Voytovich Rostislav And Another v Momoh Ansumana And Others (CIV APP 1 of 2017) [2019] SLCA 14 (31 October 2019)

civ app 17 2017 IN THE COURT OF APPEAL OF SIERRA LEONE. BETWEEN: VOYTOVICH ROSTISLAV APPELLANTS/RESPONDENTS. (Gued as Director/Shareholder ‘of Lora Golden Wings (SL) Lid) EDUARD MYRONENKO (Sued as Director of Lora Golden Wings (SL) Lid) AND MOMOH ANSUMANA RESPONDENTS/RESPONDENTS (Suing as Shareholder of Lora Golden Wings (SL) Lid) BORIS FARFELL. (Suing as Shareholder OF Lora Golden Wings (SL) Ltd) OLEG TSUKANOV (Suing s Shareholder of Lora Golden Wings (SL) Lid Through His Attorney Boris Farfell above-mentioned) : GOLDEN CENTURY APPLICANTS DIMITRY PORTNOV

Coram

HON. MR, JUSTICE R.S. FYNN, JA; HON. MR. JUSTICE E. TAYLOR-CAMARA, JA; HON. MR. JUSTICE S.A. BAH, JA COUNSEL: Y.H. WILLIAMS, Esq. (with him B.E. JONES, Esq.) for the Appellants/Respondents or

MP. Fofana, Esq forthe RespondentsRespondents AS. MARRAH, Esq. forthe Applicants RULING DELIVERED ON THE 31°! DAY OF OCTOBER 2019. ‘The Application

1. By a Notice of Motion dated the 20 day of May 2019, the Applicants are seeking reliefs forfour orders, stated thereon as follows: “1. That the Applicants herein be added as interested parties/inerveners to the ‘appeal proceedings herein inituled CIV.APP 1/17. 2, That this Court grants the Applicants time 10 file their own synopsis of ‘arguments in the appeal herein.

3. Any further or other order(s) that this Honourable Court may deem fit and just

4. That the costs ofthis application be costs in the cause.

2. The Motion is supported by the affidavit of Augustine Sorie-Sengbe Marrah Esq, sworn t0.0n the 20" day of May 2019. Attached thereto are the following exhibits (@) Exhibit ASM 1 isa copy of the judgment of the High Court delivered by Hon. Ms. Justice B. Alhadi, Jon the 17 day of January 2017; (b) Exhibit ASM 2 isa copy of the Notice of Appeal on behalf of the Appellants lodged cn the 20% day of December 2018; (©) Exhibit ASM 3" are copies of service contracts between the 2* intended party hherein and the 1* Appellant inthis matter, and (@) Exhibit ASM 4 and 5 are copies of sworn statements made by the 2 intended party herein 24% April 2018 and 144 May 2019, respectively ‘Submissions for the Applicants

3. Counsel for the Applicants, Augustine Sorie-Sengbe Marrah Esq., commenced by submitting thet he relied on the entiety of the Affidavit and more particularly Paragraphs 5 to 13, which are set out as follows: “5. That I have been informed by the 2" Applicant and verily believe that he received several millions of US dollars from the 1" Applicant and his LIDON BVC Company which he uilized to buy and ship vehicles, lorries, machines and other equipment to Sierra Leone consigned to Lora Golden Wings (SL) Ltd

6. That I have been informed by the 2" Applicant and verily believe that the ‘monies were provided under several service contracts with the Appellant and ‘he was paid a monthly salary of USD5,000 for his services provided under the said agreements. Copies of the said service contracts are now exhibited and ‘marked "ASM 36" =

7. That acting om the instructions of the 1 Appellant, the Applicants bought and shipped to the said Lora Golden Wings and Roksolana (S1) Lid.

8 That I [am] aware that these said machines, lorries and other equipment ‘bought and shipped to Lora Golden Wings, were the subject ofthe proceedings in the High Court and are subject of these appeal proceedings.

9 That the 2" Applicant has made available to me sworn statements he has ‘made regarding these facts as contained in paragraphs 4, 5, 6 & 7 above. A ‘copy of the said statement is now exhibited and marked Exhibit “ASM 4 & 5”:

10. That by the said document sworn statement, the Applicants inter alia have rescinded the arbitration clauses in the said service contracts and have subjected themselves to the jurisdiction of the courts of Sierra Leone.

11. That the presence of the Applicants before the Court is necessary to ensure effectual and complete determination and adjudication of all maiters in this ‘appeal.

