ENABLIS ENTREPRENEURIAL NETWORK GHANA VS TULLOW GHANA LIMITED
2021
COURT OF APPEAL
GHANA
CORAM
- DENNIS ADJEI, JA (PRESIDING)
- P. BRIGHT MENSAH, JA
- OBENG-MANU JNR, JA
Areas of Law
- Corporate Law
- Civil Procedure
- Evidence Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Obeng-Manu JNR JA with Mensah JA concurring and Adjei JA issuing a detailed concurrence, considered an interlocutory appeal from a High Court ruling that rejected Kosmos Energy Ghana HCs application to non-suit the Respondent for want of capacity. The dispute arose from the Enterprise Development Centre project in Takoradi, established by the Government of Ghana and the Jubilee Partners under a 2012 MoU, and a series of contracts whereby Kosmos engaged the Respondent to deliver EDC services. After audits alleged unauthorized transfers and Kosmos called on UT Bank guarantees, the Respondent sued. On appeal, the Court held the omnibus ground could not be canvassed without evidence, dismissed non-particularized legal error grounds under Rule 8(4), and affirmed that under Act 179 and the proper plaintiff rule, the Respondent company could sue in its own name without a board resolution. The appeal was dismissed and costs awarded.
OBENG-MANU, JNR, J. A
Introduction
The High Court sitting at Accra on 5th March, 2019, dismissed an application at the instance of the Defendant/Appellant herein to non-suit the Plaintiff/Respondent for want of capacity.
Being aggrieved and dissatisfied with the decision of the High Court, the Defendant/Appellant filed an appeal against the ruling on 26th March, 2019. For purposes of this ruling, the Plaintiff/Respondent shall simply be referred to as the Respondent while the Defendant/Appellant shall also be referred to as the Appellant.
Facts The Respondent is a private company registered under the laws of Ghana.
It is limited by guarantee.
The Respondent in paragraph 1 of its statement of claim described itself as company limited by guarantee and incorporated under the laws of Ghana to provide, inter alia, entrepreneurs with the necessary skills, training, funding, and networking opportunities and supporting the development and growth of small and medium enterprises in the emerging markets.
This is admitted by the Defendant in paragraph 5 of its statement of defence and counterclaim.
The Appellant is a private limited company registered in Jersey under company number 91503 and whose main office in Ghana is at No 71 George Bush Highway(Motorway Extension), North Dzorwulu, Accra.
It is also registered under the laws of Ghana, and engaged in the exploration and production of oil and gas.
It is limited by shares.
Following the discovery of oil in commercial quantities in 2007 in the Jubilee Field, the Government of Ghana decided to establish an Enterprise Development Centre (“EDC”)in Takoradi to provide support to SMEs to enable them position themselves to take advantage of business opportunities in the oil and gas sector.
The Appellant, Kosmos Energy Ghana HC, Anardarko WCTP Petroleum Company and Sabre Oil and Gas Limited (the “Jubilee Partners”) agreed to support the government in this venture.
On 1st November, 2012, the Government of Ghana and the Jubilee Partners, signed a Memorandum of Understanding (MoU) which set out the roles and responsibilities of the parties for the establishment and management of the EDC.
The parties to the MoU established a joint Project Steering Committee (“PSC”) which was responsible for providing strategic direction and governance to the EDC project.
The Appellant and its Jubilee Partners agreed to fund a third-party agency (the “Contractor”) to establish and manage the EDC for an initial period of five (5) ye