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April 6, 2023
HIGH COURT
GHANA
CORAM
MOTION ON NOTICE FOR VARIATION OF COURT ORDER OF 14TH JULY, 2022
The instant application has been filed on behalf of 1st Defendant Applicant (hereinafter referred to as Applicant) for an order of the Court to vary its order of 14th July, 2022.
I have read through the Motion Paper, the Affidavit in Support and the Exhibits annexed thereto. I have also read through the Affidavit in Opposition and the Exhibits annexed thereto.
Careful consideration has been given to the written submissions of both Counsel in moving and in opposing the instant application.
On 31st July 2021, this Court made an order for accounts to be taken in respect of 2nd Defendant and further ordered the Parties to see the Registrar of the Court to agree on an Independent Auditor to be appointed.
The records indicate that the Parties could not agree on an Auditor and so on 5th November 2021, the Court appointed PricewaterhouseCoopers Ghana Limited (PWC) to conduct the said auditing and to furnish the Court with a report by 30th November 2021. The Court further ordered that the cost of the said auditing was to be borne equally by both Parties.
However, on 14th July 2022, upon an application by Plaintiff Respondents (hereinafter referred to as Respondents) for the Court to vary its order of 5th November, 2021 which was determined on its merits by the Court, this Court varied the said order by directing that 2nd Defendant solely bear the cost of PWC’s auditing.
On 20th September 2022, Applicant filed an application to vary the 14th July, 2022 Order of this Court.
On 18th January 2023, this Motion was struck out for want of prosecution when Counsel for Applicant failed to appear in Court to move the said application.
The instant application which was filed on 21st March, 2023 is basically the same as the one that was struck out by the Court on 18th January, 2023.
Respondents have taken exception to the filing of this fresh application because they were of the opinion that Applicant ought to have applied to relist the earlier Motion which was struck out by the Court rather than filing this fresh application.
This Court is of the opinion that in respect of an application not heard on its merits and struck out, Applicant has the option to either file a fresh application or apply to relist the Motion that was struck out. See the cases of Akpan v Ekpo (2001) 5 NWLR Pt. 707 Pg. 502 at 512 paragraph H and Panalpina World Transport Nig. Ltd v J.B. Olandeen Inl and ORS (Unreported) delivered
AI Generated Summary
Her Ladyship Justice Afi Agbanu Kudomor (Mrs.), sitting in the High Court, ruled on a motion by the 1st Defendant (the Applicant) seeking to vary the Court’s July 14, 2022 order requiring the 2nd Defendant to bear the full cost of an audit by PricewaterhouseCoopers Ghana Limited (PWC). The audit had been ordered earlier after parties failed to agree on an independent auditor, and both sides had executed an engagement letter with PWC. The Applicant had previously filed a variation motion on September 20, 2022, which was struck out for want of prosecution on January 18, 2023; the present motion, filed March 21, 2023, was essentially identical. Addressing Respondents’ objection, the Court held the fresh filing was competent, but found the Applicant was re‑arguing grounds already determined and had shown no change of circumstances or exceptional basis to vary the order. Emphasizing fairness and prior controversies with Deloitte & Touche, the Court directed that PWC proceed, dismissed the variation motion, declared the stay application moot, and made no order as to costs.