COMMODORE TEXTILE MILLS LTD. vs. BARCLAYS BANK GHANA LTD. [1976]DLHC376

Date	1976-06-24
Suit No.
Citation No.	[1976]DLHC376

EDUSEI J.

ATE PUPLAMPU FOR THE APPLICANTS.

P. A. ADIETEY FOR THE RESPONDENTS.

[1976]DLHC376
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													<main id="main" class="content" style="min-height: 60rem" >COMMODORE TEXTILE MILLS LTD.<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;BARCLAYS BANK GHANA LTD.<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 415<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:
24 JUNE 1976.<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">

ATE PUPLAMPU FOR THE APPLICANTS.<o:p></o:p>

P. A. ADIETEY 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">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>There are
two applications by the defendants asking, that the order of Aboagye J. dated
31 July 1975 be discharged and also that this court do permit the defendants to
sell the raw materials in their possession and to credit the overdrawn account
of the plaintiffs with the defendants, with the proceeds thereof. The
plaintiffs have opposed both applications.<o:p></o:p><o:p>&nbsp;</o:p>As
regards the application to discharge the order of Aboagye J., the substance of
Mr. Adjetey’s arguments against it is that this court presided over by me has
no jurisdiction to discharge the order made by Aboagye J. since such an order
would be tantamount to reviewing the order of Aboagye J. The contention of the
defendants’ counsel is that an application to discharge an order by another
judge is not a review within the meaning of Order 39 of the High Court (Civil
Procedure) Rules, 1954 (L. N. 140A), but is in a sense a fresh application to
be considered on the facts now available.<o:p></o:p><o:p>&nbsp;</o:p>However,
I think it is necessary for the proper understanding of the ruling about to be
delivered to give a résumé of the facts in this case. The plaintiffs were
provided with some financial assistance by the defendants for the importation
of raw materials. The plaintiffs say that the defendants agreed to release the
raw materials to them for the manufacture of their goods and payment to be made
from time to time when the manufactured goods were sold. The defendants assert
the contrary and say that the plaintiffs signed a document to make good the
amount used for the opening of the letters of credit on their behalf when the
goods arrived and that they have failed to pay the said amount. These raw
materials are in the possession of the defendants who also hold the shipping
documents in respect of those which I refer to as the first lot. The defendants
have refused to release the lot to the plaintiffs for their failure to make
payment of the overdraft facilities for the opening of letters of credit for
them.<o:p></o:p><o:p>&nbsp;</o:p>As
regards the second lot of the raw materials they were originally in the custody
of Umarco for the plaintiffs and the defendants assert that in view of the
plaintiffs’ indebtedness to the said Umarco who were bent on going into
execution against them, they were transferred to the defendants as security
when the defendants paid off Umarco. According to the defendants this was done
with the plaintiffs’ consent. The plaintiffs, by their counsel’s arguments
however, deny this statement but in their statement of claim as well as in
their opposing affidavit they do not make it clear how the second lot of the
raw materials came into the possession of the defendants and the clear averment
in the defendants’ affidavit that the second lot of the raw materials came into
their possession with the consent of the plaintiffs stands unchallenged.
Aboagye J., however, on application, ordered on 31 July 1975 that the raw
materials should be sold to the plaintiffs but the plaintiffs have been unable
to raise the necessary amount to pay for them, and, according to the
defendants, the raw materials in the form of embroidery thread and spun rayon
are fast deteriorating and this averment has not been denied by the plaintiffs
in their opposing affidavit.<o:p></o:p><o:p>&nbsp;</o:p>The
important matters for me to consider are: (a) whether I can discharge the order
of Aboagye J., and (b) order a sale of the raw materials. Counsel for the
defendants contends that I can discharge the order of Aboagye J. of 31 July
1975 in these circumstances and he referred me to the case of Tejani v.
Official Receiver [1963] 1 W.L.R. 59, P.C. where Bennett J. made an order that
four certain directors of a company should attend for public examination as to
the conduct of the business of the company and as to their conduct and dealings
as directors. At a subsequent date a motion by the four directors, namely, the
two Tejanis, A. S. Kaba and H. J. Ismail, to discharge the order of Bennett J.
was dismissed by Sheridan J. On appeal to the Court of Appeal for Eastern
Africa the appeals of the Tejanis and Kaba were dismissed but the appeal of
Ismail was allowed. It does seem to me therefore that the application before
Sheridan J. to discharge the order of Bennett J. was dismissed by him on the
merits and not on t</main>