EVANSPENNY INDUSTRIES CO LTD AND ANOTHER vs. TECHNO-CHEM ASSOCIATES (GH) LTD [1993]DLCA4327

Date	1993-06-17
Suit No.
Citation No.	[1993]DLCA4327

LAMPTEY JA

ADJABENG JA

LUTTERODT JA

KWAKU BAAH WITH HIM CHARLES OFORI FOR THE APPLICANTS.

SAMMY ADDO FOR THE RESPONDENT.

[1993]DLCA4327
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													<main id="main" class="content" style="min-height: 60rem" >EVANSPENNY INDUSTRIES CO
LTD AND ANOTHER<o:p></o:p>vs.<o:p></o:p>TECHNO-CHEM ASSOCIATES
(GH) LTD<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93] 2 G B R 802 – 813&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
17 JUNE 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAKU
BAAH, WITH HIM, CHARLES OFORI, FOR THE APPLICANTS.<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">

SAMMY
ADDO FOR THE RESPONDENT.<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">

LAMPTEY
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT
JA. On 3 March 1992 the plaintiff-company took out a writ of summons against
the two defendants jointly and severally for the following reliefs:<o:p></o:p>“(a)&nbsp;&nbsp;
The sum of ¢54,500,000, the equivalent of 136,250 US dollars at the rate
of ¢400 to $1 as at 24 September 1991, being the value of 5,000 cartons of
pilchards in tomato sauce which the plaintiffs imported for the defendants.<o:p></o:p>(b)&nbsp;&nbsp;
The sum of ¢2,000,000 offered by the defendants in lieu of insurance
guarantee bond.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;
The sum of ¢20,000,000 raised by the plaintiffs at the request of the
defendants for the customs duties and other expenses involved in the clearance,
transportation and warehousing of the goods plus the agreed Servicing Charge of
5% per month from December 1991 to the date of final payment.<o:p></o:p>(d)&nbsp;&nbsp;
The sum of ¢6,812,500 being the fall in the cedi value to the dollar in
respect of the same $136,250 as at 29 February 1992.<o:p></o:p>(e)&nbsp;&nbsp;
Interest at the current bank rate on reliefs a, b, and d from 18
February 1992 to the date of final payment.<o:p></o:p>(f)&nbsp;&nbsp;&nbsp;&nbsp;
Order to enforce … the agreement.<o:p></o:p>(g)&nbsp;&nbsp;&nbsp;
The sum of ¢10,000,000 general damages for loss of business, finance,
integrity and breach of contract.”<o:p></o:p>It
was not until 19 November 1992 that the defences to the action were filed. They
denied liability to the claim.<o:p></o:p>The
2nd defendant deserves particular mention. It was alleged of him in paragraph
11 of the plaintiffs’ statement of claim that:<o:p></o:p>“The 2nd defendant further gave
promises and guaranteed to satisfy the contract obligation of the 1st
defendants through the disposal of his assets in addition to the 1st
defendants’ security registered as AR 5875-75 should the need arise.”<o:p></o:p>His
reaction, as is contained in the statement of defence, reads:<o:p></o:p>10.&nbsp;&nbsp;&nbsp; Save that 2nd defendant registered AR
5875-75 defendant denies paragraph 11 of the statement of claim.<o:p></o:p>By
a motion for judgment brought under Order 25 rule 4, the plaintiffs succeeded
in obtaining judgment for part of the reliefs they had sought. The defendants
being greatly dissatisfied with the summary manner in which the case was
disposed of promptly appealed to this court on a number of grounds. They
followed this up with the instant application by which they pray this
honourable court to suspend the execution of the judgment obtained.<o:p></o:p>I
have no doubt in my mind, after listening to the argument on both sides that
the appeal raises important questions of law.<o:p></o:p>The
most important is this. The application for judgment was brought under Order 25
rule 4. Fortunately the arguments for both sides were exhibited in this
application and we can therefore say with certainty that at no stage of the
proceedings did the plaintiffs say they were additionally or in the alternative
invoking the inherent jurisdiction of the court. At the hearing of the motion,
however, the judge took it upon himself to determine the matter not in
accordance with Order 25 rule 4 but acting under the powers conferred on him by
the court’s inherent jurisdiction. His decision was therefore based purely or
solely on extrinsic evidence; the affidavit in support of the application
together with its annexures.<o:p></o:p>He
concluded thus:<o:p></o:p>“The affidavit in this instance, taken
together with the documents attached to it convinces me that the defendants
after the issue of the writ and after appearance had been entered on their
behalf admitted liability in respect of the plaintiffs’ claim and made payments
which took care of a substantial portion of the plaintiffs’ claim. I therefore
see the defence which was filed on 19 November 1992 in response to the
plaintiffs’ statement of claim as a desperate effort calculated to delay
justice in the case and therefore not in good faith.”<o:p></o:p>It
seems to me therefore that one of the most serious questions which would engage
the appellate court’s attention at the hearing of the substantive appeal would
be whether in an application brought under Order 25 rule 4, a court could suo
motu invoke its inherent jurisdiction and so have recourse to extrinsic
evidence and award judgment on the basis of such evidence. I am therefore
satisfied that the appeal is not frivolous. Beyond this, I would not make any
definite pronouncements on the correctness or otherwise of the learned trial judge’s
decision.<o:p></o:p>