SPEEDLINE STEVEDORING CO. LTD. vs. GABRIEL DANIEL [2004]DLCA6975

Date	2004-01-30
Suit No.	CIVIL APPEAL NO. 20/2003
Citation No.	[2004]DLCA6975

ARYEETEY J.A. (PRESIDING)

ASARE-KORANG J.A.

PIESARE J.A

MR. AMPOSAH DADZIE FOR 2ND DEFENDANT/APPELLANT

MAANAA APPEAH FOR PLAINTIFFS/RESPONDENTS

[2004]DLCA6975
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													<main id="main" class="content" style="min-height: 60rem" >SPEEDLINE STEVEDORING CO. LTD.<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>GABRIEL DANIEL<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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APPEAL NO. 20/2003 &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: 30TH JANUARY, 2004<o:p></o:p>

MR. AMPOSAH DADZIE FOR 2ND
DEFENDANT/APPELLANT<o:p></o:p>

&nbsp;MAANAA APPEAH FOR PLAINTIFFS/RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp; <o:p></o:p>ARYEETEY
J.A. (PRESIDING), ASARE-KORANG J.A., PIESARE J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ARYEETEY,
J.A.:<o:p></o:p>A
background to this appeal is as follows: On 7th May, 1997, in a civil case
number Misc.768/97, J. K. Dolphyne v. S.
E. A. Brenya and Gladys Dede Adjetey, the High Court made orders for
Interim Injunction and for the appointment of Receiver and Manager. After the
High Court had given final judgment in the case it ordered the two Receivers
and Managers to hand over their stewardship to two others. The order as drawn
and signed by the trial judge and the registrar of the court. It reads:—<o:p></o:p>&nbsp;“ORDER FOR HANDING OVER <o:p></o:p>WHEREAS
the above-named case is pending before this Honourable Court for hearing and
determination: <o:p></o:p>AND
WHEREAS at the trial held on the 19th day of January, 2001 it was ordered that
an Order to HAND OVER be made: <o:p></o:p>AND
UPON HEARING DR. DANIELS Esq.,<o:p></o:p>&nbsp;Counsel for and on behalf of the 2nd defendant
and the Company herein: AND DR. TWUM Esq., <o:p></o:p>Counsel
for and on behalf of the 2nd defendant and the Company herein:<o:p></o:p>&nbsp;NOW THEREFORE IT IS HEREBY ORDERED that MR.
ANTONIO CASTRO BARCON and MR. J. K. DOLPHYNE should take over the management of
the Company from the RECEIVERS AND MANAGERS. The Receivers and Managers will
however, continue to sign the company’s cheques, and notify the two named
persons up to the end of January, 2001. With effect from 1/2/2001, these two
persons Dolphyne and Antonio will be the signatories to the Company’s cheques.
This order is to be drawn up by the Registrar and signed by the judge himself
and copies sent to all the appropriate agencies including the banks with which
the company does business. Ordered accordingly. <o:p></o:p>GIVEN
UNDER MY HAND AND SEAL <o:p></o:p>OF
THE HIGH COURT OF JUSTICE<o:p></o:p>ACCRA
THIS 19TH DAY OF J<o:p></o:p>ANUARY,
2001. <o:p></o:p>CHIEF
REGISTRAR” <o:p></o:p>Upon
Certiorari application to the Supreme Court the concluding part of its ruling
reads: “For a High Court can appoint receivers and managers to manage the
affairs of the company but the Court cannot, after revoking their appointment,
purport to appoint directors and determine which particular directors should
sign the cheques of the company. The Code does not give the High Court such
jurisdiction. Hence, our unanimous decision quashing the judgment and orders of
the High Court dated 12th May 2000 and 19th January 2001”. The next step taken
against the two receivers and managers was the issue of writ against them for
the following reliefs: “1. The sum of ¢2,617,408,000 being monies belonging to
the plaintiff, which was misappropriated by defendants in the course of their
duty as Receivers and Managers of the plaintiff company. 2. A declaration that
6% commission ordered by the High Court Accra to be paid to the defendants as
Receivers and Managers of the plaintiff company from 1st November 1997 to 31st
January 2001 is payable net of all deductions and not gross. 3. Interest on the
said sum form 31st January 2001 to date of final judgment. 4. Costs.” <o:p></o:p>Before
hearing commenced counsel for the second defendant was allowed by the court to
argue his preliminary objection based on a point of issue raised in the summons
for Directions namely: “Whether or not the plaintiff company does not have the
capacity to bring the present action”. Before the High Court counsel for the
second defendant argued that the lack of capacity of the plaintiff company is
derived from the provision of section 239 of the Companies Code, 1963 (Act
179), which reads: “A receiver or manager of any property or undertaking of a
company appointed by the Court shall be deemed to be an officer of the Court
and not of the company and shall act in accordance with the directions and
instruction of the Court.” The court below overruled his objection to the
capacity of the plaintiff company in bringing the action as frivolous and
complete</main>