Dawnus (SL) Limited And Timis Mining (18)  SLCA 18 (18 April 2016);
Counsel for Defendant:
M.P Fofanah Esq
Counsel for Plaintiff:
Civ App 18/2016
IN THE COURT OF APPEAL OF SIERRA LEONE
DAWNUS (SL) LIMITED - APPELLANT/APPLICANT
TIMIS MINING - RESPONDENT/RESPONDENT
THE HON MR. JUSTICE REGINALD SYDNEY FYNN JA
I Sorie Esq for the Applicant
M P Fofannah Esq for the Respondent
RULING dated 18th April 2016
1. On 2nd December 2015 the Honorable Mr. Justice Sengu Koroma J. had ruled inter alia that Sierra Leone is a suitable and competent jurisdiction to try the dispute between the parties. Dawnus (SL) Limited (the applicant) being dissatisfied with that ruling came back to the said judge by application dated 15th December 20015 seeking leave to appeal against that ruling and for a stay of proceedings pending the hearing and the determination of an appeal against said ruling if leave to appeal were granted. On 4th March 2015 Hon Justice S Koroma J. inter alia granted the applicants leave to appeal but refused the request for a stay of proceedings in the High Court. The applicant has now come to this court to seek a stay of the proceedings below pending the hearing and determination of the appeal from the ruling of 2nd December 2015.
2. The rules of this court (to wit, R 28) are crystal clear that an appeal does not in and of itself act as an automatic "stay of execution" or "of proceedings". The Court of Appeal however where it deems it fit will grant such a stay. The court however will not lightly deprive the successful party of the fruits of his judgment (Desmond Luke vs. Bank of Sierra Leone, Misc. App. 22/2004 (Muria JA as he then was) see also Firetex International Co. Ltd. vs. Sierra Leone External Telecommunications Ltd. Misc. App. 19/023.
3. The applicant has argued that "parallel proceedings" in this court and in the court below will risk a waste of precious judicial time especially in the event where the appeal proves a success. The applicant argues further that the looming audit ordered by the court below "is no ordinary audit". He argues that this is a specialized audit which would involve the hire of auditors in and out of Sierra Leone which would be a significantly costly exercise.
4. The respondent's submissions against the application rests mainly on the view that the processes in the court below are not yet at the stage of a trial and that they are yet but expedited discoveries which are inevitable in the Fast Track Commercial Court. The respondent made references to an action in the UK between the parties (and a ruling therein which is Exhibit MPF2) bringing the courts attention to the UK ruling dismissing an application for an anti - suit injunction.
5. This court is entitled to presume that the Notice of Appeal herein (Exhibit D) raises grounds of appeal which have a “realistic prospect of success" or which " raise a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage". (see Smith v Cosworth Casting Process Ltd (Practice Note) quoted favorably by Sengu Koroma J below). Had the Notice of Appeal no such good grounds the Hon. Justice Koroma J. would not have granted leave to appeal. Suffice it to say that the question of good grounds of appeal is not up for consideration before this court as leave has already been granted and the appeal is now in existence. This court will now only assert its presumption predicated on the leave to appeal granted below that there are good grounds of appeal in the notice to appeal. Counsel for the respondent's submissions on this issue will not receive any further comment.
6. It is my opinion that this appeal calls to question the whole of the process before the Court below and not merely the pre-trial processes of the Fast Track Commercial Court. The Pre-trial processes are certainly the more imminent steps in the process below. However the applicant's exhibit D (the notice of Appeal) does not even refer to those pre-trial processes rather it alludes to an error which, the applicant argues, robs that court of jurisdiction entirely- which necessarily would include those pre-trial processes.
7. The applicant's contention is that the Court below was wrong to have decided that Sierra Leone is a proper jurisdiction to hear the dispute and the Court below has agreed that this contention is an issue worthy of argument before the Court of Appeal. In those circumstances: Would it be prudent for the court below to plod on with a trial before hearing what the Court of Appeal’s ruling will be on those questions it has certified for appeal? Especially considering that the questions raised go to the very jurisdiction of that court?
8. A jurisdictional challenge which is not made frivolously is like no other interlocutory enquiry. The answer to it has the potential of bringing the action to an end. In my opinion it therefore demands greater attention. Once such a challenge has been certified for hearing in the court of appeal even though it does not result in an automatic stay the prudent course would be for such a stay of proceedings to be granted if sought.
9. Proceeding with the two actions (ie in the court below as well as before us) certainly attracts the concerns of concurrent actions. I have already mentioned that pre-trial processes are indeed a part of the proceedings in the court below and where the appeal to succeed any such proceeding would have been a complete waste of the court's time. In the instant case it is also argued that those processes will be significantly expensive. Why embark on such a costly enterprise whilst an appeal has been certified which has prospects of success or which raises important questions?
10. I have also considered that mandatory ADR discoveries as required by the Fast Track Commercial court may prove to be a lot more revealing than the discoveries required in ordinary litigation. In the present case it involves the opening up of books and an audit. Should it turn out after ADR that there was no need for such ADR (the forum being wrong) irreversible exchange of information may have occurred to the possible detriment or advantage of one side or the other.
11. The authorities cited above and indeed other authorities I have read on the subject of stay of execution / of proceedings usually deal with circumstances where a stay is being sought after a "contested case". Usually the court would have considered the substantive issues and would have reached a decision on the parties various interests and rights. One side would usually be asking that the execution of that decision be stayed. The position in such a "contested" a case is distinguishable from that here. The contest is yet to begin. It is the very rules of the contest that are being brought into question.
12. I am convinced that the circumstances in this particular case are “beyond the usual circumstances". It is my opinion that “the situation" in this case, as it includes a certified appeal that goes to the root of the jurisdiction to hear the matter at all "is uncommon and distinct from the general run of things” that one finds in most of the authorities on the subject. It is a difference that satisfies the concern raised by George Gelaga-King JA in those very words in Lucy Decker and Others vs. Goldstone Decker Misc. App. 13/2002.
13. The respondent has argued that there is every possibility that the court of appeal may well find no merit in the appeal and valuable time would then have been wasted if a stay of proceedings had been granted. I opine though that there is a lot more at stake and a bigger risk of doing injustice should the court of appeal find in favour of the appellant. In my opinion, that is sufficient reason for granting a stay of the proceedings below. I would therefore exercise my discretion in favour of the applicant and will grant this application but being mindful of the dangers of delay and possible stagnation whilst a stay of proceedings is in force I make the following orders:
- that all proceedings before the Fast Track Commercial Court in respect of this matter are hereby stayed
- that this appeal shall be expedited and that the applicant herein shall facilitate the settling of the records and shall in no more than twenty-one (21) days of this ruling request a panel for the hearing of the same
- that the orders granted herein shall be deemed vacated on the expiration of thirty (30) days hereafter or upon the appeal coming up before a full panel of this court whichever is sooner
- that the cost of this application shall be borne by the applicant in the sum agreed by the parties if not agreed to be taxed
………………………………………………………. The Hon. Mr. Justice Reginald Sydney Fynn JA