Pa Saidu Conteh v Amr Gold (SL) Limited (FTC 027/16)  SLHC 1125 (14 December 2016);
IN THE HIGH COURT OF SIERRA LEONE
(COMMERCIAL AND ADMIRALTY DIVISION)
FAST TRACK COMMERCIAL COURT
PA SAIDU CONTEH - PLAINTIFFS/APPLICANTS
PA ISHMAIL DUMBUYA
BOTH OF KATHANTHA VILLAGE KAMAKWIE
SELLA LIMBA CHIEFDOM
AMR GOLD (SL) LIMITED - DEFENDANTS/RESPONDENTS
5 CONGO CROSS BRIDGE
WILKINSON HILL MINING COMPANY LIMITED
33B BABADORIE LUMLEY
C/O AMR GOLD (SL) LIMITED
5 CONGO CROSS BRIDGE
I. Sorie Esq - PLAINTIFFS/APPLICANTS
S. K. Koroma Esq - DEFENDANTS/RESPONDENTS
RULING DELIVERED THIS 14 DAY OF DECEMBER 2016
BY THE HON. JUSTICE F. BINTU ALHADI J.
The Plaintiffs/Applicants action commenced by Ex Parte Notice of Motion dated the 7th day of March 2016 against the Defendants/Respondents for the following Orders to wit:
- An interim injunction pursuant to Order 35 Rule 1 (1), (2), (3) and (7) of the High Court Rules of 2007 restraining the Defendants/Respondents herein or their agents, privies, assigns or howsoever called from entering, dealing with, leasing, mortgaging or disposing of the pieces or parcels of land in any manner howsoever situate, lying and being at the villages of Kamahorta, Kamabonkonie, Kamarhorhornie and Kamakoma in the Sella Limba Chiefdom, Bombali District in the Northern Province of the Republic of Sierra Leone, the subject matter of the substantive action pending the hearing and determination of this Application.
- An interlocutory injunction pursuant to Order 35 Rule 1 (1), (2), (3) and (7) of the High Court Rules of 2007, restraining the Defendant/Respondents herein or their agents, privies, assigns or howsoever called from entering, dealing with, leasing, mortgaging or disposing of the pieces or parcels of land in any manner howsoever situate, lying and being at the villages of Kamahorta, Kamabonkonie, Kamarhorhornie and Kamakoma in the Sella Limba Chiefdom, Bombali District in the Northern Province of the Republic of Sierra Leone the subject matter of the substantive action pending the hearing and determination of this Application.
- Any further or other Order (s) that this Honourable Court may deem fit and just.
- That the costs of this Application be borne by the Defendants/Respondents.
The application was supported by the Affidavit of Ibrahim Sorie Esq sworn to on the 7th day of March 2016.
On the 18th day of April 2016 an interim injunction for seven (7) days was granted against the Defendants/Respondents pursuant to Order 35 Rule 1(1), (2), (3) and (7) of the High Court Rules of 2007.
On the 29th of April 2016 the Defendants/Respondents entered appearance to the Writ of Summons and filed a Defence.
On the 9th day of May 2016 the Defendants/Respondents filed an Affidavit in Opposition deposed to by Sulaiman Kabba Koroma Esq together with exhibits attached thereon. On the 10th of May 2016 the interim injunction was extended to 12th May 2016.
SUBMISSION BY MR. IBRAHIM SORIE FOR THE PLAINTIFFS/APPLICANTS
- Mr. Sorie submitted to this Court that the Plaintiffs/Applicants were the land owners of that portion of land situate, lying and being at Sella Limba Chiefdom, Bombali District in the Northern Province of Sierra Leone. He said that the 1st Plaintiff/Applicant was the Head of the Conteh Family and that the 2nd Plaintiff/Applicant was the Head of the Dumbuya Family.
- He explained that licenses to do artisanal mining were issued by the National Minerals Agency on the 29th of March 2013 to Ishmail Dumbuya and 9th of December 2015 to Santigie Conteh. These were due to expire on the 29th of March 2017 and 9th of December 2019 respectively. However, the Defendants/Respondents were doing large scale mining on the same piece of land that belonged to the Plaintiffs/Applicants and other people without their permission.
- He argued that the Defendants washed heaps of gravel belonging to the Plaintiffs/Applicants, which contained minerals worth US$ 2,000,000 (Two Million United States Dollars) and carted away mining equipment worth Le 572,790,000 which the 1st Plaintiff/Applicant had rented from a company. Mr. Sorie made reference to exhibits “ IS 5 to 19.”
