Vitafoam SL Ltd v Leone Construction & General Services (CIVAPP 9/2021) [2025] SLSC 3 (24 November 2025)

CIV. APP. NO.9/2021 INTHE SUPREME COURT OF SIERRA LEONE INTHE MATTER OF SECTION 12(2) OF THE ARBITRATION ACT (CAP 25) OF THE LAWS OF SIERRA LEONE 1960 AND

INTHE MATTER OF THE AWARDIDECISION/ORDER OF THE ARBITRATION PANEL OF THE SIERRA LEONE INSTITUTE OF ARCHITECTS DATED THE 27” DAY OF MARCH 2017 IN THE MATTER BETWEEN VITAFOAM. MANAGER AND LEONE CONSTRUCTION & GENERAL ENGINEERING SERVICES FOR WITHHOLDING PAYMENT AND

SETTING ASIDE THE AWARDIDECISION/ORDER. OF THE ARBITRATION PANEL OF THE SIERRA LEONE INSTITUTE OF ARCHITECTS DATED THE 27” DAY OF MARCH 2017 IN THE ENGINEERING SERVICES AFORESAID BETWEEN: VITAFOAM (SIERRA LEONE) LTD ~ APPELLANT. AND LEONE CONSTRUCTION & GENERAL ENGINEERING SERVICES. RESPONDENT

Coram

Hon. Justice G. Thompson JSC - Presiding

Hon. Justice A. B. Halloway JSC

Hon. Justice A. M. Bangurah JSC

Hon, Justice J.B. Allieu JA

Hon. Justice T. Barnett JA

Counsel: G.K. Tholley for the Appellant

‘Y.H Williams for the Respondent

o

rudgment dated the bday of Nee t—sons

6G. Thompson JSC

Introduction

1. The Appellant and the Respondent entered into a contract dated 5" April 2012 for the construction of an industrial complex comprising a factory, warehouse, and related structures at Hastings Vilage in the Western Area of Sierra Leone. the ‘Appellant retained the services of Eben Elliott Associates as quantity surveyor and project manager for the project. Construction commenced on 27” April 2072, with ‘a scheduled completion date of 26" April 2013. The Appellant's case is that the works were not completed by the contractual deadline and remained incomplete ‘even after subsequent extensions were granted. In 2014, the roof of the rain structure was reportedly damaged by galeforce winds. Following an inspection, the project manager agreed that certain remedial work was required. Notwithstanding this, a certificate of practical completion was issued on 7” February 2015, followed by a certificate of final completion on 8 November 2016.

Subsequently, the project manager advised his client - the Appellant - to pay the

‘outstanding balance due to the Respondent. His correspondence recommending

that payment be made by the Appellant to the Respondent can be found at pages

298 to 315 of the records.

2. In 2016 the Respondent being dissatisfied with the nonpayment of the final instalment on issuance of the final certificate invoked the dispute resolution clause of the agreement (Clause 4). This clause states as follows:

“sens sn ene disputes or difference shall be and is hereby referred to the arbitration ‘and final decision of a person to be agreed between the parties or, fae ‘agreement within 14 days after either party has given to the other when request®6 concur in the appointment of an arbitrator, a person to be appointed on the request of either party by the president ora vice president forthe time being of the Sierra Leone Institute of Architects.”

3. The Arbitrator held the Respondent's claim in an award dated 27"" March 2017. The ‘Appellant was to pay to the Respondent: a. The sum of USS290,577.28 under the agreement between the parties b. Interest at the rate of 5% within 14 days ‘c. The sum of Le 4,000,000/00 to the Sierra Leone Institute of Architects.

+ Lal racecars the ax ‘Track Commercial Court (FTCC) to have the

conn ya conan

of Appeal. Meanwhile the Respondent fled proceedings oes out

Proceedings in the FTCC to have the

arbitration award enforced as a judgement of the High Court and for a garnishee

order in respect of the sum awarded bythe Arbitrator The pplication was granted

‘on the 26" and 27" July 2017. The Respondent levied execution on the strength of that judgement and the garnishee order absolute.

