Parties restrained from further action in US

Tuesday, April 21, 2009 (Page 3 Lead)

THE Commercial Court in Accra yesterday restrained parties in the shareholding dispute between Mr Richmond Aggrey, a businessman and Investment Consortium Holdings, SA (Investcom), the majority shareholders of MTN and another from further taking action at the District Court in the United States of America (USA).
Mr Aggrey instituted legal action in 2006 against Investcom, Scancom Ghana Limited and Grandview Management Inc. of Texas over what he termed the illegal take-over of his 20- per cent shares in the telecommunications company.
However, Grandview Management, which held Mr Aggrey’s shares in trust until the take-over by Investcom and Scancom has maintained that it was not party to the take-over of the shares and has since then argued in favour of Mr Aggrey.
Grandview Management then filed a motion at a commercial court praying the court to restrain Investcom and Scancom from further pursuing the action they filed at the District Court in Texas on September 18, 2008 against Mr Aggrey, a former Vice Chairman of Scancom, Mr Christian C. Wilmot, WCW International Inc and Grandview over matters in dispute at the Ghanaian court.
In granting the injunction at the court’s sitting in Accra yesterday, the trial judge, Ms Justice Barbara F. Ackah Yensu, said she granted Grandview’s injunction based on Order 25 1 (1) of the High Court rules which bordered on convenience and justness.
Order 25 rule 1 (1) of the High Court Civil Procedure Rules (CI 47) states that “the court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just and convenient to do so and the order may be made either unconditionally or upon such terms and conditions as the court considers just”.
It, therefore, upheld Grandview’s application and accordingly ordered Grandview to give an undertaken to Investcom and Scancom to the effect that it would pay any damages that Investcom and Scancom may suffer in the event that the court later found out Mr Aggrey was not entitled to any claims.
In arguing the case for injunction against Investcom and Scancom, counsel for Grandview, Mr Thaddeus Sory, said Investcom and Scancom were praying the District Court in Texas to enforce issues which were determined by the London Court for International Arbitration (LCIA) in the absence of Grandview.
He said Grandview would be greatly prejudiced, if the commercial court did not grant the application for injunction, adding that “the issues raised in the Ghanaian court and the US court are the same”.
For his part, counsel for Mr Aggrey, Mr Yonny Kulendi, produced copies of rulings in the District and Appellate courts in the US, which had dismissed Investcom and Scancom’s motion to restrain Grandview from pursuing its motion for injunction in Ghana.
He said Investcom and Scancom had found it convenient to tell the US court that Mr Wilmot, WCW International and Grandview were the same but stated otherwise in the Ghanaian court.
According to counsel, it would be unfortunate for the court which had jurisdiction to continue hearing the matter to allow Investcom and Scancom to proceed with the same issues in the US court.
Opposing the application, counsel for Investcom, Mr Tony Forson, said his client was vehemently opposed to the application on the grounds that Investcom had a right to pursue justice anywhere.
He said Investcom had, from the scratch, made its position clear that the Ghanaian court was not the proper forum to hear the case brought against his client by Mr Aggrey.
Mr Forson, therefore, prayed the court to order Grandview to sign an undertaking in the event that it (court) decided to restrain Investcom and Scancom from proceeding with the US action.
Counsel for Scancom, Mr Benson Nutsukpui, prayed the court to dismiss Grandview’s application on the grounds that Grandview and Mr Aggrey had residential addresses in the USA and, for that reason, they would not be inconvenienced in any way.
He said the two must be able to litigate their cases anywhere, adding that they could go on to appeal if they lost their case because there was nothing wrong if the US court and the Ghanaian court came out with conflicting findings on the same issue.
Mr Benson further stated that the issue of breach of undertaking filed against Grandview in the US was not before the court in Ghana.
The court had earlier dismissed a motion filed by Investcom and Scancom which sought to re-argue their case after they had been given the opportunity to amend their statement of defence and awarded costs totalling GH¢10,000 against them (Investcom and Scancom) in favour of Mr Aggrey and Grandview.
It, however, stated that for the sake of fairness, Investcom and Scancom could go ahead and respond to issues of fraud levelled against them by Mr Aggrey.
Mr Aggrey is expected to be cross-examined by Mr Nutsukpui today (April 21, 2009).
In the substantive matter in Accra, Mr Aggrey has sued Investcom, Scancom and Grandview Management over unlawful take-over of his 20-per cent shares in Scancom Ghana Limited.
Mr Aggrey began giving evidence on April 28, 2008 following the non-attainment of a settlement between him and the three defendants at a pre-trial conference under commercial court rules, resulting in the matter being referred for trial.
Mr Aggrey's contention was that his name had been removed from the shareholders list of Scancom without any explanation, adding that the particulars of the directors and shareholders of Scancom obtained from the Registrar-General's Department, dated June 2, 2006 and signed by Mr K.A. Ohene-Obeng, a Chief State Attorney, for the Registrar of Companies, showed that Mr Aggrey's name was not included in the shareholders’ list.
It said the onus was on the company to explain how Mr Aggrey ceased to be a shareholder.