Judiciary of Sierra Leone
 

Fast Track Commercial Court

 

Between:

Union Trust Bank
 

 

AND

-Plaintiff/Respondent

Date:29th May, 2015

Goal Sierra Leone SIERRA Wlfl LIMITED

Representations

R. Johnson (Lam/Jeri GCo.) RS.V. Wright

FTCCD34//5
 

-Defendant/Respondent

-Applicant/Applicant

20/5.                 No.4/

 

 

BEFORE HON. MR. JUSTICE SENGU KOROMA J. RULING  DELIVERED ON THE  29™, MAY.  2015.

 

• This is an application by way of Notice of Motion dated the 29'" day of May, 2015 for the following orders:

I. That SIERRA WIFI (SL) Ltd. Be made a party of in this proceedings in the form of an intervenes on the grounds that its financial interest are materially affected in the matter herein, pursuant to the provisions of Order 18 Rule 6 (2) of the  High  Court  Rules 2007 and Order 15 Rule 6 (2) of the Supreme Court practice 1999.

1. An interim injunction restraining MESSRS Union Trust Bank (SL) limited, the Defendant/ Respondent herein from paying out the sum of US$ 56,310.80 or any other  sum being the value of the performance bond issued by it in favour of the Plaintiff/Defendant herein  pending and    determination of the matter FTCC 034/13 20 J 3.9 No.41.
2. Any further or other Orders that this Honorable court may deem fit and just.

 

1. Cost in the cause.

 

The Applicant uses and relies on the affidavit of Ishmael Bull sworn to on the 29'" day of May ,2015 together with the exhibits attached thereto.

The application is opposed by the P!aintiffi'Respondcnt through the affidavit of ELSE KIRIK sworn to on the 5'" day of June 2015 together with the exhibits attached thereto.

In his affidavit in support, Ishmael Bull deposed as follows amongst others.

 

1. That there was a contract between the Applicant herein and the Plaintiff/Respondent for the provision of certain services including but not limited to creating a website for use by the Plaintiff/Respondent herein and its contacts.
2. As required as part of the terms and conditions of the refereed contact, the Applicant herein instructed  their bankers, the Defendant/Respondent herein to issue a performance guarantee in favour of the  Plaintiff/respondents  herein to the value of USS 56,310.80. The said Guarantee titled Perforn1ance

-Bond- L/G No. 786/8987-0517/l4 issued by the Defendant/Respondent herein is exhibited  I. I.S.

1. That the said  Performance  Bond was issued on the  Defendant/Respondents

express terms and conditions in exhibit 1.5.3 He particularly refers to a term of the said contract which provides that the Plaintiff/Respondent was  to make an initial deposit payment of U$$ 56,310.80 within 24 hours of the signing of the contract. According to the deponent and , the Plaintiff/Respondent effected payment one (I) month after the same was due thus fundamentally altering and prolonging the time frame and tenure by which activities were to be completed.

1. That the Plaintiff/Respondent and the Applicant renegotiated certain aspects of the contract at least three times but this was never communicated to the Defendant/respondent.
2. That there was no breach of the existing contract between the Plaintiff/Respondents and the Applicant as the website which formed the substratum of the contract was up and running.

t) That the solicitors for the Applicant had by a letter dated I 6'h April, 2015 addressed to the Plaintiff/Respondent and copied the Defendant/ Respondent informed the Plaintiff/Respondent that they were not entitled to any  payment and the bank ought not to pay them any  money,  by another  letter dated 30'h day of April 2015 written by the Applicant's solicitors  to  the Plaintiff /Respondent , the Applicant informed the solicitors of the Plaintiff/Respondent's  intention  to  call  on  the performance bond.

1. That the above notwithstanding, the Plaintiff/Respondent proceeded with litigation solely against the Defendant/Respondent to the exclusion of the Applicant.
2. That it is imperative that  the Applicant  herein  be allowed  to become a  party in the above mentioned matter  so  as  to  protect  its  integrity  and  reputation and ensure that the outcome of the matter does not adversely affect its legal position.

In the "ffidavi't in opposition sworn to by ELSE KIRIK, the deponents deposed   as follows:

That exhibit 1.8 2 is not the correct contract on which the perfonnance bond was issued but rather it was issued on exhibit E K  I

1. The deponent deposes that paragraph  8 is  untrne.

 

1. 40 percent of the contract fee was US $ 52, 859/60 was to be paid upon signing of exhibit 1.8  3 (The perfonnance  Bond)
2. Initial payment to the Applicant was effected on 9th January,  2015.