5: By a Notice of Motion dated 31" July 2017 and another one dated 3" August 2017

‘he Appellant applied to the Court of Appeal to stay the execution ofthe orders ot the High Court dated 26” and 27" of July 2017 and to set the orders aside for irregularity. At the same time, an application to stay the writ of Fife was pending before the FICC. That application was refused by the High Court on the 29" of September 2017 and the Appellant appealed tothe Court of Appeal and fora stay of execution. The Court of Appeal by a ruling dated 22" February 2018 upheld the Appellant's application for stay of execution of the judgement and successive Orders subject to the Appellant paying the sum of US$150,000 into the Judicial Sub- Treasury on or before the 30" March 2018 pending the hearing and determination of the appeal. That order was subsequently varied so that the money was paid into an escrow account held in the joint names of the Appellant and the Respondent at commercial bank in Sierra Leone. The Union Trust Bank was nominated and the money was deposited by the Appellant into that account.

6. On the 20" of June 2020 the Court of Appeal upheld the Appellant's appeal and overturned the judgement of the High Court (FICC). The Court also ordered as follows:

2. the costs award by the Arbitrator and the Learned Trial Judge (the FICC) be set aside

b. That the matter be remitted to the Arbitrator as provided for in Clause 4 of the Agreement between the Patries dated 5" April 2012 with the proviso that a fresh panel be constituted comprising of members agreed on by the said parties.

7. After setting aside the original Arbitration award, the Court did not direct the restitution of amounts paid pursuant to that award or those held in the escrow account as previously ordered by the Court. By a Notice of Motion dated 28" July 2020 the Appellant sought:

t a. therefund of the Le406,110, 910. 85 cents and US$7/033.79 cents recovered by the Respondent from its bank accounts pursuant to the garnishee order mentioned above, and b._ the return of the US$150,000 that was being held in this escrow account that which was paid as a condition of the stay of execution referred to above 8, The Respondent contended that the Court of Appeal was now functus officio after delivering its judgement on the 20 of July 2020 and that the Appellant's application was an abuse of process. On the 29" of September 2021 the Court of ‘Appeal struck out the Notice of Motion filed by the Appellant on the 28” of July 2020 and ordered the parties to proceed to arbitration as previously ordered by the Court Iti this ruling ofthe Court of Appeal that isthe subject of the appeal tothe ‘Supreme Court.

‘9. The parties were unable to agree gn she appointment of an arbitrator AS 2 results and acting upon a request an beak ‘ders Leone institute of Architects appointed Mr. Kemoh Tarawalli as arbitrator and informed the parties of his ‘appointment by letter dated 19th August 2020. On 24!" August 2020, solicitors ‘acting on behalf of the Appellant wrote to the President of the Institute of Architects, expressing their satisfaction with the appointment but indicating that there were certain “outstanding procedural issues” which needed to be resolved. Bya letter dated 26" August, Mr Tarawalli accepted to the appointment to serve

as the sole arbitrator and proceeded to invite the solicitors for both parties to an initial meeting scheduled for the 1* September. At that meeting Counsel for the ‘Appellant raised a jurisdictional objection to the appointment of Mr. Tarawall, contending that the appointment was contrary to section 6(2) of the Arbitration ‘Act, Cap. 25 of the Laws of Sierra Leone 1960 and restated the Appellant's refusal to submit to the said arbitration. Section 6\Dof Cap 25 states 2s follows: “Where a submission provides that the reference shall be to a single arbitrator, and all the parties do not after differences have arisen concur inthe appointment of an arbitrator vssvnses nes ns ans a ee enesy party may serve the other parties or arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator. f the appointment isnot made within seven clear days after the service of the notice, the Court may, on application by the party who gave the notice, appoint anarbitrator, umpire, or third arbitrator, who shall ave the like powers to actin the reference and make an award a if he had been appointed by consent ofall parties.”

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