RAD FOREST PRODUCTS LTD & ORS (PLAINTIFFS/RESPONDENTS/RESPONDENTS) vs. GENERAL DEVELOPMENT CO. LTD. (DEFENDANTS/APPELLANTS/APPLICANTS) [2000]DLCA7473

RAD FOREST PRODUCTS LTD & ORS (PLAINTIFFS/RESPONDENTS/RESPONDENTS) vs. GENERAL D... [2000]DLCA7473

Date	2000-12-21
Suit No.	CIVIL APPEAL NO.: CM. 293/99
Citation No.	[2000]DLCA7473

BENIN J.A. (PRESIDING)

ANSAH J.A.

AMONOO-MONNEY J.A.

[2000]DLCA7473
																																						<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" >RAD FOREST PRODUCTS LTD &amp; ORS<o:p></o:p>(PLAINTIFFS/RESPONDENTS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>GENERAL DEVELOPMENT CO. LTD.<o:p></o:p>(DEFENDANTS/APPELLANTS/APPLICANTS)<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;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL
APPEAL NO.: CM. 293/99&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST DECEMBER, 2000.<o:p></o:p>

</div>CORAM: <o:p></o:p>BENIN
J.A. (PRESIDING), ANSAH J.A., AMONOO-MONNEY J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;text-indent:36.0pt;line-height:115%;border:none;mso-border-top-alt:
solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;padding:
0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>BENIN,
J.A,<o:p></o:p>The
High Court in Sekondi granted an order of interim preservation of certain
equipment and vehicles in the possession of the defendants. These items are the
subject-matter of four consolidated suits. The application was brought under
Order 50, r. 5 of the (Civil Procedure) Rules, 1954 (L.N. 140A). The Court
appointed the Registrar of the Court to be the Receiver/Manager thereof. These
are the relevant orders made by the court below:<o:p></o:p>1.
“...........the detention and preservation of the disputed machines, vehicles
and equipment now in the custody and possession of the respondents herein. <o:p></o:p>2.
I hereby further appoint the Deputy Registrar of this Court Receiver/Manager to
manage the disputed machinery, vehicles and equipment pending the determination
of the suits herein.<o:p></o:p>&nbsp;3. Both the applicants and the respondents may
apply to the Receiver/Manager for the use of any of the items the subject
matter of this application to be let on hire to them and the hire price to be
paid into Court.<o:p></o:p>&nbsp;The Receiver/Manager shall be entitled to a
fee of 7½% in cash lodgment into court from the hire of the machines, vehicles
and equipment.”<o:p></o:p>&nbsp;Order 50, r. 5 of the High Court Rules under
which the application was made provides: It shall be lawful for the Court or a
Judge, upon the application of any party to a cause or matter, and upon such
terms as may be just, to make any order for the detention, preservation, or
inspection of any property or thing, being the subject of such cause or matter,
or as to which any question may arise therein, and for all or any of the
purposes aforesaid, to authorise any persons to enter upon or into the land or
building in the possession of any party to such cause or matter, and for all or
any of the purposes aforesaid to authorise any sample to be taken, or any
observation to be made or experiments to be tried, which may be necessary or
expedient for the purpose of obtaining full information or evidence. <o:p></o:p>What
considerations go into the granting of an application for an order for
preservation and/or detention? a). As decided in GARRARD v. EDGE &amp; Sons, (1889) 58 L.J.Ch. 397: 37 W.R. 501. C.A.
the order must be made against the person in possession or custody of the
property in dispute. See also WILDER v.
WILDER (1912). 56 S.J. 571. <o:p></o:p>b)
The property must be the subject-rnatter of the suit. Thus in SCOTT v.
MERCANTILE ACCIDENT INSURANCE CO. (1892) 8 T.L.R. 320, the lower court made an
order that certain jewellery should remain in the custody of the police. An
appeal against this order was allowed because it was admitted on the evidence
that the property was not the subject matter of the action, but that only a
question might arise about it in the cause or matter.<o:p></o:p>&nbsp;c) It was held in LENEY &amp; SONS, LTD. v. CALLINGHAM &amp; THOMPSON, (1908) 1 K.B. 79
at p. 84, per Farwell, L.J. that “the question of the exercise of the
judicial discretion was always based, and is still based, upon this, that there
is property in dispute to some interest in which plaintiff shows a prima facie
title; and preservation is ensured until the rights of the parties can be
finally determined.”<o:p></o:p>&nbsp;d) The case of CHAPLIN v. BARNETT (1912) 28
T.L.R. 256 decides that the order will be granted so long as there is something
which ought to be done to ensure the security of the property.<o:p></o:p>&nbsp;e) An order will be made in order to preserve
the subject-matter of the suit from destruction; see STRELLEY v. PEARSON (1880). 15 Ch. D. 113, where the court granted
an order restraining the defendant from ceasing to pump water out of a mine for
the sole purpose of preventing the mine from destruction. <o:p></o:p>f)
The court will also grant an order in order to preserve the subject-matter from
depreciation physically or in value. So if it’s established that it is
necessary to do so the court will grant it, hence an order was made in the case
of NEW ORLEANS S.S. CO. v. LONDON etc
INSURANCE CO. (1909) 1 K.B. 943, that a ship lying in a port in Singapore
be brought to England for preservation there. <o:p></o:p>However
an order may not be made if it’ll cause undue hardship in carrying it out or
will serve no useful purpose. These grounds are by no means exhaustive; other
grounds may unfold due to the particular case under consideration.<o:p></o:p>&nbsp;It is the plaintiffs’ case that they gave
certain named equipment, vehicles etc, called the items for short, to the
defendants on hire basis and that the latter have defaulted in meeting the
agreed hiring charges. Besides, the defendants are also misusing the items. The
defendants denied these averments claiming a right of ownership over same. The
items in question were identified in Suit No. 14/99 in an annexure to the
statement of claim. Those in Suit No. 15/99 were identified in Annexure 2
attached to the statement of claim. Those in Suit No. 16/99 were also
identified in an Annexure to the statement of claim. Those in Suit No. 31/99
were identified in paragraph 13(iii) of the statement of claim. All these items
are said to be in the possess</main>