Kalpataru Power Transmission Limited v Zenith Bank Sierra Leone Limited And Another (MISC APP 19 of 2019) [2020] SLCA 25 (21 July 2020)

Ibi — all MISC.APP. 19/19 2019 Zz. ‘NO. IN THE COURT OF APPEAL OF SIERRA LEONE (APPELLATE JURISDICTION 7 BETWEEN: KALPATARU POWER TRANSMISSION LIMITED — PLAINTIFF/RESPONDENT 77 AZZOLINE HISGHWAY AND ZENITH BANK (SIERRA LEONE) LIMITED - 157 DEFENDANT/APPLICANT 18-20 RAWDON STREET FREETOWN THE MANAGING DIRECTOR - ‘28° DEFENDANT/APPLICANT ZENITH BANK (SIERRA LEONE) LIMITED 18-20 RAWDON STREET FREETOWN

Coram

HON, JUSTICE MUSU D. KAMARA, JA (Presiding) HON. JUSTICE ANSUMANA IVAN SESAY, JA HON. JUSTICE SULAIMAN BAH, JA SOLICITORS: E. KARGBO ESQ., COUNSEL FOR THE 2° APPLICANT T. KELLIE ESQ., COUNSEL FOR THE PLAINTIFF/RESPONDENT AULING DELIVERED ON THE 2-1 “pay oF Js uals 2020 This is an application by way of notice of motion dated the 8" day of November, 2019 in which this Applicant is seeking the following orders.

1. That this Honourable Court grants an interim stay of proceedings of this matter currently in the High Court pending the hearing and determination of this application

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2. That this Honourable Court grants leave to the defendants Zenith Bank (SL) Ltd, to appeal against the ruling of the High Court dated 23" day of October, 2019 ist the Court of Appeal.

3. That upon leave be granted oy this Honourable Court a stay of proceedings in > this action be granted pending the hearing and determination of this appeal.

4. Any other order(s) that this Honourable court may deem fit and just in the circumstance.

5. Costs in the cause, This application is supported by the affidavit of SAIDU WILL ESQ., sworn to on the 8 day of May, 2019, counsel for the Applicant relied on the under mentioned exhibits a. Exhibit SW.1 - copy of an offer of advance payment Guarantee dated 16" August, 2016. b. Exhibit Sw.2 - copy of a Writ of Summons dated 18" October, 2018 against the Respondent and the 1% Defendant claiming damages for breach of Contract, etc. c. Exhibit SW.3 = Acopy of statement of Defence and Counterclaim dated 2” May, 2019 to the afore Mentioned writ of summons. d. Exhibit SW.4 - copy of a Court Order granting an interim Injunction on behalf of centurion restraining Respondent from claiming the advance payment guarantee held by the Defendant/Applicants and at the same time restraining the defendant/Applicant from releasing payment under the advance payment guarantee to the Plaintiff. e. Exhibit SW.5 ~ a copy of a Court Order vacating the same by Which time the advances payment guarantee hhad expired. f. Exhibits SW.6 = Copies of Court Order striking out the Plaintiff Notice of Motion papers in a bid to restore the Validity of the advance payment Guarantee ‘ dated the 6" November, 2019 and 8" day of February, 2019.

* g. Exhibits SW.7- copies of letters addressed to the Plaintiff stating that the guarantee had expired which affects it validity to honour payment to them as indicated ir paragraph 7 of the Defendant/Applicant statement of defence.

“ h. Exhibits SW.8 = a copy of a letter dated 7 January, 2019 addressed to the Defendant/Applicant in which the solicitor for Centurion Engineering made it lear that the contract between them and the Plaintiff/Respondent had been avoided and that Centurion had no intention of renewing the expired advance payment guarantee.

i. Exhibits SW.9 = a copy of a writ of summons dated 22™4 February, 2019 issued by the Plaintiff against the Defendant demanding for immediate repayment of Le 271,181,055.00 of the advance payment guarantee as a result of their failure to restore the validity of it.

4. Exhibit SW.10 = a copy of appearance entered for and on behalf of the Defendant/Applicant. k. Exhibit SW.1l - a Copy of a statement of defence filed in response to the writ of summons dated 22°4 February, 2019. |. Exhibit SW.12 : a copy of Court Order dated the 15" April, 2019 adjudged by consent order of both Centurion Engineering and the Plaintiff/Res- Pondent to file their defence to the writ of summons dated 13" October, 2018. m. Exhibit SW.13- a copies of application to enter final judgment Pursuant to Order 16 of the High Court Rules

N. Exhibit SW.14 - copy of Court Order pronounced by Hon. Justice M.P. Mami refusing the summary, Judgment but at the same time giving an order that the sum of Le 271,181,055.00 being 10% rs of the contract prices be paid into the Sierra

x Leone Commercial bank in an interest yielding accounts etc. ©. Exhibits SW.15 - copies of Notice of Motion and affidavit fer joinder ot parties pursuant to order 18 Rule 6(2) . of the High Rules. P. Exhibit SW.16 - copies of a proposed Notice of Appeal q. Exhibit SW.17 = copies of Notice of Motion dated the 25** day of October, 2019 asking the High Court for interim stay of execution of Order 2 of the Court order dated 23" October, 2019 and all subsequent proceedings pending the hearing and determination of the applicant, leave to be granted to the Defendant to appeal and equally stay of proceedings. The order refusing this application dated the 7% November, 2019 is also exhibited, Counsel for the Defendants sought the leave of this Honourable Court to file and use two (2) supplemental Affidavits both sworn to on the 14" December, 2019 and 6" February, 2020 respectively both sworn to by Saidu Will. Leave was granted and counsel for the Applicant relied on SW.1 and SW.2 exhibited in the Supplemental Affidavit sworn to on the 14 December, 2019 and these are copies of letters dated 26" November, 2019 and letter of 3 December, 2019 both showing payment of the advance payment guarantee to Centurion Engineering Limited and enclosed receipt of payment respectively, In response to the afore mentioned application Tamba Kellie Esq., solicitor for the Plaintff/Respondent filed an affidavit in opposition sworn to on the 25% November, 2019 and a Supplemental Affidavit sworn to on the 25% February, 2020. The Respondent solicitor relied on eleven (11) exhibits to counter the Applicants case. Exhibit TK1 & TK2 - are copies of irrevocable undertaking communicated in the advance Payment Guarantees dated 19" Apri, and 16" August, 2018 respectively Exhibit TK3 — copy of a sub-contract dated 30! March, 2018 between the Plaintif/Responcent and Centurion Engineering the Defendant/Applicant’s Aecount party.

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