MISC. APP.355/2006    2006  A  NO 12

IN THE HIGH COURT OF SIERRA LEONE CIVIL JURISDICTION

IN THE MATTER OF THE PETITIONFOR WINDING UPOF ARCADIA MINING COMPANY LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT CHAPTER 249OF THE LAWS OF SIERRA LEONE 1960

BETWEEN HAROLD G SLONE             -PETITIONER / APPLICANT

AND

ARCADIA MINING CO LTD                  - 1st REPONDENT

MOHAMED SERRY                                -  2NDRESPONDENT

OSMAN KABBA                                     - 3RDRESPONDENT

LANSANA FADIKA                                - 4THRESPONDENT

AND THEORDORE BURDEN                - 5th RESPONDENT

JANE NEWTON                                      - 6th RESPONDENT

J B JENKINS JOHNSTON ESQ                    FOR THE PETITIONER

 ROLAND WRIGHT ESQ                              FOR THE RESPONDENTS

RULING DELIVERED THIS 8th DAY OF MARCH 2007

Having dismissed the respondents application in an attempt to expunge the affidavit in support of the petitioner/applicant's motion of 19th January 2007 it behoves this court to now to consider the application by motion dated 19th January 2007 that this Honorable court do make an order for the recovery and interim preservation of the several items listed in paragraph 7 of the petition herein and that the items be kept in Safe custody by the police , the bailiffs of the High Court or as the court may direct pending the hearing and determination of the petition .

This application was made pursuant to Order 37 rule 3 of the High Court Rules 1960.

1.

The application was supported by the affidavit of Alhaji Mohamed Jabbie sworn to on the 19th day of January 2007. Exhibited to this affidavit are several exhibits Ex A1-8- C1-3. The Respondents/ applicants opposed the application and filed and argued their affidavit in opposition sworn to on the 30th day of January 2007.Exhibited to this affidavit were also several exhibits viz Ex OK 1- OK 5

The main point of contention of the Petitioner/ Applicant is that winding up procedure having commenced by a Petition it was in the interest of all the parties that the assets of the company be protected; the assets of the company being thousands of dollars money 's worth were scattered all over the country and were in danger of being dissipated if swift action was not taken to protect same. In reply the respondents were strongly convinced that this was a matter in which the court ought not grant the orders prayed for. Firstly because there has been a total failure to show a nexus between the items listed and the Arcadia Mining Company and that no where was it stated that those items belonged to the Arcadia Mining Company and secondly, the petitioner applicant was asking the court to preserve what he had started dissipating .

On their first submission counsel for the respondents referred the Court to exhibit C1-3 . He submitted that exhibit C1 is a letter addressed by solicitors of the Applicant to 2 respondents Mohamed Kabbia and Mohamed Serry. and that a perusal of that letter indicates property belonging to Arcadia incorporated which is separate and distinct from Acardia Mining Company which is the company for which the applicant is seeking liquidation. He stated that exhibit C2 is a letter to the Inspector General of Police stating that the properties belong to Arcadia Mining incorporated and C3 to the CPO Kono. All these letters made reference to Arcadia incorporated.

On the second submission, the respondents solicitors submitted the applicant should not be allowed to make a mockery of the process of this court since he was fully aware supported by documentary evidence that he himself sold most of the items to 3rd parties referred court to the affidavit of OSMAN KABBA EX OK1.

2.

The same thing sold which he is asking court to preserve and that the whole application was an affront to the dignity of this Honourable Court, paragraphs 10 & 11 of the affidavit in opposition refers.

In reply counsel for the Petitioner /Applicant noted that the fact there seems to be serious contentions between the applicant and the other members as indicated by their affidavit does lend credence to the fact that properties should be protected in the interest of all.

I have listened to and considered keenly all the arguments including with reference to several affidavits and exhibits referred to by the parties solicitors in support of and against this application .

