IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
WEST BLUE GHANA LTD - (Plaintiff/Respondent)
GHANA LINK NETWORK SERVICES LTD & 3 OTHERS - (Defendant)
DATE: 14TH MARCH, 2019
SUIT NO: CM/0320/2019
JUDGES: HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT
It is provided under Order 11 rule 18(1)(b) and (d) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 that:
“The Court may at any stage of the proceedings order any pleadings or anything in any pleadings 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”.
1st, 2nd and 4th Defendants claim to have anchored their application under the provisions supra wherein they seek to set aside and or strike out the writ issued by the Plaintiff on the 23rd of January, 2019. The basis of the claim of the Defendants/Applicants has been stated in the affidavits that have been deposed to in support of the application and may be stated as follows:
That Plaintiff caused to be issued a writ in Suit No GJ 1195/18 where the 1st Defendant herein is the 2nd Defendant in that suit and the action in the suit already pending relates to an agreement to provide a national single window system to the government of Ghana. That in Suit No GJ 1195/18, Plaintiff sought for an injunction to restrain the Defendants and their agents from using any invention, improvement on the invention or design made or progress or information discovered or software created by Plaintiff and the said application for interlocutory injunction was refused by H/L Afia Serwaah Asare Botwe J. sitting at the Financial Division of the High Court, Accra. That the instant writ in respect of the same subject matter and also seeking the same or similar reliefs is a gross abuse of procedure. Defendants accordingly opine that an amendment to the writ and statement of claim of Plaintiff in the earlier suit or alternatively a joinder of the other parties here who were not made parties in the first suit could conveniently deal with all the matters in controversy and concludes that the present action is only vexatious and an abuse of the process of the court and hence their call for the writ not to be entertained beyond this stage.
There is no denying the fact of the institution of an action by Plaintiff in Suit No GJ1195/18 but Plaintiff/Respondent contend that the two suits are different in so far as Suit No GJ 1195/18 pertains to a breach of a non-competition agreement, whiles the cause of action in this present suit emanates from an infringement of intellectual property rights. Besides, that the 2nd and 4th Defendants are not parties to Suit No GJ1195/18 and cannot purport to file this application that there is a previous suit already pending between the parties.
As I decided to waive a palpable irregularity on the part of the Defendants/Applicants upon entry of conditional appearance in seeking to move the court to set aside the writ or the service of the writ when the grounds of plaint did not fall within the categories set out in cases like REPUBLIC v HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398; REPUBLIC v HIGH COURT, DENU; EX PARTE AVADALI IV [1993-94] GLR 561, to the effect that conditional appearance was to enable a Defendant who intended to object to the issue or service of a writ or notice of a writ on him, or the jurisdiction of the court, to apply to the court to set aside the writ or notice of the writ or the service on him. And that it was not a carte blanche for a Defendant who had entered a conditional appearance to move the court to have the writ set aside because he had a legal defence, even if unimpeachable, to the action. Having so determined the preliminary legal point of law raised by Ankomah, Esq. I do not find it necessary to belabour the issue beyond what I did state.
Are the two actions instituted by Plaintiff in respect of the same factual basis or is the law to be applied same in both cases or is it the same basic outcome that Plaintiff seeks to obtain in both cases? Answers to these questions will necessitate an examination of the actions in both cases as well as the applicable law. In Suit No GJ 1195/18 which is between Plaintiff and one Ben Blay as 1st Defendant and West Blue as 2nd Defendant, Plaintiff seeks a declaratory order for breach of contractual obligation on the part of Ben Blay when he agreed to render services to Plaintiff before the expiration of twelve months after the termination of his contract, an order for perpetual injunction restraining the use of his invention or design or software created, a further order of injunction restraining the continuous engagement between 1st and 2nd Defendants, damages and cost. Plaintiff in that suit claim that it was contracted to deliver and install the national single window software application for which it contracted 1st Defendant, Ben Blay as a consultant to advise and assist it develop a software. That 1st Defendant has breached the non-disclosure agreement they entered into by entering into another contract with 2nd Defendant as a functional consultant to provide same or identical services to 2nd Defendant the same way he provided one for Plaintiff with 2nd Defendant being in direct competition with him.
