Court Upholds Austin Clarke’s Suit

By C. Winnie Saywah Jimmy

At least plaintiff Austin Clarke might be breathing some sigh of relief as the Civil Law Court presided over by Judge J. Boima Kontoe recently squashed a ‘Motion to Dismiss’ an ‘Action of Damages of Wrong’ filed in his favor.    According to the ruling on the ‘Motion to Dismiss’ filed by Ecobank et al represented by Attys. Arthur Johnson and Swalliho A. Sesay, Judge Kontoe said the motion is not supported by law, facts and circumstances in the case at bar. Therefore, Judge Kontoe in his ruling has ordered that the Action of Damages of Wrong as filed be proceeded with in keeping with practice and procedure in that jurisdiction.

Following hearings into the Motion to Dismiss, the court realized that there were two issues that needed that consideration to have it sustained or overruled. ‘Whether or not, the action would lie and whether or not the institution of a civil case is necessary dependent upon the conclusion of a criminal case growing out of the same facts and circumstances of an action.’

The court concurred with the respondent/plaintiff that the criminal action pending before co-defendant Magistrate Nelson Chineh was not the same as the civil action of damages filed by the respondent/plaintiff; that the parties were not the same; the action was also different as the subject matter was completely unrelated so was the reliefs demanded.

The court held that Lis pendens was not applicable or relevant to the case at bar because it is a legal requirement that criminal case is different from civil suit based on the action of facts and circumstances.

The court further declared that it is not inclined to dismiss the action of damages filed by the respondent/plaintiff even though there lies a burden to prove that the defendants/movants conducted themselves in such a manner towards him as to warrant that they be held liable for damages to him.

It can re recalled that plaintiff Clarke filed a suit for damages of wrong in the amount of US$150, 000 demanding compensatory and exemplary damages as loss anticipated income for the malicious, wanton, careless and callous conduct of the defendants.

In his 13-count complaint, plaintiff/respondent Clark said it was sometime in 2004, when he and his then wife Rosalyn Clarke with others formed a corporation, Mid-land Ent. secured a contract from UNMIL to supply sawn timber, sticks, sand, etc and as a result of the contract applied for loan of US$67, 150 to Ecobank which was granted on May 20, 2006.

Mid-land  met all Ecobank’s conditions for giving out of loans and began the operation of the contract but fell short of meeting the payment deadline due to family problems, a situation that was communicated to the bank in several meetings held with the creditors.

Plaintiff then entered into negotiation with the Liberia Maritime Authority through a company named Knu Shong for the removal of sunken vessels within the territorial waters of the Republic of Liberia with the agreement that Knu Shong will make the payment to Ecobank once the operation began.

The plaintiff informed the court that while he was making every effort to conclude payment in the shortest time possible to the extent of giving the bank an option to foreclose on its mortgage in its possession valued at US$365, 000, a deal which was accepted by the bank, to his surprise, while at the Temple of Justice on May 13, 2013, he was approached by a man who walked up to him and after verifying his identity pronounced him under arrest.

He further complained that while he was trying to explain to the man later identified to be Magistrate Chineh of the Monrovia City Court, he was told that he must secure a bond of US$ 300 if he does not want to go to South Beach Prison.

Plaintiff Clark explained that he told the Magistrate that it was too much money to pay and that the matter was a civil case while the bank’s loan in question was fully covered and secured but to his dismay the Magistrate returned into the building and within seconds five bailiffs descended upon him with a commitment and handcuffed under the direction of Atty. Sesay to be taken to the Monrovia Central Prison.

On May 16, 2013 his bond was approved securing his release from prison, an action by the Magistrate, plaintiff Clarke described as ‘an abuse of judicial power for which the magistrate is liable in damages under the law.

He described the action as calculated in that his photograph was taken and spread in the local dailies as well as on facebook and other internet mediums terming Ecobank’s action which destroyed his reputation, causing him serious embarrassment, financial losses, bringing his family to public ridicule portraying him as a common criminal.

However, the defendants answer to the plaintiff’s complaint informing the court that the plaintiff intentionally and purposely failed to pay any amount for the settlement of his loan facility and that a Writ was earlier issued against the plaintiff for ‘Defrauding Secured Creditors’, a case that is undetermined before the Monrovia City Court.