International Construction Co Ltd v Zahkem International Construction Company Limited (MISC APP 1 of 2015) [2015] SLSC 1219 (14 May 2015)

|. ira = ==——__- | MISC APP 1/2007 (te IN THE SUPREME COURT OF SIERRA LEONE SUPERVISORY JURISDICTION

IN THE MATTER OF AN APPLCATION PURSUANT TO SECTION 126(5) OF THE CONSTITUTION OF SIERRA LEONE, ACT NO. 6 OF 1991

BETWEEN:

INTERNATIONAL CONSTRUCTION CO.LTD - PLAINTIFF/ RESPONDENT

AND

ZAKHEM INTERNATIONAL CONSTRUCTION

COMPANY LIMITED = DEFENDANT/APPLICANT

Coram

THE HONOURABLE MR JUSTICE V V THOMAS, ACTING CHIEF JUSTICE THE HONOURABLE MR JUSTICE N C BROWNE-MARKE

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MS JUSTICE V M SOLOMON

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MR JUSTICE P O HAMILTON

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MR JUSTICE A CHARM, JUSTICE OF APPEAL COUNSEL: JB JENKINS-JOHNSTON ESQ (with him, LEON JENKINS-JOHNSTON ESQ) for the Defendant/ Applicant

AE MANLY-SPAIN ESQ (with him, S KATTA ESQ) for the Plaintiff/Respondent me JUDGMENT DELIVERED THE [Ly! BAY OF May,2015

BROWNE-MARKE, JSC

The Application

The Defendant/Applicant (hereafter, *The Defendant"); has-come'to this———— Court by way of Notice of Motion dated 12 January,2015 for this Court, comprising 5 Justices, to vary its decision dated 15" December 2014

E delivered by this same Court then constituted by 3 Justices. The it Application is made pursuant to Section 126(b) of the Constitution of Sierra Leone,1991 which reads, in part... three Justices of the ‘Supreme Court acting in its civil jurisdiction may exercise any power vested in the Supreme Court not involving the decision of a couse or matter before the Supreme Court, save thot: (a)....(b) in civil matters, any order, direction or decision made or given by the three Justices in pursuance of the powers conferred by this section, may be varied, discharged or reversed by the Supreme Court constituted by five Justices thereof.”

2. The Order which the Defendant wishes to be varied reads as follows: “That the funds transferred out of the Respondent's account at Ecobank (SL) Ltd and paid into the Applicant's Account at Rokel Commercial Bank | (SL) Ltd, namely, Le157,180,726/55, and the sum of US$177,058/76 transferred out of the Respondent's Account at Ecobank (SL) Ltd and paid into the Applicant's account at Guaranty Trust Bank pursuant to the said Default Judgement dated 23% May,2014 and subsequent garnishee proceedings, be refunded forthwith by the Applicant and the said total sums paid into an interest bearing Leone account (for the Leone component of the funds) and into an interest bearing US Dollar account (for the US Dollar component of the funds) which accounts are to be ‘opened in the joint names of the Solicitors for the Applicant and the

Respondent at Sierra Leone Commercial Bank in Freetown”

3, The Defendant prays that this Order be varied to read: * That the funds transferred out of the Respondent's Account at Ecobank (SL) Ltd, namely Le157,180,726/55 and US$177,058/76 pursuant to the said Default Judgment dated 27% May,2014 and subsequent Garnishee proceedings, BE REFUNDED FORTHWITH and paid back to the Respondent's said ‘Account at Ecobank (SL) Ltd consequent upon the setting aside of the Default Judgment dated 23% May,2014 and the subsequent Garnishee proceedings.”

4, There was a second Order which the Defendant now seeks to be discharged: it reads as follows: “Until the dispute between the parties is finally resolved, no withdrawals should be made out of the said Accounts unless by a specific order of the Court to that effect."