 

1. The Applicant never had any complaints about the manner and time of payment of the said 40 percent of the contract fee until the Plaintiff terminated Exhibit "EK           I"
2. The relevant instrnctions to the Plaintiffs/Respondent's bank for payment of the said 40 percent contract fee to Applicant exhibited as "E.K 2"

1. That paragraph 10 of the affidavit of Ishmael Bull  is  untrue.  Exhibit "E.K" was never renegotiated on at least three  (3)  occasions  by  mutual consent

The facts are as follows:

 

1. When the Applicant  failed to perform two deliverables  under Exhibit E K  I, the Plaintif£'Respondent tenninated  the  contract  by  letter  dated  31" March, 2015.
2. On receipt of the letter of termination, the Applicant contacted the Plaintiff/Respondent and pleaded to be given 24 hours to perfonn. The Applicant   was   to   have   reimbursed   the  Plaintiff   with   the  sum   of  US

$32,993/00 on or before the 10'" April,  2015, because  the scope of work  to be performed by the Applicant was reduced  to the development  and  hosting of the MAC website  only.

 

hi) The Applicant was to have completed the revised scope of work within one (I) calendar day after signing the amended contract effective 3'" April, 2015, failing which, the Plaintiff was at liberty to claim the full amount of  the perfonnance bond issued by the Defendant/Respondent in the sum of  US

$ 56,310/80.

 

IV) When the Applicant failed to perform as agreed in  the  amended  contract, the Plaintif£1Applicant called on the guarantee. The letter of termination dated the 31" March, 2015, the amendment to exhibit "E.K.  l" and the letter dated 13'" April, 2015 to the senior Manager of the Defendant//Respondent are exhibited as "E.K 3", "E.K. 4" and "E.K 5" respectively.

1. The Plaintiff/Respondent never had use of the website or Application as the same was never launched.

The main issue for determination is whether the Applicant has the right to intervene in an action between the Plaintiff/Respondent and the Defendant/Respondent in respect of the enforcement of a performance Bond issued to the Plaintiff/Respondent at the request of the Applicant. The prayers for an interim injunction would only be considered depending on the ruling on the application for Order 1.

Counsel for the Applicant submitted that they arc applying to be joined as a party in the proceedings because of the following reasons:

1. That the Applicant has a strong interest in the  matter.

 

1. )   The   dispute   is   basically   between   the   Plaintiff/Respondent   and the Applicant and not actually with the Defendant.
2. The Applicant need to be party of in order for the Court to be able to detennine whether the event leading up to the calling in of the performance Bond was justified.

 

• IV) That the Applicant will lose financially and its reputation hurt if they not allowed to defend their  position.

(iii) If the Applicant is permitted to become a party, it would apply for an  interim injunction restraining the Defendant/Respondent from paying out any money  to the Plaintiff/Respondent.

The Counsel for the Plaintifli'Respondent relied on the entire contents of  the  affidavit sworn to by Elsie Kirk. He submits as  follows:

 

1. The action 1s between the Plaintiff/Respondent and the Defendant/Respondent and the action is founded on Exhibit I.S. 3. The Performance Bond. He described Exhibit - E.K I as underlying contract and Exhibit I.S. 3 as an independent and autonomous contract between the Plaintiff/Respondent  and  the Defendant/Respondent.
2. Exhibit I. S. 3 is a first written demand guarantee. The Applicant has no legal right to prevent the Plaintiff/Respondent from calling in on  the performance Bond.

 

1. There was a demand made on this Defendant/ Respondent before the expiring date.

 

1. The Applicant can only intervene in the case of   fraud.

 

1. Whatever dispute there is between the Applicant and Plaintiff/Respondent should be settled in       another  forum.

Counsel for the Plaintif£1Respondent cited a series of authorities which I shall refer to in due course.

 

Counsel for the Applicant in reply stated that all the authorities cited by his colleague establish that the bank is obligated to pay on one unchanged,  un-amended  identical contract. He submits that as soon as the contract was amended, the guarantee no longer applies .He added that with  full  knowledge  that the contractual  has  been  reduced, a claim on the ,original 40 percent will amount to virtually to a fraudulent claim. Counsel for the Applicant concludes by submitting that as soon as the contract  was varied  and amended,  the basis upon which the guarantee was issued   disappears. 

