Shang Dong Steel v Mustapha J kamara (S.C CIV APP 5/2018) [2018] SLSC 5 (01 July 2018);
SC.Cl V.A PP.5 /2018
BET WEEN
IN THE S UPR E.J\11<.: CO U R T OF SI ER l1A LEO NI
CIVIL J URI DI CT IO N
SIJA NG DONG TEEL ( L) LTD
FOR AFRICAN MINERALS (SL) LTD
15.t WILKINSON ROAD
FREETO \ VN APPE:LLANT
AND
l\lU TAP! IA JO.SEPII KA MARA
18 NYLAN DER STRE ET
Ail ERDE EN
FREETOWN R ESPON DENT
\ .
R U NG DELIVERED THI ' <:!,-OAY OF J ULY 2019
The app lication \
I. 11y Notice or motion dated the 20th day of March 2018 the Appel lanL in this case appl ied to this Il onourabk Court for stay of execution of the Judgmen t of the Court of Appeal dated l st March 2018 as follows:
l. A stay of execu tion of the Jud gment of the Court of Appea l dated I'' March 2018 until the hearing and determination of Appe llan UAppl icant' s Appeal by this T!on Court which said Judgment upheld the Jud gment of th e If igh Court deli vered on the 9111 of May 2016 by the lion Justice M Samba J .........
- A Stay of the Garnishee proceedings presently underway before Ju stice Samba J which said proceedings \Vere brought about by the Cour t of Appeal Judgment of l 51 March 2018 and in respect of which a Garnishee Order Nis i was made on 6th March 2018, the same to be made final
on 1 5h1 March2018.
- That the aiJ stay of execution of the respective judgments of the ll igh Court and the Court below, and the stay of the said Ga rnish t:e proceedings be granted for the followine reaso ns :
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- The Appdlant/applicant herein has good and arguable grounds or Appeal which might succeed in the Supreme Court and these grounds form part of this App lication.
- Ir Ll1e sum awarded the rcspu11d en herein together '"ith interest element added thereon. were paid over to him , it is likely the same may be dissipated before the hearing and determination of the Appellants/App lic ants Appeal to the Supreme Court; and in the event that the Appeal is upheld , the judgment of the Supreme Court will be rendered nugatory by such dissipation .On the other hand, the Appellant /App licant wil l still be in business in Sierra Leone and will be in a position to satisfy the judgment debt should its appeal to the Supreme Court fail. Addi tionally, the Appellant/Applican t has sufficient capital i nvestment here in Sierra Leone to satisfy the said judgment debt in the eve nt it s appeal to the Supreme Court is dismissed
iii ) The respondent has proceeded with inordinate speed to garnis hee or sequester the funds of the Appellant/applicant, so as to render the Application herein nugatory. If such proceedings were not stayed, the Appellant/applicant's present li quid i ty position will be seriously affec ted with hundreds of Sierra Leoncan Staff to look l'!fter, with 110 prospect of recoverine, the same should it s Appeal to the Supreme Court succeed.
- That this Honourable Court grant any further or other order it may deem fit;
- That tlti s I [onourable Court do make any order as to costs as it may deem just and appropriate
I ntc ri m Stay Of Exec ution
2.At the first hearing of this matter on the 23r<l of March 2018, the Application could not be heard to its fullest whereupon the Supreme Court decided to grant an inter im stay of execution of the said judgment pendin g the hearing and determination of th e Application for stay of execution
, with " li berty to Apply'. The full text of the orders of 23rd March 2018 is as follows:
I . An I nterim Stay of Execution or the Court of Appeal (Order of I 51 March 2018) confirming the Judgment of Ju stice M.M. Samba J dated 9th May , 2016 in respect of the sum of Le l, 204.874,704.45 with in terest at the rate of 10%per annum from 25111 October 2013 to 9111 May 2016 and thereafter at the rate of 4%per annum until paymen t is hereby granted pending the
hearing and determination of this Application.
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- That the Garnishee banks be se rve d with thi s order of Court.
- That the accounts held at Stan<lar<l Chartered I3ank and Guaranty Trust Bank do re ma i n frozen
- Liberty to /\ pply
- Matter stands adjourned to Thursday 26th April 2018.