5. No reason has been stated on the face of the Motion why the full Court should vary the decision of the Court comprising three Justices,

: jefendant has Tot stated what was wrong with the fi ee ===

. Order of that Court that it now wishes to vary: ond as regards the a\2 second Order, what was wrong with it, that it now wishes the same to be discharged. The questions the Defendant poses amount to this: Can this Court vary its decision, given by a Bench of three Justices, ‘willy. nilly. «| is there an implied requirement that the Applicant should show that there! was something wrong in Law or in principle with the Orders made, whose variation and discharge, respectively, it now seeks? This Court should “ bear in mind that the Application herein, is not on appeal, even though * Constitutional provision permits the full Court to reverse the decision f the Court made up of three Justices. )

DEFENDANT'S AFFIDAVITS

6, The Application is supported by the respective affidavits of Brenda ‘Tones, deposed and sworn to on 12" January.2015 and of Mr Jenkins- ‘Johnston, deposed and sworn to on 17" February,2015.

7. Mrs Tones' affidavit sets out the history of the case ~ how it got to this Court, it having begun in the High Court. Exhibited to her affidavit are, | copies of the writ of summons issued on 3° March,2014, exhibit "A": the default Judgment dated 23% May,2014 - exhibit "B*; the Garnishee Order Nisi dated 30" May,2014 - exhibit "C*: transaction records showing the debiting of the Defendant's respective accounts with the Leone and Dollar amounts, respectively - exhibits "D* & "E*, respectively: ‘the Order made on 6™ August,2014 by SHOWERS, JA setting aside the default Judgment - exhibit “F*. Exhibits "6" & "H* respectively, are copies of the exchange of correspondence between Solicitors on both sides; and exhibit "J*, is a copy of this Court's decision, dated 15"

December,2014, The drawn-up Order of Court has not been exhibited.

8. In that Ruling, the Learned Justices did dismiss the Plaintiff's Application for an Order of Certiorari to issue against the Order made by SHOWERS, JA, sitting as a Judge of the High Court, and then went on to make the Orders complained of. According to Section 125 of the Constitution,1991, this Court, in the exercise of its supervisory jurisdiction, *...shall have power to issue such directions, orders or writs including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing or securing the enforcement of its supervisory powers." It is our view, that this Constitutional provision, authorised and empowered this Court

to make the Orders it made in December, 2014; consequent upon its

b refusal to set aside the Ruling of SHOWERS. JA. Of course, itisnowthe |S duty of the full Court to determine whether it was the right decision, and if not the right decision, whether we should vary ond discharge. respectively, its component parts,

9. Turning to Mr Jenkins-Johnston's affidavit, he refers to the Order of this Court for the respective transfers to be made, ond deposes that the Plaintiff had not, two months after the Order was made, complied with its terms fully, in that the joint account had not been opened as Ordered by this Court. PLAINTIFF'S AFFIDAVITS

10. The Plaintiff/Applicant (hereafter, “the Plaintiff"), opposes the Defendant's Application, and has filed two of fidavits deposed and sworn to by Moufid Ibrahim Rashid, its Managing Director, on 17 February,2015, and by Mr Manly-Spain, deposed and sworn to on 24” February 2015, respectively,

11. In his affidavit, Mr Rashid explained the nature of the contractual relationship between both companies. According to him, only the Dollar ‘amount was paid into the Plaintiff company's account pursuant to this Court's Order of 15" December,2014, This was proved to be true, in the end. He deposed further, that as of the date of the affidavit, the Defendant company, had not filed a defence to his company’s claim. During the course of argument, Mr Jenkins-Johnston did say this had been done, but there is no affidavit evidence in proof of this. Mr Rashid deposed in paragraph 6 of his affidavit that the Defendant company, being a foreign entity, had begun to close down its business in Sierra Leone, and was intent on leaving this jurisdiction, as its local representatives had not been within the jurisdiction for over six months Prior to the date of his affidavit. He ended by saying that the Order made by this Court was just, as in the event the Plaintiff company succeeds in its claim against the Defendant company, there will be funds within the jurisdiction on which the Plaintiff could fall for satisfaction of the judgment debt. |

12. Mr Manly-Spain's affidavit dwelt on the opening or non-opening of the | ‘accounts as Ordered by this Court. He deposed that the accounts were not opened because he could not secure the cooperation of Mr Jenkins- Johnston. The impasse which had developed between the parties with "___ Fegards te compliance with this Court's Order was eventually settled in

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