MORKOR V KUMA (NO 1) [1999]DLSC450

Date	1999-05-19
Suit No.
Citation No.	[1999]DLSC450

EDWARD WIREDU JSC

KPEGAH JSC

ADJABENG JSC

ACQUAH JSC

AKUFFO JSC

OPOKU ADJEI (WITH HIM SOMUA-ASAMOAH) FOR THE APELLANT

S K B MATANAWUI FOR THE RESPONDENT

[1999]DLSC450
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MORKOR<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">V<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KUMA (NO 1)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 721<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 31.0pt 1.0pt 31.0pt">

</div><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

<p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">COUNSEL: <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">OPOKU ADJEI (WITH HIM SOMUA-ASAMOAH) FOR THE APELLANT

<p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">S K B MATANAWUI FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:EDWARD WIREDU,
KPEGAH, ADJABENG, ACQUAH AND AKUFFO JJSC___________________________________________________________________________________________________________________________JUDGMENT OF EDWARD WIREDU JSC.<o:p></o:p>I have had the privilege to read beforehand the able and learned
opinion about to be read by my sister Akuffo JSC. I agree with her reasons and
conclusion that the plaintiff’s action be dismissed and I have nothing more
useful to add.<o:p></o:p>JUDGMENT OF
AKUFFO JSC.<o:p></o:p>Pursuant to a sale agreement dated 22 May 1990 and made between
the respondent herein (acting as the agent for Faroe Sea Food of Faroe Island)
and East Coast Fisheries Ltd (hereinafter referred to as the first defendant),
400 metric tons of frozen fish, valued at $180,000, was supplied to the first
defendant. That the consignment was received is not in serious dispute.<o:p></o:p>The appellant, as a director, and another director witnessed the
execution of the agreement by the first defendant. In accordance with the
agreement, the first defendant paid a deposit of $16,000. The remaining
balance, being $171,000 was to be paid by 30 August 1990. The payment of the
said balance was guaranteed by one Sammy Quaye of Bossogie Engineering Services
who indemnified the first defendant against all claims that may be made against
it by the supplier.<o:p></o:p>As at 23 August 1990, however, only $8,427 had been paid and, by a
letter, exhibit B, the first defendant undertook to settle the remaining
balance by the end of September 1990. When by the middle of October 1990 the
balance was not paid, the respondent herein sued the first defendant, and the
appellant, who was the chief executive officer, a director and a shareholder of
the first defendant. The State Fishing Corporation, in whose cold stores the
consignment was stored, was also sued as the third defendant. By his writ of
summons, the respondent, claimed from the first defendant and the appellant,
jointly, the sum of $188,035.08, being the value of 500 tons of fish supplied,
plus bank and telex charges, together with interest on the amount claimed at
the rate of 30 per cent. He also sought an order of perpetual injunction
restraining the third defendant from selling the remainder of the fish in its
custody.<o:p></o:p>The first move made by the respondent, after the institution of
the suit, was to apply by an ex parte motion, for orders of interim injunction
and interim attachment of the fish in the defendants’ custody. However, after
obtaining these reliefs, counsel for the respondent on 9 November 1990
requested the court (presided over by Lutterodt J (as she then was)) to
discharge the orders, since an arrangement had been made for the settlement of
the amount due.<o:p></o:p>Appearance was entered for the first defendant and the appellant
on 2 November 1990 and they filed a joint statement of defence on 20 November
1990. The third defendant never appeared and is not part of this appeal. On 15
March 1991 the respondent applied for leave to enter summary judgment against
the first defendant and the appellant. In the accompanying affidavit, it was
deposed that an amount of $112,943.00 had been paid, leaving a balance of
$75,092.68. Together with the interest claimed, the total amount due was
claimed to be $86,760.73, in respect of which the respondent sought summary
judgment. The affidavit in opposition to the summons was deposed to by Samuel
Quaye, who described himself as a director of the first defendant and, in the
first paragraph, claimed to have the authority of the appellant to depose
thereto on her behalf. On 2 June 1991, Lutterodt J (as he then was) entered
judgment for the respondent, as prayed.<o:p></o:p>The appellant and the first defendant then applied to the court
for an order of stay of execution and payment of the judgment-debt by instalments.
Subsequently, on 19 July 1991, however, the appellant and the first defendant
also filed an application for stay of execution and the setting aside of the
summary judgment. They then withdrew their first application, which was,
therefore, struck out by Lutterodt J (as she then was) on 22 July 1991.<o:p></o:p>It was in the affidavit in support of the application for stay of
execution and setting aside of the summary judgment that the appellant, for the
first time, put into issue the propriety of her bei</main>