Shang Dong Steel v Mustapha J Kamara (SC CIV APP 5 of 2018) [2018] SLSC 5 (1 July 2018)

SC.CIV.APP.S/2018, INTHE SUPREME COURT OF SIERRA LEONE ~ CIVIL JURISDICTION BETWEEN SHANG DONG STEEL (SL) LTD FOR AFRICAN MINERALS (SL) LTD. 154 WILKINSON ROAD FREETOWN = APPELLANT AND MUSTAPHA JOSEPH KAMARA 18 NVLANDER STREET ABERDEEN FREETOWN - RESPONDENT RULING DELIVERED THIS ‘( _ DAY OF JULY 2019 ‘The application a

1. By Notice of motion dated the 20" day of March 2018 the Appellant inthis ease applied to this Honourable Court for stay of execution of the Judgment of the Court of Appeal dated March 2018 as follows:

1. A stay of execution ofthe Judgment of the Court of Appeal dated I March 2018 until the hearing and determination of AppellanvApplicant’s Appeal by this Hon Court which ssid Jaadement upheld the Judgment of the High Court delivered on the of May 2016 by the Hon Justice M Samba J... 2A. Stay ofthe Gamishee proceedings presently underway before Justice Samba J which sid proceedings were brought about by the Court of Appeal Judgment of 1 March 2018 and in respect of which a Gamishee Order Nisi was made on 6” March 2018, the same to be made Final on 15 March2018. 4, That the sad stay of execution ofthe respective judgments of the High Court and the Court petow , and the stay ofthe said Garnishee proceedings be granted for the following reasons

+) The Appellanvapplicant herein has good and arguable grounds of Appeal which might succeed in the Supreme Court and these grounds form part of this Application. iy I the sum awarded the resporsfent herein together with interest element added thereon » paid over to him , its likely the same may be dissipated before the hearing and determination of the Appellants/Applicants Appeal to the Supreme Court; and in the event thatthe Appeal is upheld, the judgment ofthe Supreme Court wil be rendered mugatory by such dissipation On the other hand, the Appellant /Appticant will tll be in business in Sierra Leone and willbe int postion to satay the judgment debt should its appeal to the Supreme Court fal Additionally, the Appella Applicant has sulieient capital investment here in Siera Leone to satisy the said judgment debt inthe event its appeal to the Supreme Cour is dismissed si) The respondent has proceeded with inordinate speed to garnishee or sequester the funds of the Appllanapplicant, so as to render the Applicaton herein nugatory, If such proceedings ‘were not stayed, the Appellanvappican's present liguiity postion will be seriously affested ‘wth hundreds of Siem Leonean Staff to look after, with no prospeet of recovering the same should its Appeal to the Supreme Court succeed: $v) That this Honourable Court grant any further or other order it may deem ft «That this Honourable Court do make any order as to costs as it may deem just and propsiate Interim Stay Of Execution 2.At the fest hearing of this matter on the 23% of March 2018, the Application could not be hear to its fullest whereupon the Supreme Court decided to grant an interim stay of execution of the sid judgment pending the hearing and determination of the Applicaton for stay of execution _ with “liberty to Apply’. The full text of the orders ‘of 23" March 2018 is as follows:

1. An tater Stay of Execution of the Court of Appeal Order of 1 March 2018) confirming the Judgment of Justice M.M. Samba J-dated 9th May, 2016 fn respect of the sum of Lel, 304,874,704.45 with interest atthe rate of 10%per annum from 25" October 2013 10 9” May 3016 and thereafter atthe ate of 4¥%per annum watt payment is hereby granted pending the hearing and determination of this Application.

2, That the Garnishee banks be served with this order of Court

3. That the accounts held at Standard Chartered Bank and Guaranty Trust Bank do remain frozen

4. Liberty to Apply

5. Matter stands adjourned to Thursday 26" April 2018. 3.Further, however, the appellant availing itself of the opportunity provided by “Liberty to Apply” granted by the order of 23"! March 2018, on the 24" of March 20} applied to this Honourable Court seeking orders which included, inter alia, that the sum totaling Le 28,735000.00 which had been paid to solicitors for the respondent by Guaranty Trust Bank Ltd pursuant to the Garnishee Order being made absolute be returned and/or reversed to the Appellant pursuant to the Order of this Honourable Court dated 23 March 2018 as the Supreme Court had ordered an interim stay of execution of the judgment of the Court of Appeat confirming the Judgment of Miatta Samba J dated 9% day of May 2016. Secondly, that thla Honourable Court grants an Order that the Appellant be at Liberty to use Monies in ity Aecounte held with Guaranty Trust Bank that are in excess of the sum of Le 928,735000,00 and that the said sum be ring fenced until the determination of the Application dated 23rdMarch 2014, to wit, the full stay of execution Application before this court 4-That application, the Supreme Court was informed was predicated on the fet that there wars still no access to the Appellants Accounts held at the Standard Chartered Bank (SL)LId and Guaranty Trust Bank SL Ltd and it coming to the end of the month, the Appellant needed to pay salaries of its over 2000 workers. That Application was heard on the 26" of March 2018 and during the course of hearing it was found out that the sum of Le 928,735,000.00 had already been executed upon with the money as directed by the Court, Justice Samba J presiding, already in the Account of the respondent's solicitors prior to it granting even its Interim Stay of execution on the 23" of MARCH 2018, this having happened on the 22" of MARCH 2018.The Supreme Court was moved to granting the application of 24” March 2018 on the 26" of March 2018 on these terms

1. That all sums outstanding in the accounts of the Appellant /Applicant held at Standard Chartered Bank and Guaranty Trust Bank be unfrozen to allow the applicant to pay salaries to the employees. ~

2. ‘That the appellant do give un undertaking that in the event the appeal filed fails then it will immediately pay all sums owing and due to the respondent.

3. That the sum of Le 928,735,000/00 which has been paid into the account of the Respondents solicitor held at Guaranty Trust Bank be dealt with as follows, that is the respondent solicitors do give an undertaking in writing which is to be filed in this court ‘and served on Guaranty ‘Trust Bank that the sum of Le 928,735,000.00 will not be withdrawn or defrayed pending the hearing and determination of this Application,

4, Adjourned to 26" April 2018.

Application to Vacate Interim Orders

5. Before the Appellant could continue with the substantive application for stay af execution, the

respondent brought an application before this court secking t vacate the said orders of 26"

March 2018, The Supreme Court in its majority Ruling in Shang Dong Steel (SL) Ltd V Mustapha Kamara dated 5® September 2018 decided that the said orders eannot be vacate.

‘As against the said orders and the aforesaid background this court is now faced with the substantive application for stay

Appellant’s Argument For Stay of Execution to be Granted

6. On Tuesday 7 May, 2019 the application for stay was heard in full. The application for stay ‘of execution was supported by the affidavit of Kweku Melvin Lisk sworn to on the 20th of March 2018, It had Exhibits KMLI-KMLS. Exhibit KML 1 is the order of court dated 1 March 2018; Exhibit KML2 is the Order of Justice Samba J dated 6" March 2018; Exhibit KML3 is order of the Court of Appeal dated 13" March 2018 refusing stay of execution of the Judgment of 1"March 2018; Exhibit KML4 is the Judgment of the Court of Appeal dated 1" March 2018 While Exhibit KMLS is the Notice of Appeal dated 20" March 2018.

7. The argument of the Appellant was that prima facie he had good grounds of appeal and that hhis Affidavit in support deposed special circumstances warranting a stay of execution of the

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