SCANCOM Limited, operators of Areeba mobile phone network, and its majority shareholder, Investcom Holdings LLC, are seeking an out-of-court settlement in the case in which a Ghanaian businessman is claiming 20 per cent interest in the company.
Consequently, they argued their application for stay of proceedings at the Commercial Division of the Accra Fast Track High Court yesterday to enable the parties to resort to arbitration.
The application was opposed by counsel for the plaintiff and Grandview Management Limited, the third co-defendant, who described it as improperly laid and ought to be dismissed.
The court fixed May 31, 2007 to determine whether or not the case should be allowed to go for arbitration in London.
The plaintiff, Mr Richmond Aggrey, sued the majority shareholder in the company, Scancom Limited and Grandview Management Limited when Scancom decided to engage in a merger deal with South African giants, MTN Incorporated.
The deal has, however, been concluded with the transfer of all shares in Scancom to the South African company.
That was after a High Court order on July 14, last year restraining Investcom LLC and Grandview Management from “continuing, progressing and or concluding the merger with and or acquisition of Investcom LLC by MTN without taking into account and or providing for the plaintiff's/applicant's 20 per cent shares in Scancom Limited”.
The closure of the acquisition, according to Mr Aggrey, would occasion the loss of his shareholding in the company by reason of the accrual of the rights of the MTN Group as a third party.
His contention was that his name had been removed from the shareholders' list of Scancom Limited without any explanation.
Furthermore, the plaintiff is claiming against the defendants, jointly and severally, an order directed to Scancom Limited to pay him his true dividends declared from the 2000 to 2005 financial years and also include his name in the shareholders' list.
The substantive case has not been heard because of the resort to technicalities, especially by Areeba.
Following the new development, an application for judgement in default of defence filed by plaintiff's counsel, Mr Yoni Kulendi, as well as another motion for interlocutory injunction by counsel for Grandview Management, Mr Thaddeus Sory, to stop the arbitration process had been waived.
Mr Benson Nutsupui, counsel for Scancom, had filed his defence in the suit.
Counsel for Investcom LLC, Mr Felix Ntirakwa, moved the motion for stay of proceedings and said the contract agreement of the company stipulated that whenever there was disagreement over shareholding ownership, arbitration should be resorted to.
Investcom's application is premised on Ghana's Arbitration Act 1961, Act 38, especially Section 40, and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on June 10, 1958, which proposed London as the venue for arbitration.
Counsel said care must be taken in order not to confuse interest of law situation in court proceedings with stay pending arbitration, saying that there was danger to rely on court issues.
He said the issue at stake related to shares, namely, capital call, dividends and the relationship between the plaintiff and Investcom LLC.
Mr Kulendi raised the issue whether the UK was a country recognised or declared by the President of Ghana to be a reciprocating party to the UN Convention and, if not, whether an application which proposed London as the forum for the arbitration could be granted when the law applicable was a Ghanaian law.
He said the countries recognised by the President of Ghana to be parties to the UN Convention did not include the UK, as the law stood currently, and in effect an arbitrary award obtained in the UK could not be enforced in Ghana.
Counsel said the application was not premised on desire for arbitration but to take procedural advantage to delay the case and also a calculated attempt to deny his client justice.
Mr Sory associated himself with the submissions made by Mr Kulendi.
Mr Nutsupui, counsel for Scancom, who associated himself with the submission by counsel for Investcom LLC, said they were able and willing to participate in the arbitration and that the assertion that plaintiff had since 1999 ceased to be a shareholder did not hold, since he was bound by the shareholders' agreement.
Story by Stephen Sah