|
Practice and Procedure - Order
of Certiorari - Breach of the
rules of natural justice -
Constitutional right to work -
Conflict of interest -
Interlocutory Injunction -
Whether or not the order of the
learned Judge is altogether
irrational and
unreasonable - Section 217 of
the Companies Code, 1963
(Act 179)
HEADNOTES
Eric
Gbeho, hereafter 3rd
Interested Party, engaged the
Applicant herein, Charles
Zwennes Esq. to file an
Originating Notice on Motion
Seeking the following that the
person going by name of Philip
Addision, Esq. and, holding
himself out since 23rd
May 2019 as the substantive
Company Secretary of Merlin
Gaming Ghana Limited and
purporting to exercise statutory
powers of the company under the
office of Company Secretary is
not the Company Secretary
properly and duly so appointed
and that any such appointed
(sic) is null and void and of no
legal effect, and an order of
Interlocutory Injunction
restraining the said Philip
Addison Esq. from exercising
statutory powers as the Company
Secretary of Merlin Gaming Ghana
Limited or from holding himself
out to the body of shareholders,
the board of directors, the
Registrar of Companies and/or
directors, the Registrar of
Companies and/or the public at
large in that capacity and from
interfering with the internal
management and operation of the
Company until final
determination of this Suit At
the trial Counsel Charles
Zwennes and his chambers, Gaisie
Zwennes, Hughes & Co. are hereby
ordered to cease representing
the Applicant/Respondent in this
matter pending before the court.
The Applicant/Respondent
is hereby given 30 days within
which to engage the services of
a new lawyer to represent him in
the substantive matter
HELD
This application has therefore
not been brought on any
substantial and material grounds
to merit any serious evaluation.
This ground is accordingly
dismissed as inapplicable for
the grant of the application
sought.
Delivery of decisions with
reserved reasoning as has been
stated supra has become an
accepted method of adjudication
of disputes not only in this
country, but everywhere in
common law jurisdiction. Failure
to render reasons with the
delivery of the main decision
does not amount to breach of the
Applicant’s constitutional right
to work as has been erroneously
laid out by the Applicant this
ground two of the application
fails and is dismissed
Even though we are not
concerned with the merits of the
substantive case at this stage,
the issue of conflict of
interest levelled against the
Applicant is a formidable one,
considering the status of the
Applicant as a shareholder,
Director and his Law Firm acting
against the company for which he
is a part owner and secretary.
These are serious matters for
consideration and what we think
the Applicant needs to do at
this stage is to step back and
re-consider his entire role as a
Lawyer in the dispute vis-à-vis
the positions he claims to hold
in the Interested Party Company.
The decision rendered by the
learned trial Judge, Koomson J,
on 9th December, 2019
is quite explanatory, specific
and admits of no controversy
because of the clarity of
thought and purpose that it
brought to an understanding of
the case.
Flowing from our brief
rendition supra, we hereby
conclude that, from our
considered evaluation of the
Application herein, we are of
the opinion that the Applicant’s
application for an order of
Certiorari to quash the
proceedings and decision of
Koomson J presiding over the
High Court, Accra in Suit No.
CM/MISC/096/2019 dated 9th
December 2019 intitutled “In The
Matter of An Application
Pursuant to Section 217 of the
Companies Code, 1963 (Act 179)
and In the Matter of Merlin
Gaming Ghana Limited; Eric Gbeho
(Applicant) v Phillip Addision 1st
Respondent and 2. Merlin Gaming
Ghana Limited (2nd
Respondent) fails in its
entirety and is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Companies
Code,
1963 (Act 179)
CASES REFERRED TO IN JUDGMENT
Laguda
v Ghana Commercial Bank
[2005-2006] SCGLR 388
Republic v High Court, Kumasi
Ex-parte Mobil Oil (Ghana)
Limited Applicant, (Hagan-
Interested Party) [2005-2006]
SCGLR 312,
Republic v Court of Appeal, Ex-parte
Tsatsu Tsikata [2005-2006] SCGLR
612,
Republic v High Court, Accra,
Ex-parte CHRAJ, [Addo –
Interested Party) [2003-2004] 1
SCGLR 312
Republic v High Court, Accra,
Ex-parte Ghana Medial
Association [Arcman-Ackumy –
Interested Party] 2012, 2 SCGLR
768
Republic v High Court, Denu,
Ex-parte Agbesi Awusu II (N0.2)
Nyonyo Agboada (Sri III)
Interested Party [2003-2004] 2
SCGLR 907
Republic v High Court, Accra
Ex-parte Attorney-General, [Ohene
Agyapong – Interested Party]
[2012] 2 SCGLR, 1204
Republic v High Court, Fast
Track Division Accra, Ex-parte
CHRAJ (Hon. Dr. Richard Anane –
Interested Party) [2007-2008]
SCGLR 340
Associated Provincial Picture
Houses Ltd. v Wednesbury
Corporation [1948] 1 KB at 223
The Republic v High Court
Commercial Division 6, Accra
Nowfill S. Laba – Applicant;
Wissam Laba and 2 Others, Suit
No. J5/14/2019 19th
June 2019
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
CHARLES ZWENNES APPEARS IN
PERSON FOR THE APPLICANT.
