WALLACE AGBI GBEDEMAH v. PHYLLIS LOMOTELLE ENGMAN
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Areas of Law
- Commercial Law
- Civil Procedure
- Alternative dispute resolution
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
In the Ghana High Court, His Lordship Eric Kyei Baffour ruled on preliminary objections to an application by Brigadier General Wallace Gbedemah seeking to have Phyllis Lomotelle Gbedemah cease as a partner in Blue Bells Pre-School International. Wallace alleged Phyllis persistently failed to pay her GHS 3,000 capital contribution under a July 2000 partnership agreement. Phyllis opposed, invoking Clause 14’s arbitration requirement and asserting lis alibi pendens due to parallel Divorce and Matrimonial proceedings (BDMC 136/2013) in which a valuation of Blue Bells had been ordered by Doris Bempong J. The court clarified the correct statutory basis as Act 152, s.39(4) and held that arbitration clauses do not oust jurisdiction; further, Phyllis waived arbitration by her litigation conduct. However, to prevent forum shopping and inconsistent outcomes, the court stayed the present action, not dismissing it, so the matrimonial court could conclude matters regarding the school.
RULING
This is the ruling of the court in respect of the preliminary points of law raised by the counsel for Respondent when this application came to be moved by the counsel for the Applicant. The Applicant who roots this application under the Incorporated Private Partnership Act, Act 152, 1962 and seeks an order to the effect that the Respondent ceased to be a partner in the firm Blue Bells Pre-School International on the following grounds that:
1. That Respondent since July, 2000 when the partnership was formed has willfully and persistently failed or refused to pay her capital contribution in breach of the partnership.
2. That the respondent forfeited her interest in the partnership when she willfully and persistently refused to pay up her capital contribution when she was called upon by the Applicant to pay up.
3. That Respondent cease to be a partner of the firm.
In an affidavit that accompanied the application deposed to by the lawful attorney of the Applicant, Stephanie Haizel, Applicant claim that per the partnership agreement the fixed capital of the partnership was Gh¢10.000 which the Applicant was liable to pay Gh¢7.000.00 and the Respondent Gh¢3.000.00. That the Respondent has not made good the payment of her portion of fixed capital for the business, notwithstanding letters and notices served her to pay her portion of the fixed capital. To the Applicant as long as the Respondent has not paid her portion of the fixed capital she is incapable of claiming a 30% share of interest in the partnership.
Respondent has resisted the application on two preliminary points of law. The first is aptly captured by the Respondent in paragraphs 6 and 7 of her affidavit in opposition to the application which reads:
6.“That Blue Bells Pre-School International is already the subject matter of an ongoing dispute between the Applicant as Petitioner and myself as Respondent in Divorce and Matrimonial suit No BDMC 136/2013 entitled Brigadier General Wallace Gbedemah and Phyllis Lomotelle Gbedemah pending before the High Court of Justice”
7. That in the Suit No BDMC 136/2013 aforementioned I sought as one of the reliefs in my cross partition a declaration of joint ownership of Blue Bells Pre school International, an order of valuation of the entire business together with the assets and for my share thereof to be paid to me accordingly”.
Respondent further claims that the present application is only an attempt to scuttle an ongoing valuation exercise that h