IPNEWS: Associate Justice Yussif D. Kaba, presiding in the Chambers of the Supreme Court of Liberia, has declined to issue an extraordinary writ in the contested Solway Mining Inc. case.
Justice Kaba refusal to issue the writ of error or alternative writ, now leave the previous ruling by the lower court intact signaling that the administrative and judicial remedies must continue through standard legal channels before the High Court will intervene.
The decision by the Justice in Chambers follows a series of high-level legal challenges regarding Solway Mining Inc., which has been embroiled in an international investment arbitration dispute and domestic litigation over concession rights and community agreements.
Under Liberian jurisprudence, an In-Chambers Justice’s denial of an extraordinary writ means the petitioner must either accept the ruling or take an exception and appeal the denial directly to the full bench of the Supreme Court of Liberia
It may be recalled, on May 1, 2024. Alford Boima Morgan, a Liberian Citizen and resident in the City of Monrovia, filed a Petition for Declaratory Judgment against Solway Industries Ltd, a Company organized and registered under the laws of Saint Vincent and Grenadine, and Solway Swiss Ltd. A corporate entity organized, existing and operating under the laws of Switzerland,
Both corporations represented by and through Pavel Emolaeu through their local representative, Melee Kermo of the City of Monrovia (hereafter the Respondents”
Upon filing of the Petition, a Writ of Summons was ordered issued and served on the Respondents. When the Returns of the Sheriff showed that the Respondents could not be served with the Writ of Summons, and thereafter with the Writ of Resummons, Petitioner Boima Morgan prayed the Court for Service by Publication which was granted.
Consistent with Section 3.40 of the Civil Procedure Law, ILCL (Rev), Petitioner Published the Writ of Summons together with a brief statement of the object of Petition in the Inquirer
Newspaper, a recognized Newspaper in the Republic of Liberia, once in cache of four successive weeks. Service on the Respondents was deemed complete on June 20, 2024.
On July 8, 2024, the Respondents filed joint Returns, to which Petitioner filed a Reply on July 18, 2024 along with a Motion to Strike the Returns on grounds that it was filed outside the
statutory period of ten (10) days. Concomitantly, the Respondent also filed a Motion to Strike Petitioners Reply on grounds of improper verification.
On March 12, 2026, the Court ruled denying both Motions, Petitioner’s Motion to Strike the Respondents Returns and Respondent’s Motion to Strike Petitioner Reply and ruled the case to Trial.
Upon a regular notice of assignment, Trial was assigned for Thursday, March 19, 2026. When the case was called as per the Notice of Assignment, neither the Respondents nor their Counsel
were present, instead, the Court received a letter under signature of one Delphe T. Capehart, office Manager, to this effect. ‘Our client as you are aware is without the bailiwick, and in an
Arbitration proceeding currently with the Government of Liberia in the UK, has all desires to appear and present evidence for his side of the case and also give testimony to prove each and
every piece of evidence for and on his own behalf, however, given the timing of the trial in this Declaratory Judgment moreover the only lawyer in this matter is also out of the bailiwick of the
Republic of Liberia for medical treatment, we are therefore request at least four(4) months suspension of this trial because they are physically unable to be in two places at the same time
and to their best defense in the Declaratory Judgment filed.’
‘ Our client is unable to travel to Liberia and honor an assignment in the above cause of Action”. The Court concluded that this communication did not constitute a valid excuse as a review of the case file showed that there was more than one lawyer from the same firm representing the Respondents and that proceedings in another Jurisdiction between parties not before this court would not serve to stay the adjudication in our Courts. Upon denial of the letter herein above mentioned, Counsel for Petitioner invoked Ruled 7 of the Revised Circuit Rules, prayed for default Judgement, and sought permission to make the said judgment perfect by ordering the Sherif to call the Respondents three times at the door and upon their failure to appear, to allow the Petitioner to take the stand and present evidence in support of his Petition. The Application was granted.
The Court also noted that this was the second Notice of Assignment for Trial to which Respondents and their Counsel have failed to accept and to appear.
The Supreme Court has held in several Opinions that once a case has not been completed, the Counsel of record is bound to honor all Assignments issued and served on him/her until the case is finally decided, or will be presumed to have abandoned the case for which default Judgment can lie. See Vijayaraman and Williams. The Management of Xoanon Liberia Ltd,42LLR 41.
