NAJAT METAL ENTERPRISES LIMITED. vs. HANSON AND ANOTHER [1980]DLHC2159

Date	1980-11-14
Suit No.
Citation No.	[1980]DLHC2159

CECILIA KORANTENG-ADDOW J.

ALHAJI KWAW-SWANZY FOR THE PLAINTIFF.

GLORIA MINTA (MRS.) STATE ATTORNEY FOR THE DEFENDANTS.

[1980]DLHC2159
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													<main id="main" class="content" style="min-height: 60rem" >NAJAT METAL ENTERPRISES LIMITED. <o:p></o:p>vs. <o:p></o:p>HANSON AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 81<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 NOVEMBER
1980<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">

ALHAJI KWAW-SWANZY FOR THE PLAINTIFF. <o:p></o:p>

GLORIA MINTA (MRS.), STATE ATTORNEY, FOR THE
DEFENDANTS.<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 1.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The
plaintiff-company seeks a declaration that it has never been confiscated to the
State. It is not challenging the authority which caused the confiscation, but
it is saying that the company which was confiscated to the State is not the
same as the plaintiff-company.<o:p></o:p>It is the
defendants’ case that in September, 1979, the Armed Forces Revolutionary
Council directed the second defendant, Management Development and Productivity
Institute (MDPI), to re-organise the Aschkar and Dakmak group of companies.
Pursuant to this directive, the Armed Forces Revolutionary Council by a letter
dated 23 September 1979, addressed to the Commissioner of Industries, directed
that certain companies including “Najat Company” should become part of the
National Industrial Company. Since this is the letter upon which the whole
defence turns, it will be necessary to quote the whole letter which reads:<o:p></o:p>“A.F.R.C
/IND/Vol.1 23 September, 1979. TRANSFER OF FIVE COMPANIES TO NATIONAL INDUSTRIAL
COMPANY Following the A.F.R.C ‘s directive that the Management Development and
Productivity Institute should re-organise the Aschkar and Dakmak group of
companies into a National Industrial Company (NIC) the Council has decided that
the following companies: (a) Textiles Trico Manufacturing Company (b) Nsawam
Foam (c) City Commercial (d) City Auto Parts Supplies (e) Najat company
originally to have been taken over by the Ministry of Industries should also
become part of the National Industrial Company. This supersedes A.F.R.C.
directive of effective date 13 August, 1979. The office of the Attorney-General
is by a copy of this directive hereby directed to reconcile the various Decrees
affecting the following groups, i.e., GIHOC, Aschkar, Dakmak and the above to
reflect the present position. (Sgd.) Flt.-Lt. J.J. Rawlings CHAIRMAN, A.F.R.C.
The Commissioner for Industries, Ministry of Industries, Accra. cc: Management
Development &amp; Productivity Institute. Attorney-General. Principal
Secretary, AFRC Secretariat, The Castle, Osu.”<o:p></o:p><o:p>&nbsp;</o:p>All the
companies mentioned in the letter except Najat Company had been taken over by
the Transfer of Shares and Other Proprietary Interests (Specified Companies)
Decree, 1979 (AFRCD 15). “Najat Company” was not confiscated by any Decree, it
was done by executive action. But there is no dispute about that; whether the
takeover was by legislation or executive action, it would equally be an act of
the A.F.R.C.<o:p></o:p><o:p>&nbsp;</o:p>The only
issue is whether the Najat Company which was confiscated is the same as the
Najat Metal Enterprises Ltd. The defendants caused a search to be made at the
Registrar-General’s Department and the result shows that there was no Najat
Company, the nearest to that name is the plaintiff-company. There is no other
company registered in the country whose name is even similar to the name “Najat
Company” except the plaintiff. The people who were directed to take over the
company never had any doubt about the identity of the company they were to take
over.<o:p></o:p><o:p>&nbsp;</o:p>They
entertained no doubt that “Najat Company” was the same as Najat Metal
Enterprises Ltd. They were to take over Dakmak group of companies. The searches
made at the office of the Registrar of Companies showed that Fouad Dakmak was a
director and Wassef S. Dakmak was a director up to 1 August 1978. It seems
quite clear to me that the plaintiff was intended but obviously a mistake has
been made. If the mistake is a mere misnomer, then I would say that the
plaintiff has no cause to complain but if the mistake is such that it raises
doubts about the identity of the company intended the name “Najat Company”
cannot be construed to refer to the plaintiff’s company.<o:p></o:p><o:p>&nbsp;</o:p>I have
not been referred to any authority bearing directly upon the question, and I
have not found any in my own research. However, I have been referred to cases
on misdescription of parties in a suit by counsel for the defendants, viz
Davies v. Elsby Brothers Ltd. [1961] 1 W.L.R. 170, C.A. and Whittam v. W.J.
Daniel &amp; Co., Ltd. [1962] 1 Q.B. 271, C.A. In each of these cases it was
held that where the defendant is not accurately described in a wri</main>