Timis Mining Corporation SL Ltd v Cape Lambert Resources Ltd & Others (CIV APP 60 of 2016) [2021] SLCA 11 (15 July 2021)

° Br INTHE COURT OF APPEALOF SIERRA LEONE CIV. APP. 60/2017 BETWEEN TIMIS MINING CORPORATION (SL) LIMITED - ~APPELLANT | AND

CAPE LAMBERT RESOURCES LIMITED = 15" RESPONDENT GRAIG DEEN ~ 28 RESPONDENT. GERALD METALS LIMITED 3 RESPONDENT | FRANK TIMIS 4™ RESPONDEN | CORAM |

1. HON. MR. JUSTICE SENGU M KOROMA - JSC- PRESIDING

2. HON. MR. JUSTICE REGINALD S FYNN - JA

3. HON. MR. JUSTICE ELDRED TAYLOR-CAMARA-JA COUNSEL ROWLAND S V WRIGHT -COUNSEL FOR THE APPELLANT ADEWALE SHOWERS: COUNSEL FOR THE 1°", 2"° & 3*° RESPONDENTS: BEFORE THE HON. MR. JUSTICE SENGU M. KOROMA JSC JUDGMENT DELIVERED ON THE 15™ JULY, 2899 2031

att RULING DELIVERED ONS JULY, 2021 BY THE HONOURABLE MR. JUSTICE SENGU MOHAMED KOROMA, JSC. This is an appeal from the Ruling of the Hon. Justice M. Samba, J (as she then was) (LTJ) sitting as a Judge of the Fast Track Commercial Court (FTCC) dated the 29% day of June, 2017 on the following grounds: GROUND A: ‘That the LTJ erred in law and/or in the application of the law as the Judge should have held (but did not) that:

i. An arbitration agreement contains within it, a negative promise not to bring foreign proceedings. The negative promise is enforceable by an injunction regardless of whether or not arbitration proceedings are on foot or proposed;

ii, A stay should be ordered unless strong cause for refusing a stay is shown by the plaintiff; and

iii, ‘The Judge should then have gone on to consider (but did not) whether “strong cause” existed to refuse a stay, and should have found that no strong cause had been shown by the plaintiff.

3. Further or alternatively, in so far as the judge sought to identify a reason to refuse the stay, namely the plaintifi’s alleged need for interim relief prior to the formation of the arbitral tribunal, the judge erred in law or in fact for the following reasons:

i, The LTJ misunderstood that whilst an application for interim or conservatory relief might be made to the court, this is not a ground for the court to refuse to stay the substantive proceedings, the claims in which fall to be determined in

a

e accordance with the arbitration agreement reached by the parties;

ii, In any event, the LTJ erred in treating the plaintiff's application for interim relief (resulting in order numbered (3) made by the court) as an application for interim relief against the 4% Defendant which it was not;

iii, ‘The Learned Trial Judge erred in concluding that the Plaintiff's need for interim measures could only be satisfied by an Order granted in High Court of Sierra Leone, in particular, the Judge failed to take into account the availability to the plaintiff of an application for interim relief to the English Court by virtue of Section 44 of the Arbitration Act, 1996 and the fact that the arbitration clause provided for London as the seat of the arbitration.

Particulars of this ground are to be found in page 195 of the Records.

GROUND B:

4. That the Learned Trial Judge erred in law by ordering the plaintiff and the 4" Defendant to proceed to Arbitration whilst refusing a stay of proceedings in the High Court of Sierra Leone thereby creating a situation where in two (2) parallel legal proceedings on the same issue will potentially be running simultaneously in two different jurisdictions to wit: Arbitration in the United Kingdom and the High Court action in the FTCC in Sierra Leone.

5. The particulars are to be found at page 195 of the records ~ Orders (1) and (2) of the Ruling of the learned trial Judge dated the 29 day of June, 2017 at page7 thereof.

GROUND C:

6. That the Learned Trial Judge erred in law and in excess of her jurisdiction when in the absence of an application made by the parties, she purely suo moto made an interlocutory injunction preventing the liquidation of the 4% Defendant. There are no legal or factual bases for the grant of an injunction.

7. The particulars can be found at page 196 of the records - page 7 Order (2) of the judgment dated the 29% June, 2017.

Background

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8, The Plaintiff Company (Respondent) herein issued a writ of summons dated the 11% May, 2017 against the 4 defendant (Appellant) herein and three other Defendants seeking the following relief.

1. As against the 1* and 24 Defendants jointly and severally, damages for conspiracy to injure the plaintiff in its business activities, and/or unconscionable conduct.

Il, As against both the 1* and 2 Defendants, Damages for conspiracy to induce a breach of contract.

IILAn injunction restraining the 1, 2» and 3! Defendants by themselves and/or through their principals and agents from liquidating the 4% Defendant company, and an injunction also restraining it, and its servants and/or agents, from transferring the benefit of such agreement to the 1% and 2% Defendants in particular, and generally to any other individual or entity whether connected one way or the other with the 1* and 24 defendants

IV.A Declaration to the effect that the letter dated 16% March, 2017 purporting to cancel the agreements the 3° and 4t* Defendants have with the Natural Mineral Agency (NMA) are null and void.

V. General damages

VI.Any further or other relief the court may deem fit; and

VII. Costs.

9. On an application by the Plaintiff, interim injunction was granted against the Appellant on the 15% day of May, 2017.

10. The firm of Wright & Co. filed a Notice and Memorandum of Appearance for the 4* Defendant dated 26" day of May, 2017.

11. _ By Notice of Motion dated the 7" June, 2017, the 4% Defendant applied to the FTC for amongst others, a Stay of Execution of the Order of the FTCC dated 15" day of May, 2017, Stay of Proceedings of the matter intituled FTCC: 089/2017 2017 c. No.4 pending the hearing and determination of the proposed Arbitration proceedings after the parties have proceeded to arbitration in accordance with their mutually agreed contracted obligations, to wit: Clause 15.2 of the Royalty Agreement and clause 30.2 of the Loan Agreement between the Plaintiff and the 4" Defendant herein.

12. Mr. A. Showers for the plaintiff opposed the Application.

13. The Application was heard and Ruling delivered and the Learned Trial Judge ordered as follows:

i. That the parties do proceed to arbitration in accordance with their mutually agreed contractual obligations, to wit, clause 15.2 of the

The pages read for this report end here. The judgment continues in the PDF.