ALKE GHANA LTD. v. PROTEUS CONSTRUCTION & MAINTENANCE LTD. & STAR ASSURANCE CO. LTD.
2015
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR
Areas of Law
- Civil Procedure
- Contract Law
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court ruled on an application by the Defendant/Applicant to dismiss a suit on grounds of it being vexatious and an abuse of the judicial process. The court found that the issues being disputed in the Plaintiff/Respondent's current suit could be more appropriately brought as a counterclaim in a pending related case (AC 740/2015). The court concluded that the matter is subject to lis alibi pendens and dismissed the current suit, awarding costs to the Defendant/Applicant. It emphasized that the same basic outcome should be obtained from a claim arising out of the same set of facts, preventing the possibility of irreconcilable decisions from different courts.
RULING
It is provided under Order 11 rule 18(1)(b) and (d) of the High Court (Civil Procedure) Rules, 2004, C.
I. 47 that:
“The Court may at any stage of the proceedings order any pleadings or anything in any pleadings to be struck out on the grounds that:
(b) it is scandalous, frivolous or vexatious or
(d) it is otherwise an abuse of the process of the Court”
And may order the action to be stayed or dismissed or judgment to be entered accordingly”.
1st Defendant has mounted this application under Order 11 rule 18(b) & (d) seeking an order for the dismissal of the suit on the grounds that the suit is vexatious and constitutes an abuse of the judicial process.
The basis of the claim of the Defendant/Applicant has been stated in the 23 paragraph of the affidavit in support of the application and may be summarized as follows:
The Defendant/Applicant commenced an action in suit No. AC 740/2015 against Alke & Turmarks JV in the High Court differently constituted. That the facts giving rise to the cause of action in that suit is the same set of facts that has the foundation that Plaintiff/Respondent has mounted its action in this court; all emanating from a subcontract for the construction of a 60 bed hospital at Cantonments, Accra. To the Defendant/Applicant the Plaintiff herein has resisted the claim in the suit No AC740/15 and returned processes served on it because the Plaintiff/Respondent herein claim that it does not know the entity that styles itself as Alke & Turmarks JV and that it is only known simpliciter as Alke Ghana Ltd.
To the Defendant/Applicant it was the Plaintiff/Respondent herein together with Turmarks Company, an entity under the laws of Turkey that entered into a joint venture to perform the contract and cannot claim that it does not know an entity called Alke & Turmarks JV. And any reliefs that Plaintiff/Respondent seeks here could legitimately be sought by way of counterclaim in the earlier suit.
In an affidavit in opposition deposed to by one Yigitcan Yildrim, the Secretary to Plaintiff/Respondent company, he denied that Plaintiff was a party to the Suit No. AC740/2015 and that the joint venture agreement had not created any entity by name Alke & Turmarks JV in an incorporated form or not. He further notes that as Secretary to plaintiff/Respondent company his searches at Registrar General did not disclose the existence of any entity by name Alke & Turmarks that can sue and be sued. And hence the claim of the Plaintiff/Responde