C.I.L.E. vs. CHIAVELLI AND ANOTHER [1967]DLHC1491

Date	1967-11-27
Suit No.
Citation No.	[1967]DLHC1491

AMISSAH J.A.

S. ANNANCY FOR THE PLAINTIFFS.

G. DJABANOR FOR THE DEFENDANTS.

[1967]DLHC1491
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													<main id="main" class="content" style="min-height: 60rem" >C.I.L.E. <o:p></o:p>vs. <o:p></o:p>CHIAVELLI AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 651<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 NOVEMBER
1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. ANNANCY FOR THE PLAINTIFFS.<o:p></o:p>

G. DJABANOR FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>A
preliminary objection has been raised to this action proceeding in the courts
of this country. The objection is based on the ground that the parties
themselves have contracted that disputes between them should be settled by a
court in Modena in Italy.<o:p></o:p>The
endorsement to the plaintiffs’ writ is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiffs’ claim is against the defendants jointly and severally for (a)
recovery of the sum of N¢63,061.60 (It. Lit. 37,837,020) being the total value
of the plaintiffs’ goods as per particulars of claim, sold by the defendants and
which the defendants have made use of it and have refused to refund the same
sum to the plaintiffs in spite of repeated demands, and (b) the return of the
plaintiffs’ goods of `O.B.C.’ 225 cases of shirts shipped by the Bia River in
March 1967, the bills of lading of the said goods which the plaintiffs gave to
the defendants and which the defendants have refused to release to the
plaintiffs.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs are a company incorporated in Italy. The first defendant is one of
the four original shareholders of that company and also one of its three
administrators. Until this dispute arose he was the plaintiff-company’s local
representative in Ghana. Whether he still continues to hold that position or
not is a matter for debate. The plaintiffs say in their statement of claim that
his representation has been terminated whilst he claims in his defence, that
the purported termination was unlawful and of no effect. The second defendants,
now described as Timber Imports and Exports of Takoradi (that is, if the first
defendant’s assumption that by this description the plaintiffs meant the Timber
Imports &amp; Exports Co., Ltd., for there is that subtle difference), is
another company incorporated in Italy. The statement of claim avers, and the
averment is admitted in the defence, that the second defendants are a foreign
company incorporated in Ghana. This must be some error because at best if they
are a foreign company then they would only have been registered in this
country. The first defendant is the managing director of the second
defendant-company. <o:p></o:p>Some time
in March this year the plaintiffs consigned a large quantity of goods to Ghana.
The person to whom they were consigned, the capacity in which he received as
consignee and the nature of the transaction which brought the goods into his
hands are all matters of violent disagreement. The plaintiffs’ case is that
they sent the goods through a notifying address, which incidentally happens to
be the address of the second defendants. The plaintiffs requested the first defendant
as their representative in Ghana to secure an import licence for the goods,
consequently they say they issued the invoices in the name of the second
defendants. It is difficult to understand the logic of this unless one further
accepts the plaintiffs’ claim that they issued the invoices in this manner
because the first defendant who is a shareholder in their company and was their
representative in Ghana requested it so, as the second defendants were already
registered in Ghana. The plaintiffs say that they did not contract to sell the
goods to either of the defendants.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants on the other hand claim that there was a sale by the plaintiffs to
the second defendants alone. That this is borne out by the invoice being made
out to the second defendants. The sale, the defendants further claim, was on
credit terms. That this is also borne out by the fact that as to the terms on
which the arrangement invoiced was made it was stated that payment was
deferred.<o:p></o:p><o:p>&nbsp;</o:p>I believe
this is in essence the relative positions of the parties as disclosed by the
pleadings and by the two documents that were exhibited without objection in the
course of the argument on the cross-allegations. But I do not think they make
much difference to the objection raised. As I said earlier this objection of
the defendants is that as the parties themselves have contracted that disputes
between them should be determined by a court in Italy, our courts have no
jurisdiction to entertain this claim. In support of the objection one of the invoices
covering the goods was produced. Apart from its characteristics which I have
already mentioned</main>