ACCRA FURNITURE AND RUBBER FOAM CO., LTD. vs. INDART S.P.A. OF ROME [1973]DLCA2344

Date	1973-06-05
Suit No.
Citation No.	[1973]DLCA2344

APALOO JA

LASSEY JA

ARCHER J.A.

NELSON-COFIE FOR THE APPELLANTS.

NO APPEARANCE FOR THE RESPONDENTS.

[1973]DLCA2344
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													<main id="main" class="content" style="min-height: 60rem" >ACCRA FURNITURE AND RUBBER FOAM CO., LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>INDART S.P.A. OF ROME <o:p></o:p>[COURT OF APPEAL,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
2 GLR 289<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
5 JUNE 1973<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">

NELSON-COFIE FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE FOR THE RESPONDENTS.<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">

APALOO, LASSEY AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
respondent company by their agent entered into a contract with the appellant
company to sell to it a quantity of goods manufactured by the former. These goods
seem to have been duly shipped to the appellants by the respondents. As the
latter did not receive payment for them, they took out a specially endorsed
writ against the appellant company. It was endorsed as follows: “The
plaintiff’s claim is for N¢72,550.77 (seventy two thousand five hundred and
fifty new cedis, seventy-seven new pesewas) being the price of goods sold and
delivered to the defendant company at its request.” The writ was taken out on 3
July 1969. The appellant company entered appearance to the writ on 29 July
1969. On 4 September 1969, the respondent company acting under rules 1 and 2 of
Order 14 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A),
sought leave to enter judgment against the appellants. In compliance or purported
compliance with Order 14, r. 1, the late Mr. J.N. Heward-Mills, who was he
solicitor to the respondent company, swore to an affidavit in which he deposed
to his belief that the appellant company had no defence to the action. The
appellants by their managing director, a Robert Okine Aryeetey, filed an
affidavit in opposition and in paragraph (2) deposed that: “That the only
amount the defendant company admits owing to the plaintiffs is N¢12,792.08 but
the plaintiffs owe the defendants a much bigger amount for which the defendants
intend to counterclaim.” In due course, the defendant company sought and
obtained leave to counterclaim for the sum of N¢200,000 being unliquidated
damages for “breach of promise.”<o:p></o:p><o:p>&nbsp;</o:p>When the
summons came for hearing before the court (Coussey J.), the respondent company,
by their counsel, pressed for leave to sign judgment for the sum claimed on the
ground that no valid defence was disclosed by the appellant company’s affidavit
or in the alternative, for the amount admitted in paragraph (2) of the
affidavit. For the appellants, it was urged that as there was a counterclaim
for an amount larger than the sum claimed in the writ, there was no right to
immediate judgment for the amount admitted.<o:p></o:p><o:p>&nbsp;</o:p>The court
did not accept the defendant company’s submission. It considered that the
respondent company were entitled to sign judgment immediately for the amount
admitted, irrespective of the pendency of the counterclaim and proceeded to
give judgment for that amount with costs. It also entered judgment for the
amount disputed, but stayed execution until the hearing and determination of
the counterclaim which the court thought “is plausible.”<o:p></o:p><o:p>&nbsp;</o:p>The
appellant company dispute the correctness of the judgment by this appeal.
Counsel for the appellants referred us to some of the exhibits and contended
that they show that the respondent company were in breach of contract and were
liable in damages to the appellants. We express no opinion on the merits of the
counterclaim and say no more than that there is a chance of it succeeding. We
think, like the judge, that that claim was at least plausible. But the question
of substance raised by this contention is whether the judge was right in giving
judgment to the respondents for the amount admitted inasmuch as there was a
counterclaim for a larger amount. In so far as the procedure rules of the High
Court shed any light on this matter, it would seem that Order 21, r. 16 does so
albeit obliquely. It reads: [His lordship here read the provisions of the rule as
set out in the headnote and continued:]<o:p></o:p><o:p>&nbsp;</o:p>It seems
plain from the facts that the appellants’ counterclaim was raised as a defence
to the respondents’ claim. That claim cannot be held established unless it is
determined on the merits by the usual adduction of evidence. The rule also
empowers the</main>