By Elkass Sannoh
In the Fast Track Commercial Court on the 26th February 2022, High Court Judge, Hon. Justice Lornard Taylor in a matter between the Union Trust Bank Limited (Plaintiff) and Pajah & I.J. Limited and others (Defendants) ordered the bank to pay the cost of Five Million Leones to the Counsel of the second Defendant as cost.
Justice Taylor gave the order after dismissing the preliminary objection of Counsel for the plaintiff, Augustine Sorie-Sengbe Marrah.
In his objection, Counsel for the plaintiff stated that the second Defendant/Applicant, Habib Pajah, no longer had locus in the matter and that the court is functus of the case against the second defendant in view of the order given by the court on the 8th November, 2021.
The action brought by the plaintiff against the second defendant who was a surety for a bank debt maintained that the second accused executed a legal mortgage for its property with respect to facilities granted to the 1st defendant.
In regard to the action against the 2nd defendant, he made an application praying that the case against him be dismissed on the grounds as contained on the face of the said application.
The court ruled in his favour by dismissing the application made against him.
Based on the dismissal, Counsel for the second defendant wrote the bank demanding re-conveyance of the property mortgaged, citing that the judgment delivered by the Court dated 8th November 2021, which indicated that the second defendant was no longer surety for any debt whatsoever owed to the plaintiff by the first defendant.
The plaintiff refused to re-convey the mortgaged property. The refusal of the first defendant to re-convey the said property prompted preliminary objection.
Commenting as to whether the second defendant has locus or not and whether the court is functus with respect to the application, the Hon. Justice Taylor said, “the ruling of the court dated 8th November 2021, dismissed the case against the 2nd defendant. But does it mean that the 2 defendant no longer has locus in the matter or does it mean that it is the conclusion of a matter, a party’s voice cannot be heard?”
The judge answered in the negative and further stated that, there are several instances wherein post-judgment can be made but never seen a situation where they are challenged successfully.
“Hence, a successful litigant seeking to encore a judgment for declaration of property will need to come to court before the judgment can be enforced.”
Justice Taylor said that the litigant cannot be deprived of this right on the grounds that he has no locus.
He therefore ordered that the plaintiff pay a cost of five million Leones (Le. 5,000,000) to the Counsel of the second defendant and further dismissed the preliminary objection accordingly.
