THE REPUBLIC vs. THE HIGH COURT, ACCRA (COMMERCIAL DIVISION) EX PARTE MENKISH IMPEX LIMITED

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: AMADU JSC (PRESIDING)

KULENDI JSC

ASIEDU JSC

GAEWU JSC

AMALEBOBA JSC

CIVIL MOTION

NO: J5/9/2026

31ST MARCH, 2026

THE REPUBLIC

VRS

THE HIGH COURT, ACCRA ………… RESPONDENT

(COMMERCIAL DIVISION)

EX PARTE:

MENKISH IMPEX LIMITED ………… APPLICANT

OM SATNAM LIMITED ………… INTERESTED PARTY

RULING

MAJORITY OPINION

KULENDI JSC:

INTRODUCTION

The Applicant herein has invoked the supervisory jurisdiction of this Honourable Court pursuant to Article 132 of the Constitution, 1992 and Order 61 Rule 1 of the Supreme Court Rules, 1996 (C.I. 16), seeking an order of certiorari to bring up to this Court for the purpose of being quashed, the judgment of the High Court, Accra (Commercial Division 7), coram: Emmanuel Lodoh J, delivered on 4th November, 2025 in Suit No. CM/IPR/0391/2019 entitled OM SATNAM LIMITED vrs. MENKISH IMPEX LIMITED.

The application is principally grounded on the contention that the High Court lacked the requisite jurisdiction to entertain and determine the action, thereby rendering the entire proceedings and the judgment founded thereon a nullity.

Consequently, the Applicant further prays for orders setting aside the Writ of Summons and Statement of Claim filed in the said action, and for all proceedings conducted before the High Court in respect of the matter to be brought up into this Court and quashed accordingly.

APPLICANT’S CASE:

It is the case of the Applicant that the Interested Party herein, commenced an action against it, by Writ of Summons and Statement of Claim in Suit No. CM/IPR/0391/2019 titled OM SATNAM LIMITED vrs. MENKISH IMPEX LIMITED for the following reliefs:

A declaration that the Defendant had infringed the Plaintiff’s registered Industrial Design No. AP/D/00686;

An order of injunction restraining the Defendant, whether by itself, its servants, agents or assigns, or otherwise howsoever, from infringing the Plaintiff’s Industrial Design No. AP/D/00686 by using or causing same to be used in the manufacture, importation, marketing, distribution or sale in Ghana of naphthalene ball/insect repellent products or any similar products;

An order directing the Defendant to deliver up to the Plaintiff, or to such person or entity as the Court may direct, all infringing goods in the possession, custody or control of the Defendant;

An order directing the destruction or other disposal of the said infringing goods in such manner as the Court may deem fit;

An inquiry into the damages sustained by the Plaintiff as a result of the alleged infringement or, in the alternative, an account of profits made by the Defendant and attributable to the alleged infringement, to which the Plaintiff claims entitlement;

An order for the payment by the Defendant of all sums found due to the Plaintiff upon the taking of such inquiry or account, together with interest thereon at the prevailing commercial bank rate; and

Costs, including counsel’s legal fees.

The Applicant contends that the gravamen of the action before the High Court concerned allegations of infringement of a registered industrial design under the Industrial Designs Act, 2003 (Act 660). Following the conclusion of proceedings, the High Court, coram: Emmanuel Lodoh J, delivered judgment on 4th November, 2025 in favour of the Interested Party.

It is however the case of the Applicant that the High Court lacked the requisite jurisdiction to entertain the action and consequently lacked jurisdiction to deliver the impugned judgment. The Applicant’s contention is that pursuant to Section 22(2) of the Industrial Designs Act, 2003 (Act 660), proceedings for the enforcement of rights arising under the Act are required to be commenced by originating motion on notice. According to the Applicant, the commencement of the action by Writ of Summons was therefore in clear contravention of the specific procedure mandatorily prescribed by statute.

The Applicant further contends that it is settled law that where a statute expressly prescribes a particular mode for invoking the jurisdiction of a court, that procedure must be strictly complied with, and any substantial departure therefrom renders the proceedings incompetent and void.

On the basis of the foregoing, the Applicant asserts that the entire proceedings before the High Court, including the judgment delivered on 4th November, 2025, are nullities for want of jurisdiction. The Applicant accordingly prays this Honourable Court, in the exercise of its supervisory jurisdiction under Article 132 of the Constitution and Order 61 Rule 1 of C.I. 16, to bring up and quash the said proceedings and judgment.

THE INTERESTED PARTY’S CASE:

On its part, the Interested party maintains that the Industrial Designs Act, 2003 (Act 660), particularly Section 9(4), permits a registered owner to institute Court proceedings for the enforcement of its rights and does not restrict such proceedings to commencement by originating notice of motion alone.

They therefore maintain that Section 22(2) of Act 660 cannot be construed as limiting enforcement proceedings solely to originating notice of motion, as the Applicant seeks to suggest. Rather, Section 9(4) must be read as conferring an additional and unfettered right to commence an action in Court.