The Supreme Court has also held that a Party who is duly cited but fails to appear is deemed to have had his day in court.
Lamco J.V. Operating Company v. Belleh et Al,34 LLR692, the Supreme Court has further held that Default Judgement can lie against a defendant who fails to appear for Trial upon Notice of
Assignment, 11CI. Revised, Civil Procedure Law, Section 42.1
Furthermore, Rule 7 of the Revised Circuit Rules, provide that where either party is not ready for Trial upon the service of a Notice of Assignment, he may file a Motion for Continuance. In the instant case, Counsels for Respondents did not file any Motion for Continuance.
At least two Notices of Assignment having been served and refused, and Respondents not having filed a Motion for Continuance consistent with the Rules of Court, their failure was tantamount to abandonment of the case, in which case the granting of a default judgment and the permission granted to the Petitioner to take the stand and produce evidence in support of his Petition was consistent with law.
At hearing, Petitioner produced two(2) Witnesses in persons of Alford Boima Morgan and Roosevelt Gould who were qualified.
Petitioner’s first witness, Alford Morgan, testified that his relationship with the Respondents started through one Mr. Robert McKendrick who held an exploration License over Mt. Ble in
Nimba County which was revoked by the Government. Mr. McKeudrick had reached out to Mr. Morgan to see if he could be of support in recovering his Exploration License. Mr. Morgan
testified that upon due diligence, he discovered and informed Mr. McKendrick that his chances of recovering the Exploration License was slim, and it was then that McKendrick told him that if
he was interested; he could introduce him to financiers who may be in position to provide financial support that could enable him to take over the Exploration area. Growing out of this discussion, Mr. Morgan testified that Mr. McKendrick arranged a meeting for him with Solway Investment Ltd.in Amsterdam, Netherlands.
At the Amsterdam meeting, Solway Investment Ltd. assured Mr. Morgan that they could provide hím support for the exploration of Mount Ble if he were able to secure an Exploration License
from the Government of Liberia through the Ministry of the Mines and Energy for the area. Mr. Morgan testified that following this meeting in Amsterdam, he returned to Liberia and established Solvay Mining Inc.by filing Article of Incorporation and obtaining a Certificate of Incorporation from the Ministry of Foreign Affairs dated October 10,2018.
Regarding the Articles of Incorporation, Mr. Morgan testified that it provided for an authorized share capital of five hundred(500) shares to all of which subscribed, representing 100%of the authorized equity of the Solway Mining Liberia.
Mr. Morgan testified further that following the incorporation of Solway Inc, he as sole subscriber and owner, constituted a board of Directors which resolved that a share certificate for Five Hundred (500) shares be issued in his name and this was done. Mr. Morgan identified the Articles of Incorporation and Certificate of Incorporation and his Shares Certificate, which were marked as CCPL/I and CCP/2 and confirmed by the Court.
Continuing further Mr. Morgan testified that Solway Investments Ltd.as per their promise at the Amsterdam meeting to support him, issued a Letter of Support addressed to the Ministry of Mines and Energy Dated December 24,2018 in furtherance of his Application for the Exploration License for Solway Mining Inc, in which they stated in clear and unequivocal terms that they recognize Mr. Morgan as the 100%owner of Solway Mining Inc., and that they will
provide support to the Company if granted the Exploration License.
Morgan further testified that with the Letter of support from Solway Investment Litd., the Articles and Certificate of Incorporation of Solway Mining Inc, his Share Certificate for the 500
shares of Solway Mining Inc, a copy of his Passport, and the payment of the required fees, he applied to the Ministry of Mines and Energy for an Exploration License for the Mount Ble area
in Nimba County.
furthermore, He testified that on October 19,2020, the Ministry of Mines and Energy issued Solway Mining Inc., an Exploration License for the Mount Blei and Mount Detton Area in Nimba County. He identified the Exploration License, which was marked as CCPL/3 and confirmed by the Court.
Mr. Morgan further testified that following the acquisition of the Exploration License, he transferred Three Hundred Seventy Five(375) out of his Five Hundred(500) shares to Solway Industries Limited in order to induce them to provide support for the exploration but no consideration was paid to him (Mr. Morgan) for these shares. Mr. Morgan further testified that Solway Industries Ltd. did not obtain any prior approval from the Ministry of Mines and Energy for the 375 shares that he transferred to it.
