IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA- A.D 2019
COOZI TECHNOLOGIES AND COMMUNICATIONS ALLOCATION -(Plaintiff)
KASAP TELECOM LTD AND ANOTHER - (Defendant)
DATE: 10 TH DECEMBER, 2018
SUIT NO: CM/0186/2016
JUDGES: ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
Plaintiff claim the following reliefs endorsed on its amended writ issued against the Defendant:
i. A declaration that the sum of Five Hundred Thousand US Dollars ($500,000) 1st Defendant paid to the 2nd Defendant as part payment for the International Gateway Services License is the property of the Plaintiff.
ii. An order directed at the 2nd Defendant to refund to the Plaintiff the sum of Five Hundred
Thousand United States of America Dollars (US$500,000.00), 1st Defendant paid to it as part payment of the International Gateway.
iii. An order directed at the 1st Defendant to pay interest on the said sum of Five Hundred
Thousand United States of America Dollars (US$500,000.00) to the Plaintiff from 1st February, 2013 to date of final payment.
iv. An order directed at the 2nd Defendant to pay interest on the said sum of Five Hundred
Thousand United States Dollars (US$500,000.00) to the Plaintiff from 1st February, 2016 to date of final payment.
v. Costs inclusive of legal and administrative cost against 1st Defendant
Or in the alternative
vi. An order directed at the 1st Defendant to refund the sum of Five Hundred Thousand United States America Dollars (US$500,000.00). Plaintiff paid to it as part payment of the International Gateway Services License Fee.
In Plaintiff’s amended statement of claim it states that by an International Gateway Services Funding Agreement dated 1st February, 2013 between Plaintiff and 1st Defendant, the Plaintiff was to finance the acquisition by 1st Defendant of a license at the cost of Two Million, One Hundred Thousand US Dollars ($2,100,000.00) for the operation of an International gateway services. To Plaintiff after the execution of the agreement it advanced $500,000.00 to 1st Defendant as part payment of the license fee and who also paid the money to 2nd Defendant. Plaintiff avers that after the payment of the money matters have emerged which has made the implementation of the gateway service funding agreement with 1st Defendant practically impossible. One being an attempted takeover of 1st Defendant with the acquisition of majority of its shares and the second being the future prospect of 1st Defendant’s business as 1st Defendant’s share in the telecommunication sector keeps dwindling by the day.
Plaintiff contend that it notified 1st Defendant of its intention to terminate the agreement and demanded for a refund of the $500.000.00 it paid to 1st Defendant as part payment of the license fee. And terminated the agreement by a letter dated 21st December, 2015. To Plaintiff it requested 1st Defendant to write to 2nd Defendant to demand a refund of the monies paid as part payment for the license. That 1st Defendant had pleaded for time to refund the monies and the time it requested has long lapsed. It is the further claim of Plaintiff that the monies paid to the 1st Defendant has been with 2nd Defendant and with the license not having been issued by the 2nd Defendant it was unjust and unfair for 2nd Defendant to keep the $500,000 which money is its property and it was only an order of the court that will compel 2nd Defendant to release the money and hence the claims it makes against the Defendants.
DEFENCE AND COUNTER CLAIM OF 1ST DEFENDANT
1st Defendant has not only resisted the claim of Plaintiff but has counter claimed for the following reliefs:
a. And order for the performance of the Plaintiff’s obligation to provide the sum of $1,600.000 being the balance of the $2,100,000.00 to the 1st Defendant due under the International gateway services funding agreement
Or in the alternative
aa. Damages for breach of the international gateway services funding agreement executed between Plaintiff and 1st Defendant
c. Any other relief or reliefs as to this Honourable court may deem fit
To 1st Defendant the agreement they entered was executed on the mutual understanding that the Plaintiff shall contribute money to the tune of $2,100,000 with 1st Defendant providing equipment valued at $3,555,000 towards the implementation of the obligation s under the contract. And that 1st Defendant provided the equipment at that value and it was the failure on the part of Plaintiff to pay all the monies for 1st Defendant to obtain the license which has stalled the implementation of the gateway funding agreement. And that even if there had been a takeover of the majority shares of 1st Defendant, which it denies anyway, that cannot exonerate Plaintiff from performing its obligations under the contract. 1st Defendant avers that with the failure of Plaintiff to complete the payment of the monies has caused serious hardship and unbearable cost to 1st Defendant as it had expended money in making its equipment ready for use under the agreement. It admit of the demand for a refund of the $500,000.00 it paid but that the basis for the termination of the agreement by Plaintiff was inconsistent with the termination clause in the agreement and it was Plaintiff who was rather in breach of the agreement.
That 1st Defendant had insisted that Plaintiff provide the balance of $2,100,000 as per the agreement in meetings held between them and hence its counter claim. With pretrial unable to amicable settle the matter among the parties, the following were agreed as the issues for determination:
1. Whether 1st Defendant’s market share in the telecommunication sector has dwindled to the extent that it was practically impossible to implement the International Gateway Funding Service Agreement.
1. Whether the Plaintiff’s termination of the International Gateway Funding Service Agreement was done in accordance with the provisions of the said agreement.
2. Whether subsequent to the execution of the International Gateway Funding Service Agreement, 1st Defendant acquired equipment worth USD$3,555.500 in furtherance to the said agreement
3. Whether Plaintiff breached the International Gateway Funding Service Agreement by failing to provide the balance of US$1,600,000.00.
4. Whether 2nd Defendant is justified in using the USD$500,000.00 paid to it by the 1st Defendant in liquidating 1st Defendant’s debt to 2nd Defendant if 2nd Defendant has prior notice that the said sum belongs to the Plaintiff.
5. Whether or not the failure to implement the International Gateway Service Funding Agreement was a result of Plaintiff’s inability to provide the outstanding balance or on 1st Defendant’s operation challenges.
6. Whether or not the attempted takeover of 1st Defendant’s Company by potential shareholders led to doubts about the future of the International Gateway Services Funding Agreement thereby placing on hold the Agreement pending the takeover.
7. Whether or not the Board of Directors of the 1st Defendant have the right to authorize the 2nd Defendant to use the advanced payment of Five Hundred Thousand Dollars (US$500,000.00.00) for an International Gateway License in its possession to offset part of its debts to the 2nd Defendant.
8. Whether the Plaintiff is entitled to its reliefs.
9. Whether 1st Defendant is entitled to its counterclaim