ALTROM S.A. LTD vs. A.A. MINERALS, KWAKU EFFAHASUAHENE, AMA KARIKARI AND KWADWO ADU [2020]DLCA9342

ALTROM S.A. LTD vs. A.A. MINERALS, KWAKU EFFAHASUAHENE, AMA KARIKARI AND KWADWO... [2020]DLCA9342

Date	2020-05-20
Suit No.	SUIT NO.HI/171/2019
Citation No.	[2020]DLCA9342

OFOE J.A

HONYENUGA J.A

GAISIE J.A

GLORIA OSEI NYAME FOR THE PLAINTIFF/APPELLANT

YAW ESHUN FOR THE DEFENDANTS/RESPONDENTS

[2020]DLCA9342
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													<main id="main" class="content" style="min-height: 60rem" >ALTROM S.A. LTD<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>A.A. MINERALS,
KWAKU EFFAHASUAHENE, AMA KARIKARI AND KWADWO ADU<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF
APPEAL, 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>GLORIA
OSEI NYAME FOR THE PLAINTIFF/APPELLANT<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">

YAW
ESHUN FOR THE DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>OFOE J.A, HONYENUGA
J.A, GAISIE J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>OFOE, J.A:<o:p></o:p>ANTECEDENTS<o:p></o:p>The
plaintiff/appellant company, herein after referred to as the plaintiff, on the 3rd
of November 2015 issued out a writ of summons against the
defendants/respondents at an Accra High Court claiming payment of $2,056,619.90
owe it by the defendants being outstanding amount on a business contract, the
details of which it has elaborated in its statement of claim. Tersely put, it had
an agreement with the 1st defendant to supply it with gold in
exchange for mining equipment. There was a subsequent additional agreement by
which it advanced some monies to the 1st defendant for the 1st
defendant to ship that monies worth of gold to it. It is its case that the 1st
defendant had defaulted in the supply hence the outstanding amount claimed on
the writ.<o:p></o:p>The
other defendants are directors of the company and also guarantors of the 1st
defendant who undertook to pay to the plaintiff on demand all debts that may
arise out of the financial transaction between them<o:p></o:p>There
was an initial judgment against the defendants but that was set aside on
application of the defendants paving the way for them to file their defence. We
find on record an application for stay of proceedings (refer to page 72) filed
on the 30th November 2016, and an affidavit in opposition (refer to
page 83). Also on record is a Notice To Raise Preliminary Legal Objection filed
6th December 2016 (refer to page 87 of the record of appeal). If
there were any outcomes of these processes, they are absent from the records. <o:p></o:p>The
record of appeal reveals further that on the 24th of July 2018 an
application for leave to enforce arbitral award filed by the plaintiff had been
struck out by Her Ladyship Justice Jennifer Abena Dadzie with the reason that it
had come to her attention that the defendants had issued a writ challenging the
arbitration award which the plaintiff intended to enforce before her. She
struck out the plaintiff’s application as withdrawn without prejudice. This can
be found at page116 and 153.<o:p></o:p>After
this outcome in Abena Dadzie J’s court one would have expected the plaintiff to
pursue the defendants on the writ they had filed questioning the arbitration
award but that was not what we have on the record. Rather on the 8th
of November 2018 the plaintiff filed another motion for leave to enforce
arbitral award. This can be found at page 154. A cursory reading of the
supporting affidavit to this motion revealed that it was not different in
content from the one earlier struck out by Abena Dadzie J. Expectedly, the
application was opposed drawing the attention of the court to the earlier similar
motion that was struck out. The affidavit in opposition mentioned further that
there is a writ, suit No CM/DCA/0582/2018, issued by the defendants, pending
before another judge, Asiedu J, seeking to set aside the said same arbitration
award. The records have it that the plaintiff’s objection to the writ and
seeking that it be struck out on grounds that it was frivolous and vexatious
did not find favour with Asiedu J. As a result, there was a writ still pending
seeking to set aside the arbitration award before another court of coordinate
jurisdiction differently constituted by Asiedu J.<o:p></o:p>In
brief these are the records before the trial judge whose ruling is on appeal
before us. <o:p></o:p>After
listening to the submissions of counsel for both parties the trial judge ruled<o:p></o:p>RULING
OF THE TRIAL JUDGE<o:p></o:p>This
court will refuse the instant application to enforce the arbitral award dated 4th
June, 2018 for the following reasons:<o:p></o:p>·&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The procedure which led to the said
award is the subject matter in Suit Numbe</main>