They further maintain that the applicable rules of Court, including Orders 58 and 63 of the High Court Civil Procedure Rules 2004, C.I 47, expressly allow for commencement of intellectual property infringement action by writ of summons.

The Interested Party contends that the Applicant, having been duly served with the processes in the suit, entered appearance, filed a statement of defence and actively participated in the trial without any objection to the jurisdiction of the Court. Therefore, the Applicant cannot now seek to impugn the proceedings on that basis after Judgment has been delivered.

In the circumstances, the Interested party contends that the Jurisdiction of the High Court was properly invoked, the proceedings were competent and the application for certiorari is without merit and ought to be dismissed.

THE LAW:

This Court in a judgment dated 10th February, 2021 with Civil Motion No.: J5/05/2021 entitled Republic vrs. High Court, Commercial Division, Accra Ex-Parte: Kwabena Duffour, Attorney-General And 8 Others, on the issue of the permissible grounds for the invocation of our Supervisory jurisdiction held as follows:

“The grounds on which the Supervisory Jurisdiction of the Court may be invoked has been stated ad nauseam. In the Republic vrs. High Court, Accra Ex-Parte; Ghana Medical Association, (Chris Arcmann-Akummey-Interested Party) [2012] 2 GLR 768, the Court referred to its previous decision in Republic vrs. Court of Appeal; Ex-Parte Tsatsu Tsikata[2005-2006] SCGLR 612 and reiterated that the grounds upon which this Court proceeds to exercise its supervisory jurisdiction are as follows:

Want or excess of jurisdiction

Where there is an error of law on the face of the record

Failure to comply with the rules of Natural justice, and

The Wednesbury principles.”

It is a salutary and well established principle of law that no Court may countenance proceedings undertaken in the absence or excess of jurisdiction. Indeed, where a Court is confronted with such a situation, it is enjoined, and in the interest of justice mandated, to set aside the impugned proceedings or decision, same being a legal nullity by reason of the want of jurisdiction.

Speaking with characteristic clarity, Adinyira JSC in Halle and Sonns A.S. v. Bank of Ghana and Warm Weather Enterprise Ltd [2011] 1 SCGLR 378 opined that:

“Our Courts have now come so far that any wrong step taken in legal proceedings should not have the effect of nullifying the Judgement or proceedings, except in those cases where the Court has no Jurisdiction.”

The determinative issue arising for consideration is whether the High Court was properly vested with jurisdiction when the Interested Party commenced its action for the enforcement of industrial design rights by a Writ of Summons instead of an Originating notice on motion as allegedly required under Section 22 of the Industrial Designs Act, 2003 (Act 660).

It has long been the settled position of the law that jurisdiction, in all its manifestations, constitutes the very foundation upon which the authority and competence of a Court to adjudicate and administer justice rests. Jurisdiction is the fountain from which the judicial power of a Court flows, and accordingly, every requirement, condition, limitation or procedural prescription regulating the exercise of that jurisdiction must be jealously guarded and strictly complied with.

Thus, whether the jurisdiction implicated is one of subject matter, territorial or geographical, monetary limits, statutory preconditions and procedures, constitutional prescription, or even the competence of parties properly invoking the Court’s authority, any breach thereof strikes at the root of the proceedings and renders any consequential orders or decisions liable to be set aside as nullities.

Indeed, the law has consistently maintained that proceedings conducted in excess of jurisdiction, or in violation of jurisdictional prerequisites, cannot be countenanced, for the streams through which justice is administered cannot be permitted to flow from a fountain tainted by illegality or procedural impropriety.

In the same vein, this Court has consistently reaffirmed the principle that the assumption and exercise of judicial authority is not left to the whim or discretion of litigants or even the Courts themselves, but is circumscribed and regulated by clearly established constitutional, statutory and procedural prescriptions.

In our considered view therefore, having regard to the grave and far-reaching consequences of jurisdictional defects, the preliminary enquiry into whether a proper jurisdictional foundation has been laid for the invocation of the Court’s adjudicatory authority is not the exclusive preserve of the litigants alone. It is for this reason that the law has consistently treated questions of jurisdiction as matters which may be raised at any stage of proceedings, even suo motu by the Court itself, once the parties are afforded an opportunity to address the issue.

Every Court, conscious of the nullifying effect of proceedings undertaken without jurisdiction, bears an independent and continuing duty to satisfy itself that its jurisdiction has been properly invoked before proceeding to determine the merits of any matter placed before it. This duty arises from the elementary principle that jurisdiction is the indispensable legal authority upon which every valid judicial act rests, and consequently, no Court ought to proceed upon a doubtful or defective jurisdictional footing merely because the parties themselves have failed or neglected to raise an objection thereto.

