NOWFILL S. LABA vs. LENNAP AND CO. AND LATEX FOAM RUBBER PRODUCTS LTD [2016]DLHC9063

Date	2016-07-19
Suit No.	SUIT NO. MISC/0062/16
Citation No.	[2016]DLHC9063

JUSTICE JENNIFER ABENA DADZIE

JUSTICE KUSI-MINKA PREMO ESQ. OF MINKA-PREMO & CO. AKOSOMBO CHAMBERS ACCRA FOR APPLICANT

THADDEUS SORY ESQ. OF SORY@LAW ACCRA FOR 1ST RESPONDENT

LATEX FOAM RUBBER PRODUCTS LTD ACCRA 2ND RESPONDENT

[2016]DLHC9063
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													<main id="main" class="content" style="min-height: 60rem" >NOWFILL
S. LABA<o:p></o:p>(APPLICANT)<o:p></o:p>vs.<o:p></o:p>LENNAP
AND CO. AND LATEX FOAM RUBBER PRODUCTS LTD<o:p></o:p>(RESPONDENT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>COUNSEL:<o:p></o:p>JUSTICE KUSI-MINKA
PREMO, ESQ., OF MINKA-PREMO &amp; CO., AKOSOMBO CHAMBERS, ACCRA, FOR APPLICANT<o:p></o:p>THADDEUS SORY,
ESQ. OF SORY@LAW, ACCRA FOR 1ST RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

LATEX
FOAM RUBBER PRODUCTS LTD, ACCRA, 2ND RESPONDENT<o:p></o:p>

JUSTICE JENNIFER ABENA DADZIE<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;
padding:0cm 0cm 1.0pt 0cm">

</div><o:p>&nbsp;</o:p>The
Applicant is a member of the 2nd Respondent Company (hereinafter,
the “Company”) holding 50% of the issued shares as well as one of the directors
of the Company serving as its Managing Director.&nbsp; The remaining 50% of the shares of the
Company is held by the late brother of the Applicant, Aid Solomon Laba who
passed away on 5th December, 2015.&nbsp;
The 1st Respondent is the Company Secretary of the
Company.&nbsp; The 2nd Respondent
is joined in this suit as a nominal party in which name all corporate acts are
made and to which all orders would have to be notified.<o:p></o:p>[1]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PROCEDURAL
BACKGROUND<o:p></o:p>The Applicant on June 9, 2016, filed
with the Registry of this Court, an originating notice of motion praying for
declarative and injunctive reliefs against the 1st Respondent, who
according to the Applicant, as the errant officer, was perpetuating
irregularity and acts of illegality in the name of the Company under Section
217 of the Companies Act, 1963, Act 179 (hereinafter, the “Companies
Act”).<o:p></o:p>In lieu of a response to the
Applicant’s Originating Notice of Motion, the 1st Respondent, on
June 27, 2016, filed an Application for an Order to Set Aside the Applicant’s
Originating Notice of Motion on the grounds that the Applicant has wrongly
invoked the jurisdiction of the Court against the 1st Respondent for
the reliefs sought and further, Applicant has no cause of actions against the 1st
Respondent in so far as the allegations upon which the Applicant’s actions are
founded is concerned.<o:p></o:p>While these two (2) motions are still
pending before the Court, Applicant, on July 5, 2016, has filed the present
motion on notice seeking leave to cure an omission by way of amendment to the
title of the originating notice of motion by the insertion of these three (3)
words, “Section 21 and”, handwritten
or otherwise before “Section 217” so
as to make that portion of the title of the Originating Notice of Motion to
read as follows: “In the Matter of An
Application Under Section 21 and Section 217 For Injunction And Declaration”.<o:p></o:p>The 1st Respondent resists
the grant of the order for leave to amend, on grounds which are reproduced infra.<o:p></o:p>[2]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ARGUMENTS
OF THE PARTIES:<o:p></o:p>It was argued on behalf of Applicant
that under normal circumstances Order 16 r 1 of the CI 47 permits
the Applicant, without leave of court, to amend his writ once before pleadings
are closed. But as the definition of “writ” does not include originating
motions, it was safer to consider his originating notice of motion as “other
documents” covered by Order 16 r 7 of CI 47 </main>