AMPOFO vs. FIORINI [1980]DLHC1556

Date	1980-11-19
Suit No.
Citation No.	[1980]DLHC1556

ANSAH-TWUM J.

T. TSIKATA FOR THE PLAINTIFF.

JAMES MERCER FOR THE DEFENDANT.

[1980]DLHC1556
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													<main id="main" class="content" style="min-height: 60rem" >AMPOFO <o:p></o:p>vs. <o:p></o:p>FIORINI<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1980] GLR 829<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:
19
NOVEMBER 1981<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">

T. TSIKATA FOR THE PLAINTIFF.<o:p></o:p>

JAMES MERCER FOR THE DEFENDANT.<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">

ANSAH-TWUM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANSAH-TWUM J.<o:p></o:p>The
plaintiff, as per his writ of summons filed on 12 February 1979, claims against
the defendant herein:<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">“damages
for breach of a written agreement dated 1 August 1973 and made between the
plaintiff and the defendant, and under which the defendant promised and
undertook to cause to be paid to the plaintiff annually thirty-five per centum
(35%) of the net profits of certain limited liability companies.”<o:p></o:p><o:p>&nbsp;</o:p>Since the
plaintiff’s amended statement of claim filed on 4 November 1980 explains
further the claim against the defendant, I do hereunder set out in extenso some
of the paragraphs for that purpose:<o:p></o:p>“(1)
[The] plaintiff is a retired government official formerly in the service of the
Forestry Department of Ghana, and [the] defendant is an Italian businessman
engaged in the timber industry and business in Ghana. (2) Between the months of
February and August 1973 [the] plaintiff and [the] defendant discussed together
the possibility of going into business together in [the] timber industry. (3)
As a result of the said discussions, it was agreed between [the] plaintiff and
[the] defendant that [the] defendant should take such steps as his limited
resources would permit towards establishing a timber business immediately with
all the help and assistance that the plaintiff could supply without
contravening any of the terms of his employment as a government official. (6)
In yet further pursuance of the said agreement [the] plaintiff negotiated the
assignment of a timber concession of about 30 square miles near Wassa-Nkrang by
Messrs. J. W. Frans &amp; Co. Ltd., to [the] defendant in or about July 1973.
(7) In pursuance of the said agreement, and for the purpose of protecting the
plaintiff’s interest in the business that [the] defendant was then establishing
with [the] plaintiff’s help, as above particularised [the] plaintiff and [the]
defendant executed a written agreement dated 1 August 1973, whereby [the]
defendant undertook to pay over to [the] plaintiff every year a sum equal to
thirty-five per centum (35%) of the net profits of any company formed by the
defendant. (8) [The] defendant has since the said agreement came into force,
formed and established three companies, namely, Ivo Fiorini Ltd., Kuofie Timber
Agency Ltd., and Subin<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Timbers
Co. Ltd., through all of which the defendant has engaged in the timber and
saw-milling business at profit, but has failed to pay over to plaintiff the
promised percentage of profits or any other sum at all. (9) WHEREFORE [the]
plaintiff’s claim is for:<o:p></o:p>(a) An
account of the net profits earned by Ivo Fiorini Ltd. since 1 August 1973. (b)
An account of net profits earned by Subin Timbers Co., Ltd. since 1 August
1973. (c) An account of net profits earned by Kuofie Timber Agency Ltd. since 1
August 1973. (d) Specific performance of the agreement above- mentioned of 1
August 1973, and (e) Damages in lieu of such performance. (f) Alternatively,
damages for unlawful interference with the contractual arrangement between the defendant
and the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>In answer
to the plaintiff’s said statement of claim, part of which has been quoted in
extenso (supra), the defendant has pleaded, among other things, in his amended
statement of defence filed on 25 March 1981 that:<o:p></o:p>“(2A) The
defendant avers further and in any case</main>