At the request of the Court, Counsel for the Plaintiff/Respondent referred me to the entire content of exhibit E K 4 to explain the amendment to the Original   Contract. Before proceeding to determine and analyze the issues involved in this application,  it will  be necessary to state the law relating to interveners actions. Counsel for the Applicant submits that the application is made under and by virtue of Order 18 Rule 6 (2) and (3) of  the High Court Rules, 2007 and Order 15 Rule 6 (2) of the English  Supreme  Cou1t Practice, 1999.

Order 18 Rule 6 of the High Court Rules, 2007 provides as   follows:

 

'' Subject to this rule, at any stage of the proceedings in any case or matter the Court may,  on such terms as thinks just and either on its own    motion  or on an application''.

6 (2) (b) Order any of the following persons to be added as a   party:-

 

([) "any person who ought to have been joined as a party or whose presence before  the Court is necessary to ensure that the matter in dispute in the case or matter may  be effectual  and completely  determine or adjudicated  upon;'' or

(ii) "any person between whom and any party  to the case or  matter  where  there  may exist a question or issue arising out of or relating to or  connected  with  the  relief or remedy claimed  in the case or  matter.''

Order 18 rule 6 (2) and (3) describes the procedure to be followed on making the  application. The provisions under Order 18 rules 6 and of the High Court Rules, 2007 are lpisisima  Verba Order 15 Rules 6 of the English Supreme Court Practice,   1999.

Generally in common Law and chancery matters a Plaintiff who conceive that he has a  cause of action against a Defendant is entitled to pursue his remedy against the defendant alone. He cannot  be compelled  to proceed  other person against  whom  he has no desire  to

 

procee.l (s'ce the English Supreme Court Practice, 1999 page 225 paragraph 15/6/8) which was quoted with approved by WYNN-PARRY J in DOLLFUS MIEG etc V- BANK of ENGLAND (1951) c.h 33. However under this rule, a person who is not a party such as  the Applicant may be added as a Defendant against the wishes of the Plaintiff either on application of the Defendant or on his own intervention, or in rare cases, the Court on his own motion. The jurisdiction of the Court under this rule is discretionary.

The scope of this rule, so far as concerns the joinder of parties not parties are broadly the same as the objects of the rules relating to third party proceedings, namely (a) to prevent multipl icily of actions and to enable the court to detennine disputes between all parties to them in one action, and (B) to prevent the same or substantially the same questions or issues being tried twice with possibly different results. The main difference between these rules O 18 Rule 2 and third party proceeding is that a non- party (like  the Applicant  herein) can apply to be added as a party under O 18, and 2 but cannot apply under Order   19 to be added as a party.

To entitle a person with a party not a party to an action to intervene and to be joined as a party, the rule requires that would be interveners should have some interest which is directly related or connected with the subject- matter of the action. In other word, where  the propriety or pecuniary rights of the intervener are directly affected by the proceedings as where the intervener may be rendered liable to satisfy any judgment either directly or indirectly. The ambit of this class has been. materially widened by the decision of the English Court Of Appeal in GURTNER V- CIRCUIT (1968). I ALL. E.R 328, the effect  of which is to include any case in which the intervener is directly affected not only in his legal right but in his pocket. (English Supreme Court Practice, 1999 page 227 paragraph 15/16/J I).

In the instant case, the Applicant in his affidavit sworn to on the 29'h day of May, 20 J 5, has averred that if the matter proceeds in the absence of the Applicant, whatever decision   is arrived at would seriously prejudice the Applicant in so far as it would irrevocably damage its business reputation. It would also amount to a declaration to the world at large that  the Applicant  is either  incompetent  or efficient  or otherwise  not able  to  meet   his contractual ol:iiigations. The Applicant also alleges that the Plaintiff/Respondent did not fully comply with the terms of the agreement with the bank and also fully failed to infom1 the bank of amendments to contract. The Plaintiff/Respondent in  his  affidavit  in opposition established that they have fully complied with their obligation  regarding payment of the advance sum. This is evident in Exhibit "E K  I"  under  the  rubric "payment schedule" on page 3. It clears from that schedule that  the  40%  advance  payment was to be paid "upon signing of contract and receipt of performance Bond". As regards informing the Bank of the amendment of the contract, it is my view that it is the responsibility of the Applicant to do so. In any event, Exhibit EK 4 which is the amended contract provides in clause 5 of page 3 "the contractor's failure to fully and timely deliver on the requests specified herein shall result in the customer's final and non negotiable decision to tcnninate the contract with immediate effect and claim penalties in the value of S 56, 310.80, which represent 100 percent of the performance Bond without having to reimburse the contractor for any work commissioned under  the  contract  or  this amendment whatsoever". This was signed by  Ishmael  Bull as the Managing  Director  of the Applicant Company. It should be noted that, this amendment was made after the Applicant had failed to perform under Exhibit E K I and agreed to reimburse the Plaintiff/Respondent in the sum of S 32,993 which he has failed to do. Clause I of   Exhibit