Notwithstanding, Mr. Morgan also testified that Solway Investments Ltd, then brought in Solway Swiss AG which offered a loan for One Million United States Dollars (USS1.0)M to the Company, Solway Mining Inc, to facilitate the exploration activities. The Loan, Mr. Morgan testified, had a provision that if the Exploration is successful, the money loaned will be converted into equity shares in Solway Mining Inc., and that if the Exploration is not successful, the proceeds of the loan would have to be repaid by Mr. Morgan and Solway Mining Inc. This offer was accepted and a loan agreement was signed by and between him, Solway Swiss AG, and Solway Mining Inc.
Mr. Morgan further testified that Solway Swiss AG also expressed the desire to acquire additional shares in Solway Mining Inc, for which he proposed an Option and Investment Agreement. This offer was also accepted, and an Option and Investment Agreement was signed by and between him, Solway Swiss AG, and Solway Mining Inc. However, Solway Swiss AG subsequently issued a Termination Notice terminating the said Option and Investment
Agreement.
In addition to terminating the Option and Investment Agreement, Mr. Morgan testified that Solway Swiss AG also issued a Notice of Default and Demand on Mr. Morgan for the repayment of the loan that it had earlier granted Solway Mining Inc. The loan Agreement,
Option and Investment Agreement, Termination Notice and the Demand Letter, were received, marked as CCPI/4,CCPL/5,CCPL/6 and CCPL/7 and confirmed by the Court.
Mr. Morgan testified that following the issuance of the Termination Notice and Demand Letter, Solway Swiss AG practically withdrew from the activities of Solway Mining Inc, Nonetheless,
Additionally, Morgan rested his testimonies that Solway Mining Inc continued its exploration activities under his leadership and subsequently applied to the Government for a Mineral Development Agreement (MDA),.
Petitioner’s second Witness, Mr. Roosevelt Gould took the stand and testified that he was the Secretary of the Board of Directors and Lawyer for Petitioner Solway Mining Inc, at all relevant
times. He testified that he was involved in the establishment of Solway Mining Inc., the filing of the Articles of Incorporation and the issuance of the share Certificate for the Five Hundred (500)
shares subscribed to by Mr. Morgan. He testified to the loan granted by Solway Swiss AG to Solway Mining Inc., the Option and Investment Agreement executed by and between Mr. Morgan, Solway Mining Inc, and Solway Swiss AG.
He testified also that he was aware of the transfer by Mr. Morgan of his 375 shares to Solway Investment Ltd, and confirmed that Solway Investment Ltd, did not pay any consideration to Mr. Morgan and the transfer of his shares.
Mr. Gould further identified and confirmed the Articles and Certificate of Incorporation of Solway Mining, the Shares Certificate issued to Mt. Morgan, the Exploration License granted to Solway Mining Inc.by the Ministry of Mines and Energy, the Option and Investment Agreement, the Notice of Termination of the said Option and Investment Agreement; the Default Notice and
Demand Letter for the payment of the Loan, following which marks of reconfirmation were placed on them by the Court.
The Petitioner then rested with the Witness, and following the discharge of the Witness by the Court, Petitioner rested with oral and documentary evidence, and prayed the Court for the documents testified to by the Witnesses on the stand, marked as CCPLI through CCPI/7 by the Court, confirmed and reconfirmed, to be admitted into evidence, which said application was granted. Thereafter, after al! documents testified to by its witnesses,
identified, marked, confirmed, re-confirmed and admitted to evidence by this Honorable Court, Petitioner rested oral and documentary evidence in Total and submitted its case for determination by the Court.
The Court reserved Ruling and adjourned the hearing.
ISSUES DETERMINATIVE OF THE CASE
Upon listening to the testimonies of the Witness for Petitioner, there is only one issued Determinative of this case, which is whether or not Petitioner has established by the preponderance of the evidence that he is the Sole Owner of Solway Mining Company and that he is entitled to a Declaratory Judgment to that effect.
To address this issue, it is necessary to take recourse to and summarize the evidence adduced at this trial.
