GHANA TELECOMMUNICATIONS CO. LTD vs. KABALINK LIMITED [2012]DLCA3157

Date	2012-06-29
Suit No.	CIVIL APPEAL NO: HI/46/2012
Citation No.	[2012]DLCA3157

JUSTICE MARIAMA OWUSU JA [PRESIDING]

JUSTICE FRANCIS G KORBIEH JA

JUSTICE IRENE C DANQUAH JA

MR. FESTUS KAYI ESQ.

MR. GYASI ESQ.

[2012]DLCA3157
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													<main id="main" class="content" style="min-height: 60rem" >GHANA
TELECOMMUNICATIONS CO. LTD<o:p></o:p>vs.<o:p></o:p>KABALINK LIMITED<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO: HI/46/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
29TH JUNE, 2012<o:p></o:p>

MR. GYASI ESQ.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; -&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>JUSTICE
MARIAMA OWUSU JA [PRESIDING], JUSTICE FRANCIS G KORBIEH JA, JUSTICE IRENE C
DANQUAH JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>IRENE C DANQUAH JA<o:p></o:p>This
interlocutory appeal was filed by the Defendant against the dismissal of an
application for an order to set aside the writ as an abuse of the Court process
by the High Court, Wa.&nbsp; The ruling is
dated 19th July 2010.<o:p></o:p>The
facts of the case are these; the parties entered into a written agreement in
2009 for the Plaintiff to distribute products of the Defendant supplied on
credit in the Upper East and the Upper West Regions of Ghana.&nbsp; It was a term of the agreement that the Plaintiff
furnished the Defendant with a bank guarantee to which the Plaintiff complied
and procured one from Intercontinental Bank.<o:p></o:p>The
agreement run into problems when the Plaintiff accused the Defendant of breach
of the agreement by appointing other companies and individuals as distributors
of the Defendants products in&nbsp; the said
Regions when it was made the exclusive distributor of the products.&nbsp; The Defendant on the other hand alleged that
the Plaintiff had failed to pay for the products bought on credit.&nbsp; The Defendant therefore gave notice to the
Plaintiff indicating that it would call in the bank guarantee issued by
Intercontinental Bank to pay for the said products.&nbsp; Upon receipt of the notice the Plaintiff issued
a Writ of Summons against the Defendant in the Commercial Division of the High
Court, Accra on 24th November 2009.&nbsp;
The Plaintiff then applied for an interlocutory injunction to restrain
the Defendant and or its agents from calling in the bank guarantee issued by
Plaintiff’s bankers or fall upon the guarantor for the payment of monies of
whatever description without the written consent or authority of the
Plaintiff.&nbsp; The motion was heard and
dismissed by the Commercial Court on 16th December 2009 and the
Plaintiff filed an interlocutory appeal against the ruling.<o:p></o:p>On
7th January 2010, whilst the substantive case was pending before the
Commercial Court, the Plaintiff issued and filed another writ against the
Defendant at the High Court, Wa.&nbsp; The
Plaintiff followed it with a motion for interlocutory injunction on grounds of
extreme urgency against the Defendant to restrain the Defendant from calling in
the Plaintiff’s bank guarantee.&nbsp; The
motion was moved on 29th January 2010 and the judge sitting at the
High Court Wa, ruled that the Court cannot resume jurisdiction in the case
because the suit before the Commercial Court, Accra had not been struck out as
discontinued although notice of discontinuance had been filed but had not been
served on the Defendant.&nbsp; On March 2,
2010 the Commercial Court, Accra struck out the Plaintiffs case as
discontinued.<o:p></o:p>On
28th April 2010 the Plaintiff filed an application for an order
committing the directors of the Defendant Company for contempt.&nbsp; On 10th May 2010, the Defendants
then filed an Application for an order to set aside the Writ of Summons and
Statement of Claim on the grounds that it is an abuse of Court process.&nbsp; As stated earlier the High Court, Wa in its
ruling dismissed the application.&nbsp; Hence
the appeal by the Defendant.<o:p></o:p>There
were three grounds of appeal.&nbsp; Counsel
for the Defendant argued the first and third grounds of appeal which read as
follows:<o:p></o:p>“(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial Court erred in dismissing
Defendant/Appellant’s application to set the Writ of Summons and Statement of
Claim in Wa, High Court as an abuse of the Court process after having found as a
fact that the parties are the same in the two suits and further that the
reliefs being sought before the High Court, Commercial Division in Accra and
the Wa High Court are virtually the same.<o:p></o:p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial judge erred when he ruled that
the argument that the suit before the Commercial Division of the High Court in
Accra having been discontinued without liberty to re-apply deprives the Plaintiff
the right to institute a fresh action was not applicable to the suit filed in
Wa High Court.”&nbsp; <o:p></o:p>Counsel
for the Defendant argued that an examination of the two Writs of Summons and
Statement of Claim filed in the two Courts that is; the Commercial Division of
the High Court, Accra and Wa High Court is clear that the parties are the same
and the reliefs being sought are virtually the same.&nbsp; <o:p></o:p>