E.K. I is instructive " In  view  of  the  contractor's  consistent  non-perfonnance  in  the execution of the contract, the contractor shall reimburse the customer" I should add for emphasis that the said E.K 4 was signed by Ishmael  Bendu  on  behalf  of  the  Applicant  herein. The implication  of  all of these  revelations  will  become  real.

I shall now proceed to the main issue for determination in this matter which is, as I have earlier stated, whether the Applicant has the right to intervene in an action between the Plaintiff/Respondent and the Defendant/Respondent in respect of the enforcement of a performance bond issued to the Plaintiff/Respondent at the request of the said  Applicant.

Counsel for the Applicant has not addressed the Court on the nah1re of the contract created by a Perfomiance Bond and how the Applicant fits into it. He submits that all what is deposed in the affidavit of Elsie Kirk, the country director of the Plaintiff/Respondent organization   adds   to   the   fact   in  dispute   between   the  Plaintiff/Respondent  and the Application not so much the Defendant/Respondent. Counsel continued that the Defendant/Respondent bank issued the performance guarantee but whether or not  the events that transpired justifies the call on the performance guarantee has to be looked into which makes it imperative for the Applicant to be joined as a party. Counsel for the Applicant concludes that the actual dispute is between the Applicant and the Plaintiff/Respondent and that the Defendant/Respondent be ordered to hold on to payment until the issues in dispute arc properly adjudicated upon.

Counsel for the Plaintiff/Respondent in his submission states that the substance of the matter relates to Exhibit l.S. 3, the Performance Bond. He submits the Exhibit E.K. I- (the main contract) is the underlying contract whilst Exhibit l.S. 3 is the independent and autonomous contract between the Applicant and the Plaintiff/Respondent. Exhibit l.S. 3, according to counsel is a first written demand guarantee and the Applicant has no right to intervene. He refers the Court to PAGET's LAW OF BANKING 12'' EDITION page 730 paragraphs 34.2 which provides that " the principle which underlies demand guarantees is that each contract is autonomous. In particular, the obligations of the guarantor arc not affected by dispute under the underlying contract between the beneficiary and the principal". Counsel also cites series of authorities - ESAL (COMMODITIES and REALTOR  Ltd) V- ORIENTAL CREDITOR  Ltd AND WELLS  FARGO  NA (1985)  2

Lloyd    Rep.   546.   Court   of   Appeal;  EDWARD  OWEN       ENGINEERING   Ltd  -V­ BARCLAYS BANK (per. DENNING M.R). Counsel concludes that, the only instance in which a Bank will lawfully fail to honour a demand guarantee is where fraud is involved.

Counsel for the Applicant replied that the failure of the Plaintiff/Respondent to inform the bank of an amendment to the contract relating to the costs makes the demand a fraudulent claim. In response to a question from the Court relating to reduction in the contract sum, Counsel for the Plaintiff/Respondent referred the Court to Exhibit E.K 4 which explains  the circumstances surrounding and the tenns of the said amended  contract.

I have listened carefully to counsel on the issue of the Perfonnancc Bond/Perfomrnncc Guarantee.  It  is  important  to clarify  at  the outset  that  in commercial  transactions involving

Banks,•th\;  terms   "Performance          Bond"   and  "Performance        Guarantee"      are  used interchangeably Performance Bonds arc a form of financial surety put up by the contractor in order to  provide the employer with a specific sum in the event that there is a default in the performance of the contract. Generally, Perfonnance Bonds fall into two categories: "on demand  bonds"  or "on  default  bond".  With  "on  demand  bonds"   payment  is triggered simply by service of a written demand. On default bonds require not only  the service of a written demand on the bank, but also proof that the contractor is in default and has caused the employer loss. The premium required for these bonds are  less than  "on demand Bonds'.' From the submissions made by Counsel  on  both sides,  it seems Counsel for the Plaintiff/Respondent is arguing that- the Bond issued by the Defendant/Respondent   is in the nature of an "ON DEMAND BOND" whilst Counsel for the Applicant  is saying  that it should be treated as an "ON   DEFAULT  BOND"

