Court name
Court of Appeal
Case number
CIV APP 10 of 2020
Case name
Vitafoam (SL) Ltd v Leone Construction and General Engineering Services
Media neutral citation
[2021] SLCA 7
Case summary:

Arbitration - In the matter of Section 12(2) of the Arbitration Act (CAP) of the Laws of Sierra Leone 1960

 

Judge
Koroma JSC
Fynn, JA
Bah, JA

IN THE COURT OF APPEAL OF SIERRA LEONE

IN THE MATTER OF SECTION 12(2) OF THE ARBITRATION ACT (CAP 25) OF THE LAWS OF SIERRA LEONE . 1960. Etc.

BETWEEN:

VITAFOAM (SIERRA LEONE) LTD.

AND

LEONE CONSTRUCTION & GENERAL
ENGINEERING SERVICES

CORAM:
HON. MR. JUSTICE SENGU M KOROMA- JSC
HON. MR. JUSTICE REGINALD S FYNN - JA
HON. MR. JUSTICE SULAIMAN BAH - JA

COUNSEL;
YADA H WILLIAMS ESQ FOR THE RESPONDENT/APPLICANT
GI BRI L K THORLEY ESQ FOR THE APPELLANT/ RESPONDENT. 

JUDGMENT DELIVERED ELECTRONICALLY BY THE HON. MR. JUSTICE SENGU KOROMA JSC ON THE'L^DAY OF SEPTEMBER, 2021

1.    This is an Application by way of Notice of Motion filed for and on behalf of the Respondent/Applicant herein (hereinafter referred to as the “APPLICANT”) seeking the following Orders: -
1)    That the Notice of Motion dated the 28th July, 2020 be struck out for the following reasons: -
a.    That the Court of Appeal became Functus Officio after delivering its Judgment on the 20th July, 2020;
b.    On the ground that the issuing of the said Notice of Motion amounts to an abuse of process.
c.    There is no legal basis for the making of the application
2)    Any further order(s) that this Court may deem fit and just.
3)    That the costs of this Application shall be costs in the cause.

2.    At the hearing of the application and in support thereof, Yada Williams Esq. of Counsel for the Applicant relied on and used his own affidavit sworn to on the 27th day of July 2020 together with the exhibits attached thereto.

3.    In his submission, Mr. Williams argued, firstly that when this Court delivered its Judgment on 20th July, 2020, it became functus Officio in respect of this matter. In support of this, he referred to Exhibit “B” attached to his affidavit sworn to on the 27th July 2020; paragraph IV thereof which remitted the matter to an arbitral panel. Related to this submission is the argument that by asking for a stay of the arbitral proceedings, the Respondent herein was in effect abusing the process of the Court. This was because this Court had by its Judgment Ordered that the dispute be re-arbitrated as agreed by the parties in the arbitration agreement.

4.    The Second submission of Mr. Williams, related to the prayer of the Respondent herein in his Notice of Motion dated 28th July, 2020 that the Managing Director of the Applicant herein be commanded to, “within 48 hours refund to the Respondent the sums of Le406, 110,910.85c and $7,033.79c respectively being moneys recovered by the Applicant from the Respondent’s bank account held at Zenith Bank (SL) Ltd by way of levy of execution of the order of the Fast Track Commercial Court”. He commented  
that the Respondent herein seemed to be making the payment of the various sums as a precondition to proceeding to arbitration.

5.    Similar prayers were sought by the Respondent in its Application dated 28th July, 2020 such as transfer of the sum of $150,000.00 held in the escrow account in favour of both parties to that of the Respondent herein, bank charges etc.

6.    Mr. Williams concluded by submitting that the dispute between the parties had not been extinguished, as they have not proceeded to arbitration as ordered by this court.

7.    Mr. Williams relied on the case of FRANCESS SMITH - V - ADAM SMITH 48/2017 CA (unreported) in which it was held that a Court has no power to re-open a matter once final Judgment had been given.

8.    In his response, G.K. Thorley Esq. vehemently opposed the application.

9.    On the issue of the court been functus officio, Mr. Thorley argued that this Court is a Court of records and as such had an inherent jurisdiction to not only correct its Judgments and Orders, but also to make subsequent orders that either gives efficacy to them or clarify any underlying issues therein. He argued further that it is chancery practice for the phrase “liberty to apply” to be inserted in judgments and even where it is not inserted, an Appellate Court had jurisdiction to review the orders so made.