The rationale for this strict approach is self-evident: where the law has prescribed the conditions upon which a Court may validly assume jurisdiction, any departure from those conditions deprives the Court of the legal authority to act, irrespective of the merits of the matter before it. Consequently, any proceedings undertaken in disregard of jurisdictional limitations, whether substantive or procedural, remain incurably defective and liable to be set aside ex debito justitiae.

To hold otherwise would be to permit the judicial process to expend valuable and often scarce judicial time and public resources on proceedings liable, at the end of the day, to being declared incurably void. The proactive interrogation of jurisdictional competence by the Court itself therefore serves not merely the interests of procedural regularity, but also the broader objectives of sound judicial administration, economy of judicial resources, certainty in adjudication, and the protection of the integrity of the judicial process itself.

More to the point implicated by the instant application, this Court, on 9th May, 2018 in Civil Appeal No.: J4/57/2017 in a case entitled Francis Owusu Mensah & Anor vrs. National Board For Professional & Technical Examinations (NAPTEX), Prof. Paul N. Buatsi And Mr. Francis W.Y. Tagbor speaking through Anin-Yeboah JSC (as he then was) said as follows:

“A court may have jurisdiction to entertain a cause or matter but the procedure invoking its jurisdiction may deny the court the jurisdiction. This usually occurs when a statute has specifically laid down the procedure for redress. See the case of BOYEFIO v. NTHC PROPERTIES LTD [1997-98] IGLR 768. Cases which fall under the representation of the People Law, 1992 PNDC L 284 section 16(1) must be commenced by petition at the High Court in respect of Parliamentary Election petitions. Any resort to a procedure not sanctioned by the statute would deny the High Court of jurisdiction … In the view of this, non-compliance will nullify proceedings if the irregularity complained of amounts to a breach of the Constitution or a statute [e.g. Peoples Representation Law PNDC L284 of 1992] or breach of the rules of natural justice.”

Similarly this Court on the 22nd of January, 2024 in Suit No.: J5/85/2025 entitled Republic vrs. High Court (Accra) Ex parte Daniel Ofori, had this to say,

“The view of the law we have held above also aligns with the long-standing legal position that the circumstances under which the High Court would legally assume its original jurisdiction in any matter are, as a general proposition of the law, governed by procedural rules established by statute, and any challenge to its jurisdiction must be viewed with skepticism absent clear statutory prescriptions.”

This is the same view of the law earlier expressed by Kpegah JSC in the case of Republic vrs. Adu-Boahen and Another [1993-94] 2 GLR 324 at page 339 thus:

“…the circumstances under which any adjudicating body could assume jurisdiction in any matter and determine same are as regulated by rules of procedure established by statute. This is what Lord Blackburn referred to in Re Green (supra) as the “ordinary procedure” of the tribunal or court.”

EVALUATION:

The Applicant has anchored its arguments in favour of nullifying the judgment of the High Court on the content and effect of section 22 of the Industrial Designs Act, 2003 (ACT 660). Given the centrality of the said section to the resolution of the issues before the Court, it is reproduced in its entirety as follows:

“22. Infringement and offences

Subject to section 9 (3) an act specified in section 9 (2) and performed by a person other than the registered owner, and without the consent of the owner, constitutes an infringement of the industrial design.

On the application by: the registered owner, or a licensee who has requested the registered owner to institute court proceedings for a specific relief and the registered owner has refused or failed to do so, the Court may grant an injunction to prevent an infringement or an imminent infringement, award damages and grant any other remedy as the Court considers appropriate in the circumstances

A person who knowingly performs an act which constitutes an infringement as defined in subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding two thousand penalty units or to a term of imprisonment not exceeding two years or to both the fine and the imprisonment.”

On the other hand, the Interested Party herein strenuously contends, in response to the Applicant’s espoused position, that section 22 is only one of several provisions captured in the Act which related to the enforcement of industrial design rights. Principal amongst these provisions, the Interest Party argues, is section 9, which neither limits nor restricts the avenue by which a registered owner may proceed to Court in vindication of his rights created under the Act.

The said section 9 of the Act provides as follows:

“(1) The exploitation of a registered industrial design by persons other than the registered owner shall require the consent of the owner.

(2) For the purposes of subsection (1), “exploitation” of a registered industrial design means the making, selling, importing or otherwise distributing for commercial purposes, articles bearing or embodying a design which is a copy or substantially a copy of the industrial design.

(3) The rights conferred by registration are not applicable to acts in respect of articles which have been put on the market in any country by the registered owner or with the registered owner’s consent.

(4) The registered owner may, in addition to any other rights, remedies or actions available under any enactment, institute court proceedings against any person who infringes the industrial design or who performs an act which makes it likely that infringement will occur.”

Whilst we acknowledge and indeed commend the industry of learned Counsel for the Interested Party in the articulation of its arguments in relation to sections 9 and 22 of the Industrial Designs Act, 2003 (Act 660), we are, with the greatest respect, unable to agree with the conclusions urged upon this Court.