I have carefully studied exhibit I.S.  3  (The  perfonnance  bond  dated  the  29'1,  December, 2014) and it is in my conclusion that it constitute that specie of  guarantees  known  in  commercial  transactions  as  an  "on    Demand Bond".  The  principle  is  that  where,  therefore, a bank  has given  a  performance  guarantee,  it is  required  to honour  the guarantee  according to it terms and it is not concerned whether either party to the contract which underlay the guarantee is  in  default  (Per  Denning  M.R  in  EDWARD  OWEN  ENGINEERING  LTD  - V-  BARCLAYS   BANK   INTERNATIONAL   LIMITED  (1978)  ALL  E.R  796)  Paragraph 4 of the Performance Bond L/G No. 786-0517/14  is instructive.  It states  as follows: -  "  We Union Trust Bank Limited, hereby  affirm  that  we  as Guarantors  are  responsible  to you, on behalf of the supplier, up to a total of USO 56,310.80  and  we  undertake  to pay  you, UPON YOUR FIRST WRITTEN  DEMAND declaring  the supplicr's=default under  the contract and without cavil or argument, any sum or sums within the limits of USO 56,310.80 as aforesaid, without you needing to prove or to show grounds or  reasons  for  your demand or the sum specified therein." This is clearly a contract between the Defendant/Respondent Bank and the Plaintiff/Respondent. The Applicant is not a party to  this contract. The duty of the Defendant/Respondent bank is to pay the sum of USO 56,310.80   therein  stated   in  the  guarantee.   It  is  this  characteristic  which   leads   Lord

 

 EDWARD OWN ENGINEERING CASE to describe performance  bonds  as "virtuaJ!y promissory notes payable on demand"; a description which has been cited in numerous authorities in common Jaw jurisdictions worldwide (PAGET'S  LAW  OF BANKING 12T!I EDITION, paragraph 34.2 page  730).  Wordings  similar  to  those  on exhibit LS. 3 has been upheld as on  demand  guarantees  in the case of ESAL (commodities  Ltd  and  RELTOR   Ltd  -V-    ORIENTAL  GREDIT   Ltd   and  WELLS  FARGO   NA (We undertake to pay the said amount on your written demand in the event that the seller fails  to execute the contract in perfect performance" were construed not to require  the beneficiary to prove a failure to perform". Similar words were also used in SIPOREX TRADE SA-V-  BANQUE., INDOSUEZ.

However, there is an exception to the rule that the Defendant/Respondent is bound to honour its obligations under the performance bond. Counsc! for the Applicant argues that the failure of the Plaintiff/Respondent to inform the Defendant/Respondent about an amendment or amendments to the underlying contract concerning the Contract sum amounts to a fraud. lf counsel is right, in the light of the authorities, the Defendant/Respondent will not be under any obligation to honour its obligation under the Performance Bond.

The existence of a fraud in English Law (which is esscntiaJ!y the Jaw with tremendous substantive and procedural influence on the Jaws  of  Sierra  Leone)  was  recognized  in  relation to Performance Bonds by the Court of Appeals in EDWARD OWEN ENGINEERING LTD Case (Supra), and by the House of Lords in relation to both Performance Bonds and  letters  of  audits  in  UNITED  CITY  MERCHANTS (investments) Ltd and GLASS FIBERS AND EQUIPMENTS  Ltd-V-  ROYAL  BANK OF   CANADA,    VITROREFUERZOS   SA   AND   BANCO   CONTINENT AL   SA

(incorporated in Canada) In the words of Lord Displock". There is one established exception that is where the seller, for the purpose of drawing on the credit, fraudulently presents to the confirming bank documents that contains expressly or by implication, natural representations of fact that to his knowledge are untrue... "The fraud exception according to PAGET, is in reality a limitation on the guarantor's undertaking. A   guarantor

 

does n<!'. tfndc'rtakc to pay on a demand which is plainly fraudulent.  This  limitation  gives rise  to  two questions;

1. What constitutes fraud on the part of the beneficiary?

 

1. When the beneficiary has no right to the payment made underlying contract.

In the instant case, the Plaintiff has right to payment under the underlying contract, since the same contract itself clearly stated that the payment of any money under same is predicated on the Applicant providing a performance bond and the amendment  itself E.K  4 , provides that if the Applicant fails to perform under the reduced term and  make a  refund of US S 32,993 ( which was due to refund because of failure to perfonn under the underlying contract) the Plaintiff/Respondent will have the  right to terminate and call  in on guarantee. The agreement was signed by the Applicant. The conditions relating to the performance under the underlying contract and its amendment has not been changed. I  hold therefore that under this head, there has not been any fraud on the part of the Plaintiff/Respondent.