10.    Mr. Thorley submitted that monies paid under an order of Court should be and ought to be paid out to those to whom it was due. In support of this proposition, he cited the case of THE BERN1SSE AND THE ELVE (1917 nos. 1819 AND 1820). Mr. Thorley additionally relied on the following cases/authorities:
a)    In re SWIRE MELLOR-V-SWIRE
(C.A)[1882) 925
b)    SIMPSON-V-JUXON 5 COM. DIG 306
c)    HALSBURY’S LAWS OR ENGLAND (4TH EDITION) VOL. 17 
PARAGRAPH 461

11.    He further relied on paragraphs 7 and 8 of the affidavit in support of the application dated 28th July 2020.
REVIEW OF THE AUTHORITIES CITED BY COUNSEL

12.. THE APPLICANT.
(1) FRANCES SMITH V ADAM SMITH (Civ. App. 48/2017) (Unreported) The brief facts are that the High Court presided over by Hon. Mr. Justice Alusine Sesay JA (as he then was) on the 29th July, granted an Adoption order for the adoption of a child jointly by Mr. and Mrs. Smith, the Appellant and Respondent respectively. By an Originating Notice of Motion dated 27th May 2017, Mr. Smith applied to the High Court for an order to set aside the said adoption order on the ground that it was obtained by fraud. Sesay JA (as he was then) set aside the said Order. Mrs. Smith appealed against the decision. The main argument of the Appellant was that the High Court having granted the ‘final’ order ought not to have entertained the application to set it aside as it had no jurisdiction to revisit the issue. She agreed that as the Judgment been delivered and perfected, the Court became functus officio.
The Learned Hon. Mr. Justice Eldred Taylor-Camara JA. had this to say: “It is pretty much settled law that a Court does not have jurisdiction to revisit and/or review its own final judgment or order”. His Lordship stated further that:
“.... it seems clear that the Court had no jurisdiction to re-open the issue after final judgment had been delivered. Whilst it was open to the Respondent to have challenged the Adoption Order on the ground of fraud, such challenge ought to have been either by way of appeal or by fresh action to set aside the Adoption order, such action be commenced by Writ of Summons rather than Originating Motion.. In conclusion, it is our view that as the Respondent sought to challenge the Adoption Order on the ground of the fraud, the only routes for relief open to him were to either appeal to the Court of Appeal and adduce fresh evidence of fraud or commence a fresh action by way of Writ of Summons....”

13.    While we agree with the ratio decidendi of this Ruling, we are of the view that the principles enunciated therein do not apply to the instant case. There, the High Court revisited final orders it had given in a particular matter, not to clarify obvious insertions or clerical errors, but to reverse itself and the whole of its reasoning due to new facts.

14.    In the instant case, the court has not in its orders dealt with the present issue in a direct and specific way. The request is for the court to comment on an issue subsequent to its orders. This is not a request for the court to vary or reverse itself. In our Judgment dated 20th July, 2020, the parties were ordered to proceed to arbitration and so either of them could approach this court for clarification of the Orders given therein. The Application dated the 28th July, 2020 was not seeking to set aside our previous Orders but rather to look into the intended effects of those orders. I refer to paragraphs 7 and 8 of the affidavit in support of the application dated 28th July 2021.

14. THE RESPONDENT.
(i)    THE BERNICE AND THE ELVE (1917, Nos. 1819 and 1820)
In this case, Lord Sterndale - President, had this to say: ‘this is a case in which foreign Ship-owners were Plaintiffs in a claim against the crown, and they succeeded. They had given security for costs in the ordinary way. They now ask that the security be paid out to them, and the crown ask, on the other hand, that it may be retained in Court because the crown had a stay of Execution. The effect, however, of ordering that money to remain in Court would be to give them one or other things either security for costs of their own appeal, or security for the satisfaction of the Judgment which may be given on appeal, and they are not entitled to neither. Therefore, I shall make an order for payment out to the claimants of money paid in as security.

