SHIRLSTAR CONTAINER TRANSPORT LTD vs. KADAS SHIPPING CO. LTD. AND OTHER [1986]DLHC682

Date	1986-12-16
Suit No.
Citation No.	[1986]DLHC682

LAMPTEY J.

OSAFO BUABENG FOR THE PLAINTIFFS.

D. D. LAMPTEY FOR THE FIRST AND SECOND DEFENDANTS.

E. S. AIDOO FOR THE THIRD FOURTH AND FIFTH DEFENDANTS.

[1986]DLHC682
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													<main id="main" class="content" style="min-height: 60rem" >SHIRLSTAR CONTAINER TRANSPORT LTD <o:p></o:p>vs.<o:p></o:p>KADAS SHIPPING CO. LTD. AND OTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 401<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:
16
DECEMBER 1986<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">

OSAFO BUABENG FOR THE PLAINTIFFS.<o:p></o:p>

D. D. LAMPTEY FOR THE FIRST AND SECOND DEFENDANTS.<o:p></o:p>

E. S. AIDOO FOR THE THIRD, FOURTH AND FIFTH
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 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.<o:p></o:p>On 4
September 1986 Opanin Osafo Buabeng, counsel for the plaintiff-applicant, filed
an ex parte motion <o:p></o:p>“praying
for leave to serve [the writ of summons] on the third, fourth and fifth
defendants in the above stated suit outside the jurisdiction of this court as
per the grounds set forth in the affidavit attached hereto . . .”<o:p></o:p><o:p>&nbsp;</o:p>On that
same date, i.e. 4 September 1986, Opanin Osafo Buabeng filed an ex parte motion
and in that application sought an order of interim injunction “restraining the
third, fourth and fifth defendants their agents, e.t.c. from removing and or
shipping or transferring any one of the containers belonging to the third,
fourth and fifth defendants already stacked at and, or coming to the Port of
Tema outside the jurisdiction of this court on the grounds set forth in the
affidavit attached hereto . . .”<o:p></o:p><o:p>&nbsp;</o:p>The
application seeking leave to serve the writ of summons on the three defendants
out of the jurisdiction came on for hearing before Brobbey J. on 8 September
1986. Brobbey J. made the following order: “application to serve writ of
summons and the statement of claim outside the jurisdiction is hereby granted.”<o:p></o:p>Mr. E. S.
Aidoo, the solicitor for the defendants, entered conditional appearance for and
on behalf of the third, fourth and fifth defendants and applied to have the
service of the writ of summons on the said three defendants set aside. The
reasons in support of this application were contained in an affidavit sworn to
by the said Mr. Aidoo. In due course a comprehensive supplementary affidavit
sworn to by the third defendant, Victor G. Alexander, was filed to support the
application to set aside the service of the writ of summons on the three
defendants. The reasons in support of the application were stated at paragraphs
5-12 of Mr. Aidoo’s affidavit as follows:<o:p></o:p>“5. That
I am advised and verily believe the same to be correct that this honourable
court which made the order for service of the writ outside the jurisdiction was
misled into making the same. 6. That this honourable court did not have
jurisdiction under the relevant rules of court to make the order to serve the
writ outside the jurisdiction. 7. That, in addition, the said writ does not
show any cause of action, especially as against the third and fourth defendants
herein. 8. That the defendants are not resident nor do they do business in
Ghana. 9. That contrary to what is alleged in paragraph 13 of the statement of
claim herein, there was no agreement to make any payments as stated. 10. That
to the knowledge of the plaintiff herein, proceedings have been going on in
England in which the plaintiff as a party there to was served at all stages
with the due processes and the plaintiff did not defend that action. 11. That
as a result judgment for damages to be assessed has been obtained against the
plaintiff, as it admits itself in paragraph 16 of the statement of claim
herein. 12. That it is therefore clear that this whole action has been
commenced not bona fide but with the intention of embarrassing the applicants
herein and delaying the conclusion of the action now pending in England.”<o:p></o:p>There was
further evidence in support of the application provided by the affidavit of the
third defendant. The relevant paragraphs are these:<o:p></o:p>“7.
During the summer of 1984 Shirlstar negotiated with the second defendant and
requested that he should help to repatriate those stranded containers. 8. In
early June 1984 Shirlstar also discussed the recovery of the cont</main>