12, That it would be in the interest of justice having regard to the service ‘contracts between the Applicants herein and the I Appellant in regard vehicles, machines and other equipment which are subject of determination of this court that the Applicants be added as a necessary and interested party.

13. That the addition of the Applicants would occasion no [in]justce to either ‘the Appellants or the Respondents but rather enhance a complete determination of the issues under appeal and just and fair conclusion by his court."

4. Counsel for the Applicants referred to exhibit ‘ASM 1° which is a copy of the judgment beeing appealed and directed the Court's attention to paragraph 16 at page

4. The said portion reads:

“Most of the financial transactions were between a company called Neftegazservice, Lidon Trade and another company called Golden Century. These were companies not registered in Sierra Leone and ones thet the courts ‘had no knowledge about. They did not have any direct business relationship with Lora Golden Wings (SL) Limited; except inthe very limited period they did ‘business and that was when Eduard Myronenko joined Lora Golden Wings (SL) Limited. Most ofthe transactions were complex and usually large patterns of transactions for which there was absent apparent commercial or lawful purpose...”

5. He submitted that by the said paragraph, the 1 Applicant was recognised by the Court below as a party involved in the transaction between the Appellant and the Respondents. He further submitted that as such, the I* Applicant cannot be said ot construed to be an unknown figure in the transaction between the Appellants and the Respondents; that he was not a total stranger in this appeal. He furthered by saying the (Court below recognised the transactions involving the Applicants and therefore, the cr)

said Applicants should be added as parties in order to determine whether there wats “absent an apparent commercial or lawful purpose.”

6. Counsel for the Applicants referred to Order 18 Rule 6 Sub-Rute (2) paragraph (b) of the High Court Rules of 2007 in support of his submissions. He also relied on the authorities of TAMBA BRIMA AND THE PRESIDENT OF THE SPECIAL COURT. V THE REGISTRAR OF THE SPECIAL COURT AND THE PROSECUTOR OF THE, SPECIAL COURT AND THE ATTORNEY GENERAL AND MINISTER OF JUSTICE - SC MISC APP 3/2005 (hereinafter referred to as The Tamba Brima Case); and, THE ESTATE OF KHALILU JABBIE (Represented by Mr Bockarie Enssah as Court Appointed Administrator of the Estate of the Deceased Khalilu Jabbie) - And SKYE BANK (SL) LIMITED AND MOHAMED BOBO BAH - CIV APP NO 4572014 (hereinafter referred to as The Estate of Khalilu Jabbie Case).

7. Counsel for the Applicants further referred to exhibits “ASM 4 & S” — the sworn statements. He concluded by submitting that, in order for this Court to come to the conclusion in respect of ownership of the vehicles, lorries, machines and other

‘equipment and in adjudicating this appeal, the Applicants herein should be added as parties as they were involved in the purchase and shipment ofthe said vehicles, lorries, ‘machines and other equipment and could be of valuable guidance. ‘Submissions for the Respondents/Respondents

8. In opposing the application, Counsel for the Respondents/Respondents, Mohamed Pa- ‘Momo Fofanah Esq. filed an Affidavit in Opposition sworn to on the 7 day of June 2019. He relied on the entirety of the affidavit, particularly paragraphs 3-5, as set out as follows:

“3. That the Respondents herein are opposed to the said Notice of Motion and contend that the intended Applicants are not interested partes to the Appeal ‘herein and were not listed as “parties directly affected by the appeal” at the time the Notice of appeal was filed, pursuant 10 rule 9 of the Court of Appeal Rules, 1985. They were not parties at the tril nor did they seek 1o be joined as Parties during the said full trial and before a reasoned judgmentwverdict was delivered by the High Court in its Fast Track Commercial Division on the 11% January, 2017.

4. That in fact, the High Court siting in its Fast track Commercial presided ‘over by the Hon. Mr. Justice M Sengu Koroma JSC inthe matter intuled: Lidon BUC & Neflegaz Servis RV vs. Golden Century & Dimitry Portnov (FTCC O7T/15) dismissed the case against the Applicants herein in respect of the ‘Purported service contracts now displayed by them in their Affidavit ofthe 20" May, 2019 on the grounds inter alia of forum non conveniens and that the plaintiffs in the said mauer did not frst pursue and exhaust the arbitration ‘requirement in the said purported loan agreements/services contracts that they were relying on..."

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