- Mr. Sorie further argued that the Defendants were still mining despite the protestations of the 1st and 2nd Plaintiffs/Applicants; and that the Plaintiffs/Applicants were on the brink of suffering irreparable loss.
- He suggested that, unless the Court intervenes to stop the irreparable damage and preserve the land and minerals, the Defendants/Respondents threaten to continue large scale mining.
SUBMISSION BY MR. SULAIMAN K. KABBA IN OPPOSITION
- Mr. Kabba informed the Court that the Defendants/Respondents were occupying the land and were exploring and mining based on a lease agreement entered into with the land owners. He made reference to Exhibit “SKK 1”, which was the said lease agreement.
- He told the court that the 1st Defendant/Respondent was granted a license by the Government of Sierra Leone through the Ministry of Mines and Mineral Resources, National Minerals Agency under the Mines and Minerals Act of 2009, to explore for all minerals within or over an area comprising of 147.82 square kilometres for a period of three (3) years from 2nd August 2015 and cover Tambakka, Sella Limba, Kasunko and Sanda Loko Chiefdoms, in Bombali and Koinadugu Districts (Exhibit “SKK 2”).
- He further explained to the Court that the 2nd Defendant/Respondent, Wilkinson Hill Mining Company Limited, was granted a license by the Government of Sierra Leone aforesaid to carry out small scale mining activities in the area approved in its application; that is 1.00 sq. kilometre in Sella Limba Chiefdom, Bombali District (Exhibit “SKK 4”) and (Exhibit “SKK 5”).
- Mr. Koroma espoused that the 1st and 2nd Defendants gave authority/consent to the 3rd Defendant/Respondent to do artisanal mining in the area that a lease was granted for and subsequently after authorisation under the Mines and Minerals Act of 2009 to apply for a grant of an artisanal mining right to Sella Multi Purpose Cooperative Organization (Exhibit “SKK 6”).
- He argued that the Exploration Licence Certificate No. EL 49/2011 and Small Scale Mining License No. SML 03/2015 gave the 1st and 2nd Defendants exclusive statutory right over the designated area and that the right cannot be subjected to any individual or private rights. That is an area of 147.6 sq. Km which comprise Tambakka, Sella Limba, Kasunko and Sanda Loko Chiefdoms in the Bombali and Koinadugu Districts Zone 28 N; and an area of 1.00 sq km in Sella Limba Chiefdom, Bombali District, Zone 28 N.
- Mr. Koroma opined that the Plaintiffs/Applicants had no cause of action to be granted any injunction; and that they had no personal right or claim to the portion of land, to which the Defendants had been granted a license to explore and mine, that had been affected or injured.
- He said that the Authority to take any legal action on an infringement to mining or exploration licenses, is for the National Minerals Agency and not any private individual or entity.
MR. SORIE’S REPLY
- Counsel for the Plaintiffs/Applicants, Mr. Sorie, in reply, reported that the purported lease agreement was not valid because it violated several provisions of Chapter 122 of the Laws of Sierra Leone of 1960. He said that the lease agreement was not signed by the District Officer and a Magistrate as stipulated by the Statute.
- He said that the Supplemental Affidavit filed on 20th June 2016 exhibiting the Surveyor’s Report, showed that the land claimed by the Plaintiffs/Applicants did not fall within the concession area granted to the 1st Defendant/Respondent and all the other Defendants/Respondents. That in other words, the Defendants/Respondents were mining and exploring illegally, since the land was not assigned to them, the Defendants/Respondents.
- Mr. Sorie maintained that the families of the Plaintiffs/Applicants have artisanal mining licences as exhibited in Exhibit “IS 4” of the Affidavit in Support of 7th March 2016.
DECISION OF THE COURT
The following issues need to be addressed for a ruling on the Orders prayed for to be made:
In deciding on the relief of an injunction, the Court is guided by Order 35 rule 1 (1) of the High Court Rules of 2007 which states that, ‘the court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so………’
The words ‘just and convenient’ in the statutory provision must be read ‘just, as well as convenient.’ They do not mean that the court can grant an injunction simply because it thinks it convenient, but means that it should grant an injunction for the protection of rights or the prevention of injury according to legal principles. They confer no arbitrary or unregulated discretion on the court, and do not authorise it to invent new modes of enforcing judgments in substitution for the ordinary modes; Halsbury’s Laws of England, vol. 24 (Fourth Edition Reissue) at paragraph 919.
