Celtel SL Ltd v The Register of Companies & Another (CIV APP 9 of 2009) [2010] SLCA 25 (20 May 2010)

chien \3t | ow : Civ. App. 9/2009 IN THE COURT OF APPEAL OF SIERRA LEONE ! IN THE MATTER OF THR COMPANIES ACT, CAP 249 OF THF LAWS OF SIERRA LEONE 1960 | AND | IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF THE DECISION ! OF THE REGISTRAR OF COMPANIES TO REFUSE THE REGISTRATION OF A COMPANY (ZAIN) (SL) LTD BY THE APPLICANT BETWEEN: | CETEL (SL) LTD = APPELLANT/2“° RESPONDENT | PURPORTEDLY CARRYING ON | BUSINESS AS ZAIN (SL) LTD

| ‘THE REGISTRAR OF COMPANIES - 1°" RESPONDENT AND | ALIE BASMA - APPLICANT/RESPOND ENT | CORAM: Hon. Justice. BE. Roberts - L.A. | Hon. Justice S.A. Ademosu - JA. | Hon. Justice A. Showers - L.A. oh | JUDGMENT DELIVERED ON THEZO Day or PUYbo10 BY | ROBERTS S.A. | BACKGROUND | ‘The Applicant/Respondent herein filed an Originating Notice of Motion (ONM) in the | court below dated 28/04/08 praying for the following orders and reliefs. i (a) A Declaration that the 1" Respondent was wrong, acted unlawfully, ultra vires j and in violation of the provisions of the Companies Act, Cap. 249 of the Laws H of Sierra Leone 1960, (the Act) by ~ i, Refusing to register and issue the Applicant with a certificate of incorporation after the Applicant's Solicitors had submitted for registration | all documents necessary for the registration of a company under the name « Zain (SL) Limited (hereinafter referred to as “the Company”).

ie : ii, Approving an application by the 2 Respondent for the change of its name 5 to Zain (SL) Limited and issuing a certificate of the said change of name of the 2™ Respondent to Zain (SL) Limited and entering the new name inthe “ register on or about the 16 of September 2008 AFTER the Applicant had submitted all documents necessary for the registration of a company by that name to the 1" Respondent thereby disabling herself from proceed ing with the said registration. iii, Giving effect to a purported change of name by the 2 Respondent by issuing the 2 Respondent with a Certificate of Change of Name to “Zain (SL) Limited” and entering the said new name on the Register of | Companies even though the 2“ Respondent had not complied with the | provisions of section 20(1) of the Act by failing to pass a special resolution | and obtaining the approval of 1* Respondent signified in writing for the said | change of name. | (b) A further Declaration that as at the 5" September 2008 the | ‘Applicant having submitted through his Solicitors all documents i necessary for the Company to be registered under the name of | “Zain (SL) Limited” is entitled to have the same so registered as | at all material times the said name was available, the 2"4 | ‘Respondent had not properly gone through the procedure laid down by section 20(1) of the Act for the change of its name to that the Applicant sought to use for its new Company. (©) Foran Order of Certiorari to quash the decision of the 1" Respondent to approve of the change of name by 2" Respondent to Zain (SL) Limited and issue them with a Certificate of Change ‘of name to that effect. (@ Foran Order [of] Mandamus compelling the 1" Respondent to register the Applicant's company as provided for under the 7 provisions of the Act

vi (34 a2 (©) A perpetual injunction restraining the 2 Respondent byy its directors, agents dealers, servants, employees or howsoever sme otherwise form using the name Zain as part of its nanic:, adverts, v letters, hoarding and or get up of the 2" Respondent or in any ‘manner whatsoever. (® Any further or other relief as to the Court may deem just. (g) That the Costs of the application be provided for.” | ‘The Appellant then filed a Notice of Motion dated 11" November 2008 applying that | the said Originating Notice of Motion be struck out for the reasons as stated in the said Notice | ‘of Motion (see page 110 of the Records). The Learned Judge heard arguments in respect of the | said application dated 11 November 2008 and delivered his Ruling dated 21" January 2009. : Itis against this Ruling dated 21* January 2C09 that the Appellant has appealed to this Court THE APPEAL | B y Notice of Appeal dated 6" Marck: 2009 the Appellant appeals against the Ruling/Judgment of Hon. Mr. Justice N.C. Browne-Maarke J.A. dated 21" January 2009 upon | the following grounds:~ i, That the Leamed Judge having concluded that "Judicial Review will not lie | against a person or body carrying out private law function" and further that | “paragraph (e) of the Applicant's Application directly impinges on private law | rights” erred in law and in fact in holding that the Appellant, a private company | limited by shares registered under the provisions of the Companies Act Cap. 249 of the Laws of Sierra Leone 1960 should continue to be a party and be subjected to the process of judicial review brought by the Respondent.

ii, That the Learned Judge's conclusion that “in the instant case, the most appropriate remedy is judicial review and not a full scale trial” in a case where private law rights are inextricably connected is not supportable in law.

iii, ‘That the Learned Judge was wrong in law to have held that the process of

2 judicial review was the only process available to the Respondent to compel the Registrar of Companies “Yo rescind or revoke or annul her own decision ”

¢ (ae iv. That the decision is against the weight of the authorities. _ In arguing this Apzcat counsel for the Appellant and the Apptizant/ Respondent filed r synopses respectively relying on same as well as the several authorities cited in support of their respective arguments and submissions. I shall not repeat here the various submissions and arguments contained in the said synopses save a brief summary of each respectively as the case may be. I shall deal with the above Grounds of Appeal in the order they were dealt with in the written submissions GROUNDS i & iv In arguing Grounds i & iv, counsel for the Appellant contended that the Learned Judge having concluded that “Judicial review will not lie against a person or body carrying on private law functions” and that paragraph (c) of the Applicants Application directly impinges on private law rights” erred in holding that the Appellant should continue to be a party and be subject to the process of judicial review. He further submitted that the Appellant being a private ‘company limited by shares and registered under the provisions of the Companies Act cap 249 of the Laws of Sierra Leone 1960 is not susceptible to the process of judicial review. Counsel for the Appellant further submitted that the substantive application of the Respondent is made solely under the provisions of order 52 of the High Court Rules 2007, referring to the title of the Originating Notice of Motion. Counsel therefore submitted that if the Appellant, a private limited liability company, is not susceptible to the process of judicial review but is nonetheless a necessary purly (o a cause or matter then the proceedings should not in the circumstances proceed by way of judicial review. He submitted that the Leamed Judge ought therefore to have struck out the Applicant/Respondent’s application. Counsel for the Applicant/Respondent for his part submitted that the judicial review proceedings were properly brought against the 1" Respondent. He submitted that the application for judicial review was brought exclusively against the acts or decision of the I" ws Respondent but that from the facts and circumstances of this particular case the Appellant was a necessary and proper party t the application and hence was made a party. Counsel

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