Defence fumbles in Court
Lead Counsel for Leon Oil Company, Editayo Pabs-Garnon Esq. was before Justice Samuel O. Taylor of the High Court on Tuesday 25th May 2021 to defend his client in a matter brought by the Plaintiff, Jaffer Zeghir of 36B Bai Bureh Road. After being given enough time to open their defense since the matter last came up on Monday 26th April 2021, the lead Defense Counsel described the transaction between the plaintiff and defence as an agreement for sale, rather than a contract for sale. His submission, however, succeeded in confusing rather than convincing the Counsel for the Plaintiff, JJ Campbell Esq. who made it clear in an open court that his colleague on the other side has confused him by certain submissions made by the Defense Counsel.
Lawyer Pabs-Garnon further submitted that it is not the position of the Petroleum Regulatory Authority (PRA) to Make law, as was attempted to become, referring to the Authority’s letter dated 15th February 2021 signed by the PRA’s Executive Chairman, Brima M. Baluwa Koroma, which ordered that “…consistent with Part (111) Section 12 (2n), which empowers the Agency to perform the role of arbitrator in matters relating to the downstream petroleum industry; the position of the Agency is that all invoices settled at their invoice prices on its corresponding value date before 4th February 2021 new price announcement. All Government taxes, during this period, must be charged as per the pricing template corresponding to the invoice dates.”
The Defense Lawyer argued that it has always been the practice that when prizes are increased, the dealer has to pay the difference. He noted that the plaintiff paid for goods he described as unasserted goods in the defendant’s terms.
“The 200,000 liters are not sitting anywhere waiting for him. They are unasserted goods,” he said, adding that after paying on the 28th January, the Plaintiff only attempted to collect the goods after the 4th February, when the PRA had already increased the price of fuel.
“Taking into account this is a sale of goods contract, do we have a contract of sale or an agreement of sale? It is our submission that it is an agreement for sale,” Lawyer Pabs-Garnon said, and further argued that the only time it becomes a sale is when the goods have been transferred, which clearly states that the goods should be ascertained.
“Until the 200,000 litres are in his tank, you can institute an action for a contract for sale. For now, it is an agreement for sale. The non-collection of the goods on January 28 was no fault of the defendant, but the fault of the plaintiff,” he told the court.
Lawyer Pabs-Garnon did not seem to convince the court as to why it was the plaintiff’s fault, and the Presiding Judge stated that nobody knew the government was going to impose COVID restrictions, an opinion he later refrained.
“One fundamental rule in commercial law is the duty to mitigate a loss. The defendant should have stated that they can no longer collect the 200,000 litres fuel, since the price had increased and rather collect 180,000 instead, and they could have sued the defendant for the 20,000 liters. That should have been a lesser case for the court. No effort has been made to date,” the Defense Counsel revealed, and furthered that the Defendant went as far as giving back the plaintiff’s money. “Instead of mitigating by accepting the Le1.2billion and sue for breach of contract, they refused the money,” he said, and added that the government had already increased their taxes, which they (the plaintiff) are to pay.
Counsel for the Plaintiff, Lawyer JJ Campbell, asked for an adjourned date of Tuesday 1st June 2021 to respond to the issues raised by the Defense Counsel.
It could be recalled that Lawyer Campbell had submitted an affidavit in support of the matter, with ten exhibits attached, including receipts, delivery notes, letters from both sides and the PRA, a memorandum and notice of appearance, an undertaking filed by the Defendant/Respondent, etc.
It is the argument of the plaintiff/applicant that by paying for 200,000 litres of fuel product to the defendant, and the defendant by receiving and issuing receipts, the latter being an acknowledgment of consideration for the petroleum product paid for by the plaintiff, which both parties entered into a contractually binding agreement.
They argued that the entire ingredient necessary for a legally binding agreement has been complied with by both parties, including offer, acceptance, and consideration.
“The defendant refused to supply the fuel product after having received payment for the fuel product, is a glaring breach of contract,” they submitted, and noted that the defendant’s attempt to refund the consideration for the product because the price of the product has increased after the conclusion of the contract, is in itself a breach.
“They accepted that indeed there was a contract, but being that the price of fuel went up, my client should pay an added sum, which is a breach,” Counsel for the Plaintiff had stated.
Justice S.O. Taylor adjourned the matter for Friday 28th May 2021.