ACCRA - A.D 2017
ALKE GHANA LIMITED - (Plaintiff/Appellant)

CIVIL APPEAL NO:  H1/138/2017


On the 8th day of December, 2015, the High Court, Commercial Division, Accra, dismissed the plaintiff’s action as an abuse of the legal process.


Dissatisfied with the decision of the Court, the plaintiff appealed to this Court on the following grounds:

1. That the Trial High Court erred in dismissing the suit on the ground lis alibi pendes

2. That the Trial High Court erred in holding that the claims in the suit are the same as the claims in another suit commenced by the Defendant.

3. That the Trial High Court erred in holding that the Plaintiff should join the suit commenced by the Defendant against Alke & Turmaks JV Limited.

4. That the ruling is against the weight of evidence.


Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.


The Plaintiff/Appellant (hereinafter referred to as Plaintiff) claims against the Defendants jointly and severally the following reliefs:

1. Refund of the sum of GHS 4,358,678.25 being monies received and outstanding against 1st Defendant.

2. Payment of Interest on the sum of GHS 4,358,678.25 from the 4/06/2015 till date of final payment.

3. Special Damages for breach of contract assessed at GHS 1,024,011.25.

4. General Damages for breach of Contract.

5. Payment for replacement of equipments, machines, materials taken away by 1st Defendant and his agents from site amounting to Eight Hundred Thousand Ghana Cedis (800,000.00).

6. Interest on the said payment for the equipments and machines.

7. An Order of perpetual injunction on Defendants their agents and assigns restraining them from entering the construction site of the Plaintiff and interfering in any manner with the construction of the project.

8. Damages for Trespass.

9. Forfeiture of Performance Bond and Advance Payment Bond executed in favor of Alke Ghana Limited by 2nd Defendant.

10. Cost.

11. Any other reliefs as this honorable Court may deem fit.


The Plaintiff’s writ was accompanied by a 44 paragraph statement of claim which averred among other things that, it is a duly registered company under the Laws of Ghana. By an Agreement executed on 21st November, 2014, between the Plaintiff and the 1st Defendant, the latter was engaged as Sub Contractor for the constructionof a sixty Bed Hospital at Cantonments, Accra. The plaintiff averred further that, following an earlier understanding which preceded the final execution of the Agreement of 21/11/2014, the 2nd Defendant stood as surety for the 1st Defendant and executed an Advance Payment Bond and Performance Bond on the 13th November, 2014 per Policy No. SAC-01-APB-14-01992-P for the sum of GHS 3,504,070.00 and Policy No. SAC-01-PBD-14-02961-P in the sum of GHS1, 158,750.00 respectively, in favor of the Plaintiff. He continued that, the 1st Defendant breached the said Contract with the Plaintiff hence this action.


The 1st Defendant/Respondent (hereinafter referred to as Defendant) on receipt of the Plaintiff’s writ of summons and statement of claim filed an application under Order 11 rule 18 (b) & (d) seeking an order for the dismissal of the suit on the grounds that the suit is vexatious and constitutes an abuse of the judicial process. The basis of the 1st Defendant’s application is that, the Defendant commenced an action in suit No. AC 740/2015 against Alke & Turmaks JV in the High Court differently, constituted. It continued that, the facts giving rise to the cause of action in that suit is the same set of facts as the present action mounted by the Plaintiff as they all emanate from a Sub Contract for the construction of a 60-bed hospital at Cantonments, Accra. It is the case of the 1st Defendant that, the Plaintiff in this case resisted the claim in the earlier suit mentioned supra and returned processes served on it on the ground that it does not know the entity that styles itself as Alke & Turmarks JV and that it is known as Alke Ghana Limited simpliciter. According to 1st Defendant, the Plaintiff’s assertion cannot be correct for the simple reason that, it was the present Plaintiff together with Turmarks Company under the Laws of Turkey that entered into a joint venture to perform the Contract in contention. Therefore, the Plaintiff cannot claim it does not know the entity called Alke & Turmarks JV. Secondly, any reliefs the Plaintiff is seeking in the present suit can be sought by way of counterclaim in the earlier suit. It therefore prayed the trial court to dismiss Plaintiff’s claim as being an abuse of the judicial process.