As Lord Diplock said in American Cyanamid Company v Ethicon Limited  AC 396 at p 407 “it is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration.”
Therefore, the court only needs to be satisfied that there is a serious question to be tried on the merits; and that it is just and convenient to make such an Order; Porter v National Union of Journalists  IRLR 404 HL; Morning Star Co-operative Society Limited v Express Newspapers Limited  FSR 113. With this in mind, the court is required to investigate the merits to a limited extent only; Sime, S. ‘A Practical Approach to Civil Procedure’, (2nd ed, 1995), Blackstone Press Limited at p 181.
My first observation is that nowhere on the face of the motion or in the prayers of the Orders sought, does the name “Kathantha” appear. In other words, the application for the injunctions prayed for do not state that they are related to the village of “Kathantha”; even though from exhibits “IS 4” onwards, it is clear that a purported Artisanal Mining License was granted to Ishmail Dumbuya, the 2nd Plaintiff/Applicant for Kathantha Village, Sella Limba Chiefdom, Bombali District; and Exhibit “T6” granted to Santigie Conteh the 1st Plaintiff/Applicant. Whilst the villages that the application referred to were: Kamahorta, Kamabonkonie and Kamakoma in the Sella Limba Chiefdom, Bombali District in the Northern Province of the Republic of Sierra Leone.
The claims made however, are substantive only in so far as large scale mining is being carried on, and the Defendants have no license to do so; also, that the lease agreement signed does not comply with Protectorate Lands Act Chapter 122 of the Laws of Sierra Leone 1960. These issues in my opinion, are regulatory matters that should be addressed by the National Minerals Agency (NMA); whilst on the lease agreement, the said Protectorate Lands Act Cap 122 (supra) makes provision in Section 3 (3) and Section 9 on how to deal with such a situation. However, for the purpose of this application, I do not consider these to be substantive, serious questions to be considered at this stage.
What I consider to be a substantive and serious question to be tried is, whether the piece of land that is being mined by the Defendants/Respondents, belong to the Plaintiffs/Applicants and/or they, the Plaintiffs have an artisanal mining license to mine on it.
There is no evidence before the Court to suggest that the Plaintiffs/Applicants are the Heads of their respective families acting in representative capacities. There is also no evidence to prove their individual ownership even of Kathantha village, which they purportedly hold artisanal mining licenses for.
Furthermore, to be entitled to an Artisanal Mining License, Section 87 (1) of the Mines and Minerals Act No. 12 of 2009 states that “No person other than the holder of an exploration license shall be granted an artisanal mining licence in respect of land which constitutes the exploration licence area or part of the exploration licence area, except with the consent of the exploration licence holder.” Also, Section 88 (1) (a) of the said Act states that “An artisanal mining licence in the prescribed form shall be granted for a period of one year.” Furthermore, Section 90 (1) states that “subject to subsection (2), an artisanal mining licence shall be valid for a period of one year and may be renewed for up to three further periods not exceeding one year at a time.”
I note that the artisanal mining licences of the 2nd Plaintiff/Applicant was issued on the 29th of March 2013 to expire on 29th of March 2017; whilst that of the 1st Plaintiff/Applicant was issued on the 9th of December 2015 and to expire on the 9th of December 2019. The veracity of these licenses is therefore questionable. They have been issued contrary to the provisions of the Mines and Minerals Act of 2009 aforesaid and therefore bring into question the veracity of the evidence of the Plaintiffs/Applicants in this matter and the legality of the documents obtained for the type of mining activity they claimed to have authority to carry out. On this basis alone they cannot argue that they are lawfully authorised to mine and nor can they claim ownership of the land in question.
The Defendants/Respondents do have a legal exploration licence and a small scale licence to explore within the confines of area I indicated above but not in the Kathanta village. Nowhere on the Schedules to the Licences issued is the name of Kathanta village; except in Exhibit SKK 3 on page 6 of the Work Plan where in paragraph 4 it mentions that “the second major exploration target of interest is at Wilkinson Hill close to Kathanta in the Sella Limba Chiefdom.” It is clear that it is an area of interest to the company and not that authority has been granted to it to explore the area. This would have to be regulated by the National Minerals Agency.
In conclusion, it will not be just and convenient to grant any injunction against the Defendants/Respondents; and there is no serious question to be tried. The Plaintiffs/Applicants must therefore fail in their application.
Hon. Ms. Justice F. Bintu Alhadi J.