WISSAM AID LABA vs. RICHARD N. LABA AND OTHERS [2018]DLHC3503

Date	2018-01-25
Suit No.	SUIT NO.CM/BDC/0750/17
Citation No.	[2018]DLHC3503

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

SAMUEL ADU BOAHEN ESQ. WITH E. ESHUN ESQ FOR MENKA PREMO ESQ. FOR 1ST DEFENDANT/APPLICANT

AUGUSTINE KIDICIL ESQ WITH PAA KWAME ASARE ESQ. FOR KIMATHI KUENYEHIA ESQ FOR PLAINTIFF/RESPONDENT

[2018]DLHC3503
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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/0750/17&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;DATE: 25TH JANUARY, 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>SAMUEL ADU BOAHEN, ESQ. WITH E. ESHUN, ESQ FOR MENKA
PREMO 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 WITH PAA KWAME ASARE, ESQ., FOR KIMATHI KUENYEHIA, 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>1st
Defendant/Applicant prays by this motion for an order for the dismissal of the
suit on the grounds that the subject matter of this suit being the directorship
and membership of the board of 3rd Defendant company is a subject
reference for mediation pursuant to an order made by the High Court in Suit No:
MSC1010/2016 entitled Republic v Aid S. Laba &amp; Others.<o:p></o:p>Applicant
claim in the affidavit accompanying the application that the parties in the
proceedings in Suit No MSC 1010/2016 initiated by the order of Marful-Sau J.A
are also parties participating before this court. <o:p></o:p>Besides,
that the gravamen of the Plaintiff’s action is to question the capacity of 1st
Defendant as a director/chairman of the 3rd Defendant and according
to the Applicant, by Plaintiff’s own showing the affairs of the 3rd
Defendant company is a subject matter of mediation proceedings with one of the
core issues being the board composition of the 3rd Defendant
company. <o:p></o:p>Applicant
accordingly contend that with the mediation ongoing the parties are statute
barred from initiating any arbitral or judicial proceedings in respect of a
dispute that is the subject matter of the mediation. It is on these grounds
that the Applicant prays for the dismissal of the suit.<o:p></o:p>Plaintiff/Respondent
(hereinafter referred to as the Respondent) has resisted the application and
has not only opposed the application by way of affidavit in opposition as
lacking merit but filed a motion raising a preliminary point of law as to the
competence of the application for the dismissal of the suit and seeking to set
aside the Applicant’s motion to dismiss the suit. Instead of allowing counsel
for Respondent to move his motion to set aside the Applicant’s motion to
dismiss the suit, the court directed that Respondent’s motion would be taken
together with the Applicant’s motion as the substance of Plaintiff’s motion
challenged the Applicant’s application as incompetent.&nbsp; <o:p></o:p>Respondent
claim that the Applicant’s application to dismiss the suit is procedurally
flawed and legally incompetent and that same ought to be dismissed. To
Respondent with Applicant having entered conditional appearance, he could not
have properly filed this motion to dismiss Plaintiff’s suit before the
expiration of the 14 day period under Order 9 rule 8. Respondent further claim
in the affidavit deposed to on his behalf that the pleas of limitation,
estoppel and res judicata are not defences opened to a party to raise in an
application upon entering conditional appearance. Besides, being a plea of
limitation it must be particularised in a statement of defence. This in effect
forms the substance of the preliminary objection raised for which a separate
application was filed with the aim to dismiss the suit in limini. <o:p></o:p>Besides
the preliminary point of law raised, the Respondent claim that the application
also lacks merit as to Respondent it is not the case that the subject matter of
this suit is the same as the subject matter before the mediator as one the
parties are different, two that the matters refer for mediation does not include
the challenge to the directorship of the Applicant/1st Defendant.
And three that assuming that even it is otherwise, it is contended by the
Respondent that the mediator lacks the competence to grant the relief the
Respondent seeks before the court as the issue as to the conviction of the
Applicant for contempt by the High Court disqualifying him as a director was
never referred for mediation.<o:p></o:p>Respondent
further claim that with the Applicant disregarding the order of his Lordship,
Buadi J and requisitioning a meeting of the 3rd defendant company on
the 5th of December, 2017 was what has prompted the suit of the
Plaintiff. And that this application has been made in bad faith indicating an
unwillingness of the Applicant to participate with clean hands in the media</main>