Vitafoam Sl v Leone Construction & General Engineering (CIV APP 75 of 2017) [2018] SLCA 1227 (22 February 2018)

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IN THE COURT OF APPEAL OF SIERRA LEONE | CIVIL DIVISION | CIV. APP. 75/17 VITAFOAM (SL) LTD APPELLANT/APPLICANT | | AND |

| LEONE CONSTRUCTION & GENERAL RESPONDENT /RESPONDENT | ENGINEERIN SERVICES | REPRESENTATION: G.K.THOLLEY & CO. COUNSEL FOR THE APPLICANT | YADA WIILIAMS & ASS. COUNSEL FOR THE RESPONDENT

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HON. MR, JUSTICE 8.5, FYNN JA (PRESIDING) HON. MR. JUSTICE D.B. EDWARDS Ja | HON. MR. JUSTICE SENGU KOROMA Ja |

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RULING DELIVERED ON THE 22N° FEBRUARY, 2018 BY HON. MR. JUSTICE SENGU M. KOROMA JA.

1. This is an application by Notice of Motion dated the 9'* day of October, 2017 for the following Orders:~

i, That this Honourable Court grants an Order staying the proceedings at the Fast Track Commercial Court in the matter intituted FICC, 004/17 2017 V. No. 7 pending the hearing and determination of this application

ii, That this Honourable Court grants an Order staying the execution of the Orders of the Fast Track Commercial Court dated the 26" day of July, 2017 and 28' day of July, 2017 respectively pending the hearing and determination of this application»

iii, ‘That this Honourable Court grants an, Order staying the proceedings at the Fast Track Commercial Court in the matter instituted “FICC 004/17 2017 V. No. 7” pending the hearing.and determination of the appeal herein .

iv, That thi$ Honourable Court grants an Order staying the execution of the Orders of the Fast Track Commercial Court in the matter aforesaid datéd the 26' day.of July, 2017 and 28" day of July 2017 respectively pending the hearing anid determination of the appeal herein.

v, Any othér or, further Order(s) as this Honourable Court may deem fit and justin the circumstances

vi, That the-¢osts of and occasioned by the Application be costs in the cause

2. The application was supported by the affidavit of Sahr Bernard Mondeh sworn to on 9 day of October, 2017 and a supplemental affidavit sworn to on the 24th October, 2017 together with the exhibits attached thereto.

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Background

3- The Appellant/Applicant (hereinafter referred to as ‘the Applicant’) commenced this action at the Fast Track Commercial Court by way of Originating Notice of Motion dated the 25" day of April, 2017 against the Respondent/Respondent (hereinafter referred to as “the Respondent”) herein praying inter alia, that the Award/Decision/Order of the Arbitration Panel of the Sierra Leone Institute of Architects in favour of the Respondent dated the 27% day of March, 2017 be set aside.

4. The Application to set aside the Award/Decision/Order of the Arbitration Panel was refused by Samba J. on the 25" day of July, 2017 and on the 26" July, 2017 granted an application for the said Award to be enforced against the Applicant herein in the same manner as a Judgment or Order of the High Court. The Learned Judge also gave an Order attaching all debt due and accruing from the Garnishees listed in’the Notice of Motion dated the 24" July, 2017 in answer to the Arbitral award granted on the 27 March, 2017 and the Order of Court dated 20""July, 2017

5. The Applicant filed’a Notice of Appeal in\the Court of Appeal against the Orders of Samba J. dated)g0 of July, 2017 and a Notice of Motion in the Fast ‘Track Commercial Court (FICC) dated the 31* July, 2017 praying for a Stay of Execution of the Rulings of the Samba J. dated 26" day of July, 2017 and 28th day of July, 2017 tespectively. This application was refused on the 29" September, 2017 by Wright J.

The Present Application

6. The present application was moved by Ms Oredola Martyn on behalf of the ‘Applicant. She relied on the affidavit of Sahr Bernard Mondeh sworn to on the 9" October, 2017 together with the exhibits attached thereto.

7. In her submission, Ms. Martyn referred to Exhibit SBM 8 - the Ruling of Wright J. refusing the Stay of Execution of the Orders of the Fast Track Commercial Court dated 26% and 28% July, 2017 respectively and submitted that it took a period of one month and a half to deliver the said Ruling while

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Execution of the said Orders was ongoing. She also referred to Exhibits SBM 6 and 7; the Notice of Appeal which to her, raises serious grounds of Appeal because of the irregularities complained of therein.

8. Ms. Martyn further submitted that the Respondents were indebted to various Banks and so if any payment was made to them, it would be difficult to recover same in the event of the Appeal succeeding. It would therefore be prudent for the Judgment sum to be paid into the Judicial Sub-Treasury pending the determination of the Appeal.

9. She concluded by submitting that the Application was made pursuant to Rules g1and 32 of the Court of Appeal Rules, 1985

10. In his response, Mr. Yada Williams, Counsel for the Respondents submitted that in an application for a Stay of Execution, the Applicant had the burden to prove:-

(i) That there were prima facie good grounds of Appeal; and (ii) The existence of Special Circumstances.

11. He argued that the “Applicant had not shown special circumstances. Paragraph 11 of the affidavit in Support, which he relied on was sworn to by a Solicitor and not anybody in the Company to depose to the facts. In any event, the irregularities complained of in the said paragraph do not amount to special circumstances.

412. In stipport of the foregoing submission, Mr. Williams referred to Exhibit “M” attached to the supplemental affidavit in Opposition sworn to on 23" October} 2017 whichis a letter written by the Sierra Leone Institute of Engineers dated 15 March, 2017 inviting the Applicant to face the Arbitration Panel on Monday 20" March, 2017. Paragraphs 2 and 3 of the said letter stated that the Applicant's consultant had given his consent for the Arbitration to proceed. He also referred to Exhibit “C” attached to the affidavit in opposition to prove that the Applicant was represented at the Arbitral Proceedings. There was again Exhibit P attached to the affidavit of Idrissa Kabba sworn to on 23 rd October, 2017 which is a copy of the Judge's

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