GHANA COMMERCIAL BANK vs. TABURY [1977]DLHC1315

Date	1977-01-14
Suit No.
Citation No.	[1977]DLHC1315

SARKODEE J.

E. DAWSON FOR THE APPLICANTS.

ESSIEM (ASSABERE WITH HIM) FOR THE RESPONDENT.

[1977]DLHC1315
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													<main id="main" class="content" style="min-height: 60rem" >GHANA COMMERCIAL BANK <o:p></o:p>vs. <o:p></o:p>TABURY <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1977] 1 GLR 329<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:
14 JANUARY
1977<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">

E. DAWSON FOR THE APPLICANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>This is
an application by motion on notice asking for an order to set aside a default
judgment delivered by this court on 26 November 1976. The plaintiff, by his
writ dated 26 October 1976, claimed against the defendants recovery of 339 bags
of salted fish or its value and damages for wrongfully seizing or causing the
said fish to be seized. The defendants had failed to release the fish after
repeated demands.<o:p></o:p><o:p>&nbsp;</o:p>Subsequently
the plaintiff amended the endorsement and the statement of claim by adding
damages for wrongful imprisonment.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, a dealer in fish, is based in Senegal. The defendants are a
financial institution and at the time of the action employed a manager at the
Sekondi branch of the bank as their agent or servant who at all material times
acted for and on behalf of the defendants. The plaintiff shares a warehouse
(storage facilities) at house No. 37/9, Fifth Street, Sekondi, with two
sisters, Ekua Manang and Ama Atta, both of whom are fishmongers and customers
of the plaintiff from whom they buy fish on credit. On 9 September 1976, the
plaintiff imported to Sekondi 1,120 bags of salted fish which he stored at the
warehouse. Ama Atta bought 530 bags and one Mary Diego bought 400 bags.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Ama Atta,
a customer of the defendants, had taken a loan from the bank through their
Sekondi branch. She was unable to pay the instalments. The plaintiff on the
other hand was not a customer of the bank and apart from the circumstances
leading up to this case had no dealings whatsoever with the bank. When Ama Atta
could not repay the loans, the defendants with the assistance of five soldiers
from Apremdu Army Barracks led by a major seized a quantity of fish in the
warehouse by getting the soldiers to lock it up and take the key to the
barracks. The quantity seized included 339 bags which Mary Diego had returned
to the house when she could not pay for them and which therefore belonged to
the plaintiff. The plaintiff protested and told the soldiers he did not owe the
bank and that he was at the time expecting a customer from Kumasi who was on
his way to buy the fish. The soldiers paid no heed to the plaintiff but locked
up all the fish in the warehouse till it got rotten. As if that was not enough,
the plaintiff and the two sisters were taken on an Army truck to Apremdu
Barracks where they were detained. When asked to, they refused to make
statements. The plaintiff pleaded with the soldiers but they told him as the
two women had refused to make statements they had seized all the fish in the
warehouse since the warehouse belonged to the two sisters. The major had
explained to the plaintiff that he had instructions following a complaint made
by the branch manager of the bank to arrest all those who owed the bank.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, after his release, caused a writ to be issued. The soldiers were not
made parties to this action and the less said about them the better. The
defendants were served with the writ of summons together with the statement of
claim on 8 November 1976 and the statement of claim as amended together with
the notice of amendment were served on the defendants on 11 November 1976. The
defendants failed to enter appearance and the plaintiff on 24 November 1976
filed an application for interlocutory judgment. This was granted. The
plaintiff gave evidence, the value of the fish was assessed and damages awarded
to the plaintiff on 26 November 1976.<o:p></o:p><o:p>&nbsp;</o:p>On 3
December 1976 the defendants applied for an order setting aside the default
judgment on the ground that the writ and the statement of claim were not served
on them. The area manager of the defendants in an affidavit in support of the
applica</main>