DENNIS AGYEI DWOMOH FOR THE 1ST
AND 2ND INTERESTED
PARTIES/
RESPONDENTS
DOTSE JSC:
-
By his application, the
Applicant herein, a legal
practitioner of Gaisie Zwennes
Hughes & Co. is seeking an
order of
Certiorari to bring up to
this court the proceedings and
Rulings dated 9th
December 2019 in the High
Court, Commercial Division,
presided over by Koomson J, Suit
No. CM/MISC/0961/2019
intitutled, In the Matter of An
Application Pursuant to
Section
217 of the Companies Code, 1963
(Act 179) And in The Matter
of Merlin Gaming Ghana Limited –
Eric Gbeho (Applicant) v (1)
Philip Addision (1st
Respondent) and (2) Merlin
Gaming Ghana Limited, (2nd
Respondent) for the orders
of the High Court, dated 9th
December, 2019 already referred
to supra to be quashed.
The grounds of the application
are the following:-
1.
Breach of the rules of natural
justice
2.
That the order of the Judge,
made without assigning reasons
is in breach of the Applicant’s
constitutional right to work.
3.
That the order is also in breach
of the Applicants constitutional
right to avail himself of remedy
through the appellate process,
and
4.
That the
order of the learned Judge is
altogether irrational
and unreasonable
because it disqualified the
Applicant for
conflict
of interest due to his
compliance with statutory law
laid out under section 210 (5)
of Act 179.
FACTS
On the 14th day of
June 2019,
Eric
Gbeho, hereafter 3rd
Interested Party, engaged the
Applicant herein, Charles
Zwennes Esq. to file an
Originating Notice on Motion
in Suit No. CM/MISC/0961/2019
between the parties referred
to as indicated as follows:-
“ERIC
GBEHO
- APPLICANT
VRS
1. PHILIP ADDISION &
ANOR
- 1ST
RESPONDENT
2. MERLIN GAMING GHANA
LIMITED - 2ND
RESPONDENT”
Seeking the following
reliefs:-
(i)
“A declaration
that the
person going by name of
Philip Addision, Esq.
and, holding himself out since
23rd May 2019
as the substantive Company
Secretary of Merlin Gaming Ghana
Limited and purporting to
exercise statutory powers of the
company under the office of
Company Secretary is not the
Company Secretary properly and
duly so appointed and
that any such appointed (sic) is
null and void and of no legal
effect, and
(ii)
An order of Interlocutory
Injunction restraining the said
Philip Addison Esq. from
exercising statutory powers as
the Company Secretary of Merlin
Gaming Ghana Limited or from
holding himself out to the body
of shareholders, the board of
directors, the Registrar of
Companies and/or directors, the
Registrar of Companies and/or
the public at large in that
capacity and from interfering
with the internal management and
operation of the Company until
final determination of this Suit,
and
(iii)
An order cancelling as null and
void any documents filed (as
Certified True Copies or
otherwise) and held on the pubic
registrar or appearing
there on the Register of
Companies at the Registrar
General’s Department in which
the said Philip Addison Esq.
appears as Company Secretary;
and
(iv)
An order directed at the Board
of Directors of Merlin Gaming
Ghana Limited to duly convene a
meeting of the Board of
Directors of the Company for
purposes of carrying out and
exhausting the statutory
provisions of Section 190 (3) of
the Companies Code, 1963 (Act
179) forthwith.”
Upon service of the above
process on the 1st
Interested Party (Philip
Addision) he caused to be
filed Notice of Appointment of
Solicitors, he subsequently
filed a Motion to Dismiss the
suit as well as an Application
to Disqualify the Applicant
herein as lawyer for the 3rd
Interested Party (Eric Gbeho)
and the Applicant in that Suit.
