ZOOMLION GHANA LTD vs. MERSKWORLD CO. LTD [2013]DLSC2819

Date	2013-11-07
Suit No.	CIVIL APPEAL NO. J8/89/2013
Citation No.	[2013]DLSC2819

AKAMBA J.S.C.

MR. CHARLES HAYIBOR WITH HIM RICHARD BOBISON FOR THE PLAINTIFF /APPELLANT/APPLICANT.

MRS.NANCY AMARTEIFIO FOR DEFENDANT/ RESPONDENT/ RESPONDENT.

[2013]DLSC2819
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													<main id="main" class="content" style="min-height: 60rem" >ZOOMLION GHANA LTD<o:p></o:p>vs.<o:p></o:p>MERSKWORLD CO. LTD<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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. J8/89/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 7TH NOVEMBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.
CHARLES HAYIBOR WITH HIM RICHARD BOBISON FOR THE PLAINTIFF /APPELLANT/APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS.NANCY AMARTEIFIO FOR DEFENDANT/
RESPONDENT/ RESPONDENT.<o:p></o:p>

AKAMBA J.S.C. SITTING AS A SINGLE
JUSTICE OF THE SUPREME COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT <o:p></o:p>

</div><o:p>&nbsp;</o:p>This is
an application by the Plaintiff/Appellant/Applicant for an order of interim injunction
or suspension of enforcement of the Judgment obtained in the High Court on 9th
April, 2013. Counsel for the Applicant relied on paragraphs 12 to 17 of the
affidavit in support for the reasons for the application. Applicant’s
contention is that during the pendency of the application for stay of execution
at the Court of Appeal, the Defendant/Respondent/Respondent deposed in their
affidavit in opposition that the Plaintiff/Appellant/Applicant (hereinafter
simply Applicant) and its former lawyers had been served on several dates to
attend Court but they had failed to attend Court. This observation was repeated
by the trial Judge in her Judgment. This therefore prompted the present counsel
for the Applicant to conduct a search to ascertain whether the Applicant and/or
his counsel had indeed been served. The result of the search is the stunning
revelation that the service was made on the former lawyers of the Applicant.
According to Applicant’s counsel such service on the former lawyers for the
Applicant was no service on the Applicant who ought to be served in conformity
with the requirements of the Company’s Code, being a company. The failure to do
so has resulted in a failure of justice. Applicant therefore prays that the
failure to serve the Applicant is a breach of the rules of natural justice as
depicted by the search results, and this goes to the very foundation of the
suit. Applicant therefore prays for an order of this Court to suspend the
enforcement of the entry of the said Judgment pending the final determination
of the appeal to this Court.<o:p></o:p><o:p>&nbsp;</o:p>The
Respondents are opposed to the grant of the Applicant’s prayer stating that the
High Court did not order service on counsel. According to Respondent, the
Applicant was served with the motion to strike out their action and to be
allowed to pursue their counter claim at which time, the pit, the subject of
dispute had been filled up. Respondent’s counsel further submitted that an
injunction was incompetent citing the practice under order 25r. 3 of CI 47 which
requires that an applicant should attach a statement of case as well as all
legal arguments in support of such application&nbsp;
but the Applicant has failed to satisfy all these.<o:p></o:p><o:p>&nbsp;</o:p>I have
carefully considered the issues before me in the present application. The
Applicant has raised issues of non-service of process on them thereby
challenging the very competence of the decision entered against them. Such an
allegation goes to the root of the decision arrived at. The parties involved in
the present dispute are limited liability companies. On the part of the
Applicant, as a limited liability company, the Company’s Code, Act 179, has
made specific provisions for service of process on them. The true legal
position is that service of process on the Applicant should be in consonance
with S. 263(1) of Act 179. <o:p></o:p>The
Applicant had raised sufficient grounds for due consideration for the grant of
the present application in the light of a breach of the rules of natural justice.
As to the Respondent’s argument that this Court lacks the competence to grant
the application, I wish to refer to such cases as Merchant Bank Gh Ltd&nbsp; vrs.&nbsp;
Similar Ways Ltd (2012) 1 SCGLR 440 and Standard Chartered Bank (GH)
Ltd&nbsp; vrs.&nbsp;
Western Hardwood Ltd (2009) SCGLR 196 to state that in appropriate
cases, this Court has the power to grant reliefs such as the Applicant seeks. I
am satisfied that the present application is an appropriate case to warrant the
grant of an order to suspend the enforcement of the Judgment of the High Court
delivered on 9th April, 2013 which I hereby do, pending the outcome
of the appeal before this Court. I allow costs of Two Thousand Cedis (GH¢2,00.00)
for the Applicants. <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (SGD)&nbsp;&nbsp;&nbsp; J.B AKAMBA<o:p></o:p>&nbsp; JUSTICE OF
THE SUPREME COURT<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p></</main>