- Further, however, the appellant avail ing itsel f of the opportunity provided by " Liberty to Apply" granted by the un1er of 23rc1 March 20 18, on the 24th of March 20 J applied to t his
!Iono urable Court seeking orders which inc lu ded, inter alia, that the sum to ta li ng l.1..· 928,735000.00 whic h had been paid to soli c itors for the respo ndent by Guaranty Trust lla11k I.Id pursuant to the Gnrnis hee Order being made absol ute be returned nn cl/or n.:v t..:rs t..:d lo tile
Ap pe llant pursuant to the Order of this I Ionourable Court dated 23rd March 2018 as the S11pn:111c Court had ordered an int erim stay of execution of the judgme n t or tht..: ( 'ourt ol' App\!111 confir ming the Judgmen t of Miatta Samba J dated 9th day of May 20I<,. Sl:<.:ollllly, thnt thlN
I lonourab le Court grants an Order that the Appellant be at Lil>e rty tu ust..: Mo11ics i11 it A1.:co1111t11 held with Guaranty Trust Bank that are in excess of the sum or Lt..: 92X. 7J500 0.IHJ 1111d th11t the: said sum be ring fenced until the determination of the Appl ic ation dated 2l rd Mmd 1 20 I 8. to wit. the full stay of executi o n Application before thi s co urt .
- Tliat application, the Supr eme Court was informed was prt..:<li1.:at1:d on th e r11c1 t li:11 the n.: was still no access to the Appellants Accounts he ld at the Stan dard C'hartt..:r1.:d Bank (S L) Lt<l and Guaran ty T rust Dank S L Ltd and it co ming to the end or the mo n t h, tht..: /\ppdlunt 111.:1.:<le d to pay salaries of its over 2000 v.orkers. That Application was heard on tht..: 26111 or March 2018 and
during the course of hearing it was found out that the sum or Le 928,735,000.00 had already been executed upon with the money as <lirt:dcJ l..,y th e Court, Justice Samba J pres idi ng, already
in the Account of the respondent's soli cito rs prior to it grant ing even it s Interim Stay of executio n on the 2n3 1 of MARCH 2018, this having happened on the 22"d or MA RCf l 2018.The Supreme Court was moved to granting the applica tion of 24th March 2018 on the 26th of March
2018 on these terms
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- That all sums outstanding in the accounts of the Appellant /Applicant held at Standard Chartered Bank and Guaranty Trust Bank be unfrozen to allow the applicant to pay salaries to the employees.
- That the appellant do give an undertaking that in the event the appeal filed foils then it will immediately pay all sums owing and due to the responde nt.
- That the s111n of Le 928,735,000/00 which has been paid into the account ur l ilL·
Respondents so licitor held at Guaranty Trust t:3ank be dealt with as follows. that is 11t · resp ondent so lici tors do giv e an undertaking in writing which is to bl.! likd in 1his i.:our l and served on Guaranty 1 rus t Bank that the su m uf Le 928.735 .000.00 will 1H1I h" withdrawn or defrayed pending the hearing and dcte rminati un ol' thi s /\ ppli i.:11l i1111.
- Adjourned to 26h1 Apri l 2018.
Application to Vac ate Interim Order
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Before the Appellant could continue with the subs tant ivt: applirntion li1r s t11y ol' cxccu1lo 11, the respondent brought an application before this court st:t:k i11g to vu1:11tc the suid llrtkrs ll l' 2 ( 111 March 2018. The Sup reme Cour t in its majority l{uli11g i11 Shung Dong Stet:! (SL) Ltd V
h
Mustapha Kamara dated 51 September 2018 dccidt:d th a t the said ordt:rs cannot ht: vacated.
/\ against the said order and the aforc:;aid background thi s rnurt is now faced with the substantive applic a tion for stay.
A ppellant' Argum en t For tav of Exec uti o n to he G ranted
- On Tuesday i 11 May, 2019 the application for stay was heard in full. The application for stay of execution was supported by th e affidavit of Kweku Melvin Lisk sworn to on the 20th of March 2018. It had Exhibits KMLI-K 1L5. Exhibit KML 1 is the order of court dated 1s t March 2018; Exhibit KML2 is the Order of Justice Samba J dated 6th March 2018; Exhibit KMLJ is order of the Court of Appeal dated 13th March 2018 refusin g stay of execution of the Judgment of sI ' March 2018; Exh ibit KML4 is the Judgment of the Court of Appeal dated Ist March 2018 while Exhibit KMLS is the Notice of Appeal dated 20th March 2018.