It is trite learning in the interpretation of statutes that no provision of an enactment ought to be read in isolation or in pigeonholes. Rather, every provision of a statute must be construed holistically, contextually and purposively, having regard to the entire scheme, structure and intendment of the enactment itself.

This Court, speaking through my erudite brother Pwamang JSC. in a judgment dated 29th April, 2020 with Suit No.: J5/20/2019 entitled Republic vrs. High Court Accra, Ex Parte Environs Solutions & Ors., said as follows:

“The settled principle of interpretation of statutes is to read the statute as a whole and then to interpret the provision in issue against the background of the other provisions of the statute.

In the case of Abu Ramadan and Nimako v. EC and A-G [2013-2014] 2 SCGLR 1654, Wood C.J, said as follows at page 1674;

“To arrive at a proper construction of regulation 1(3)(d) and (e) of the Public Elections (Registration of Voters) Regulations, 2012 (CI 72), firmly established principles of statutory interpretation require that CI 72 be read as a whole, not piecemeal, and purposely construed and the impugned legislation interpreted in the context of the other parts of CI 72.”

Thus, sections 9 and 22 of Act 660 cannot be compartmentalized and construed as though they operate independently of each other. They must necessarily be read together as constituent parts of a single statutory framework regulating industrial design rights and the modalities for their enforcement.

Accordingly, on a holistic reading of the Act and a conjunctive interpretation of the relevant sections, we are of the view that, contrary to the position urged by the Interested Party, section 9 serves a definitive and declaratory function within the architecture of the Act and does not operate to create multiple streams for the invocation of the Court’s jurisdiction.

In our view section 9 principally defines the nature, scope and extent of the proprietary rights accruing to a registered owner of an industrial design, including the general entitlement to seek relief where infringement has occurred or is threatened. This is evident from the language deployed under section 9(4), which provides that the registered owner may institute court proceedings against a person who infringes the industrial design or performs acts likely to occasion infringement.

The provision therefore operates to identify the class of actionable conduct and affirms the existence of enforceable rights flowing from registration.

However, section 9 does not, either expressly or impliedly, prescribe the procedural modalities by which those rights are to be vindicated before a Court of law. Indeed, the provision is conspicuously silent on the mechanism, form or operative process through which the Court’s jurisdiction is to be competently invoked. It merely recognizes the existence of a right to seek relief.

It is section 22 which then assumes the operative and procedural function within the statutory framework. Section 22 does not merely restate the existence of infringement; rather, it operationalizes the enforcement regime contemplated under section 9 by prescribing the manner in which relief may be sought from the Court.

Significantly, section 22 expressly provides that upon an application by the registered owner or qualifying licensee, “the Court may grant an injunction to prevent an infringement or an imminent infringement, award damages and grant any other remedy as the Court considers appropriate in the circumstances.” Thus, contrary to the contention of the Interested Party, the provision is not confined merely to injunctions, but rather establishes the full remedial framework through which industrial design rights are judicially enforced.

Indeed, when the two provisions are read together, it becomes apparent that section 9 defines the gamut and scope of the rights available to the registered owner, whilst section 22 prescribes the operative modalities and statutory mechanism through which those rights may be enforced and the attendant remedies obtained. In other words, section 9 identifies the right; section 22 regulates the enforcement of that right.

This interpretation is further fortified by the internal wording of section 22(1) itself. The subsection expressly incorporates and references section 9 by providing that infringement consists of “an act specified in section 9(2)” and is “subject to section 9(3)”

Thus, section 22 is plainly referential to, and dependent upon, the pre-existing rights and definitions established under section 9. It is therefore our considered view that, the Act demonstrates a deliberate legislative sequence: section 9 establishes the substantive scope of industrial design rights, whilst section 22 prescribes the operative legal framework and modalities through which relief in respect of those rights may be pursued before the Court.

Accordingly, we are unable to agree with the Interested Party’s contention that section 9 creates open-ended and unrestricted options permitting a litigant to freely pick and choose the manner by which proceedings may be initiated before the High Court.

With the greatest respect, such an interpretation divorces section 9 from the operative framework created by section 22 and ignores the settled principle that statutes must be read as an integrated whole. We take the firm view that the applicable legislative process capable of competently invoking the jurisdiction of the High Court in matters relating to industrial design infringement is the process stipulated and operationalized under section 22 of Act 660.

On that score, Order 19 Rule 1(2) of the High Court Civil Procedure Rules prescribes that:

“Proceedings by which an application is to be made to the Court or a Judge of the Court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application.”

