RULING ON NOTICE OF MOTION DELIVERED BY THE HONORABLE
JUSTICE LORNARD TAYLOR ON THE 1ST NOVEMBER 2022
M.P. FOFANAH -COUNSEL FOR THE PLAINTIFFS/APPLICANTS
Y.H. WILLIAMS -COUNSEL FOR THE DEFENDANTS/RESPONDENTS
On the 21st December 2021, the Court of Appeal in deciding on this matter
made 15 orders. For the purpose of this application, I will limit myself
chiefly to the 6, 8t» and 13" orders which relate to the present application
and shall from time to time as is necessary make reference to the other
orders as I deem fit.
The 6 Order of the Court of Appeal reads thus;
“No later than the 30% January 2022, Eduardo Myrenko and Voytovich
Rotislav must give an account of their management of the affairs of Lora
Golden Wings Co. Ltd and its assets for the period March 2014 to date
such_account to include all dealings with the four LGW Co. Ltds.
Companies, that is to say (Name Companies).”
The 8th Order of the Court of Appeal reads thus;
“Fach party shall return and or give account of any assets of Lora
Golden Wings Company or any other related_company under_their
possession and control no later than the 30% January 2022.”
The 13 Order of the Court of Appeal reads thus;
“Liberty to apply is granted and _the court below shall _have_the
supervision of the orders herein.”
On the 15 July 2022, based on an application by the Plaintiffs, this court
ordered for an inventory of all the assets of Lora Golden Wings Limited to be
taken at the at their respective locations. To all intents and purposes, this
was done and a report filed by the Undersheriff.
The Plaintiffs have approached this court on an application by Notice of
Motion dated 6 October 2022 praying for the following orders;
1. That following the orders of this court dated 15t* July 2022 and the
inventory of assets obtained therefrom by the Undersheriff of Sierra
Leone assisted by G4S security company this court further orders the
defendants herein Voytovich Rotislav and Eduardo Myrenko to
account for all missing assets of Lora Golden Wings Company in their
possession and custody, including but not limited to the equipment,
machinery, diamonds, and monies in their possession which were
partly stated in their statement of account filed with the Court of
Appeal registry dated 15t January 2022 but which assets were not
found in the course of inventory taking.
2. That in the alternative, the said missing assets of the Company be
costed and paid for by the defendants to Lora Golden Wings (SL)
Limited Company.
3. That this honourable court additionally orders normal work in the
said company to immediately resume following the board meetings
and resolutions arrived at by the Company on the 2274 August 2022;
and that the Company’s current management as constituted fully
manage its affairs free from any restrictions, restraints, injunctions or
hindrance to the Company’s operations and use of its assets in any
shape or form.
4. That upon the granting of order 1 and/or order 2 above and should
the defendants herein fail, refuse or neglect to account for and
produce the said missing assets of the company, this court directs an
international arrest warrant to be issued against the defendants
herein in order for them to appear before the court and answer to its
order for an account to be stated of the missing assets of the said
company.
Having gone through the application of the Plaintiff, I must state that I
understand it to be that the Plaintiff is seeking orders from this court,
consequential to those of the court of Appeal cited above.
The 6 Order of the Court of Appeal as cited above is for the defendants to
give an account of their management of the affairs of the company Lora
Golden Wings while the 8t® Order is for both parties to return all assets of
the company Lora Golden Wings Limited in their custody as well as provide
an account for these assets while they were in the custody of the respective
parties. Both Orders were to have been complied with within a period
specified by the Court of Appeal ending on the 30% January 2022. The 13%
Order on the other hand cloaks this court with supervisory jurisdiction to
ensure that the orders of the court of appeal are implemented.