- The argument of the Appellant was that prima facie he had good grounds of appeal and th at his Affidavit in support deposed special circumstances warranting a stay of execution of the
Judgment of the Court of Appeal dated I st Ma'rch and any garnishee order that emanated therefrom. On the issue of good Grounds of Appeal he claime d the Learned Judge erred in law in corning to certain unsupported C(}l:lclusions including summary jud gment. He also hyped the
issue of AML being under administration and the effect the same should have had on the claim
by the Responde nt aga inst SOS Lt d, the Appellant herein. On the iss ue of specia l circumstances the Appellant Solicitor Mr. Kweku Melvin Lisk claimed the respondent was a man of stra w, such that if the whole judgment debt was paid to him as par1 of the judgment the same could not be refunded if the Appeal succeeds against him.
Respondent Oppose Stay of Exec u tio n
- The respondent on his part opposed the Application by fi l in g an affidavit in opposition to which was exhibited exhibits MJK I to MJK7. The argument of the Respondents solicitor was on
2 fronts. Firstly that execution had lo ng take n place before this courts interim orders of 23rd March 2018 pursuant to which the sum of Le 928,735,000/00 was paid by Guaranty Trust Bank (SL) Limited to the Respondents Solicitors Account held at the said 11::ink and that this Supreme Court shou ld not now order sta y when the horse had bolted.
- Counsel for the respondent observed that with reference to orders 2&1 r ray cd for it was wrong for the appellant to come straig h t to the Supreme Court to apply to stay a garnishee proceedings, as a garnis hee proceeding being a separate proceeJings pursuant to Order 50 of the HCR C.I.No8 2007, it was required that the Appellant, in order to have stayed the garnis hee proceedings to have applied for sta y of same in the Hig h Court presided by Justi ce Samba J or any other Hig h Court Judge. Not to have done that was wrong in law meaning in effect that the garnishee order absolute cannot be stayed, was not stayed, and is in effect a fait accompli. To amplify this point he referred to Order 50 Rules 5 and 6 of the High Court which gives t he High Court first instance upon an applic atio n to s um marily determine the iss ues. He also made references to the Supreme Court Annual Practice I 999@p1016 para 59/ l A/ 23 and Section 56(1) (b) of the Courts Act No31 of 1965.
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l 0. On the other front, counse l for tb_e respondent argued that no special circums tances has been shown in the aftidavit in suppor t to warrant a stay of execution. He observed that what the appellant did by his affidav it in support was to bring in matters of law, see paragraphs 1-6 the reo f, which do not amount to special circumstances. On the respondent being referred to as a man of straw, Mr. Yillah noted paragraph 11 of the affidavit in oppositio n and exhibit M.J K(> thereof to say he is not a man of straw. He argued further, that the respondent would he n.:ad y and willing to give an und er taken that the money will be refunded in the cv nt thL: J\ppi:t1I s ucceeds. Counsel for the Respondent noted the case of FIRETEX INTf:RN/\ TION/\ L CO LTD V SI ERRA LEONE EXTERNAL TELECOMM UNICAT I ONS & /\NOTIIICH
M ISAPP19 /2002 CA where it was held that the court has ability to d i rcl:t/orJor thnl tho
respondent gives and file s an und ertaking of this nature.
Can this Court grant or refuse Stay?
11. This matter as is expressly indicated concerns stay or 1:x L:c11tio11 1111d thc cir rn1ns11111cL:s i11 whic h it could be granted. It is well settled by a long l ine ol" casl's i11 our rnurts vii. i)LlJ('Y Dl!:CKER v GLADSTONE DE CKER COURT OF AP PEA i. M ISCA PP IJ/2002
N R£ POR TED; ii)AFRICANA TOKEII YI LL/\.CE I.I M IT EI> VS .IOII N UIJEY DEYELOPMI!:NT INVESTMENT COMPANY LI M ITI•: I> 2<1111 /\ P IH L 1 99..t COURT OF APPEAL MISC APP 2/9-' (UNREPOll TE D); ii i ) PAT IHCK KOROMA VS IERRA LEONE IIOUSING CORPORATION AN D DO LCIE BEC KL EY 26TII MAY 200ct COURT OF APPEAL, l\1ISC APP9 /9-' ( UN H. f:l' O RT E O); iv) DESMOND LUKE VS BANK OF SIERRA LEONE 1-t JULY 200-t COURT OF APPEAL l\IIS C/ APP22 /0 I (UNREPORTED) v) Y USl JFU 13UNDU V MO IIAl\ Jl\l EO IlAILOR JALLOII 23nu .JULY 200-t COURT Of APPEAL l\I ISC APP 23/0..i (UN R F.P ORTf<:D) and v i) EVELYN AYO l'RATT AOMINITRATRIX OF THE F,STAT OF IlETSY ROGERS PARK lNSON ( DE CEA ED) INT E TATE V JACQU I LINE CAREW &OTH ER AND 1 llEKA DE EN SESAY 1..i111 JULY 2005 COURT OF APPEAL M ISC APP 7/05 (UNREPORTED) to name
just but a few that, it is in the discretion of the Court to grant or refuse a slay and that this stay will only be exercised in favour of the applicant where he can convince the court that the special circumstances of th e case so warrant.