In a judgment of this Court dated 13th June, 2018, with Civil Appeal No.: J4/47/2017 in a suit entitled Nana Ampaa-Andoh Viii (Substituted By Albert Kobina Koomson) vrs. Paramount Stool Of Breman Essiam (Substituted By Nana Efuwa Esiwa Ii) Kobina Mensah (Substituted By Nana Atta Kwaw Iv) Nana Oguamon Atwere Ii (Substituted By Ebusuapanyin Kwame Dom)(Substituted By Nicholas Sam) And Enyan Denyira Stool, Breman Essiam Stool And Ejumako Stool, my illustrious brother Pwamang JSC stated as follows:

“Where statute has provided for a procedure for the determination of a dispute that procedure ought to be strictly adhered to because parties appearing in court have a right to have their dispute determined in accordance with laid down procedure. NRCD 172 and Act 587 are substantive statutes and a court of law is not entitled to set aside the provisions of a statute that prescribes the manner it is required to exercise jurisdiction in matters regulated by the statute.”

We are equally unable to agree with the further contention of learned Counsel for the Interested Party that the reference to the Court’s power to grant injunctions under section 22 of Act 660 merely pertains to interlocutory injunctive reliefs obtainable under Order 25 of C.I. 47 after an action has already been commenced, and that section 22 therefore only regulates the filing of interlocutory applications consistent with Order 19 of the High Court (Civil Procedure) Rules.

With the greatest respect, that argument betrays a certain lack of appreciation for the practical and juridical context within which actions for the protection and preservation of industrial design rights ordinarily arise and are enforced.

Generally, the central grievance, complaint or cause of action in industrial design litigation is that a person is utilizing, reproducing, exploiting or commercially deploying a registered industrial design in an unauthorized manner, or is engaging in conduct which threatens or is likely to occasion infringement of the proprietary rights of the registered owner. That is precisely why section 9(4) of Act 660 provides that the registered owner may institute court proceedings against a person who infringes the industrial design “or who performs an act which makes it likely that infringement will occur.”

The statutory concern, therefore, is directed principally at preventing the continuation or occurrence of the infringing conduct.

Accordingly, the foremost relief ordinarily sought and ultimately granted in industrial design actions is a perpetual injunction restraining the offending party from continuing the acts constituting infringement of the registered industrial design. This relief is not interlocutory, but substantive and final in character.

We therefore hold that the injunctive relief contemplated within the framework of industrial design litigation is therefore not merely ancillary to a pending suit, as would ordinarily be the case under Order 25 of the High Court Civil Procedure Rules, 2004 (C.I. 47), but rather constitutes the very substantive relief around which the action itself is founded.

Indeed, section 22 itself makes this abundantly clear. The provision does not merely speak to temporary or interim restraining orders pending the determination of an already instituted action. Rather, it provides that upon an application by the registered owner or qualifying licensee, “the Court may grant an injunction to prevent an infringement or an imminent infringement, award damages and grant any other remedy as the Court considers appropriate in the circumstances.”

The breadth of the remedies contemplated, including damages and “any other remedy,” unmistakably demonstrates that section 22 is concerned with the substantive adjudication and enforcement of industrial design rights, and not merely interlocutory procedural incidents arising in the course of pending proceedings.

We have taken notice of the Interested Parties’ general references to the provisions in the High Court Civil procedure rules. Specifically Order 63 which pertains to intellectual property rights. Significantly, the said Order postulates, generally, that an action for the enforcement of intellectual property rights shall be commenced by the issuance of a writ of summons.

Be that as it may, the maxim “generalia specialibus non derogant” (general words do not derogate from special) is particularly instructive in this regard. This maxim may be explained as follows:

“Where there is a general enactment in a statute which if taken in its most comprehensive sense, would over-ride a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” (See Halsbury’s Laws of England: 4th Edition Vol. 44 para 875 at page 534)

Simply put, where a law has prescribed a specific statutory procedure or enforcement framework, that specialized procedure must prevail over and supersede the general procedural prescriptions contained in any other enactment.

Applying the maxim mutatis mutandis, we find that in circumstances such as these, where Parliament has enacted a specialized regime to regulate the modalities for the commencement of an action for the enforcement and protection of rights in industrial designs, it is that specialized legislative prescription which must be strictly adhered to.

The applicable mode for invoking the Court’s jurisdiction cannot be displaced by resort to the more general provisions contained in the High Court (Civil Procedure) Rules. Indeed, the provisions of Orders under C.I. 47, being subsidiary legislation, are necessarily subordinate both in hierarchy and legal effect to Act 660, which is a substantive enactment of Parliament.

We have taken note of the Interested Party’s remonstrations over the “bad faith” in the Applicant’s conduct in bringing the instant application, on grounds that having participated in the proceedings before the High Court up unto the point of the delivery of judgment, it lay foul in its mouth to contest the competency of the very proceedings it had vigorously prosecuted in the Court below.

On this score, I have had the opportunity to reiterate in a judgment of this Court dated 28th January, 2026 in Suit No.: J7/16/2026 entitled Republic vrs. High Court, Tamale (Commercial Division) Ex Parte Matthew Nyindam that:

“In the first place, it is the duty of a party who comes to court to vindicate his rights to ensure that he has properly invoked the court’s jurisdiction.

