Areeba which was bought by MTN is telecommunication giant in Ghana
By William Yaw Owusu
Tuesday November 20, 2007
THE Commercial Court in Accra will on December 6, decide whether or not to allow Investcom Consortium to continue an arbitration in London, U.K, in the same case in which Richmond Aggrey, a Ghanaian businessman, has sued the company and is claiming 20 per cent shares in Scancom Limited, operators of Areeba mobile phone service, now MTN.
Investcom Consortium Holdings S.A of Beirut, Lebanon, a defendant, and majority shareholder in Scancom Limited, has commenced arbitration proceedings in London despite decisions by both the trial court and the Court of Appeal that they will not stay proceedings pending the arbitration.
Under the circumstance, Mr. Yonnei Kulendi, counsel for Mr. Aggrey, yesterday moved a motion on notice for interlocutory injunction to restrain Investcom from proceeding with the arbitration.
Besides Investcom, Mr. Aggrey, former Vice Chairman of Scancom, is also suing the telecommunication giant and Grandview Management of Texas, United States, to claim his shares.
The court on July 14, last year, granted Mr. Aggrey an ex-parte application to restrain the defendants from going ahead to conclude a merger with the MTN Company of South Africa.
Mr. Aggrey had argued: that "Continuing and or concluding a merger with and/or acquisition of Investment LLC by MTN without taking into account and/or providing for the plaintiff’s 20 per cent shares in Scancom Limited will occasion the loss of his shareholding in the company by reason of the accrual of the rights of MTN Group as third party."
Following the development, Scancom, on July 24, filed an application to strike out Mr. Aggrey’s action "in part or whole" on the grounds that he failed to adhere to procedure in filing the application.
The trial court on October 20, however, ruled that the processes followed by Mr. Aggrey in instituting the suit were proper and ordered Scancom to file its defence within 14 days.
Consequently, Scancom filed a notice of appeal to challenge the court’s ruling and another motion on notice to stay proceedings pending the appeal but Justice Henry Kwofie, the trial judge, dismissed it on December 8, and awarded ¢10 million cost against Scancom.
Scancom then went to the Court of Appeal to challenge the trial court’s decision which was again dismissed by a three-member panel on March 27, with a five million cedis cost awarded against the appellant.
The plaintiff then filed an application for judgement in default of a defence against Scancom but the second defendant filed an application for extension of time within which to file their defence.
The court on April 17, awarded an eight million cedis cost against Scancom for the delay.
On November 7, the Court of Appeal again dismissed an application by Investcom challenging the trial court's decision not to allow them and the plaintiff to go on arbitration in London and awarded ¢10 million costs against them.
Moving the motion, Mr. Kulendi said, “Investcom is a party to the proceedings before this court. It has entered an appearance and filed a defence but at the same time is earnestly proceeding with the arbitration in London.”
“We want an unambiguous and express order to restrain them since the court has the legal authority to protect the sanctity of the proceedings. We will suffer irreparable damage if the order is not granted.”
“He described Investcom's move as 'unimaginable' harrassment saying ' the effort by Investcom to proceed with the arbitration outside the country when the case is still being determined by a Ghanaian court is to close the plaintiff's right to natural justice.”
Responding, Mr. Felix Ntirakwah, counsel for Investcom, said: “We have not abandoned our right to have the matter determined. We are only exercising our right to arbitration under the shareholders' agreement.”
He said Investcom did not need the “leave” of the court before proceeding to arbitration and that should not be interpreted by the plaintiff to mean a disrespect to the court.
“Plaintiff has taken a different view about the import of arbitration in the shareholders' agreement but it is a serious business and we stand to lose if an order is made against us”.
Mr. Thaddeus Sory, counsel for Grandview, arguing on points of law, opposed his co-defendant's position to go on with the arbitration process saying “it is better if the arbitration proceedings is stopped for this trial to proceed”.
He said a careful study of the shareholders' agreement indicate that the arbitration rights claim by Investcom is not automatic saying 'we should not allow proceedings in the arbitration to overtake the proceedings of this court'.
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