12.!n HAL 13URY'S LAW OF ENGLAND 3RD EDITION VOL 16 PARA 51 AT PAGE
35 the wide discretionary powers or the courts and the principle on which it will act when considerin g an appli c atio n for a stay of execution were sta ted thus:
" T he Cou rt ha s an absolute and unf ettered d is creti on 11.'i lo lht· crn11ti11i:. or refusin g of a stay and as to the te rms upon which it will l,!ntnl ii, tlJHI WIii UN 11
rule l only gra nt it if there are special cir cums la nn ·s whkh muet by ilvnosgd
t o in an aflidavit"
- In the Lucy Decker and others cnsc, I Io n Jus ti c e ( ic l11g11 Kin JI\ now u( hlo111od momor)'
said and I quot e
"ft seems to me tlwr at arriving al a clecisio11, Ill<' aux o/'lh,• 111ul/1'I' Is wh,•thl'r thl' applicants have s!,011111 co 11vi11ci11 f{ S/J<'Cial circ11111.,·tu11<· c•.\· lo 1' 11C1h fr this c11111·1 ru grant a stay. This principle < / s11e,·ial circ11111s/w l(' I'.,· is 110 11' jloll'i11g ll'ilh
increasing momentum through 01111/icotions ji,r ct stay o/ exec11tion and the
ingenuity IVith which special cirrn111.,·1w1 ces have been invented boggles rhe imagination; lo gi,•e o few examples pneumonia, deadly diseases, inducement to move from rented premises lo disputed property and huge expenses in repairing part of disputed property: building a shop in the property and ob1oi11i11g o business registration certificate. /11 my judgment most of tl,e matt a s relied 011 /11
t /1e af/7davits in support as special ci rcumstances relate to tir e i.\·s11e.\· i11 tl1 e plead in gs ,vlr iclt ,vere dealt ,vit l, i11 th e cour t be/0,11. No d o uht //,el' 111111 • he
g_rgued i11 t ir e p e11di 11g appeal. 'J h e)' are b esr hrou;:/11 uu, 1'!1e11 th e " ['f' e,d is
argued; t!tey are 1101, i11 my op i11io 11 special cir c11111sta 11ce s in t /1e co11t ext o( stav of exec11tio 11
- In that case he then went on to establish the parameters for a grant of stay, noting 111 particular the ANNOT LYLE (18 86)1 I CPI 14 p 116 principle t ha t the cour t docs not make a pn1ctice of dcp,·ivin g a uc ccs sfu l litig a nt o f the fr ui ts of h is jud gmen t pe nd ing an appeal: good reasons go hand in hand with special circumstances. Viewed in th at light , ..s pec ia l cir cums tances m ust mean cir cums ta nces hevond the us ua l; a sit uation that is un com mon and dis tinct from the general run of thing s".
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- [t is for the applicant to bring or place betnrc t Iii:; court Lhosc facts which he be!ic, cs const ilute special circum stances. But it is for that court to decide whether those facts indeed constitute special circumstances aslo warrant it exercisi ng its d iscretio n i n favour of granting the application. Each case stands on its own and will depend on its me rits. Where the facts are in the opinion of the court special circumstances then Stay of Execution wi ll be granted but if not stn) wil l be refused; and it is left with the discretion of the COURT as wi t h t he dec isio n to gran t or ref use it as to the terms under whic h i t would grant it
- In its search for what consti tutes spec ial circumstances t he court would tr y to co11si tk r l"ro111 the appli cant's affidavi t( s)
"wheth er a case has been made out for dcprivinl! a liti1!1111t tla· h ·11,· fl t.oe of th e jud gment which he has obta i ned. It is for the np plil ·1111t for ii 11t11y to mak e that case before the court."
