GHANA NATIONAL TRADING CORPORATION vs. S.S. PACIFIC CURRENT AND OTHERS [1976]DLHC390

Date	1976-04-30
Suit No.
Citation No.	[1976]DLHC390

CECILIA KORANTENG-ADDOW AG.J.

J. A. ARYITEY FOR THE APPLICANT.

E. S. AIDOO FOR THE RESPONDENTS.

[1976]DLHC390
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													<main id="main" class="content" style="min-height: 60rem" >GHANA NATIONAL TRADING CORPORATION <o:p></o:p>vs. <o:p></o:p>S.S. PACIFIC CURRENT AND OTHERS<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 2 GLR 321<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:
30 APRIL 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">

J. A. ARYITEY FOR THE APPLICANT.<o:p></o:p>

E. S. AIDOO 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">

CECILIA KORANTENG-ADDOW AG.J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA
KORANTENG-ADDOW AG.J.<o:p></o:p>This is
an application for an order to restrain the ship, S.S. Pacific Current and her
master and crew from sailing out of the territorial waters of Ghana pending the
final determination of a suit brought against the master of the vessel by the
applicant corporation (hereafter called the applicants). The claim is for
$500,000.00 damages for damage caused to sugar consigned with the ship as a
carrier to the applicants.<o:p></o:p><o:p>&nbsp;</o:p>The
grounds of the application as contained in the affidavit in support of the
motion is that if the ship is allowed to sail away the sum of $500,000.00
(United States dollars) will be lost to the Ghana National Trading Corporation.
In elaborating on this, counsel for the applicants said he entertained some
fears that if the vessel leaves the Ghana territorial waters, the master may
not come to defend the claim and if the applicants obtained a judgment on their
own evidence, unchallenged by the respondents, such a judgment will be a
defaulting one and the applicants will have difficulties in enforcing the
judgment against the respondents outside Ghana. Counsel for the applicants also
referred to the bill of lading, clause (3), and argued that since clause (3)
limited the jurisdiction of the court to adjudicate on any dispute arising from
the bill to the country where the respondents have their principal place of
business, he feared that if the master and the ship left the country and
judgment was obtained against them, the respondents may successfully raise clause
(3) against the enforceability of such a judgment.<o:p></o:p><o:p>&nbsp;</o:p>In reply
Mr. Aidoo, counsel for the respondents, relying on Halsbury’s Laws of England
(3rd ed.), Vol. 21, para. 766 submitted that to grant the injunction will
impose unnecessary hardship on the respondents and urged the court to consider
the balance of convenience to the parties and the injury which the respondents
would suffer if the injunction was granted and he should ultimately turn out to
be right, and that which the applicants on the other might sustain if the
injunction was refused and he should ultimately turn out to be right. It is the
respondents’ contention, that the ship owners have given a mandate to Lloyds
Bank of London to give the applicants a guarantee to secure a claim to the tune
of U.S. $450,000.00 which the competent court may find to be due to the
applicants.<o:p></o:p><o:p>&nbsp;</o:p>The fears
which the applicants entertain are, to some extent, genuine and I sympathise
with them. I also appreciate the dilemma in which the corporation is placed,
but no legal foundation has been shown for the application. The object of an
interim injunction is to preserve matters in status quo until the case be
tried. The High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 50, r. 1
upon which the application was based, itself reads:<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">“When by
any contract a prima facie case of liability is established, and there is
alleged as a matter of defence a right to be relieved wholly or partially from
such liability, the Court or a Judge may make an order for the preservation or
interim custody of the subject-matter of the litigation, or may order that the
amount in dispute be brought into Court or otherwise secured.”<o:p></o:p><o:p>&nbsp;</o:p>From my
understanding of the rule, the effect of such an injunction will be to preserve
the subject-matter of the litigation in an appropriate case or to provide
security for the amount claimed. The purport is not to restrain a defendant or
his property as a means of securing his attendance or as a means of forcing him
to contest the claim. The applicants have no rights against the ship they are
seeking to restrain; the ship is not the subject-matter of dispute in this
case. Even though it will be necessary to determine whether or not the ship was
seaworthy at the time it set sail, it does not give the applicants rights over
the ship. The applicants may have a claim against the owners but t</main>