…

In any event, a litigant’s responsibility to ensure that a cause of action he/she seeks to ventilate before a court is duly accrued and vested, does not in any way derogate from the court’s gate-keeping duty to ensure that even where it clearly has substantive jurisdiction over such a cause of action, all procedural jurisdictional pre-conditions and/or pre-requisites are met before delving into an enquiry of the substantive matters implicated in the suit.”

CONCLUSION:

It is on the basis of the foregoing therefore, that on the 31st day of March, 2026, we granted the instant application and found that the High Court, Accra (Commercial Division 7) lacked jurisdiction to adjudicate the said action on the grounds that the jurisdiction of the Court had been improperly and incompetently invoked.

Accordingly, we quashed the judgment of the High Court delivered on 4th November, 2025 in Suit No. CM/IPR/0391/2019 entitled OM SATNAM LIMITED vrs. MENKISH IMPEX LIMITED, together with the Writ of Summons, Statement of Claim, and all proceedings founded thereon, same having been undertaken without jurisdiction and therefore constituting a nullity.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINION

GAEWU JSC:

My Lords, by this application, the Applicant invokes the supervisory jurisdiction of this Court, praying for an order of certiorari to bring up into this Court for the purpose of being quashed the judgment of His Lordship Emmanuel Lodoh, J, sitting at the High Court, Commercial Division 7, Accra, dated 4th November 2025. The Applicant further seeks an order setting aside the Writ of Summons and Statement of Claim, and a consequential order declaring all proceedings executed before the High Court, Commercial Division 7, in respect of this matter as a nullity to be brought up and quashed, alongside any further consequential orders as this Court may deem fit, in the suit entitled Suit No. CM/IPR/0391/2019; OM Satnam Ltd vrs. Menkish Impex Ltd.

Grounds of the Application

The bedrock of this application rests upon a challenge to the statutory jurisdiction of the trial High Court. The Applicant contends that the High Court lacked the requisite jurisdiction to entertain the underlying action on the ground that it was commenced by a Writ of Summons, in flagrant disregard of the mandatory procedural strictures of Section 22(2) of the Industrial Designs Act, 2003 (Act 660), which allegedly mandates commencement exclusively by way of an originating motion on notice.

FACTS

The facts germane to this application are extracted from the deposition in the affidavit in support of the motion. It is stated that the Interested Party caused a writ of summons and statement of claim to be issued against the Applicant on 6th February 2019 for the following reliefs:

A declaration that the defendant has infringed the plaintiff’s

Industrial Design Number AP/D/00868.

An injunction restraining the defendant whether by itself, its servants, or agents or any of them or otherwise however from doing the following acts that is to say, infringing the plaintiff’s industrial design No. AP/D/00868 by suing or causing same to be used to manufacture and import for marketing distribution and sale in Ghana, naphthalene ball/insect repellent products or any other products.

An order directing the defendant to deliver up to the plaintiff or any person or entity as the honourable court may deem fit, all of the infringing goods in the possession, custody and control of the defendant.

An order as to direction for the disposal of the said infringement by destruction.

An inquiry as to damage sustained by the plaintiff or in the alternative an account of the part of the profit obtained by the defendant to which the plaintiff is entitled.

An order for the payment by the defendant of all sums found due the plaintiff upon taking such inquiry or account, together with interest hereon at the prevailing commercial bank rate of interest.

Cost including plaintiff’s counsel’s legal fees.

The plenary trial of the matter was concluded, and judgment delivered by the Honourable trial High Court on 4th November 2025.

The Case for the Applicant

According to the Applicant, the learned trial Judge, in delivering the judgment, correctly identified the applicable legal regime governing the determination of the dispute before him when he held at page 11 of the judgment as follows:

“I have copiously referred to the term Industrial Design as a legal basis of this action. This is because the plaintiff’s action stems from the allegation that the defendant has infringed on their registered Industrial Designs. Therefore, it is my considered view that the applicable area of law, the legal framework upon which this matter would be determined will be the law on the Industrial Designs Act, 2003 (Act 660) and its associate legislation”.

Building upon this, the Applicant submits that per the explicit provisions of Section 22(2) of the Industrial Designs Act, 2003 (Act 660), an action to enforce any right under the said Act 660 can only be legally commenced by an application in the form of an originating motion on notice.

The crux of the applicant’s case is that the jurisdiction of the High Court could only have been validly invoked in strict compliance with the statutory prescriptions governing that specific cause of action. Because the applicable law has explicitly provided that all actions under that statute ought to be commenced by application, no other procedural vehicle can be used to initiate the action.

The Applicant further argues that even though Order 63 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides that actions for the enforcement of Intellectual Property Rights shall be commenced by a writ of summons, that order, being subsidiary legislation on Intellectual Property in general, cannot override or erode the substantive legislation which deals specifically with the matter of industrial designs.

