February 4, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana exercised its supervisory jurisdiction under Article 132 to review a High Court’s actions in a commercial dispute between Millicom Ghana Ltd and Superphone Co Ltd. After terminating a dealership agreement, Millicom faced an interlocutory injunction restraining interference with Superphone’s business and a refused review that directed compliance. Millicom appealed and sought a stay, which was dismissed on 18 September 2008. Immediately thereafter, the High Court entertained Superphone’s contempt application and ordered a bench warrant for Millicom’s directors, even though the company appeared through its in‑house counsel and the directors had not been personally served. The Supreme Court held that CI 19 r 27(2) and r 27(3) imposed stays that deprived the High Court of jurisdiction; and that committal against a corporate entity requires service on relevant directors under Order 43. It granted certiorari to quash the bench warrant, struck out the company from the committal application, and prohibited further committal proceedings absent proper service.
R U L I N G
ATUGUBA, JSC.:
The facts of this case have been related by my learned sister and brother Rose Owusu and Baffoe-Bonnie JJSC respectively. I would not repeat them except where necessary. The legal issues that arose in this case are:
(a) whether the trial High Court was right to issue a bench warrant for the arrest of the applicants, the directors and officers of the first applicant company, who failed to appear in court pursuant to service of committal process on the company;
(b) whether the continuance with the said committal process in the wake of and whilst the application for stay of execution of proceedings was pending, was lawful; and
(c) whether the said committal process was lawful since the third, fourth and fifth applicants had not been served with the application for committal.
The application for stay of execution pending appeal
Before dealing with the issue of application for stay of execution pending appeal, I shall first deal with the contention that the committal proceedings contravened rule 27(3)(b) of the Court of Appeal Rules, 1997 (CI 19). In my view, the order that fell to be enforced against the applicants was the one made by Marful-Sau JA dated 24 July 2008. The subsequent ruling of Kwofie J dated 20 August 2008 runs thus:
"By court: Counsel for the defendant-applicant says the order of interim injunction made by Marful-Sau JA is not clear, ie that it was unambiguous. It was an order restraining the defendant company from interfering with or disrupting the plaintiff's business or operating in the plaintiff's territory or in any way undermining the plaintiff's business until an arbitrator determines an application for interim injunction to be brought before him. Until the application for injunction is repeated before the arbitrator and the arbitrator rules on the application, the order of injunction shall remain in force. There is nothing ambiguous about the order. The defendant should comply with that order. The application for review is refused." (The emphasis is mine).
It is thus clear that Kwofie J merely declared the meaning of Marful-Sau JA's said order. It is in this light that the statement made by Kwofie J, namely: "The defendant should comply with that order. The application for review is refused," is to be understood. The duty to comply with Marful-Sau JA's order would be the same even without Kwofie J's addendum that "The defendant should comply with the order."
In the context of Kwofie J's ruling, that