On the 15 and 17 January 2022 respectively, both the Defendants and
the Plaintiffs in compliance with the orders of the Court of Appeal submitted
a list of assets in their custody which were supposedly property of Lora
Golden Wings Limited. However, it is observed that while the Plaintiffs
submitted several list of properties confirmed as belonging to Lora Golden
Wings Limited as stated in their statement of account, the defendants’ list
came with the caveat that all the items listed belonged to Lindon BVC and
Voytovich Rotislav but that same were simply placed in the name of Lora
Golden Wings Limited.
In the exercise of its supervisory authority as per the 13t order of the
judgment of the Court of Appeal, this court on the 15% July 2022 gave
orders for an inventory of all available assets of Lora Golden Wings Limited
to be taken. This was done and the undersheriff submitted his report in this
regard dated 28th July 2022.
It is on this basis that the Plaintiff has now approached this court with a
complaint that based on the assertions of the defendants as contained their
statement of account filed in the registry of the Court of Appeal on the 15th
January 2022, when juxtaposed with the assets found to be available when
the inventory was taken, certain property belonging to Lora Golden Wings
Limited supposedly in the custody of the defendants remain unaccounted
for.
The first prayer on the face of the Notice of Motion as I understand it is for
such an account to be given. The second prayer is for this court to order an
assessment of the cost of the items unaccounted for. The third prayer is for
this court to order the resumption of the operations of Lora Golden Wings
Limited while the fourth order is praying for a warrant for the arrest of the
defendants and for them to be brought before this court to account for items
which remain to be accounted for when the inventory was taken by the
undersheriff.
Counsel for the defendants in addressing this court laid emphasis on the
point that this court lacks jurisdiction to hear and determine this
application. His argument is that the issues raised in the application are
issues that have been adjudicated upon by both the High Court and the
Court of Appeal. Reference was made to the statement of claim and
particulars of claim as contained in the writ of summons by which this
action was commenced as well as the defence filed by the defendants.
Counsel pointed out that this issue of accounting for management and
property of Lora Golden Wings Limited formed the basis of the action and
the arguments both in the High court and the Court of Appeal. As such to
revisit them would be tantamount to a retrial of the matter and or a review
of the judgment of the Court of Appeal, an adventure which this court lacks
the necessary legal authority to undertake.
Do I agree with counsel for the defendants that this court has no authority
to retry a matter already determined? The answer is yes. There are a
plethora of both local and international authorities on this issue. Do I agree
that this court has no authority to review the judgment of the Court of
Appeal? The answer again is in the affirmative for quite obvious reasons
which I see no point in dwelling on in this application.
However, is this a case of this court retrying this matter and or reviewing the
judgment of the Court of Appeal? It is certainly not. The application before
this court as stated above is a plea by the Plaintiff for this court to intervene
and ensure that the orders of the Court of Appeal are complied with. This
ruling, whatever its outcome may be would have extensively navigated these
issues and shall to all intent and purposes strive to ensure that the outcome
is not a retrial, nor will it be a review of the judgement of the Court of
Appeal.
The 6t® Order of the Court of Appeal reads thus;
“No later than the 30%r January 2022, Eduardo Myrenko and Voytovich
Rotislav must give an account of their management of the affairs of Lora
Golden Wings Co. Ltd and its assets for the period March 2014 to date
such_account to include all dealings with the four LGW Co. Ltds.
Companies, that is to say (Name Companies).”
On the 15t January 2022, VoytovichRotislav the first defendant filed his
statement of account in compliance with the Judgement of the Court of
Appeal dated 21st December 2021. It was quite brief and so I will take the
opportunity to reproduce it verbatim. He stated;
“I am VoytovichRotislav. I was a director of Lora Golden Wings
Co. Ltd for the period under review. Throughout my stewardship,
I served the company diligently.I do not have any financial
resources of Lora Golden Wings in my possession. All the assets
that were bought and shipped to Sierra Leone and placed in the
name of Lora Golden belong to the rightful owners — Lindon BVC
and myself.
See attached list of assets of the company for the relevant
period”.
