An Accra Commercial Court on April 9, 2008 set aside a default judgment entered against Areeba operated by Scancom Limited with Investcom Consortium Holding as a major shareholder to enable the company file its defence so that the case be heard on its merit.
The Court in its ruling said after considering the arguments of Defence Counsel, the court noticed it was the first time that defendants were filing their statement of defence.
Mr David Andreas Hesse, a Former Director, Scancom Limited has sued Investcom Consortium Holding S.A of Beirut, Lebanon and Scancom Limited, operators of Areeba Mobile Phone Network now MTN to be reinstated into the company with his six per cent shareholdings.
The suit also called for perpetual injunction on Scancom Limited or its agents from removing the Plaintiff as a director of the company and to restore Mr Hesse's additional 3.4 per cent shares of Scancom Construction Limited representing 25 per cent interest to him.
The Court, presided over By Mrs Justice Cecilia Sowah, said having satisfied itself from the records before it that the notice of withdrawal of the Appeal was indeed filed before motion was filed.
It said the contention by Counsel for plaintiff that an appeal was pending at the time this application was filed was therefore incorrect.
"My view is that under rule 17(1) of the Court of Appeal rules 1997, the filing of the Notice of Withdrawal effectively ended the appeal, and thereupon, this Court as trial court became seized with the matter" Justice Sowah said.
The Court also disagreed with the Plaintiff's argument that having refused the first Defendant's application to set aside the judgment of April 26, 2007, the Court had no power to entertain the application before it.
It said the First Defendant in its motion merely sought to have the default judgment set aside without praying the Court for leave to file his defence.
It said by virtue of the ruling given on February 27, 2008 in respect of a similar application the Court could be said to have exercised its discretionary power and thereby become functus officio.
It said that the application was struck out not on the merits, but because of the irregularity in filing it whilst an appeal in respect of the same subject matter was pending.
The Court said the proposed statement of defence, which has been exhibited to the application, disclosed a reasonable defence to the action and it is the Court's view that this was an appropriate case to set aside the default judgment for the case to be determined on its merits.
"I have also arrived at this conclusion having considered that the injury caused to plaintiff by this late filling of defence would be adequately compensated in costs" Mrs Justice Sowah said.