See the case of WILSON VS CIIURCII L R 12 C H AN C ERY 5-t 1'1-:1{ LOl{I> (;t{t\11/\M
PA UL C J.
- Looking at the affidavit before me in this case, a lo t has been made about the wrongness or
the J uc.lg·e s decision in the case whic h is appealed against. Whether right or wrong the same is bette r handled in the Arreal and does not in any way in the orinion of this court constilulc special circumstances whic h l dare say is th e onlv sub s tant ia l reason for which stay can be granted. ' Prima facic good grounds of Appeal' is often cited as reason for granting a stay of execution. Three 3 things ought be said on this; firstly, of itself ''prim:1 facie good grounds of 1\ ppe:tl" ,,ill not grant a stay of execution anJ st:cunJ ly . it is only relevant as a prerequ isite. th.it is to say, you cannot ask for a stay when there has been no "Notice of Appea l" li kd a11d thi rd l y. that which is filed as Notice of Appeal must at least be arguab le, prima focic arguable. The L:lfcct here is once this prima facic lCSl is invariably satisfied, there ought always must be special circumstances and unless there are circumstances which constitute the spec ial circumstances the Application ought be refused.
- In the case before me the Annote Lyle princ iple is paramount -The court does not make a practice of depriving a successful litigant of the fruits or his judgmen t pending an appeal. At the time of the Application for Stay the 20th of March 2018 the Garnishee Nisi had been made
absolute and by the time the Applica t io n was being hea rd on the 23rd March 2018 an amount flo wing/ accruing from the said garnishee order absolute in the sum of Le 928,735,000/00,had passed on to the res pondents So li c ifo r' s Account at Guaranty Trust Bank Ltd .Any stay of this amount ,vould he tantamount to breach of the ANNOTE Lyle principle and even goes beyond that as there is s tric tly speakin g nothing to stay on this /\ mount
- Against the forgoing, all things considered this court here by orde rs as follo ws:
- Stay of Exec ut io n of the Court of Appeal Judg ment of 151 March 2018 confirm ing th,:
J udg ment of Justice M.M. Samba J dated 9th May, 2016 in res pect of the surn ol' l .1: l. 204,8 74,704.45 with in terest at the rate of I Oo/ope r annum from 25th O t:to h1:r 20 l 1 to 9 111
May 2016 and thereafter at the rate of 4% per ann um un til payme nt is ()II rlly nfHI ln[Kylv
r efu sed pending the hea ring and dete rmina tio n of this Ap peal
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2. Th at the sum of Le 928,735,000 /00 whic h has been paid into the 111.:count of' \ho Res ponde nts solicitor held at Guaranty Trust 13a nk b<.: <.k alt with us l'ollo wic, thnt IN, ho and is rega rded as part of the Judgment debt as rt:lk c t <:d in l s uprn ( lo wit l.c l . 204,874,704.45 with interest at the rate of I 0% per annum from 25111 <k to hc r 20 l 1 to <>1
May 2016 a nd thereafter at the rate of 4% per annum un til r ayrm:n t ) 1111d he p:r id ove r to the respondent forthwith through his so lic ito rs.
J. That before wit hdra wing the sum of Le928,735,000.00 th e n.:s r unde nt giv<.:s and fi les an unde rta ki ng tha t he will repay the sum of Le 928,735,000.00 if the Appeal succeeds against him and he is required to repay this amo un t .
- That execut io n of the bala nce of the Judgment debt being the diffe re nce between t he sum of Le 928,735,000.00 and Le I , 20 4,874,704 .45 with in te rest at the rate of 1Oo/oper annum
from 25h1 October 201 3 to 9th May 2016 and the reafter at the rate of 4% per annum until
payment be and is hereby stayed pending the Appeal
- That cost is ar d gainst the Appe e taxed
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li on Jus ti ce D. B. Edwards CJ
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.........ra:..tf!J. \ .......
lion Justice V.M.Solomon JSC
... ! 1...................
Bon Justice A.B. Halloway JSC-
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