The Plaintiff resisted the application. In its affidavit in opposition, the Plaintiff denied it is a party to the earlier suit, that is Suit No. AC704/2015. Secondly it deposed that, the joint venture Agreement had not created any entity by name Alke & Turmarks JV in an incorporated form as their searches at the Registrar General’s Department did not disclose the existence of any entity by that name that can sue and be sued. The Plaintiff concluded that, its claim is not frivolous and abuse of the judicial process. and prayed the Court to dismissed the Defendant’s application.


After going through the submissions filed and listening to both counsel, the trial judge dismissed Plaintiff’s suit as being an abuse of the judicial process as the facts in the present suit is the same as the facts in the previous suit. He concluded that the Plaintiff in this case can articulate his case by joining the previous suit by way of a counterclaim hence this appeal.


In arguing ground 1 of the appeal, counsel for the Plaintiff referred to the ruling in contention where the trial judge held that,


“both suits related to the same subject matter and in so far as the matter is pending before a Court in an earlier suit the same cannot be raised in another Court”.


He then submitted that, in coming to that conclusion, the trial judge seemed to have accepted that the Plaintiff herein had indeed been part of an earlier litigation that is suit No. AC 740/15 and was in fact a Defendant in that suit. Counsel submitted that for a plea of lis alibi pendens to avail a party, the requirement was that the suit was to be between TWO parties in one Court in respect of a given matter, where one party goes to another Court on the same matter. He cited the following cases to buttress his point.





He continued that, a Search conducted at the Registrar General’s Department revealed the non-existence of an entity by the name Alke Turmarks JV. Secondly, it was incumbent on the 1st Defendant to satisfy the Court that, the Plaintiff in the present suit is a party in the earlier suit started by the 1st Defendant. Thirdly, the exhibits tendered by the 1st Defendant in support of its application and the Plaintiff’s Certificate of Incorporation at pages 89 and 90 clearly supported the Plaintiff’s position that it is not a party to suit No. AC740/15. Therefore, in the absence of any evidence before the trial court to prove the contrary that Alke Ghana Limited is not the same as Alke & Turmarks JV which has been sued in the earlier suit by the 1st Defendant, the plea off lis alibi pendes as found by the trial court cannot be supported. But more importantly, counsel for the Plaintiff argued, a critical examination of the Joint Venture Agreement, Exhibit C1 at page 68 showed that it was a mere collaboration between two distinct legal entities for their mutual benefit only, without any reference to the 1st Defendant whatsoever as a beneficiary of that agreement.


Lastly, contrary to the finding by the trial judge that the Plaintiff in the instant case had sought to dismiss suit No. AC740/2015 on the ground that, Alke Ghana Limited was a different entity from Alke & Turmaks JV is supported by the evidence on record. This is because a look at page 83 of the Record of Appeal shows that, the application to Set Aside Service of the Writ of Summons against Alke & Turmaks JV at the High Court differently constituted was not made by the Plaintiff but was brought on behalf of Alke & Turmaks JV, the 1st Defendant in the said suit even if it was by the same counsel for the Plaintiff in the present suit. In other words, the Plaintiff in the present suit had never applied to set aside Suit No AC740/2015.


