WISSAM AID LABA vs. RICHARD N. LABA AND OTHERS [2018]DLHC3502

Date	2018-06-11
Suit No.	SUIT NO.CM/BDC/0244/17
Citation No.	[2018]DLHC3502

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

EUNAS KOFI ESHUN ESQ. FOR SAMUEL ADU BOAHEN ESQ FOR 1ST

DEFENDANT/APPLICANT.

AUGUSTINE KIDICIL ESQ FOR PLAINTIFF/RESPONDENT

[2018]DLHC3502
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">WISSAM AID LABA<o:p></o:p></a>vs.<o:p></o:p>RICHARD
N. LABA AND OTHERS <o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO.CM/BDC/0244/17&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: 11TH JUNE, 2018<o:p></o:p>

</div><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-font-kerning:0pt;mso-ansi-language:
EN-US;mso-fareast-language:EN-US">COUNSEL:&nbsp;&nbsp; <o:p></o:p>EUNAS KOFI ESHUN, ESQ. FOR SAMUEL ADU BOAHEN, ESQ FOR
1ST DEFENDANT/APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AUGUSTINE KIDICIL,
ESQ FOR PLAINTIFF/RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="line-height:115%;mso-pagination:widow-orphan;
mso-layout-grid-align:auto;punctuation-wrap:hanging;text-autospace:ideograph-numeric ideograph-other;
border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">HIS
LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT<o:p></o:p>

RULING<o:p></o:p>

</div>This
is a motion by the 1st Defendant/Applicant seeking an order for the
dismissal or a stay of this proceedings on the grounds that the filing of a
notice of discontinuance in Suit No CM/BDC/0750/2017 by the
Plaintiff/Respondent was improper as to amount to an abuse of the process of
the court. <o:p></o:p>A
background to this application as recounted in the affidavit in support of this
application will suffice to illume one’s appreciation of the application. In
Suit No CM/BDC/0750/2017 between the same parties herein the
Plaintiff/Respondent had sought certain reliefs against 1st
Defendant/Applicant and the other Defendants in this suit regarding the directorship
of 3rd Defendant company as well as a declaration that 1st
Defendant/Applicant committed fraud. The court declined an application to
dismiss that suit in my ruling dated the 25th of January, 2018,
which has since become the subject of an interlocutory appeal before the Court
of Appeal. <o:p></o:p>It
is the contention of the 1st Defendant/Applicant that whiles its
appeal against my interlocutory ruling as well as a motion for stay of
proceedings are pending for determination, the Plaintiff/Respondent has filed a
notice of discontinuance with liberty in that suit at the High Court purporting
to discontinue the suit for which it is pursuing an appeal at the Court of
Appeal seeking for the dismissal of that suit. <o:p></o:p>And
to make matters worse, so claimed 1st Defendant/Applicant, the
Plaintiff has commenced another action in this present suit for reliefs which
in material particular are not dissimilar to the reliefs sought in CM/BDC/0750.
To Applicant, the Plaintiff/Respondent should not be allowed to escape through
the back door after making 1st Defendant commit to an appeal only to
turn round to render the pursuit of his appeal brutum fulmin and commence another action. To him at the stage at
which the suit had gotten to, Plaintiff was no longer a dominus lites to have just filed a notice of discontinuance and
that by virtue of the interlocutory appeal, Plaintiff should have sought leave
to discontinue the previous action and hence this application to dismiss or
stay the current action in this suit.<o:p></o:p>Plaintiff/Respondent
on the other hand has opposed the application seeking to stay or dismiss its
suit by claiming that the present application is frivolous as its notice of
discontinuance in Suit No CM/BDC/0750/2017 was properly filed according to the
rules of court. To Plaintiff/Respondent at the time it discontinued that
action, 1st Defendant had only entered appearance to the writ and
followed it up with a series of applications that had all been dismissed by the
High Court. And that at the time it filed the notice of discontinuance, what
was pending was only an interlocutory appeal against a motion for stay of
proceedings at the Court of Appeal, which for all intent and purposes, had been
abandoned as it had been adjourned sine die without any attempt by 1st
Defendant/Applicant to seek a date for the hearing of its interlocutory appeal.
<o:p></o:p>Respondent
further contend that Applicant has failed to apply for cost to be assessed in
his favour in the discontinued suit and the failure cannot be advanced as a
basis to stay proceedings or seek for the dismissal of the current suit. <o:p></o:p>It
is stated under Order 17 Rule 2 of the High Court (Civil Procedure) Rules, C.
I. 47 as follows:<o:p></o:p>“(1) Except
in the case of an interlocutory application, the plaintiff may at any time
before service on the plaintiff of the defendant's defence or after the service
of it and before taking other proceeding in the action, by notice in writing
wholly discontinue the action against all or any of the defendants or withdraw
any part of the alleged c</main>