The Areeba Case : Court of Appeal dismisses Investcom's application

By William Yaw Owusu

Monday May 16, 207
THE Court of Appeal has dismissed a motion filed by Investcom Consortium Holdings S.A, majority shareholders of Scancom Limited, operators of Areeba mobile phone service in a case in which David Andreas Hesse, is suing for breach of a shareholders’ agreement at the Commercial Court in Accra.

The three member panel presided over by Justice Henrietta Abban (Mrs.) also awarded ¢5 million cost against Investcom.

Investcom filed the application for extention of time within which to file an appeal against the Commercial Court’s decision not to allow them to go on arbitration with Mr. Hesse in London

Mr. Hesse, a lawyer, handling his own case, filed the substantive suit against Investcom and Areeba on November 29, last year, and sought, among other things, an order to reverse an alleged capital increase and dilution of his shares from six to two per cent and the transfer of the shares from him to Investcom.

The plaintiff also wants an order to restore his six per cent shares in Areeba, a perpetual injunction restraining Areeba from removing him as a director as well as an order for the parties to go into account to determine the amount of dividends due him on his shares.

He again filed a motion for an interlocutory injunction to restrain Areeba from convening an extraordinary meeting to remove him as a director of Areeba, pending the determination of the suit but this was dismissed by the court on February 19.

Areeba in their affidavit in support of the motion filed on March 13 to strike out some of Mr. Hesse’s pleadings in the substantive suit, had argued that the claims by the plaintiff on behalf of Scan Construction Limited which is a limited liability company was a non-party to the present proceedings since that company is a legal entity.

Moving the motion, Investcom represented by Mr. Felix Ntirakwah argued among other things that the Commercial Court erred in failing to abide by clear direction of the Supreme Court that courts must strive to uphold dispute resolution clauses in agreements.

Mr. Hesse on the other hand opposed the defendant’s application saying the move was calculated to stall the speedy trial of the substantive case before the Commercial Court.
Dismissing the motion last week, the court whose unanimous decision was read by Justice Mariama Owusu described Investcom’s application as “incompetent”.

The panel said they had gone through the issues and had come to the conclusion that once the appeal was not filed properly before them, the court will have no discretion in extending the time.

“From the affidavit before this court, from February 1, to the time when the application for extention of time which is to appeal was filed on March 21, was filed is more than 21 days. I do not think that the makers of the rules failed to insert a provision for 21 days to be calculated from the date of the grant of leave, for no apparent reason”.

The court said the understanding reached by the parties that new lawyers be allowed ample time to study the brief did not mean filing wrong processes.