On Exhibit C1 which the trial court relied on to rule against the Plaintiff, counsel argued that, if it is compared with Exhibit E series, one can see, that the 1st Defendant signed two separate agreements with two separate entities who could initiate separate actions against the 1st Defendant as of right in the event of a breach. He continued that, when the capacity of Alke Turmaks JV was disputed, no evidence was placed before the trial Court to support its existence as a legal entity. He cited the cases of EDUSEI VS. DINNERS CLUB SUISSE S.A. (1982-83) 2 GLR 809-816 and NOAS HOLDING INC VS. GHANA COMMERCIAL BANK LIMITED (2011) SCGLR 492 where our Supreme Court has held that:


“once its legal status was challenged and its corporate capacity was placed in issue, it was incumbent upon the Respondent then as applicant to produce more cogent evidence of its existence to satisfy the court that it had the capacity to sue or be sued”.


Counsel concluded on this ground that, the court below glossed over the issue of capacity without calling for the requisite proof to justify the consideration of the application before it before striking out the Plaintiff’s action, especially when none of the Defendants has filed any defence to the present suit. It is therefore difficult to ascertain how the trial court could have come to a conclusion that, the Plaintiff in this case has played any part in conceiving an entity that had been sued.


Based on the forgoing, counsel for the Plaintiff invited this court to reverse the decision of the court below as the present suit did not fall within the ambit of the plea of lis alibi pendens.


In response to the submission on ground 1 of the appeal, counsel for the 1st Defendant argued that, the trial judge found as a fact that the facts leading to the commencement of the action under appeal were the same facts that had led the 1st Defendant to institute the earlier action in Suit No. AC740/2015. The parties in the two suits are the same, the agreement or the subject matter are the same as well as the reliefs. Therefore, the court below rightly concluded that this was a classic case of lis alibi pendens. He cited the cases of KUMAH VS. ANKOMA {1972} 2 GLR 134 and IN RE PARAMOUNT STOOL OF BAMIANKOR; Effia IV & Ano VS, Nana Taiba 11 & Others {2010} SCGLR 37 to buttress his position.


On the allegation that no evidence was led to prove that Alke Ghana Limited and Alke & Turmarks JV are one entity. Counsel for the 1st Defendant submitted that, the application before the trial court relied on affidavit evidence and documents attached to the application. The trial Court found as a fact that that indeed the Plaintiff in the present suit was 1st Defendant in Suit No.AC 740/2015 and could not claim not to know the latter as the dealings between the two has resulted in the said suit. He continued that, the only bone of contention from the present Plaintiff was that it was not the same as Alke & Turmaks JV, when it was the entity it had together with another company created and entered into contract with the 1st Defendant. He submitted that, the court in doing substantial justice to parties in an action looks at the substance and not the form and invited us to uphold the ruling in contention. He concluded on this ground that, the Plaintiff is forum shopping and this is an abuse of the judicial process and must not be entertained. Especially as the trial court has a discretion to dismiss or stay proceedings pending the determination of the earlier suit. The trial court opted for the former in order to avoid multiplicity of suit and urged the Plaintiff to join the earlier suit for all matters between the parties to be determined. He referred to Section 9 (1) of Incorporated Private Partnership Act, 1962 (ACT 152) and the effect of the breach of Sections 4, 5, 7 or 8. He therefore submitted that, the Plaintiff cannot use its own default in not registering the partnership agreement with Turmaks Ghana Limited to evade its obligations in Suit No. AC740/2015. Therefore, the holding by the trial court that the Plaintiff is caught by the doctrine of lis alibi pendens is the correct position of the law and invited us to uphold the decision of the High Court.


Order 11, of The High Court Civil Procedure Rules, 2004 C.I.47 deals with Pleadings generally.


Order 11 rule 18 (1) (b) and (d) talks about when to strike out pleadings. Sub section one of rule (18) provides that:


The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that


(b) It is scandalous, frivolous or vexatious; or

(d) It is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly.