The evidence adduced during this Trial, both oral and documentary, established the following:
1. That Petitioner Boima Morgan, filed the Article of Incorporation of Solway Mining Inc. and received a Certificate of Incorporation of Solway Mining Inc, with an Authorized
Share Capital of Five Hundred (500) Registered Shares with no par value dated October 10,2018 That Petitioner Boima Morgan, subscribed to all the 500 equity shares of Solway Mining Inc., and upon the Constitution of the Board of Directors, he was issued a share Certificate dated October 17, 2018 evidencing his ownership of 500 equity Shares of Solway Mining Inc, representing 100% of the authorized shares of the Company under its Articles of Incorporation.
2. That Petitioner Boima Morgan, as a shareholder, and not Solway Mining Inc as a Company, transferred 375 shares out of his 500 shares to Solway Industries Limited to induce them to provide support for the exploration activities. This transfer was done
following the receipt of the Exploration License. Mr. Morgan claims that Solway Industries did not pay any Consideration to him for the 375 shares transferred to Solway
Industries
3. That Solway Industries Ltd transferred the 375 transferred to it by Mr. Morgan to Solway
Swiss AG pursuant to a Share and Purchase Agreement
Under the Associations Law of Liberia, Title 5, Liberia Code of Laws Revised, Section 5.1,
“every corporation shall have the power to issue the number of Shares stated in its Article of
Incorporation”
Based upon the aforesaid, this Court is convinced that Petitioner Mr. Boima
Morgan was the owner of 100% of the authorized shares of Solway Mining Inc as at October 17,
2018 when the shares Certificate was issued before it was transferred to Solway Industries Ltd.
We also note that under the Laws of Liberia, Consideration for the issuance of shares, shall
consist of Money or other property, tangible or intangible or labor or service actually received or performed for the (corporation) or for its benefit or in the formation or reorganization, or a
combination thereof” Further, neither obligations of the subscriber for future payment nor future service shall constitute payment or part payment for shares ofa corporation, and that certification for shares may not be issued until the full amount of the consideration therefore has been paid, See Association Iaw. SLCL Revised,Section5.4, 5.5″
We also note that the 375 shares subject of the claim of ownership by Solway Industries Ltd and
thereafter Solway Swiss AG were shares originally owned by Mr. Boima Morgan and hence
constitute personal property, and that if any consideration had to be paid by Solway Industries
for these shares, that consideration had to be paid to Mr. Boima Morgan as a shareholder,. Mr
Morgan testified that no consideration was paid to him to support the transfer of his 375 shares
In the absence of evidence to the contrary, we are inclined to hold that no consideration was paid by Solway Industries for the 375 shares transferred to it by Petitioner Boima Morgan.
According to the evidence, the Financial support for the exploration provided by Solway
Industries, was in the nature of a loan to be repaid as per the terms and condition of the loan
agreement and nowhere in the loan agreement which was admitted into evidence is there a clause that states that the loan constitutes consideration for the 375 of the shares transferred to Solway Industries by Mr Morgan. The fact that a demand for the repayment of the loan was addressed to Mr. Morgan and Solway Mining Inc support the conclusion that it was not a consideration for the shares transferred by Mr. Boima Morgan. Hence in the absence of evidence to the contrary, the Court is convinced that no consideration was paid by Solway Industries Ltd. to Mr. Boima Morgan for the 375 of his shares transferred to it Solway Industries Ltd.
Under the laws of Liberia, “when the consideration for shares has been paid in full, the
subscriber shall be entitled to all rights and privileges of a holder of such shares and to a
certificate representing his shares” Liberia Coe of Laws Revised, Title 5, Associations Law,
Section 5.53)
The corollary to this law is that where the consideration for the shares has not
been paid in full, the subscriber shall not be entitled to the rights and privileges of a holder of
such shares.
Subsequently this Court holds that Solway Industries Itd not having paid consideration for the shares transferred to it is not a holder in due course of the 375 shares and the transfer of the shares to it is hereby declared Null and Void, With the transfer to Solway Industries Ltd. by Mr, Boima Morgan of the 375 shares declared Null and Void due to lack of Consideration, the subsequent transfer of the 375 shares to Solway Swiss AG by Solway Industries Ltd., under the Share and Purchase Agreement is defective under the legal maxim of nemo dat quod non habet (“no onc can give that which he does not have.). It is also a settled Property Law Principle that a buyer cannot acquire better title or ownership right to goods than he the seller possessed. Consequently, this Court also holds that, the transfer of the 375 shares by Solway Industries Ltd.to Solway Swiss AG is defective and is hereby declared Null and Void.
