SLEONE TELECOM LIMITED AND NATIONAL TELECOMMUNICATIONS COMMISSION (FTCC 055/16) [2016] SLHC 1220 (01 March 2016);
The Plaintiff’s action commenced by Originating Notice of Motion dated on the 19th day of February 2016 against the Defendant asking for a number of interim injunctions to be ordered against the Defendant. The Plaintiff failed to comply with Order 8 Rule 4 (2) in so far as the nature of the claim is; but included the relief or remedy required. The following Orders were prayed for. To wit:-
The application was supported by the Affidavit of the Managing Director of the Plaintiff Company, David Thomas Navo, sworn to on the 19th day of February 2016.
Considering that there is no substantive claim before me, I still in accordane with Order 35 Rule 1 (1) and (3) and in order to assist the process in initiating arbitration proceedings according the agreement between the parties, having considered the Originating Notice of Motion on its merit and given the fact that the Defendant was about to contract out and open bids for the same services as provided by the Plaintiff and given that the Defendant failed to attend court, it was just and convenient to grant the interim measure in the first Order prayed for. This was granted on the 22nd day of February 201 6.
On the 29th day of February 2016 the second Order prayed for was granted on the application of the Plaintiff to extend the validity of the first Order prayed for until the hearing and determination of the application.
On the 7th day of March 2016 the Defendant filed an Affidavit in Opposition deposed to by Osman Ibrahim Kanu Esq. No Exhibit was attached.
On the 14,h day of March 2016, the Technical Director of the Plaintiff Company, Chris Joseph, filed in a (Supplemental) Affidavit sworn to on the 14th day of March 2016 together with exhibits attached thereon.
SUBMISSION BY COUNSEL FOR THE PLAINTIFF
SUBMISSION BY COUNSEL FOR THE DEFENDANT IN SUMMARY
MR. JALLOH’S REPLY
THE DECISION OF THE COURT
The following issues need to be addressed before a ruling on the Orders prayed for can be given:
JURISDICTION
matters, the High Court has, for the purpose of and in relation to a reference, the same power of making orders as it has for the purpose of and in relation to an action or matter in the High Court in respect of the following: (1) security for costs; (2) the giving of evidence by affidavit; (3) the examination on oath of any witness before an officer of the High Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction; (4) the preservation, interim custody or sale of any goods which are the subject matter of the reference; (5) securing the amount in dispute in the reference; (6) the detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein................. ” Halsbury's Laws of England, Vol 2,
(Fourth Edition Reissue) paragraph 677,
ARBITRATION
set out in : Clause 6.1 which states that “the parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of, in connection with the Contract within thirty working days of either party notifying the other of the dispute............................................................................................. ” and in
Clause 15. At Clause 15.3, they agreed that if they could not settle their dispute they shall refer it to mediation unless either party does not consider it suitable for resolution by mediation.
13.lt is therefore clear that the Court need not impose Cap 25 of the Arbitration Act of 1960 on the Plaintiff and the Defendant in this matter because they are both in agreement on how they intend to settle the dispute that has arisen between them as a result of the termination of the contract initiated by the Defendant. Courts are usually reluctant to intervene into agreements that were entered into by rational parties, on their own accord and under no duress. Where the parties have included arbitration clauses, there is a presumption that the parties as rational businessmen were likely to have intended to have a legal relationship, where any differences that may arise are to be settled by arbitration except were the language made it clear that certain issues were excluded for arbitration; Fiona Trust & Holding Corporation and Others v Privalov & Others (2007) HL at 1054.
14.lt is therefore clear in my mind that, having heard counsel for the Plaintiff and the Defendant and having perused the agreements entered into, invoking the arbitration clauses in the contracts is the correct approach to take. Invoking the powers of the court in relation to arbitral proceedings and its inherent jurisdiction, where there was an imminent apprehension that the assets of the Plaintiff and agreement between the parties were about to be dissipated, were within the rights of the Plaintiff and were well founded.
16. Furthermore, the Court has received assurances from the Lead Counsel for the Defendant, Mr. Farmah, that the agreement was entered into in good faith and that they would abide by the dispute resolution mechanism. I have no reason to doubt the veracity of the assurances given to this Court by Mr. Farmah, a very senior, experienced and respected Law Officer of the State.
18. In the premises, the interim measures have been exhausted and the parties have expressed their willingness to proceed to arbitration in accordance with the contract. The Court cannot force the Defendant either way on the International Gateway Systems Agreement, since this is the substantive issue that is already before the ICC for its hearing and determination.
19. In the circumstances, I make No Order.
Signed:
Hon. (Ms) Justice F. Bintu Alhadi