The Motion of Disqualification
was opposed by the 3rd
Interested Party acting per the
Applicant herein as counsel. The
2nd Interested Party,
Merlin Gaming Ghana Limited
acting through its Chief
Executive Officer, Francis
Tachie-Menson, also filed an
application to disqualify the
Applicant herein as lawyer for
the 3rd Interested
Party and this was also opposed.
The reasons for the
disqualification processes was
premised on the fact that the
Applicant in these proceedings
was conflicted in the handling
of the substantive case because
the 3rd Interested
Party had deposed in the
substantive suit that the
Applicant was a shareholder of
the Interested Party Company,
had also been appointed as a
Director of the company and that
he had accepted both
appointments and was acting in
these capacities through his law
Firm, Gaisie Zwennes,
Hughes and Co. (i.e.
Shareholder, Director and
Company Lawyer). The
learned trial Judge then decided
to hear all the disqualification
applications together and
accordingly informed all parties
and counsel in the matter.
From the processes that have
come before us in these
proceedings, it appears certain
that the applications were
subsequently moved and heard
before the learned trial Judge,
Koomson J. The learned trial
Judge further directed the
parties to file their
submissions within three days
and adjourned the suit.
Parties through their counsel
responded by filing their
submissions. Further hearings
took place before the court on
17th October 2019 and
the Applicant was granted
further leave to file responses
to the Interested Parties, who
were also granted a right of
reply after service had been
effected on them. All the
parties and their counsel
complied as usual with these
orders.
On the 9th day of
December 2019 the court presided
over by Koomson J, delivered a
Ruling in this matter. In view
of the fact that it is this
Ruling which is the subject
matter of this Certiorari
application, we deem it
appropriate to set out the
entire Ruling as follows:-
“IN THE SUPERIOR COURT OF
JUDICATURE
IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
HELD IN ACCRA ON MONDAY THE 9TH
DAY OF DECEMBER 2019
BEFORE HIS LORDSHIP GEORGE K.
KOOMSON J
ERIC
GBEHO
- APPLICANT
VRS
PHILIP ADDISION &
ANOR
- RESPONDENTS
Parties: Absent except
2nd respondent (Rep
by Frank Tachie-Menson)
Counsel: Dr. Isidore
Tufuor for Dennis Agyei-Dwomoh
for Respondent/Applicant
BY COURT:
This is an application for an
order to disqualify Counsel
Charles Zwennes and his chambers
from representing the
Applicant/Respondent in the suit
on the grounds of conflict of
interest. I am of the
considered opinion that there is
a clear case of conflict of
interest having been made out by
the 2nd
Respondent/Applicant. I
accordingly grant the
application. I shall give my
reasons on the 10th
March, 2020.
Counsel
Charles Zwennes and his
chambers, Gaisie Zwennes, Hughes
& Co. are hereby ordered to
cease representing the
Applicant/Respondent in this
matter pending before the court.
The Applicant/Respondent is
hereby given 30 days within
which to engage the services of
a new lawyer to represent him in
the substantive matter.”
Emphasis
We have also perused processes
which indicate that the
Applicant, acting again on the
instructions of the 3rd
Interested Party has filed a
Notice of Appeal and Stay of
Proceedings in respect of the
Ruling of 9th
December 2019.
GROUNDS OF THE APPLICATION
We have perused the processes of
all the parties and their
counsel in this application
before us. These include the
motion papers, affidavits, the
various exhibits which are some
of the record of proceedings,
documents relied on by the
parties and Rulings and or
decisions by the trial High
Court.
In view of the fact that no new
points of law have been raised
in this Certiorari application
and in order not to be
repetitive and re-invent the
wheel in respect of the numerous
decisions that have been
rendered by this court, in
respect of this court’s
jurisdiction in the exercise of
its supervisory jurisdiction we
have decided not to belabour
this point any further.
GROUND I
BREACH OF THE RULES OF NATURAL
JUSTICE
If we confine ourselves to the
original intendment and scope of
the rules of natural justice, it
is apparent that the Applicant
has not succeeded in
establishing the breach of any
of the principles of the rule of
natural justice. For example,
the Applicant from the records
available was given every
opportunity to fully participate
in the decision making process.
See the case of
Laguda v Ghana Commercial Bank
[2005-2006] SCGLR 388.