In this action Plaintiff seeks a perpetual injunction to restrain all the Defendants and their agents from using the software allegedly cloned from Plaintiff’s one view, trade hub and PAARS systems in 2018 and purporting to use as a component of their Ghana Trade Portal and UNIPASS system as well as damages for infringement of copyright by cloning their system. Reading the statement of claim of Plaintiff in this suit, I glean that it is extremely piqued that a UNIPASS contract system deployed on behalf of Ghana by 1st and 2nd Defendants is nothing but a copy of Plaintiff’s software by the 1st and 2nd Defendants, thus violating its copyright under the laws of Ghana. Besides, Defendants have demonstrated their software under “UNI-PAARS” being a clear variation of UNIPASS system to Ghana Institute of Freight Forwarders.
It is true that a correct appreciation of the Rules of Court is that the spirit that animates its application is for the court to strive so as to achieve speedy and effective justice, avoid delays and needless expense and ensure that matters in dispute are completely, effectively and finally determined and multiplicity of suits or proceedings is averted. Whiles I concede that the two suits are similar in away as they all hinge on Plaintiff’s claim to a proprietary right that stands in danger of eviscerating. The first arises out of the fear of losing that proprietary right due to 1st Defendant’s breach of his contractual obligations to Plaintiff, the suit before me arises out of an alleged infringement of copyrights laws. Besides, the parties are not the same in both actions. Save for Plaintiff and Ghana Link Network, there are other parties to the proceedings before me. In fact, Ben Blay does not feature at all as a party to the proceedings before me.
But could there not have been an amendment to the pleadings in the Suit GJ1195/18 to add the other parties herein and add the other causes of action so as to achieve speedy justice and avoid multiplicity of suits? For that to be done the court must be guided by Order 4 Rule 4 on joinder of causes of action or joinder of parties where the discretion is in the court to order separate trials by stating in the following terms:
“If claims in respect of two or more causes of action are included by a plaintiff in the same action, or if two or more plaintiffs or defendants are parties to the same action and it appears to the Court that the joinder of causes of action or of parties may embarrass or delay the trial or is otherwise inconvenient, the Court may
(a) order separate trials;
(b) confine the action to some of the causes of action and exclude others;
(c) order the plaintiff or plaintiffs to elect which cause of action should be proceeded with;
(d) order which plaintiff shall remain as plaintiff or shall cease to be such plaintiff;
(e) order a defendant to be struck out so as not to embarrass the defendant or cause the defendant any expense by being required to attend proceedings in which the defendant has no interest; or
(f) make such other order as may be just”.
It is my view that even if Plaintiff had included these separate causes of action arising out of contract and copyright law together and had sued all the parties in one suit, it would have not have been convenient to try all the causes of action together as there is a greater danger of trying the separate causes of action together obfuscating the issues for resolution. I therefore do not share in the claim of learned counsel for the Applicants that there is an abuse of judicial process here. Black’s Law Dictionary, 8th edition defines ‘abuse of process’ as follows:
“There is said to be an abuse of process when an adversary through the malicious and unfounded use of some regular legal proceeding obtains some advantage over his opponent”.
Dotse JSC relying on this principle of abuse of process noted in the case of NAOS HOLDING v COMMERCIAL BANK GHANA LTD J4/28/2009 dated 24th November, 2010 that:
“the principle of abuse of process clearly then underscores the essence of preventing those who want to make the litigation arena i.e. the law courts a career from embarking upon such a process as it is contrary to public policy and leads to loss of valuable time and resources”.
What I thought counsel for Applicants should have urged on the court is the common law principle of lis alibi pendes. Regrettably counsel contended that this principle is inapplicable under our Rules of Court. This cannot be correct as the common law rules under article 11 of the Constitution is part of the laws of Ghana. The rule is to the effect that proceedings on the same facts cannot be commenced in another court if the lis (the action) is already pendes (pending) in another court. It was developed together with the principle of res judicata to address the problem of potentially conflicting decisions from the courts. It allows a court to refuse to exercise jurisdiction when there is a parallel litigation pending before the court. As to what constitutes same cause, the test is whether the factual basis of the claim and the laws to be applied are the same. With the test looking at the substance of each claim so as to avoid the use of technical and procedural differences being used. See IN RE APPLICATION BY NEW PATRIOTIC PARTY & PEOPLES CONVENTION PARTY (Applicants); TEHN-ADDY v. ELECTORAL COMMISSION [1996-97] SCGLR 216; IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIAH IV V TAIBA II  SCGLR 37;JOHNSON v WOOD  2 AC 1.
Finding no abuse of judicial process and finding no litigation in respect of this matter already pending, I decline the application and make exercise my discretion by making no order as to cost.