SAMUEL BERVELL ACKAH vs. EXPRESS MARITIME SERVICES LIMITED & ORS. [2003]DLCA6956

Date	2003-01-23
Suit No.	CM NO. 299/2002
Citation No.	[2003]DLCA6956

LARTEY J.A. (PRESIDING)

AKAMBA J.A.

OSEI J.A.

STANLEY AMARTEIFIO WITH HIM SOLOMON QUANDZIE FOR KUDJAWU FOR APPLICANTS

KUNTUNKUNUKU AMPOFO FOR THE RESPONDENT.

[2003]DLCA6956
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL BERVELL ACKAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>EXPRESS MARITIME SERVICES LIMITED &amp; ORS.<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CM
NO. 299/2002&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 23RD JANUARY, 2003<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">COUNSEL:
<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">STANLEY
AMARTEIFIO WITH HIM SOLOMON QUANDZIE FOR KUDJAWU FOR APPLICANTS.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">KUNTUNKUNUKU
AMPOFO 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;
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LARTEY J.A. (PRESIDING), AKAMBA J.A., OSEI
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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JUDGMENT<o:p></o:p>

</div>LARTEY
J. A.:<o:p></o:p>&nbsp;This is an application for stay of execution
of the ruling and orders contained in the decision of the High Court, Tema,
made on 13th June, 2002. By the orders, a Receiver/Manager was appointed for
the first defendant/company, and all the four directors in this suit were also
restrained from holding themselves out as directors. <o:p></o:p>The
main argument which was canvassed in support of this application was that the
ruling and orders emanating therefrom are so manifestly wrong and unlawful that
they ought not be allowed to be acted upon or enforced in law until the final
determination of the appeal. The point was made that having regard to the
endorsement on the writ of summons and the statement of claim it was obvious
that the plaintiffs claim was for a collection of certain rights. Indeed there
was no claim for Receiver/Manager; neither was there any claim for injunction
against the directors. It was thus submitted that where a party to an action
fails to make a final claim in his endorsement he cannot claim what is not on
his writ. That being the case the learned judge was wrong in granting the
reliefs by an interlocutory application.<o:p></o:p>&nbsp;Reacting to this particular point and finding
support in COLEBOURNE VRS. COLEBOURNE 1876 1 ch. D. 690 it was contended on
behalf of the plaintiff that it is not at all necessary that the appointment of
a receiver should have been indorsed on the writ or even claimed by the
statement of claim, unless the appointment forms substantive part of the relief
sought. But it should be pointed out that the case cited involved the
administration of an estate under a will brought by a sister as plaintiff
against her brother. The application of this authority to cover the present
case, where not even an injunction was claimed is of doubtful application. <o:p></o:p>The
submission was made on behalf of the defendants that granted for purposes of
argument that there is absence of claim for receiver on the writ to warrant the
omission to be treated as not necessary, the company being dealt with in this
case is one regulated by the Companies Code, (Act 279) and the regulations made
thereunder as well as the regulations of the company itself. Therefore any act
done, such as the appointment of a receiver, should be seen to be in conformity
with the provisions of the Code.<o:p></o:p>&nbsp;For the plaintiff it was argued that the trial
judge exercised his discretion pursuant to Order 50 r.7 of the High Court
(Civil Procedure) Rules 1954 (LN 140A) which prescribes the power of a court to
grant injunctions where it appears to be just and convenient so to do. The
contention in this regard was that the trial judge had before him material
which revealed serious wrong doings in the conduct of the affairs of the first
defendant. One such wrong doing was that the second and fourth defendants had
been introduced into the company by one Kofi Dolphyne without reference to the
plaintiff. Another shortcoming related to the status of the third defendant as
well as the validity surrounding the appointment of the fifth defendant. There
was also the allegation that no proper record-keeping was being kept, and thus
breached section 122 of the Code (Act 179) relating to annual returns. And
finally it was alleged that the revelation included lack of proper meetings of
the Board in accordance with the Companies Code. Our simple answer is whether
it would not have been more convenient to preserve the status quo and treat the
alleged wrong doings as matters to be gone into and treated thoroughly in the
course of hearing the substantive case? <o:p></o:p>We
concede that order 50 r. 7 of LN 140A gives wide powers to a court to grant an
injunction and appoint a receiver/manager in appropriate cases. Indeed the case
of BUNZU &amp; ANOR VRS. ABBEYMAN FAMILY STOOL [1992 - 93] GBR was called in
aid of the proposition that in matters of this nature a court should refrain
from doing anything that might be interpreted as interfering with exercise of a
trial judge's discretion. But in the case before us the judge's exercise of his
discretion was impugned because the appointment of the receiver/manager and the
restraining orders against all the defendants were not made in accordance with
the Code. <o:p></o:p>We
find the defendants' line of argument more attractive because since the subject
matter in this suit is a company regulated by the Companies Code (Act 179), it
is desirable that disputes involving it should be settled within the strict
parameters of the Code itself. In BOYEFIO VRS NTHC PROPERTIES LTD [1996 - 97]
SC GLR 531 to which our attention was drawn, the law was stated that when an
enactment prescribes a procedure by which something was to be done, it was that
procedure alone that ought to be resorted to. See also ASCHKAR VRS KARAM [1972]
1 GLR 1. <o:p></o:p>