It would appear to me that there are serious contentions between the petitioner and the other members of the company. A process of winding up has commenced for these very reasons and the petitioner makes an application for interim preservation. It is seriously being opposed .The grounds nonetheless for the opposition do not address the fact that the interim preservation of assets that belong to them all is in the interest of all. The respondent has made a heavy meal of the fact that in letters C1-3 Arcadia incorporated was mentioned instead of Arcadia Mining Co and that it is the same property apparently sold by the petitioner /applicant that he is now asking for preservation .I however wish to observe that the items for which application is made to this court is not as listed in any document but the face of the motion dated 19th January 2007 and in paragraph 7 of the petition, whilst other document in fact exhibited thereto gave the impression that they might belong to Arcadia Incorporated i.e. C1-3, the respondents are merely playing with technicality. They have not denied the fact that it was the petitioner who bought and /or procured items for the companies business nor have they produced documents to show that these properties actually belong to Arcadia Mining Incorporated except that arcadia incorporated was mentioned when in fact it should have been Arcadia mining. This line of argument is of no moment except in doing injustice to the applicant if it turns out the

3.

properties, having been dissipated, were indeed not property of Arcadia Incorporated but Arcadia Mining. As contributors of Arcadia Mining where they mean well for their company, they are surely, I am to presume, not to want such a thing to happen. It would also be wrong for this court to sit by and allow this to happen.

On the issue of asking for preservation of items that would appear already sold I wish to observe as follows on exhibit OK 1. The court could not really ascertain who is selling contrary to what was alleged. "Arcadia Companies" is not Arcadia mining. The document referred to was not signed by Mr Slone even though his address appears beneath .Ex OK 3 is an agreement for sale but there is nothing to show to this court that the items were indeed sold in place of diamonds as consideration. In fact there is evidence to the contrary C1-3 showing that even after that date he was still asking for their recovery without recovery. He cannot sell. He may have thought about selling as a means of receiving his so called expense but chose to have the company wound up later and is therefore seeking preservation of same of all or what is left. This I should think would not work hardship against the respondents . The other points noted in the affidavit of the respondents may be relevant in the winding up itself but not at this stage.

In my opinion the order which the petitioner asks for is for a special purpose to be made upon special terms in the interest of all the parties and I do not think that there is the least danger of any unfairness to the respondents or prejudice to the petitioner arising if I were to make an order as requested. It would further seem that in relation to the recovery and interim preservation of properties the subject of this petition the source of the courts power is in its inherent jurisdiction to secure by orders a just and proper trial of the issues that will be posed by this winding up petition. The aim here is to secure the preservation of assets which otherwise lost will be loss not only to somebody, whom its alleged to be the major contributor of properties listed, but also to the minor contributors that all form this Arcadia Mining Company .While I take the point of the counsel for the respondents that you cannot ask the court to preserve that which could have been dissipated while this is mere allegation there are other properties which ought to be preserved for all.

4.

If as claimed, the petitioner has sold some, what is to stop him to sell others . Since the assets do not belong to one specifically in spite of the various contributions there cannot be any gainsaying that it must be preserved for all with a view to securing a just and final settlement on the issue of the winding up by petition.

In CHAPLIN VS BARNET (1912) 28 TLR It was held that the power of the court to order the detention custody and preservation of property the subject of proceedings extends to every case where the court see that as between the parties there is something which ought to be done for the security of the property.

In this instant matter it comes out clearly from the totality of facts that something ought be done for the security of the property, the assets of Arcadia Mining Company as listed in the face of the motion and in the petition. Also in the case of STEAMSHIP NEW ORLEANS CO VS LONDON PROVINCIAL MARINE AND GENRAL INSURANCE CO 1909KB CA 943 it was held that the court will not be deterred from making an order because a party against whom the order is sought has a proprietary interest.

In the instant case the application itself and the way it is couched excepting the arguments gives the impression that its made against the respondents and that they too have proprietary interest. This however could in no way deter the court from making an order as long as its is to protect the property . Such action will be in tardem with section 166 of cap 249 of the laws of Sierra Leone 1960 which prohibits dispositions of property etc after commencement of the winding up.

Against this background I hereby order as follows;

1. That the applicant do recovery the several items listed in paragraph 7 of the petition herein forthwith.

5.

2. That the police do give the required assistance for all the properties so listed .

3. That all properties recovered be preserved by the Police or Under Sheriffs office, and that the same be held in safe custody pending the hearing and determination of the petition.

4. That the parties be at liberty to inspect any property recovered 5. That the costs of this application be costs in the cause

Hon.Mr. Justice D.B. Edwards J.

6.