1. Bank's knowledge of the fraud.

 

The Defendant bank is not justified in refusing payment unless fraud is clearly established. A mere allegation of fraud is not sufficient. The Applicant must produce evidence of the fraud. Secondly, the Plaintiff must be given an opportunity to answer to the allegation. Its answer may disclose a genuine dispute. Thirdly, the evidence, together with any  explanation offered by the beneficiary, must be such that fraud is the only  realistic inference if the facts before the Defendant bank are consistent with honesty, then the Defendant bank must pay not withstanding that they are also consistent with fraud. (PAGET'S LAW OF BANKING, 12rn EDITION paragraph 34.9. I agree with this view and hold that on this second limb the Applicant has not proved fraud on the part of the Plaintiff/Respondent nor less that the Defendant has knowledge of it.

In view of the fact of this matter and line of authorities cited, I hold that no exceptional circumstances have been provided to empower this Court to interfere    with the machinery

 

• of the f·,r:Vocable obligation assumed by the Defendant/Respondent as par Exhibit  I.S. 3  the Performance Bond. The Applicant cannot therefore intervene in a contract that is exclusively between the Plaintiff/Respondent and the Defendant/Respondent. There  are other remedies open to the  Applicant.

As I stated earlier, if the first Order prayed for is refused, it will not serve any useful  purpose to grant the application for an interim injunction. In matters relating to irrevocable demand, as already stated,  the only exceptional  case where an  injunction  may be granted  is where it is proved that the bank knows that any demand for payment is already made or which may thereafter be made will clearly  be fraudulent.

There are two major hurdles to be cleared by the Applicant for an injunction restraining payment:-

 

1. To establish a serious issue to be tried that a fraud exception   exists.

 

1. To establish that the balance of convenience is in favour of the grant of an injunction.

 

See HARBOTTLE (RD) (MERCANTILE Ltd -V- NATIONAL WEST MINISTER BANK  Ltd (1978) QB  146; TUKAN TIMBER  Ltd-V- BARCLAYS  BANK PLC

(1987) I Lloyd's Rep.  I 71.

 

As to establishing service issue  to be tried  balance of connivance, Paget submits  that, on  an interlocutory application for relief based on the fraud exception, what has to be established is a good arguable case that the only realistic interference is fraud. I  have  already held that this is not so in this  matter.

As to the balance of convenience, the Applicant will almost invariably be faced with the submission that the balance of convenience is against the grant of an injunction because  if the injunction is granted in circumstance where fraud exception is not subsequently  made out at the trial, the bank will have suffered damage to its reputation which will be both irreparable and incapable of precise   quantification.

                  ,

Before  giving   my  orders   I  would   want   to  warn   Banks  against  clogging   the  wheels  of commercial transactions by delaying in fulfilling their obligations under ''On demand guarantees". The banks have an obligation to properly check the audit and contractual performance histories of their customers before issuing "on demand or  irrevocable guarantees in their favour. Granting the order herein will open the floodgates  and  undermine the role of on Demand Guarantee which is useful tool in  commercial transactions.

In the bases of the reasons  given  herein, the authorities  cited  and  the facts of  the case as set out in the affidavits, I hereby order as  follows:

1. That the application for SIERRA WIFI LTD be made a party to this proceedings in the fonn of an intervener on the grounds that it's legal and financial interests are materially affected in the matter herein pursuant to the provisions of Order 18 Ruic 6 (2) and 6 (3) of the High  Court  Rules, 2007  and Order 15 Ruic 6 (2) of the Supreme Court practice, 1999 is   refused.

1. That the application for an interim injunction restraining Messrs Union Trust Bank (SL) Limited the Defendant/Respondent herein from paying out the sum of US S 56,3 I 0.80 or ANY OTHER SUM BEING THE value of the performance bond issued by it in favor of the Plaintiff/Respondent herein pending the hearing and detennination of the matter FTTC 034/15 2015 No. 41 is refused.
2. Costs in the cause.

 

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Hon. Justice Sengu  Koroma J.