ASAHIN INDUSTRIES LTD. vs. KOFIFOH BOATBUILDING CO. LTD. [1986]DLCA842

Date	1986-03-04
Suit No.
Citation No.	[1986]DLCA842

FRANCOIS J.S.C.

EDWARD WIREDU JA

OSEI-HWERE J.A.

DR DANIELS (WITH HIM KWESI SPIO) FOR THE APPLICANTS.

AYISI FOR THE RESPONDENTS.

[1986]DLCA842
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ASAHIN INDUSTRIES LTD. <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 453<o:p></o:p>

DATE:
4 MARCH 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

DR DANIELS (WITH HIM KWESI SPIO) 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 1.0pt 0in">

FRANCOIS J.S.C., EDWARD WIREDU AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>Francois
J.S.C. delivered the ruling of the court. The defendant-applicants move for a
stay of execution “of the order made by the High Court that a 50-footer fishing
vessel be delivered to the plaintiff-respondents on or before 31 December
1985.” The facts averred in support of the application disclose an original
agreement between the parties whereby the applicants would build a 50-footer
fishing vessel for the respondents at the price of ¢458,150. It appears that by
31 August 1979, the respondents had made deposits totalling ¢358,150 for the
said boat. Apparently the difference of ¢100,000 unpaid, represented fishing
tackle that could either be supplied and paid for later or dispensed with altogether.
By 28 August 1984, a period of about five years, the applicants had not
discharged their part of the obligation to supply the fishing vessel, so the
respondent sued for recovery of their deposit of ¢358,150, with interest on the
said sum, and ¢10 million damages.<o:p></o:p><o:p>&nbsp;</o:p>Moves to
settle the dispute were initiated, the applicants engaging counsel to promote
their interest. The net result was an agreement embodied in a settlement dated
14 December 1984, and entered as a judgment of the court below which is recapitulated
hereunder as follows:<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">“TERMS OF SETTLEMENT The parties have
agreed to settle the above-named suit as follows: <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">1. The
defendants should complete and deliver to the plaintiffs a 50-footer fishing
vessel within six (6) months from 1 January 1985. 2. The said 50-footer fishing
vessel should be delivered to the plaintiffs by the defendants at Tema Harbour
on or before 30 June 1985. 3. The plaintiffs shall be at liberty either by
themselves or their agents to visit the workshop of the defendants to view the
condition or progress of the work on the 50-footer fishing vessel. 4. The
defendants shall pay to the plaintiffs or their counsel ¢50,000 as costs on or
before the execution of these presents. 5. These terms of settlement shall be
recorded as judgment of the court. Dated at Accra, 14 December 1984.”<o:p></o:p><o:p>&nbsp;</o:p>When the
last day of June 1985 slipped by without a 50-footer fishing vessel being
supplied, the respondents brought contempt proceedings against the applicants
herein. We do not wish to pronounce on the merits of the recourse adopted; this
would be purely academic as the application in any case failed. It is
significant, however, to observe that the applicants contended there and have
repeated those arguments forcefully before us that (1) they were not aware of
the consent judgment (see paragraph 16 of their affidavit); (2) the settlement
did not include all the terms agreed upon; and (3) counsel for the applicants
in accepting the terms was either indolent or negligent in not protecting their
principals’ interests.<o:p></o:p><o:p>&nbsp;</o:p>As to the
first ground pleading ignorance of a settlement or of the consent judgment the
less said about it the better. Where parties are attempting a compromise and in
pursuit of that objective have obtained an adjournment of the trial of a suit
and nominated counsel to protect their interests at an arbitration, it is
ridiculous to urge an unawareness of the result of that attempt at settlement.
If true, it shows a lamentable lack of interest that can hardly advance the
applicants’ cause. But the terms of settlement were signed by the managing
directors of the respective firms, the parties herein, as well as their
solicitors. Again a letter, exhibit F, from the respondents reminding the
applicants of their obligation under the settlement and demanding
implementation thereof had drawn no response. Finally the record of the court
below shows that a representative of the defendants, the applicants herein, not
counsel, had been present and had confirmed the settlement before judgment was
given there</main>