The Case for the Interested Party

In contrast, the interested party objects the application, asserting in its opposing affidavit that Section 22(2) of the Industrial Designs Act, 2003 (Act 660) does not limit the commencement of enforcement or infringement proceedings for registered industrial designs solely to an originating motion on notice. The Interested Party contends that Section 9(4) of Act 660 explicitly vests a registered owner of an industrial design with the additional, independent option to “institute court proceedings” to enforce their industrial design rights.

According to the Interested Party, the provisions of Order 58 of the High Court (Civil Procedure) Rules, 2004 (CI 47) (as amended by Regulation 4 of the High Court (Civil Procedure) (Amendment) Rules, 2024 (CI 133)) and Order 63 of the High Court (Civil Procedure) Rules, 2004 (CI 47) are fully applicable pursuant to Section 9(4), thereby enabling a registered owner of an industrial design to issue a writ of summons to invoke the jurisdiction of the High Court in infringement proceedings.

Secondly, the Interested Party argues that Order 19 of CI 47 empowers a registered owner of an industrial design to apply for the interim reliefs and other remedies set out in Orders 58 and 63 of CI 47 within proceedings brought for the enforcement of Industrial Design Rights.

The central issue requiring resolution by this Court is:

Whether the action ought to have been commenced by a Writ of Summons or an Originating Motion?

The Industrial Designs Act, 2003 (Act 660) is an Act enacted to revise the statutory framework governing the protection of industrial designs and to provide for related matters. An Industrial Design Act encompasses the ornamental or aesthetic characteristics of an article or material. These may include three-dimensional features, such as the shape or surface of an object, or two-dimensional features, including patterns, lines, or color configurations.

Within this jurisdiction, industrial designs are regulated by a constellation of laws, namely: the Industrial Designs Act, 2003 (Act 660), the Industrial Designs (Amendment) Act, 2020 (Act 1033), the Industrial Designs Regulations, 2022 (LI 2464), and the High Court (Civil Procedure) Rules, 2004 (CI 47).

Procedural Commencement of Actions for Infringement

The Industrial Designs Act 2003 (Act 660) provides the substantive framework for the protection of aesthetic creations in Ghana. However, a common point of procedural ambiguity exists regarding whether an action for infringement should be initiated via a Writ of Summons or an Originating Application, particularly considering the language used in Sections 9(4) and 22(2) of the Act.

Section 9(4) of Act 660: states that a registered owner may “institute court proceedings” against any person who infringes upon the design or performs an act likely to result in infringement.

Section 22(2) of Act 660: provides that “on the application”, by a registered owner or an authorised licensee, the Court may grant an injunction, award damages, or provide other appropriate remedies.

The Act remains entirely silent on the specific procedural instrument required to initiate these proceedings, utilizing only the broad, generic terms “institute court proceedings” and “application”.

Section 9 – Rights conferred by Registration:

1) The exploitation of a registered industrial design by persons other than the registered owner shall require the consent of the owner.

(2) For the purposes of subsection (1), “exploitation” of a registered industrial design means the making, selling, importing or otherwise distributing for commercial purposes, articles bearing or embodying a design which is a copy or substantially a copy of the industrial design.

(3) The rights conferred by registration are not applicable to acts in respect of articles which have been put on the market in any country by the registered owner or with the registered owner’s consent.

(4) The registered owner may, in addition to any other rights, remedies or actions available under any enactment, institute court proceedings against any person who infringes the industrial design or who performs an act which makes it likely that infringement will occur.

Section 22 – Infringement and Offences

(1) Subject to section 9(3) any act specified in section 9(2) performed by a person other than the registered owner and without the consent of the owner constitutes an infringement of the Industrial design.

(2) On the application by

(a) the registered owner; or

(b) a licensee who has requested the registered owner to institute court proceedings for a specific relief and the registered owner has refused or failed to do so, the Court may grant an injunction to prevent any infringement or an imminent infringement, award damages and grant any other remedy as the Court considers appropriate in the circumstances.

(3) Any person who knowingly performs an act which constitutes an infringement as defined in subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding two thousand penalty units or to a term of imprisonment not exceeding two years or to both.

Analysis of Civil Commencement Modes in Ghana

Under the High Court (Civil Procedure) Rules, 2004 (CI 47), there are four recognised modes for commencing civil actions within this jurisdiction:

Writ of Summons – This is the primary and most widely utilized method for invoking the jurisdiction of the Court in civil actions to seek reliefs under a cause of action. Order 2 rule 2 of CI 47 mandates, subject to explicit statutory exceptions, all civil proceedings shall be commenced by filing of a Writ of Summons. It reads: “Subject to any existing enactment to the contrary, all civil proceedings shall be commenced by the filing of a Writ of Summons.