This has therefore
satisfied the “audi alteram
partem” rule of natural
justice.
Secondly, from the processes
filed by the Applicant, it is
certain that his complaints
against the learned trial Judge,
stems from the comments
allegedly made by the Judge
during the course of the hearing
which the Applicant considered
as being prejudicial as if the
Judge had descended into the
arena of conflict. This
according to the Applicant
rendered the Judge biased in his
role as a Judge.
We further observe that, one
other serious complaint by the
Applicant which found expression
in the grounds of this
application is the fact that, by
the Ruling of 9th
December 2019 which the Judge
rendered, he reserved his
reasons for the said judgment
for a future date.
This method of managing the case
loads in the courts has
virtually become an acceptable
phenomenon of expeditiously
disposing of cases albeit for
the detailed reasons to be given
later. By this method, the
decision is made known bringing
to an end the speculation on the
fate of the litigation. It is
only the detailed reasons that
are given later. This court
itself has in the past couple of
years adopted the same procedure
to expeditiously bring
litigation to an end with
expedition.
We have under the circumstances
looked at cases such as
Republic v High Court, Kumasi
Ex-parte Mobil Oil (Ghana)
Limited Applicant, (Hagan-
Interested Party) [2005-2006]
SCGLR 312, Republic v Court of
Appeal, Ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612, Republic
v High Court, Accra, Ex-parte
CHRAJ, [Addo – Interested Party)
[2003-2004] 1 SCGLR 312 and
Republic v High Court, Accra,
Ex-parte Ghana Medial
Association [Arcman-Ackumy –
Interested Party] 2012, 2 SCGLR
768
where the Supreme Court laid
down the following as the
grounds upon which the
supervisory jurisdiction of the
court may be invoked.
These include:-
1.
Want or excess of jurisdiction
2.
Failure to comply with the rules
of natural justice
3.
Breach of the Wednesbury
principle
The principle of law, generally
decided in the cases referred to
supra, when applied to ground
one of the instant application
and to the remaining grounds two
to four, makes it abundantly
clear that the instant
application is not based on any
of the established and known
grounds for invoking the
supervisory jurisdiction of this
court, but instead has been
premised and borne out by an
emotional outburst of anger and
frustration.
This application has therefore
not been brought on any
substantial and material grounds
to merit any serious evaluation.
This ground is accordingly
dismissed as inapplicable for
the grant of the application
sought.
GROUND TWO
Delivery of decisions with
reserved reasoning as has been
stated supra has become an
accepted method of adjudication
of disputes not only in this
country, but everywhere in
common law jurisdiction. Failure
to render reasons with the
delivery of the main decision
does not amount to breach of the
Applicant’s constitutional right
to work as has been erroneously
laid out by the Applicant.
The scope of this court’s
exercise of its supervisory
jurisdiction has been stated in
the cases refereed to supra.
Failure to render reasons for a
particular decision when
rendered is not and has never
been one of the accepted and
known grounds for the successful
invocation of this court’s
supervisory jurisdiction. Like
ground one,
this
ground two of the application
fails and is dismissed.
GROUND THREE
Having already filed an appeal
against the said decision and
similarly filed other processes
including the instant one, the
substance, scope and worth of
this ground pales into
insignificance and is thus
dismissed.
GROUND FOUR
Irrationality and
unreasonableness which does not
fall within the scope of the
exercise of this court’s
supervisory jurisdiction cannot
stand the test of time
notwithstanding the vehemence
with which the application is
made. What should be noted is
that, Certiorari is a
discretionary remedy which is
very technical and precise in
nature. However, for an
Applicant to succeed, he must
focus on the established and
proven grounds which are in the
motion paper, supporting
affidavits, the record of the
court attached and the
principles of law applicable.
The availability of an equal but
effective remedy may lead to the
denial of the exercise of this
court’s jurisdiction.
Thus, notwithstanding the fact
that the Applicant may have
established the “technical
grounds” on which the
application may be generally
considered, the court may
dismiss the application if it
fails to comply with the other
established conditions
precedent, including
availability of another equally
effective remedy, the conduct of
the Applicant or that of his
lawyer, for example.
See the dictum of Atuguba JSC,
in the case of the
Republic v High Court, Denu,
Ex-parte Agbesi Awusu II (N0.2)
Nyonyo Agboada (Sri III)
Interested Party [2003-2004] 2
SCGLR 907 where he
stated thus:-
“It is well known that
Certiorari is a discretionary
remedy and therefore it does not
necessarily follow that, when
the technical grounds upon which
Certiorari lies are established,
it will be pro tanto granted.”
