By Morkporkpor Anku
Accra, Jan. 25, GNA—An Accra High Court (Commercial Division) has dismissed an application to strike out the suit against Vihama Energy Company Limited in a $500 million case involving Dram Oil & Trading Limited (Plaintiff), and Deloitte & Touche and Vihama Energy Limited (1st and 2nd Defendants) in the suit.
The motion which was filed by Vihama seeks an order to strike itself out of the suit entirely and was supported by Deloitte & Touche.
Vihama Energy Limited had argued in the motion that it held the view that the claims made against it had already been conclusively determined in earlier proceedings between the parties.
Vihama, through Mr. Kwame Agati, its counsel, argued that the present action was barred by the doctrine of res judicata and issue estoppel, and that the continuation of the suit against it constituted an abuse of the process of the Court.
He said the present suit arose from the same transaction, namely dealings under a Tripartite Agreement relating to petroleum imports, which formed the subject matter of an earlier action.
He said in that prior action, Vihama was joined as a party, issues were fully joined, and the matter was determined on the merits by the High Court differently constituted on May 29, 2019.
He contended that in the said prior proceedings, the Court made definitive findings on the rights and obligations of the parties under the Tripartite Agreement.
He said an appeal against the Court’s decision was subsequently dismissed by the Court of Appeal, rendering the decisions of May 18, 2015, and May 29, 2019 final.
He said the issues now raised against it in the present suit were identical to, or arose directly from matters that were canvassed, decided, or ought properly to have been canvassed and decided in the prior action.
Mr. Agati asserted that Dram Oil had exhausted all appellate rights in respect of those decisions and was therefore precluded from re-litigating the same issues under the guise of a fresh action.
In supporting the motion filed by Vihama, Mr. Ace Anan Ankomah, counsel for Deloitte & Touche, contended that his client conducted the audit in accordance with the Court’s directions, submitted its report to the Court, and was cross-examined on same.
He said the Court subsequently adopted the audit report and made findings based on it, including findings on the indebtedness of the parties.
He contended that the Plaintiff’s objections to the audit and its methodology were expressly considered and rejected by the Court in its judgment dated May 29, 2019, and that the Plaintiff’s appeal against those findings was dismissed.
He asserted that all issues relating to the Tripartite Agreement, the audit, and the financial liabilities of the parties have been conclusively settled.
“It therefore supports Vihama’s contention that the present suit was caught by the principles of a matter already decided by a court and cannot be litigated again between the same parties and amounts to an abuse of the Court’s process,” he said.
On his part, in response to the submissions of Counsel for both Vihama and Deloitte, Mr. Gaspar Lyle Nii-Aponsah, counsel for the Plaintiff, opposed the motion and contended that the application was misconceived, belated, and designed to derail a trial that is already underway.
He argued that both Vihama and Deloitte in their affidavits before the Court were deliberately misinforming and distorting the true facts of the earlier proceedings in order to mount their joint and unwarranted motion.
He stated that the present suit was initially commenced against Deloitte & Touche alone and that, during the course of proceedings, the Court itself urged the joinder of all necessary parties to ensure the effective determination of the dispute.
He said acting on that direction, Dram Oil applied to join Vihama, an application that was granted by the Court with legal justifications that the Court itself succinctly captured in its ruling to join Vihama.
Mr. Nii-Aponsah emphasised that when served with the joinder motion, Vihama did not oppose the joinder, and after being joined and served, also did not appeal against the joinder order or take any steps at that time to non-suit itself.
He argued that rather, Vihama subsequently filed a statement of defence and participated fully in all pre-trial proceedings including filing a witness statement that it intends to use at the trial.
He told the Court that by its very conduct, the 2nd Defendant submitted to the jurisdiction of the Court and waived any objection it may have had to being joined.
Mr. Nii-Aponsah additionally told the Court that Deloitte had also previously filed an earlier motion to set down the issue of res judicata for preliminary trial which the Court, differently constituted, had dismissed and provided cogent reasons for.
He, therefore, contended that the present application was, in substance, a disguised attempt by Vihama to challenge or appeal against the joinder decision long after the time for doing so had passed and was at the same time a disguised attempt by Deloitte to challenge or appeal against the earlier motion it had filed for res judicata to be set down for trial as a preliminary issue, which had also been dismissed by the Court.
The Plaintiff’s lawyer forcefully attacked the arguments of res judicata put forward by both Mr. Agati and Mr. Ankomah by clarifying that the narratives put forward by Counsel for Vihama and Deloitte concerning the previous action were distortions of facts.
Mr. Nii-Aponsah maintained that the earlier judgments actually did not finally determine all the issues now raised, and in particular contended that certain matters, including the alleged negligence and misconduct of Deloitte in relation to the audit process, were never the subject of adjudication in the earlier action.
He said that the singular most important subject of the current suit, being the alleged negligence of Deloitte, could not have even been adjudicated upon by the earlier court because Deloitte was not even a party to that suit and negligence was not one of the issues decided by that earlier court.
“Cross-examination (of Deloitte’s witness) on methodology is not prosecution or litigation of negligence,” he emphasised.
Regarding the appeal filed by Dram Oil in the earlier suit, Plaintiff argued that the dismissal of its appeal was procedural rather than on the merits and could not operate to bar the present action given the different parties, different cause of action and different issues to be determined in the current suit.
The Court, presided over by Mr. Justice John-Mark Nuku Alifo, in his 18-page ruling, said the central issue for determination in the motion before him was the plea of res judicata.
He said upon a careful consideration of the affidavits on record and the processes filed, the Court was satisfied that the present application was on the same subject-matter with the earlier application brought by Deloitte under Order 33 Rules 3 and 5 of C.I. 47.
The Judge said that the earlier application was fully argued and determined by the Court, differently constituted, in a ruling delivered on December 7, 2023.
In that ruling, the Court expressly declined the invitation to truncate the trial by isolating and determining the issues particularly the plea of res judicata as pure questions of law at an interlocutory stage.
Justice Alifo said that the Court had held, in substance, that the matters raised were intertwined with contested facts and were therefore more appropriately determined at trial after the taking of evidence.
The Court held therefore that the plea of res judicata and issue estoppel, being matters of mixed law and fact, and intertwined with the substantive issues already set down for the trial, which was already underway, ought not to be determined by interlocutory motion in the circumstances of this case, especially since the Court differently constituted, had already dismissed Deloitte’s previous motion to set down the same issue of res judicata for preliminary trial.
The Court noted that it was not minded to review its own orders, even if differently constituted, because it did not have the power to do so and indeed, doing so would amount to forum shopping by the Defendants.
The Court stated that if permitted, that would amount to an abuse of the court’s process.
“The Applicant has not demonstrated any supervening facts, change in circumstances, or new legal foundation that would warrant a departure from the Court’s earlier position.”
“The salient bases upon which the earlier application was dismissed remain entirely unchanged,” he added.
The motion filed by Vihama Energy Limited and supported by Deloitte & Touche was accordingly dismissed, with the Court giving further direction for the case to take its normal course.
At the next adjourned date on February 4, 2026, the case is expected to resume regular proceedings for the continuation of the trial.
GNA
25 Jan. 2026
Edited by Samuel Osei-Frempong