination

Whether the Defendant was duly served with the writ of summons by substituted service sufficient to satisfy the audi alteram partem principle.
Whether the Plaintiff had satisfied the procedural requirements under Order 13 Rule 12 and Order 22 Rule 10 of the High Court Rules 2007 to obtain leave to enter judgment in default of appearance.
Whether the Plaintiff’s claim for repayment of loans, interest, and mortgage enforcement was established by affidavit evidence.
Whether the Court should grant the reliefs sought including judgment for repayment, interest, sale of mortgaged property by private treaty, and costs.

Arguments of the Parties

Plaintiff’s Submission (by P. Fofanah Esq.)

The Plaintiff argued that the Defendant had defaulted in entering an appearance and had been duly served by substituted service, meeting the requirements for default judgment.
The Plaintiff relied on extensive affidavit evidence establishing the Defendant’s indebtedness, the loan agreements, mortgage deed, and training policy obligations.
It was submitted that the Court had jurisdiction to grant leave for default judgment under High Court Rules (Order 13 Rule 12; Order 22 Rule 10).
The Plaintiff emphasized that repeated efforts to notify the Defendant had failed, justifying substituted service as reasonable under the circumstances.
It was argued that the audi alteram partem principle was satisfied by proper service and opportunity to defend which the Defendant failed to exercise.
Cited authorities included Kuma v Bart Puange (GLR 1989-90) and Smith v Buchan (1888), emphasizing procedural requirements and the effect of default.
The Plaintiff prayed for the full relief sought, including repayment of the principal sums, interest at stated rates, costs, and authority to sell the mortgaged property.

Defendant’s Position

The Defendant did not appear or file any defense in the matter.

Authorities Cited

High Court Rules 2007: Order 13 Rule 12 and Order 22 Rule 10
Kuma v Bart Puange (1989-90) GLR 119
Smith v Buchan (1888) 58 L.T. 710
Young v Thomas (1892) C2 Ch 134
Collin v Tagoe (1997-98) 1 GLR 76

Decision / Judgment

Justice M.P. Mami J. held that:

The Plaintiff had demonstrated sufficient compliance with procedural requirements to justify entry of judgment in default of appearance.
The substituted service by publication in the Focus newspaper was reasonable and adequate to notify the Defendant, fulfilling the audi alteram partem requirement.
The Defendant’s failure to appear or respond meant that the Plaintiff’s affidavits and documentary evidence stood uncontested, establishing the claim on the balance of probabilities.
The Court accepted the evidence of outstanding indebtedness totaling Le 924,761,973.27, with interest at 3% and 2% on the respective sums from 10 May 2019 to payment.
The Court granted leave to enter judgment against the Defendant for repayment of the principal sums, interest, and costs to be taxed.
The Court also authorized the sale by private treaty of the mortgaged property at 30 Bailey Street, Freetown, in the event of default in repayment.
The application for default judgment was granted in full.

Key Quotations from Judgment

“Judgement shall not be entered in default of appearance except by leave of the Court.”

“A Defendant not served a Writ of Summons cannot default in entering appearance.”

“The Plaintiff must satisfy the Court not only that the Defendant has defaulted but also that the Defendant has been duly served with the Writ of Summons, which has been demonstrably made through effectual substituted service.”

“The substituted service by publication in the Focus newspaper was reasonably done and sufficient to satisfy the audi alteram partem rule.”

“The Court is satisfied that the claims as endorsed in the Writ of Summons and the Motion filed therein qualifies for judgement in default of appearance.”

Ratio Decidendi

Where a defendant fails to appear after being duly served (including by substituted service), a plaintiff may obtain leave of court to enter judgment in default, provided the plaintiff demonstrates compliance with procedural rules and adduces evidence establishing the claim.

Obiter Dictum

The judgment underscores the balance between procedural fairness and efficient resolution of commercial disputes, affirming the Court’s discretion in granting default judgment while ensuring compliance with natural justice principles.

Final Orders / Reliefs Granted

Leave granted to enter judgment in default of appearance.
Immediate payment by Defendant of Le 663,157,895.22 with interest at 3% from 10 May 2019 until payment.
In the event of non-payment, authorization for sale of mortgaged property at 30 Bailey Street by private treaty to recover sums due.
Immediate payment by Defendant of Le 137,548,109.74 with interest to be assessed by the Court.
Immediate payment by Defendant of Le 40,662,600.00 with interest at 2% from 10 May 2019 until payment.
Costs to be taxed.

Commentary / Practice Note

This case is a landmark decision reaffirming the procedural rigor necessary for default judgments in Sierra Leone’s commercial courts. It illustrates the court’s emphasis on proper service, even by substituted methods, to uphold the audi alteram partem principle. The case clarifies that in mortgage-backed loan recovery, evidential sufficiency in affidavits may substitute oral evidence where defendants default. Practitioners should note the importance of exhaustive documentation of loan agreements, training policies, and mortgage instruments, as well as careful compliance with procedural rules to secure timely enforcement of financial claims. The Court’s authorization of private treaty sales provides a practical mechanism for debt recovery in property-secured lending.

