VAL CAP MARKETING vs. THE OWNERS OF M V VINTA [1999]DLCA6765

Date	1999-03-30
Suit No.	CIVIL APPEAL NO. 27/98.
Citation No.	[1999]DLCA6765

LAMPTEY JA. (PRESIDING)

WOOD (MRS.) J A.

BROBBEY J A

ESHIM FOR AMARKAI AMARTEIFIO FOR APPELLANTS.

AMERTEIFIO STARLEY FOR RESPONDENT.

[1999]DLCA6765
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													<main id="main" class="content" style="min-height: 60rem" >VAL CAP
MARKETING<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>THE OWNERS
OF M V VINTA<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. 27/98.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 30TH MARCH, 1999.<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>ESHIM FOR AMARKAI AMARTEIFIO FOR APPELLANTS.
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">AMERTEIFIO STARLEY FOR
RESPONDENT. <o:p></o:p>

LAMPTEY JA. (PRESIDING), WOOD (MRS.) J
A., BROBBEY J A<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>LAMPTEY, JA: <o:p></o:p>On
12th August 1993, Solicitors acting for Val Cap Marketing took out a writ of
summons in the High Court, Accra against the Owners of M/V Vinta and claimed
against the owners the reliefs endorsed on the writ of summons. The address Val
Cap provided for service of process on the Owners was stated as "Port of
Tema Ghana". At the time of filing the writ of summons the solicitors for
Val Cap filed a motion ex-parte supported by affidavit by which Val Cap sought
an order for a warrant for the arrest of the vessel M/V Vinta. By their action
Val Cap claimed as follows:— <o:p></o:p>"The sum of US. $70,543.82 being
principal and interest as at 10th August 1993 being the cost of 300.02 metric
tonnes of intermediate fuel oil sold and delivered to the defendants" <o:p></o:p>The
writ of summons and the statement of claim were served on one Captain Praveen
Malham on 13th September 1993 at Tema Harbour. Solicitors acting for the Owners
filed a statement of defence by which the Owners challenged and disputed the
capacity of Val Cap to sue them. In the statement of defence the owners pleaded
that they had not entered into any contract with Val Cap: <o:p></o:p>"for the sale and delivery of
fuel oil and further that there was no such contract between the parties and
that the action was statute-barred." <o:p></o:p>In
the circumstances the solicitors of the Owners filed a motion on notice
pursuant to Q. 25 rr 2, 3 &amp; 4 and also invoked the inherent jurisdiction of
the court to dismiss the action of Val Cap. The application was supported by an
affidavit to which was annexed a "book" running into 284 pages and
labelled "affidavit of Robert S. Delange ". As was to be expected,
Val Cap filed an affidavit in opposition against the dismissal of its action.
The trial court heard the application on its merits. It dismissed the application
of the Owners and entered judgment for Val Cap for the amount endorsed on the
writ of summons. The Owners were aggrieved by the judgment and appealed to this
court. <o:p></o:p>I
must confess that this appeal caused me great deal of anxiety hence we called upon
counsel for Val Cap to argue as a preliminary issue of law the procedure
followed by the trial court, in particular, whether or not the trial judge was
right in law when he entered judgment for Val Cap at that stage of the
proceedings. In his written statement of case on the above issue, counsel for
Val Cap questioned the authority of this court to place such a burden and
obligation on him since he was counsel for the respondent, Val Cap. In answer
to the query of counsel for Val Cap, my short answer is that an appeal is a
re-hearing of the case on appeal on the merits. I further refer to and rely on
Rule 32 (1) &amp; (2) of C.I. 19. This rule provides:— <o:p></o:p>(1)&nbsp;&nbsp; "2 The powers of the Court may be
exercised not withstanding that the appellant may have asked that part only of
a decision be reversed . . . And may also be exercised in favour of all or any
of the respondents or parties although they have not appealed from or
complained of the decision" <o:p></o:p>In
my opinion, the Rule gives to the appellate court power, suo moto, to invite
counsel's opinion on the appropriate law and rules of court, if and when the
circumstances of the particular case demanded that the appellate court
intervened in the proceedings. Thus in the case of In Re Cole (Dec) Codjoe v.
Cole (1977) 2 GLR 305 at 308, Archer JA. (as he then was) in the course of his
judgment applied that rule as the following passage demonstrated and
illustrated:— <o:p></o:p>