Elaborating on the situation where a plaintiff had sued a defendant in the same court or forum over the same cause of action, our Supreme Court in the case of IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIAH IV & Another VS. TAIBAII & Others {2010} SCGLR 37, 41 holding (7) had this to say:


“In a situation where a plaintiff had sued a defendant in the same court or forum over the same cause of action, the practice and procedure had been to put the party suing to his election as to which forum to pursue his remedy and if for one reason or the other, that was not feasible, to order a stay of proceedings in either suit; it was not to strike out one suit completely without putting the party to his election. (our emphasis). In the instant case, trial regional house of chiefs, as affirmed by the appellate National House of Chiefs, erred in dismissing the petition before the regional house of chiefs in its entirety because a similar petition had been pending in the regional house of chiefs awaiting judgment or hearing.


In the words of Ansah JSC;


“Counsel for the respondents challenged the submission on the need to put the petitioners to their election, “because the decision in the case which is basically about who has the right to mount the Bamiankor Stool will put to rest this case.” That was untenable. It was arguable the two suits in Nana Apenu Kpanyili VS. Awulae Amankra Panyin and the present petition dealt substantially with who has a better right to ascend to and occupy the Bamiankor stool; and there was evidence no decision has been given on this issue as between the parties as yet. At best the suit before the trial chieftaincy tribunal is awaiting judgment but the record is lost or cannot be traced.


The result was that the lower tribunal erred in dismissing the petition before the Judicial Committee of the Western Regional House of Chiefs because a similar petition was pending in the regional house of chiefs, awaiting judgment or hearing, so the parties should go there to continue the hearing. The view backed by authority is that the petitioner should be put to his election as to which suit to pursue and if for one reason or the other that was not feasible to order a stay of proceedings in either suit.”


In coming to this conclusion, Their Lordships relied on the case of In re Application by New Patriotic Party and Peoples Convention Party (Applicants); Tehn-Addy VS. Electoral Commission {1996-97} SCGLR 216, where the Supreme Court used the occasion to expound the principle of lis alibi pendens. The Court speaking through Abban CJ said:


“By this principle, the suit must be between two parties in one court in respect of a given matter and one of the parties goes to another court within the same jurisdiction seeking the same relief. In such a situation, either party may be put to his election as to the forum in which he would like to pursue his claim. In which case the other suit may be dismissed or stayed pending the outcome of the other.” (The emphasis is mine).


In his ruling, the trial High Court Judge sought to justify the dismissal of the Plaintiff’s suit by distinguishing the instant case from the


In re Paramount Stool of Bamiankor case cited supra. He held that:


“What happens if a court finds that the matter before it is lis alibi pendens as I so find here”?


After citing two Supreme Court cases, the trial court continued as follows:


“The court is not unmindful that it is bound by the decisions of courts higher than the High Court and that in classic situation of lis alibi pendens the court is to put the party at its election as to which of the two cases it intends to pursue. Nonetheless, I do not think that the present situation of lis alibi pendens is squarely within the usual one of putting a party at its election. And the reason is not farfetched. Plaintiff/Respondent has attempted to distance itself from an entity it has played a part in conceiving and winning a contract and has maintained that it does not know of the existence of such entity. In such a scenario it is needless for the choice to be made available to the Plaintiff as to which of the two suits he intends to proceed with.The invidious option is to strike the present suit so as to prevent a party from changing its status at its own whim and denying a status when he deems it convenient to do so.


The court has a duty to ensure that the same basic outcome is obtained in a claim arising out of the same set of facts and also to ensure that suits that are connected and related is heard and determined to avoid the risk of irreconcilable decisions from two courts of coordinate jurisdiction.


Indeed Order 11 Rule 18 allows the court to exercise options either to stay it or dismiss it or to enter judgment accordingly. Staying the action is no option on the peculiar argument that Plaintiff mounted. The application is accordingly granted as prayed. The action mounted by the Plaintiff in this suit is dismissed.”