Emphasis
See also case of
Republic v High Court, Accra
Ex-parte Attorney-General,
[Ohene Agyapong – Interested
Party] [2012] 2 SCGLR, 1204 at
1205, where the
Court stated with clarity that,
where an Applicant has a remedy
other than certiorari open to
him, that is a factor that may
be taken into account in denying
him the discretionary remedy.
Even though we are not concerned
with the merits of the
substantive case at this stage,
the issue of conflict of
interest levelled against the
Applicant is a formidable one,
considering the status of the
Applicant as a shareholder,
Director and his Law Firm acting
against the company for which he
is a part owner and secretary.
These are serious matters for
consideration and what we think
the Applicant needs to do at
this stage is to step back and
re-consider his entire role as a
Lawyer in the dispute vis-à-vis
the positions he claims to hold
in the Interested Party Company.
Whichever way one looks at this
ground four of the application,
and the cases of
Republic v High Court, Fast
Track Division Accra, Ex-parte
CHRAJ (Hon. Dr. Richard Anane –
Interested Party) [2007-2008]
SCGLR 340 at 365 and Associated
Provincial Picture Houses Ltd. v
Wednesbury Corporation [1948] 1
KB at 223,
which have been relied on by
the Applicant are actually
inapplicable to the facts and
circumstances of this case. This
is because, as was indeed stated
in the Statement of case of the
Applicant, the much talked about
lack of rendering the reasons
for the decision on 9th
December 2019 had indeed been
rendered on 10th
March 2020. Applicant has also
since filed an appeal and other
processes.
Having thus examined and
evaluated all the processes
filed in this application and
also taking into consideration
the scope of this court’s
jurisdiction in the exercise of
its supervisory jurisdiction in
seminal cases such as the
following Republic v High
Court, Accra, Ex-parte Ghana
Medical Association
[Arcman-Ackumy – Interested
Party] supra.
See also the unreported decision
of this court in
Suit No. J5/14/2019
dated 19th June
2019
intitutled,
The
Republic v High Court Commercial
Division 6, Accra Nowfill S.
Laba – Applicant; Wissam Laba
and 2 Others, (i.e. Latex Foam
Rubber Products case),
where the court speaking with
unanimity reiterated all the
principles established in the
pivotal and seminal cases on
this courts exercise of its
supervisory jurisdiction
referred to supra.
The decision rendered by the
learned trial Judge, Koomson J,
on 9th December, 2019
is quite explanatory, specific
and admits of no controversy
because of the clarity of
thought and purpose that it
brought to an understanding of
the case.
CONCLUSION
Flowing from our brief rendition
supra, we hereby conclude that,
from our considered evaluation
of the Application herein, we
are of the opinion that the
Applicant’s application for an
order of Certiorari to quash the
proceedings and decision of
Koomson J presiding over the
High Court, Accra in Suit No.
CM/MISC/096/2019 dated 9th
December 2019 intitutled “In
The Matter of An Application
Pursuant to Section 217 of the
Companies Code, 1963 (Act 179)
and In the Matter of Merlin
Gaming Ghana Limited; Eric Gbeho
(Applicant) v Phillip Addision 1st
Respondent and 2. Merlin Gaming
Ghana Limited (2nd
Respondent) fails in its
entirety and is accordingly
dismissed.
EPILOGUE
We reiterate and affirm the long
held cherished views that the
Legal Profession is an
honourable, learned and noble
profession. In this respect,
those who practice the legal
profession, must like what
Benjamin Franklin, an American
statesman wrote on the “Poor
Richards Almanack, 1733 that,
“God works wonders now and then
Behold a lawyer an honest man.”
If indeed Lawyers are honest
people which by their training
and codes of ethics and the
position they occupy in society
they ought to be, then they must
in the practice of the
profession endeavor to eschew
any practices, and or tendencies
that are likely to give any
indication of conflicting their
roles in the discharge of their
professional responsibilities.
That is the way for the
profession to maintain its
dignity, honour and respect.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
CHARLES ZWENNES APPEARS IN
PERSON FOR THE APPLICANT.
DENNIS AGYEI DWOMOH FOR THE 1ST
AND 2ND INTERESTED
PARTIES/ RESPONDENTS. |