Petition – A petition is deployed only when a specific rule or statute explicitly requires it as the exclusive method to initiate a particular cause of action. This represents one of the exceptions envisaged by Order 2 Rule 2 of CI 47. For example, all proceedings for divorce, nullity, presumption of death, dissolution of marriage, maintenance orders, and child custody orders under the relevant Act must be commenced by a petition (See Order 65 Rule 2 of CI 47). Similarly, Article 64(1) of the 1992 Constitution provides that the sole procedure for contesting the validity of presidential election results in Ghana is by way of a petition.

3. Originating Summons – This initiates proceedings and is defined as a summons other than a summons in pending actions. It is deployed to commence proceedings where the central facts of the matter involve little to no factual controversy, such as the interpretation of wills and the construction of statutes.

4. Originating Motion on Notice – Proceedings are properly commenced by originating notice of motion only if such mode is expressly required by the rules or any enactment. It is distinct from a conventional Motion on Notice, which is utilized to seek interlocutory orders within already pending proceedings. When utilized to initiate a fresh action, it is categorized as an originating notice of motion.

Resolution of the Procedural Conflict

The rules of court are foundational to the orderly conduct of civil litigation. High Court (Civil Procedure) Rules, 2004 (CI 47) comprehensively regulates the commencement and conduct of proceedings in the High Court and Circuit Courts mutatis mutandis. Order 1 rule 1(1) of CI 47 strictly enjoins the High Court to apply these rules in the management of all civil proceedings. Section 26 of Act 660 defines “Court” as the High Court, the rules of CI 47 are applicable to these matters.

Crucially, Order 63 Rule 1(1) of CI 47, which is specifically titled Intellectual Property Rights Proceedings mandates that an action for the enforcement of an intellectual property right must be commenced by the issuance of a Writ of Summons. It reads: “An action for the enforcement of an intellectual property right shall be commenced by the issue of a Writ of Summons”. Given that industrial designs are a component of intellectual property, the commencement of such actions must be by Writ.

Given that industrial designs are an undeniable component of intellectual property, the commencement of such enforcement actions must inherently be by way of a Writ.

The Principle of Pari Materia

It is an established canon of statutory interpretation that laws dealing with the same subject matter must be read pari materia as though they constitute a single, cohesive body of law. As masterfully articulated by Justice Frankfurter, “statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes,” and part of a statute’s context is the broader body of law of which it forms a part (See Antonin Scalia & Bryan A. Garner, Reading Law [2012] @ 252)

Therefore, the combined effect of reading the two statutory frameworks together leads to the inescapable conclusion that the substantive action must be commenced by a writ, and not an application. However, an application can be appropriately brought within that ongoing action to seek interim or interlocutory reliefs, such as an injunction.

Consequently, the term “application” utilized in Section 22(2) of Act 660 must be interpreted as an interlocutory application. After the action has been properly initiated by a writ, a party may file an “application” (motion) for a interim injunction. This position is further reinforced by Order 63 Rule 5 of CI 47, which explicitly provides for ex-parte applications to prevent actual or threatened infringement or to preserve evidence. It reads: “1. The court may upon an ex-parte application by a party make interim orders it considers necessary in order to a) prevent an actual or threatened infringement of an intellectual property right from occurring and notwithstanding rule 4(1), in particular to prevent the entry into the channels of commerce of goods, including imported goods; or b) preserve relevant evidence relating to an alleged actual or threatened infringement on the ground that a delay is likely to cause irreparable harm to the rights holder or that there is a considerable risk of evidence being destroyed”.

Conclusion

While Act 660 creates the substantive cause of action, the High Court (Civil Procedure) Rules, 2004 (CI 47) exclusively govern the procedural machinery of the court. Order 2 Rule 2 of CI 47 establishes a mandatory default position: all civil proceedings must be commenced by a Writ of Summons unless an enactment specifically provides for another mode of commencement (such as a Petition or an Originating Notice of Motion).

Act 660 does not expressly mandate an “Originating Application”; therefore, the default rule of the High Court applies with full force. Furthermore, because Order 63 (Intellectual Property Claims) of CI 47 reinforces the use of a Writ for intellectual property enforcement, a Writ of Summons remains the required mode of commencement.

Actions for the enforcement of intellectual property rights are filed in the Commercial Division of the High Court typically by a Writ, as these matters routinely involve highly contested facts and require a full trial on the merits. Therefore, when a person commences an action for the infringement of an industrial design, it must be by a writ of summons and not an application. Where a party to a suit purport to commence such an action with an application, it is procedurally incompetent and should be struck out.

The law is clear and uncompromising on this point: where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that must be followed. (See the case of Boyefio v. NTHC Properties Ltd [1997-98] 1 GLR 768).

In the circumstances, the Interested Party properly invoked the jurisdiction of the High Court via a Writ of Summons. The application for certiorari fails and is hereby dismissed.

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

COUNSEL

BOBBY BANSON ESQ. FOR THE APPLICANT WITH MYLES DEKU ESQ.

SOPHIA AMISSAH LARYEA ESQ. FOR THE INTERESTED PARTY