DN NETWORK LIMITED (PLAINTIFF) vs. MILLICOM GHANA LIMITED (DEFENDANT) [2019]DLHC7163

Date	2019-04-30
Suit No.	SUIT NO. BDC/18/2014
Citation No.	[2019]DLHC7163

HIS LORDSHIP GEORGE K. KOOMSON ‘J’.

KIMATHI KUENYEHIA FOR DEFENDANT/APPLICANT

SEAN POKU FOR PLAINTIFF/RESPONDENT

[2019]DLHC7163
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													<main id="main" class="content" style="min-height: 60rem" >DN NETWORK LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MILLICOM GHANA LIMITED<o:p></o:p>(DEFENDANT)<o:p></o:p><o:p>&nbsp;</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. BDC/18/2014&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:
30TH APRIL, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>KIMATHI KUENYEHIA FOR
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">

SEAN
POKU FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP GEORGE K.
KOOMSON ‘J’.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On the 18th
of July, 2018, this Court delivered its judgment in favour of the Plaintiff/Respondent.
The Defendant/Applicant being dissatisfied with the judgment, filed an appeal
with the Court of Appeal on the 3rd of August, 2018. Subsequently,
Defendant/Applicant filed an application for stay of execution. The application
was granted on conditions that the Defendant/Applicant pays an amount of
GH¢5,120,000.00 out of the total judgment debt within a period of seven days.
Not satisfied with the conditions, the Defendant/Applicant repeated its
application in the Court of Appeal.&nbsp; The
Plaintiff had filed an application for garnishee order nisi on the 14th
of December, 2018 as the original order granting Defendant/Applicant seven days
within which to pay the sum of GH¢5,120,000.00 had lapsed. The
Defendant/Applicant applied to this Court to set aside the garnishee order nisi.&nbsp; The basis for the application to set aside
the garnishee order nisi was that the Defendant/Applicant had without the
knowledge of the Plaintiff/Respondent and the Court had filed an application for
stay at the Court of Appeal.&nbsp; By consent
of both Counsel, the said garnishee order nisi was set aside.&nbsp; Both Counsel reached an agreement that the
Defendant/Applicant pays GH¢120,000.00 representing the costs awarded in the
matter to the Plaintiff.<o:p></o:p>Subsequent
events showed that the Court of Appeal dismissed the Applicant’s application
for stay of execution but however, varied the terms of the conditional order
for the payment of the GH¢5,000,000.00 within the seven days.&nbsp; The seven days period was extended to
fourteen days by the Court of Appeal.&nbsp; The
Defendant/Applicant later filed another application at the Court of Appeal for
the suspension of the enforcement of the Court of Appeal order.&nbsp; The Plaintiff/Respondent had then filed an
application for garnishee order nisi after the expiration of the fourteen days.&nbsp; The Defendant/Applicant again applied to this
Court to set aside the garnishee order nisi on the ground that the Defendant
had paid the sum of GH¢1,000,000.00 to the Plaintiff and for the parties to
enter into negotiations for the payment of outstanding debt.&nbsp; <o:p></o:p>The
Defendant/Applicant later filed another application at the Court of Appeal for
the purposes of seeking an order suspending the Court of Appeal Order.&nbsp; It is on record that the Defendant/Applicant
made a further payment of GH¢4,000,000.00 to the Plaintiff.&nbsp; The Plaintiff/Respondent then filed an
application to strike out the motion filed by the Defendant/Applicant at the
Court of Appeal which had then be fixed on the 8th of May, 2019.&nbsp; The application filed by the
Plaintiff/Respondent in the Court of Appeal was granted on the 16th
day of April, 2019. Having dismissed the motion filed by the
Defendant/Applicant at the Court of Appeal, the Plaintiff/Respondent filed an
application for garnishee order nisi on the same date which said application
was granted by this Court.&nbsp; It is this
garnishee order nisi which Defendant/Applicant is praying this Court to set
aside as it had fulfilled the terms and conditions of the Conditional Stay of
Execution granted by this Court and varied by the Court of Appeal.<o:p></o:p>I must observe
that in all the dealings with both Counsel, the parties had not filed any terms
of settlement before this Court.&nbsp;
Furthermore, any compromise reached between Counsel for Plaintiff and
Defendant can be described as Adhoc and in my view cannot be used as a basis to
say that parties have reached some form of compromise.&nbsp; It is to be noted that this is a Court of
record and any agreement between parties during the pendency of a case should
be filed before the Court.&nbsp; &nbsp;Regarding the present application, I will note
that the GH¢5,000,000.00 which this Court ordered the Defendant/Applicant to
pay within seven days and extended to fourteen days by the Court of Appeal was
paid in instalment. At the time the last instalment of GH¢4,000,000.00 was
paid, the fourteen days had lapsed. Having failed to pay the GH¢5,000,000.00
within the fourteen days, the effect is that the Plaintiff/Judgment/Creditor
became entitled to the total sum outstanding judgment debt.&nbsp; It was for this reason that the Court granted
the garnishee order nisi.&nbsp; Having had
notice from the application filed by the Plaintiff/Judgment/Creditor that the
motion for the suspension of the Court of Appeal order had been dismissed.<o:p></o:p>In this instant
application, the Defendant/Applicant has not shown any reasonable ground or
special circumstances to warrant the setting aside of the garnishee order nisi.&nbsp; It is observed that the relationship between
the lawyers for the parties cannot be used as a ground for the Court to set
aside a legally and validly obtained order of the Court.&nbsp; In the circumstance, I do not share the view
of Defendant/Applicant that parties have reached some form of compromise
regarding the payment of any judgment debt.&nbsp;
The application is accordingly dismissed.&nbsp; The garnishee proceedings stays adjourned to
2nd May, 2019 for the garnishee banks to</main>