With all due respect to the trial judge, we do not see the distinction he sought to make between the case under consideration and the Bamiankor case cited supra. Once he came to the conclusion that, this case and the earlier one filed by the respondent are caught in the situation of lis alibi pendens, from the Supreme Court decisions cited supra, he ought to have put the Plaintiff to its election or stay proceedings of the instant case to await the outcome of the earlier suit. This is especially so since the Plaintiff in its statement of claim has raised the issue of capacity among others. Capacity goes to the root of a case. See the case of YORKWA VS. DUA {1993-4} GBR 255, where this Court differently constituted relying on the Supreme Court case of SARKODIE v BOATENG {1982-83} GLR 881 held that:


“Where a person’s capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on the merits even if he has a cast iron case. Even though the point of the respondent’s capacity was not raised at the trial it involved a serious point of law that the trial judge ought to have considered.”


A cursory look at the two suits will show that the issue of capacity raised by the Plaintiff is not a sham. At page 52 of the record of appeal, the statement of claim of the earlier suit can be found. It was filed on the 10/7/2015. The title of that case reads as follows:




Also, at pages 89-90 of the record of appeal, the Certificate to Commence Business and the Certificate of Incorporation from the Registrar of Companies were issued to ALKE GHANA LTD. In its affidavit in opposition to the Motion on Notice to dismiss the suit which has culminated in the instant appeal, paragraphs 7, 11, 12 thereof, the Plaintiff insisted it is a separate entity from ALKE & TRUMARKS JV.


The fact that the Plaintiff is a Limited liability speaks volumes. It means it has capacity to sue and be sued. See the case of Salomon v Salomon & Co. (1897) AC/22 which is the locus classicus on the capacity of a limited liability company. Secondly, per the search report by the Plaintiff captured at page 27 of the record of appeal, The Registrar General’s Department, the institution mandated to register companies/businesses before they can commence business in the country stated that, their checks from their records show no evidence of the registration of an entity by the name ALKE & TURMAKS JV. All these pieces of evidence should have excited the trial judge to stay proceedings for the capacity of the two entities to be investigated to ascertain whether this is a case whereby the same entity is trying to distance itself from the earlier Defendant.


Grounds 1, 2, and 3 of the appeal succeed and they are upheld.


This brings us to ground 4:


It reads;




By this ground the Plaintiff is calling upon us to examine the entire record to ascertain if the conclusion arrived by the trial judge clearly supports the evidence on record. Additionally, the Plaintiff who has appealed should pinpoint the pieces of evidence wrongly applied against it or the pieces of evidence if applied in its favor would have changed the decision in its favor. See the following cases:

1. ABBEY & OTHERS v ANTWI V {2010} SCGLR 17, 20

2. OPPONG v ANARFI {2011} 1 SCGLR 556 558 and

3. OPPONG KOFI & OTHERS v ATTIBRUKUSU 111 {2011} 1 SCGLR 176, 178


Relating the cases cited supra to the case under consideration, for the reasons advanced in support of grounds 1, 2, and 3, the conclusion reached by the trial judge is clearly not supported by the evidence on record. For example, the fact that Alke & Turmaks JV is not registered as a business entity in Ghana. The title of the two entities is different. The Plaintiff is not a party to the earlier suit among others. These are some of the pieces of evidence on record according to counsel for the Plaintiff if applied in their favour would have changed the decision their favour. We agree with counsel for the Plaintiff and the reasons for this agreement are the same as the ones we articulated for grounds 1, 2 and 3


It is for these reasons that the appeal in this case succeeds and it is accordingly allowed


The order of the High Court dismissing the Plaintiff’s suit is hereby set aside. Suit No. OCC/52/15 filed on the 5/8/2015 is hereby stayed pending the hearing and determination of Suit No. AC740/2015 titled PROTEUS CONSRUCTION & MAINTENANCE LIMITED v ALKE & TURMAKS JV & 2 ORS.







Larbi (Mrs.), (J.A.)                                 I agree        IRENE C. LARBI (MRS.)

                                                                                   [JUSTICE OF APPEAL]


Agyemang (Mrs.), (J.A.)                       I also agree            MABEL AGYEMANG (MRS.)

                                                                                               [JUSTICE OF APPEAL]