Besides the lack of payment of consideration for the 375 shares transferred by Petitioner to
Solway Industries Ltd, the evidence adduced at the Trial is that Solway Industries Ltd., did
not present any evidence of approval by the Ministry of Mines and Energy of the transfer to
it by Mr. Boima Morgan of the 375 shares constituting a majority of the shares of Solway
Mining Inc, Under the New Minerals and Mining Laws, “Mineral rights may be assigned
only upon the approval of the Government except for an assignment to an affiliate of the
holder of the Mineral Right. Any purported assignment in contravention of this section shall
be Null and Void and shall constitute a material violation of the law. ”New Minerals and
Mining Laws, Title 22 of the Liberia Code of Laws(Rev),Part I, Sec 9.17.We note the
imperativeness of the language employed in the above statute nullifying and voiding any
transfer or assignment of any mineral rights.
“From the records before this court, it is established that the transactions between Alford Boima Morgan and Solway Industries Ltd. And Solway Swiss AG did not meet the requirement and are therefore declared null and void and of no legal effect.
There been no evidence before us that Solway Industries Ltd,is an Affiliate”of Petitioner
Mr. Boima Morgan, and there being no evidence that a prior approval was obtained from the
Ministry of Mines and Energy, this Court holds that the transfer of the 375 shares by Mr
Morgan to Solway Industries Ltd was a violation of the Minerals and Mining Laws of the
Republic of Liberia and is hereby declared it Null and Void.
By this declaration, the subsequent transfer by Solway Industries Ltd.to Solway Swiss AG
having been done without the prior approval of the Ministry of Mines and Energy, is also
hereby declared Null and Void.
The evidence adduced at the Trial, having established that Mr. Boima Morgan was the owner
of the totality of the authorized shares of Solway Mining Inc, before it was transferred to
Solway Industries LId. and this Court have declared that the transfer of Mr. Morgan’s 375
shares to Solway Industries Ltd, was not only defective for lack of consideration, but also in
violation of the Mining and Minerals Law of Liberia, we are convinced that the evidence
provided by Mr. Morgan is cogent and overwhelming to support the declaration prayed for in
its Petition before this Court.” The commercial court ruling outlined.
Under the Civil Procedure Law, “Courts of Record within their respective jurisdictions shall
have the power to declare rights, status and other legal reckless, whether or not further relief
is or could be claimed. No action or proceeding shall be open to objection on the ground that
a declaratory judgment is prayed for.
The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force and effect of a final judgment.”
In his ruling on March 24, 2026, CHAN-CHNNPAEGAR, ASSOCIATE JUDGE, OTHELLO’s. PAYMAN, ASSOCIATE JUDGE and U-JAY WH.S. BRIGHT, AD-HOC JUDGE, ruled that in accordance with 1LCL Revised. Civil Procedure Law, Chapter 43.Section 43.1, Wherefore and in view of the fore going this Court hereby declares that;
1. Alford Boima Morgan is the rightful and legitimate owner of the Five Hundred(500)
shares representing 100%of the aggregate number of shares Solway Mining Inc is
authorized to issue as per its Articles of Incorporation.
2. That the transfer of the 375 shares of stock of Solway Mining Inc, to Solway Industries
Lid by Mr. Boima Morgan is Null and Void and of no legal effect for lack of
Consideration and for violation of the Minerals and Mining Law of the Republic of
Liberia.
3. That the 375 shares transferred to Solway Industries Itd having been declared Null and
Void is hereby ordered reverted to Petitioner Boima Morgan as if the Transfer had never
been done;
4. That Solway Swiss AG,a corporate entity organized, existing and operating under the
laws of Switzerland, acquired no rights in the equity of Solway Mining Inc, established
and existing under the laws of Liberia in that its grantor, Solway Industries Ltd had not
legally acquired the shares it sold to Solway Swiss AG under the Share Purchase
Agreement, and further that the transaction was Null and Void in that it did not obtain the
prior approval of the Ministry of Mines and Energy as required by the Minerals and
Mining Laws of Liberia.
5. That all corporate actions taken by Solway Industries Ltd., and Solway Swiss AG in the
name of Solway Mining Inc, by virtue of their purported ownership of the shares
constituting majority of the shares of Solway Mining Inc., are hereby declared Null and
Void and of no legal effect for lack of standing and legal capacity.