15.    Here, it is the party that had appealed that want the security for costs to be retained in Court. The facts of this case and the principles therein do not apply in the instant case. This was not a judgment sum but rather security for costs given at the trial by foreign ship owners. They succeeded in the action and were therefore entitled to recover the security they had given. Retaining that amount in court would have amounted to asking the Respondent in an Appeal to give security for costs of that appeal. It is always the responsibility of the appellant to do so.
(b) AINSWORTH -V- WILDING (1896|) I CH. 673

16.    It was held that where a Judgment has been passed and entered in even where it has been taken by consent and under a mistake, the Court could not set it aside otherwise than in a fresh action brought for the purpose unless:
(i)    There has been a clerical mistake or an error arising from an accidental slip or omission
(ii)    the Judgment as drawn up does not correctly state what
the Court actually intended to decide - in either of which cases the Application may be made by Motion in the action. Romer J had this to say:
“The Court has no jurisdiction, after the Judgment at the trial has been passed and entered, to return to the case”.
(iii)    In re SWIRE - MELLOW - V SWIRE C.A (1885)

17.    In this case, an Order of the Court of Appeal was drawn up, passed, and entered, in such a form that it might be contended to decide questions which had not been before the Court, and which it had not reached a decision.

18.    It was held that the Court had jurisdiction to alter its
Order, which the Court had pronounced, and the record was altered accordingly, but as the applicant had not adopted the usual and proper course of applying to vary its minutes, he was ordered to pay the costs of the application.

19.    Whilst we agree that all of these authorities constitute the law, they do not create a link between the principles therein and the Application dated 28th July 2021
. ISSUES FOR DETERMINATION.

20.    There are several issues for determination in this appeal to wit: -
a)    Whether this Court is functus officio to hear this application;
b)    whether the Order ordering parties to proceed to arbitration as agreed by them was still subsisting at the time of the Application dated 28th July, 2020; and
c)    Was the Application dated 28th July, 2020 is an abuse of process.

21.    We shall first consider whether this Court is functus officio to determine the application dated 28 July, 2020.

22.    This matter was heard on the grounds that the award was faulty. Although this Court agreed with the Appellant/Applicant therein, it specifically ordered the Parties to proceed to arbitration. In this respect, the Court is functus officio as it cannot go back on that Order. It is imperative that the parties proceed to Arbitration in accordance with their arbitration agreement and as ordered by This court.

23.    It is an established principle that the Court can give a further Order subsequent to its final and perfected order only in the following limited circumstances: -
(i)    To amend a previous order to reflect the original intention of the Court;
(ii)    to make clerical or typographical amendments under the ‘Slip rule’;
(iii)    under the ‘liberty by the apply provision ‘whereby the clarification, supplementation or amendment of a previous order is required to give effect to such an order”. Under this provision, in every order of the Court, liberty to apply is impliedly reserved;
(iv)    a consequential order would not be made in want of jurisdiction; as such, the order would not transgress the doctrine of functus officio. The Court retains inherent jurisdiction, especially under the ‘liberty to apply’ exception, to grant consequential relief to ensure that final Judgments and Orders are not rendered nugatory.

24.    To this extent, we agree with Mr. Thorley that the Court could, in very limited circumstances revisit its earlier Orders albeit for clarification and not to reverse it.

25.    The issue therefore is not whether this Court is functus officio in an application to vary its Judgment but whether it can grant the reliefs sought by the Respondent in his application dated 28th July, 2020. It is our view that there is a subsisting Arbitral Proceedings in compliance with Order 4 of our Judgment dated 20th July, 2020. This is a continuing process and until it is concluded, this Court cannot grant the Orders prayed for by the Respondent in his Application.

26 In the circumstance, this Court agrees with the Applicant that this Court cannot entertain the application dated 28th July, 2020. I should clarify, however that based on the principle enunciated herein regarding the power of the Court to give efficacy to its decision, the Application dated 28th July, 2020 cannot be regarded an 
entertain the application dated 28th July, 2020. I should clarify, however that based on the principle enunciated herein regarding the power of the Court to give efficacy to its decision, the Application dated 28th July, 2020 cannot be regarded an abuse of process as this Court could entertain it and may grant or refuse it based on the facts of the case.

27. In the circumstance, it is hereby ordered as follows:
1. That the Notice of Motion dated 28th July, 2020 is hereby struck out.
2.That the parties proceed to arbitration as ordered by this Court in its Judgment dated 20th day of June, 2020.
3.Costs in the Cause.

Hon. Mr. Justice Sengu. M. Koroma JSC
Hon Mr. Justice Reginald S Fynn JA
Hon. Mr. Justice Sulaiman Bah JA.