Ivy Benson
4 July 2008
AN ACCRA Fast Track High Court (FTC) determining the ownership status of "Kasapa Telecom" between the Ghanaian corporate entity, Kludjeson International Limited (KIL) and its overseas business counterparts, Hutchison Telecommunications Limited and Certwell Limited, has opened the floodgate for evidence to be adduced by the litigating parties.
The court, presided over by Justice Emmanuel Ayebi, an Appeal Court Judge, yesterday, directed that the suit filed against the Hong-Kong-based Hutchison Telecommunications Limited and the Virgin Island-based Certwell Limited takes its normal course.
The assessment of the court was arrived at after it dismissed an application filed by Mr. Ace Annan Ankomah, counsel for the foreign Telecommunication business entities, seeking the court to strike out pleadings and dismiss the legal suit brought against his clients by the Ghanaian company, KIL.
According to the court, it was obvious and plain that the action brought by KIL was not frivolous and vexatious as the applicant wanted the court to believe, as a result of some serious allegation raised by the Ghanaian company, which initially held a full ownership of "Kasapa Telecommunications Limited."
The court therefore awarded cost of GH¢1,000 against Hutchison Telecommunications Limited and Certwell Limited, the parent companies of "Kasapa Telecom."
The court also noted that the application brought before it was not premature as it had not infringed on the new rules of court, noting that the court could exercise its powers under the rules at any stage of the case.
It was the view of the court that once there are issues to be determined through evidence, there was no need to strike out the case, since the plaintiff/respondent had raised issues of non-disclosure of material evidence before a court, as well as issues of fraud against its foreign business counterparts.
The court further emphasized that the earlier judgement delivered by a High court in April 27, 2005, did not decide on the status of Kuwata, which KIL noted was an alien to the shareholders agreement entered into with Hutchison Telecommunications Limited.
KIL, in its legal suit, held Hutchison Telecommunications for fraud in taking over the shares in "Kasapa Telecom."
Plaintiff had indicated that Hutchison Telecom concealed the real identity and status of Certwell Limited and in the process misled it into transferring a substantial 80% of it's ownership in Celltel to the Hong-Kong-based company in March 30, 1998.
Arguing out his application, Mr. Ankomah noted that Kludjeson International Limited failed to utilize the opportunity it had to raise its allegation of fraud against his clients, even though it participated fully in the determination of the status of the local company before two different High Courts.
According to Counsel, the previous suits determined in connection with the local company had already been dealt with before two separate High Courts, further indicating that the current case that raises fraud on the part of his clients must be stopped as it has no basis.
Mr. Ankomah argued that the allegation of fraud by KIL among others, against his client is by law estopped from taking legal action on the same case that had already been determined.
Counsel therefore contended that the pleadings were frivolous, vexatious and in effect worthless as the action taken by KIL was an abuse of court process, considering the multitude of applications filed in connection with the case.
Applicants had in their affidavit sworn through an Associate in the law firm of Bensti Enchill, Letsa and Ankomah, noted that the issue of ownership of the company had been determined in a High Court decision dated April 27, 2005, as KIL could not raise any issue against it.
Mr. Atta Akyea, counsel for KIL, in his response questioned how a case could be determined at the Bar, as counsel for the applicant in his submission and arguments had raised serious matters of law which needed to be looked into carefully by the court. Counsel argued that without taking evidence in the dock and cross-examining witnesses, it would be impossible for the court to determine the case.
Atta Akyea therefore contended that counsel for the applicant has abused the process of the law and should not be entertained by the court, stressing that counsel's action was a "technical knockout" since no defense had been given.
The request to strike out the pleadings of KIL came on the heels of a restraining order sought by the company to restrain its board of directors, managers and all agents connected to "Kasapa Telecom", from disposing of the shares from the local company, since the company was obtained by Hutchison Telecommunications Limited and Certwell Limited by "fraud".
KIL had indicated that Hutchison Telecom concealed the real identity and status of Certwell Limited and in the process misled it into transferring a substantial 80% of it's ownership in Celltel to the Hong-Kong-based company in March 30, 1998.
The suit, which was filed on June 5, 2007, is seeking against defendants, jointly and severally, eight reliefs among which included an order of the court to call up the March 10, 1998 Share Purchase Agreement, carried out between KIL and Hutchison Telecom for rescission and termination, as a result of fraudulent material disclosure and representation.
Additionally, KIL is requesting an order of the court to prohibit Hutchison Telecom and Certwell Limited from putting themselves up as shareholders of "Kasapa Telecom", that is, Celltel Limited, either as a beneficiary or through an Associate or any designated title.
The rest of the relieves sought include an order that the June 10, 1998 Resolution of the company, any act or transaction entered into, based on the Share purchase and Shareholders' Agreements are null and void, any further orders as the court deems fit as well as cost, which should include solicitor's legal fees.
Plaintiff claimed that there was an approval on March 30, 1998, between it and Hutchison Telecom by a Share Purchase and Shareholders' Agreements that it would shed of 80% of its 100% shares from the company to the Hong-Kong-based telecommunication company.
According to KIL, in the agreement entered into with Hutchison Telecom, it was noted that the Hong-Kong-based company would hold the shares allotted to it in the company, "either by beneficiary or through its Associate."
Plaintiff was of the view that in a bid to induce it to finalise the agreements that would transfer to Hutchison Telecom, a vast equity of the company, the Hong-Kong-based company by a "Shareholders' Resolution dated June 10, 1998, disclosed that it was nominating the 2nd Defendant (Certwell Limited), which it falsely represented as its wholly owned subsidiary to hold the shares in the company on its behalf."
Plaintiff further held that following the agreement entered into with Hutchison Telecom, the latter led it into believing that it was dealing with the Hong-Kong-based company through its "supposed wholly owned subsidiary," the British Virgin Islands-based company, Certwell Limited.
However, KIL noticed that Certwell Limited was not a total owned company of Hutchison Telecom, an action that runs contrary to what the Hong-Kong-based company articulated.
According to KIL, Hutchison Telecom is a total owned subsidiary of Kuwata Limited, which was not part to the arrangement reached between it and the Hong-Kong-based telecom company.
Plaintiff therefore pointed out that if it had not been misled as to the true identity and status of Certwell Limited, it would not have completed the March 30, 1998, Share Purchase and Shareholders' Agreements, since the identity and status of Certwell Limited was of vital concern and rationale behind the share transfer arrangement.
It is in view of the alleged misrepresentation on the part of Hutchison Telecom, regarding the identity and status of Certwell Limited that KIL indicated that the two foreign companies had defrauded it.
Plaintiff further stressed that as a result of their fraudulent character, Hutchison Telecom, "in its April 2005 Report on Foreign Private Issuer Form 6-K filings with the Securities and Exchange Commission of the United States of America, fraudulently represented that its shares in the Company increased from 80% to 100% following a purported transfer of the remaining 20% shareholding from the Plaintiff, at no consideration."
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