DR. KOJO NYANTEKYI vs. MOCOH ENERGY LTD. AND FRANK OSEI ASSIBEY [2005]DLHC7401

Date	2005-07-28
Suit No.	SUIT NO. AC.115/05
Citation No.	[2005]DLHC7401

HIS LORDSHIP JUSTICE P. K. GYAESAYOR

<p class="mb-5" id="contentDlCitation"  hidden>[2005]DLHC7401</p>
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
color:#00B0F0">DR. KOJO NYANTEKYI<i><o:p></o:p></i></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:6.0pt;text-align:center;
line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
color:#00B0F0">MOCOH ENERGY LTD. AND FRANK OSEI ASSIBEY<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">[HIGH COURT (AUTOMATED/FAST TRACK),
ACCRA]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%"><b><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">CORAM:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">HIS LORDSHIP JUSTICE P. K. GYAESAYOR<o:p></o:p></span></p>

</div><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%"><b><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;"><o:p>&nbsp;</o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt;
line-height:107%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">The action of plaintiff as
endorsed on the Writ issued on 7th April, 2005 is to seek a declaration that he
is entitled to no less than 50% of commission due on the supply of twenty seven
thousand metric tons of gasoline on board the Vessel Champion Vincinta supplied
to Glory Oil Ghana Ltd. by 1st defendant and also seeking an Interlocutory
Mareva Injunction to restrain the defendants from removing or disposing out of
the jurisdiction commissions to be paid in respect of the supply of
twenty-seven thousand metric tons of gasoline on board the vessel Champion
Vincinta supplied to Glory Oil Ghana Ltd. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt;
line-height:107%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">In the accompanying
statement of claim, plaintiff avers that 1st defendant had won a contract to
supply Oil to Glory Oil Ghana Ltd. but he introduced the 2nd defendant to them
for him to be appointed as their representative since they were not satisfied
with the conduct of their representative in Ghana. According to plaintiff, the
2nd defendant was to be given a free hand in his dealings with the first
defendant but it had always been understood that hesic plaintiff was to take
not less than 50% of commissions payable to the 2nd defendant. The plaintiff
exhibited no written agreement to support this action. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt;
line-height:107%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">When Glory Oil won the
tender for the supply of the oil, it opened a letter of credit payable at the
"counters of sellers confirming bank that is BNP Paribars of Paris".
The plaintiff issued this writ to prevent the defendant from taking out of this
country monies up to a million US dollars from the said letters of credit. So
far there is abundant evidence to show that the total amount being an
irrevocable letters of credit had been paid by BNP Paribas of Paris and that in
effect means that the second relief endorsed on the writ has been overtaken by
events and cannot be enforced even when granted. My understanding is that the
amount was not paid here in Ghana but on the counters of sellers confirming
bank BNP Paribas of Paris. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt;
line-height:107%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">The submission made so far
also indicate that it is Mocoh Axis Ltd., which received the monies in respect
of the Oil and not Mocoh Energy Ltd. as endorsed on the writ. Indeed by a
letter dated 1st April, 2005 and marked exhibit "4" on the case
docket Mocoh Energy rejected the request of plaintiff for any commission
against the delivery of the cargo by Champion Vincinta and indeed also denied
that there was any agreement which entitled him to be paid any such commission.
<o:p></o:p></span></p><p>

</p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt;
line-height:107%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">As at the time of hearing
this application, plaintiff has not been able to produce any document to
support the purported agreement under which he pursues this claim. Indeed he
and his lawyer have for sometime now not been coming to court, although they
were aware of the pendency of this suit filed by them and have also been notified
of the various applications filed by the defendants. They have also failed to
file affidavits in opposition to these applications obviously because they know
that they have brought the wrong persons to court and that their action lacks
merit. I have already dismissed the action against the 1st defendant who it
appears did not enter into any transaction with the plaintiff. The 2nd
defendant who is the present applicant is seeking the indulgence of the Court
to have his name also struck out of the writ. He exhibited a contract document
between Mocoh Energy International Ltd. and Merchant Resources Co. (GH.) Ltd.
in which he signed for and on behalf of the said Merchant Resources as a
director. It is his contention that he did not sign the said document in his
personal capacity and could therefore not be held liable in that personal
capacity. I agree entirely with his assertion more so when there is no evidence
that he had perpetuated fraud or done something personally for him to be held
personally liable. Since there is nothing on record to the contrary, I shall
accept the submission that Frank Assibey cannot be held liable and that the
proper Judgments of the Superior Courts 14004 Copyright © DataCenta Ltd.
persons to have been sued are Mocoh Energy International Ltd. and Merchant
Resources Gh. Ltd. In the circumstances, the action even if maintainable in law
should be against the Merchant Resources since a company is a legal entity
which can sue and be sued. In the circumstances, I shall dismiss the action
against the 2nd defendant as well with costs of four million cedis to second
defendant.<o:p></o:p></span></p></span></main>