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July 24, 2019
HIGH COURT
GHANA
CORAM
On 9th October, 2018, the Plaintiff instituted this action against the Defendants for the following reliefs as endorsed on the writ of summons: i. An order restraining the Defendants, their assigns, privies, workmen from importing and passing off the fake Esapharma Lemonvate and Movate onto the Ghanaian market as the Plaintiff’s exclusively imported products.
Special damages for the loss of profit occasioned by the Defendant’s fraudulent misrepresentation of their products as Esapharma Lemonvate and Movate.
Aggravated damages for the loss of goodwill in the Plaintiff’s exclusively imported products as a result of the Defendant’s unlawful acts.
Costs inclusive of legal fees.
v. Any other relief as this Honorable Court may deem fit.
The Plaintiff’s claim is hinged essentially on the alleged tort of passing off by the Defendants, the facts of which are contained in paragraphs 2 to 18 of the statement of claim.
Upon failure to serve the writ of summons and statement of claim personally on the 1st Defendants, same was served by substitution on 7th June, 2019. The 1st Defendant entered appearance through his Counsel and filed a defence to the action, both on 20th June, 2019. Subsequent to this, the Defendant filed a motion on notice under Order 3 Rules 1 (5) and 2 of the High Court (Civil Procedure) Rules, 2004(C. I. 47). Per the affidavit in support of the application, the 1st Defendant as Applicant objects to the determination of the instant action in this forum.
His reasons are as follows: That the action being one in tort should have been instituted in the Ashanti Region, which is the region where the Defendants reside and carry on business.
To buttress the assertion as to the location of the Defendants, the 1st Defendant has referred this Court to the writ of summons in which the address of the Defendants is stated as Central Market Kumasi.
Further, per the 1st Defendant, the Plaintiff avers in paragraph 2 of its statement of claim that, “the Defendants to the best of the knowledge of the Plaintiff, are traders with their shops located at the Kumasi central market”, for which reason the appropriate forum for the determination of the suit is the Ashanti Region.
The 1st Defendant has further contended that its solicitors are based in Kumasi.
Per his paragraph 10, the 1st Defendant also states that if the case is not transferred to the forum where he resides and carries on business, “I will be forced to incur substantial expenses drawn from my meage
AI Generated Summary
In this Ghana High Court ruling by Justice Gifty Agyei Addo, an importer of Esapharma Lemonvate and Movate sued Kumasi-based traders for passing off and sought injunctions and damages. After substituted service, the First Defendant filed a defence on 20 June 2019 and then moved to transfer the case from Accra to the Ashanti Region, arguing the Defendants reside and carry on business in Kumasi, his solicitors are in Kumasi, and travel to Accra would be costly. The Plaintiff opposed, pointing to Accra circulation of the alleged fake products, detection of the tort in Accra, and an FDA complaint lodged there. The Court held the proper forum under Order 3 Rule 1(5) is Ashanti because the Defendants’ business focal point is Kumasi; Accra distribution is immaterial. However, the transfer motion was dismissed as belated under Order 3 Rule 2(1)(a) because the defence was filed first. No costs were awarded.