Comparatively, the reasoning parallels principles in Kuma v Bart Puange (GLR 1989-90) regarding service and default, and draws on established procedural fairness doctrines from English law (Smith v Buchan, Young v Thomas).

Sample Legal Questions

Multiple Choice Questions

Under which High Court Rule can a plaintiff apply for judgment in default of appearance?
a) Order 13 Rule 12
b) Order 22 Rule 10
c) Both a and b
d) None of the above
What principle requires that a defendant must be given notice before judgment is entered against them?
a) Nemo judex in causa sua
b) Audi alteram partem
c) Res judicata
d) Stare decisis
Substituted service is acceptable when:
a) The defendant cannot be found despite reasonable effort
b) The defendant agrees to service by mail
c) The defendant has appeared in court
d) Service is waived by the plaintiff
What relief was NOT granted in this case?
a) Immediate payment of principal sums
b) Interest on the sums owed
c) Injunction against the defendant
d) Sale by private treaty of mortgaged property
The mortgaged property in this case was located at:
a) 3 Bailey Street, Brookfield
b) 30 Bailey Street, Freetown
c) 15 Pademba Road
d) Not specified
The defendant’s last role before dismissal was:
a) Director of Internal Audit
b) Office of Governor
c) Branch Manager
d) Chief Financial Officer
The loan for vehicle purchase was granted under:
a) Housing loan scheme
b) Director’s vehicle loan scheme
c) Staff personal loan scheme
d) External financing scheme
What was the rate of interest awarded on the main loan sum?
a) 2%
b) 3%
c) 5%
d) 10%
The date from which interest was calculated was:
a) 15 November 2010
b) 6 March 2019
c) 10 May 2019
d) 30 July 2020
The Court ordered costs:
a) Fixed to the Plaintiff
b) Fixed to the Defendant
c) To be taxed
d) No costs awarded

Correct Answers for Multiple Choice Questions

Essay Questions

Explain the importance of the audi alteram partem rule in the context of default judgment.
Discuss the legal requirements and procedures for substituted service in civil proceedings in Sierra Leone.
Analyze the role of affidavit evidence in proving a plaintiff’s case in default judgment applications.
Evaluate the Court’s discretion in granting leave for default judgment under the High Court Rules.
Discuss the remedies available to lenders for recovery of housing loans secured by legal mortgage.

Model Answers for Essay Questions

The audi alteram partem rule is a fundamental principle of natural justice that requires all parties to a dispute be given a fair opportunity to present their case before a decision affecting their rights is made. In default judgment cases, this rule ensures that the defendant has been properly notified and has had the chance to appear and defend the claim. Without proper service and notice, a judgment would be procedurally unfair and liable to be set aside. In this case, substituted service through newspaper publication was deemed sufficient to satisfy this principle.
Substituted service is permitted when direct service on the defendant cannot be effected after reasonable attempts. It requires the court’s approval and must be reasonably calculated to bring the proceedings to the defendant’s attention. Methods include publication in newspapers or service on a place of business. The Plaintiff must provide evidence of failed attempts and justify substituted service, as was done in this case via the Focus newspaper, to uphold procedural fairness and ensure enforceability.
Affidavit evidence plays a crucial role in default judgment applications by providing sworn testimony and documentary proof establishing the plaintiff’s claim, outstanding amounts, and compliance with procedural requirements. Such evidence stands uncontested in the absence of a defense and allows the court to make a reasoned judgment without oral testimony. The affidavits in this case included loan agreements, mortgage deeds, pay certificates, and evidence of service, creating a strong evidential foundation for judgment.
The Court’s discretion under the High Court Rules is guided by principles of justice and fairness, balancing the plaintiff’s right to recover debts with the defendant’s right to be heard. Leave for default judgment is granted where service is proper and the plaintiff’s claim is prima facie established. The Court may refuse leave where procedural or substantive deficiencies exist. This case demonstrates a proper exercise of discretion in favor of the Plaintiff given compliance and defendant’s failure to respond.
Lenders have several remedies for recovery of housing loans secured by legal mortgage, including filing a writ of summons, seeking judgment for repayment, enforcing the mortgage by sale of the property, and recovering interest and costs. The court may authorize private treaty sale or public auction to realize the debt. The lender’s right to sell arises upon default, with judicial oversight to ensure fair process, as exemplified by this judgment.

Download the complete case law below:

Bank of Sierra Leone v Abdul Aziz Sowe (1 of) 2020 SLHC 45 (30 July 2020)Download

Cart