A 5 page list of assets was attached to the above statement of account. This
document filed by the 1st Defendant I understand to be in compliance with
the 6t and 8» Orders of the Court of Appeal.
The 8 Order of the Court of Appeal reads thus;
“Each party shall return and or give account of any assets of Lora
Golden Wings Company or any other related company under their
possession and control no later than the 30% January 2022.”
As per the said order of the Court of Appeal, all assets in the custody and
possession of the Parties were to have been returned to the company Lora
Golden Wings Limited as well as an account given as at the 30th January
2022. The Plaintiffs allege in this application that this was not done by the
defendants. In paragraph 10 of the affidavit in support of the application,
the deponent stated;
“That _ the company in its deliberations discovered thatthe
defendants herein almost emptied the company of its valuable
assets, including most of those listed out in their own statement
of account. The defendants are yet to account for the said assets
including equipment, machinery, vehicles, gadgets and
diamonds, all of which assets the 1st Defendant had_ himself
testified about in the court as belonging to the Company.”
The defendants in opposing the application did not deny this in any of the
several affidavits relied upon which leaves this court with no alternative but
to accept this as a statement of fact.
The orders of the Court of Appeal in this regard are quite clear. All parties
must surrender possession of all properties of Lora Golden Wings Limited to
the company as well as give and account of these properties while they were
in their respective custodies before the 30 January 2022. The Plaintiffs
allege that the defendants have not complied with this provision. The
defendants have not denied this allegation. On the face of these facts, the
defendants are in contempt of the orders of the Court of Appeal delivered on
the 21st December 2021. It is therefore within the Plaintiffs’ rights to
demand that these orders be complied with and such a demand I hold
cannot be said to amount to a retrial of the matter nor is it a review of the
judgement of the Court of Appeal.
The applicant also seeks in this application an order by this court for Lora
Golden Wings Limited to commence its operations immediately free from any
restrictions. This court certainly cannot grant an order of this nature in this
application as such an order would be ultra vires the mandate of this court
as authorised by the Court of Appeal in its judgement dated 21st December
2021.
The applicant further seeks an order for the arrest of the defendants to
account for assets in their custody not returned to Lora Golden Wings
Limited pursuant to the orders in the judgment of the Court of Appeal dated
21st December 2021. This court considers that this order cannot be granted
at this stage of the proceedings in view of the present circumstances. The
court is yet to confirm if at all the defendants do have property still in their
custody belonging to Lora Golden Wings Limited which said properties
remain to be returned and accounted for by the defendants. It would
therefore be most unfair for any type of warrant for the arrest for the
defendants whatsoever to be granted at this stage of the proceedings.
In the circumstances, I make the following orders;
1. The Undersheriff shall within 7 days from the date of this order
submit to this court and the parties herein a report on the status of
the properties listed in the statement of account of Voytovich Rotislav
dated 15t January 2022 filed in compliance with the orders of the
Court of Appeal dated 21st December 2021 and referred to above
based on the inventory of assets dated 28 July 2022.
2. Assets as contained in the statement of account of Voytovich Rotislav
dated 15t8 January 2022 filed in compliance with the orders of the
Court of Appeal dated 21st December 2021 and referred to above
which cannot be accounted for by the Undersheriff based on his
report dated 28 July 2022 shall be accounted for by the defendants
and such accounts filed in this court within 7 days after the date of
the Report of the Undersheriff as ordered above.
3. The defendants shall also where applicable file a list of properties
belonging to Lora Golden Wings Limited whether directly or otherwise
which at any point referred to as being in their custody but which are
not contained in their statement of account dated 15t January 2022
filed in compliance with the orders of the Court of Appeal dated 21st
December 2021 and referred to above within 7 days from the date of
this order in further compliance with the 6 and 8% orders of the
Court of Appeal dated 21st December 2021.
4. Liberty to apply.
5. The cost of this application is assessed at Le 20,000 to be paid by the
Defendants to solicitors for the Plaintiffs.