GORMAN INVESTMENTS LTD. vs. OWNERS AND ALL PERSONS INTERESTED IN THE VESSELS M.V. PARTNER AND M.V. KASSE & 2 ORS. [2006]DLCA6480

GORMAN INVESTMENTS LTD. vs. OWNERS AND ALL PERSONS INTERESTED IN THE VESSELS M.... [2006]DLCA6480

Date	2006-12-15
Suit No.	CIVIL APPEAL NO.HI/55/04
Citation No.	[2006]DLCA6480

FARKYE J.A. (PRESIDING)

TWENEBOA-KODUA J.A

KANYOKE J.A

MR. K. BLAY FOR DEFENDANTS/APPELLANTS

MRS. DELLA OBENG SEKYI FOR PLAINTIFFS/RESPONDENT.

[2006]DLCA6480
																																						<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" >GORMAN INVESTMENTS LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>OWNERS AND ALL PERSONS INTERESTED IN THE VESSELS M.V. PARTNER
AND M.V. KASSE &amp; 2 ORS.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.HI/55/04&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: 15TH DECEMBER, 2006<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 0in 1.0pt 0in">

COUNSEL:
<o:p></o:p>

MR. K. BLAY FOR
DEFENDANTS/APPELLANTS <o:p></o:p>

MRS. DELLA OBENG SEKYI FOR
PLAINTIFFS/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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">JUDGMENT<o:p></o:p>

</div>KANYOKE
J.A <o:p></o:p>This appeal originated
from the judgment of the High Court, Tema dated the 31st day of January 2003.
In that court the plaintiffs/respondents (hereafter referred to as the
respondents) filed a writ of summons claiming against the defendants/appellants
(hereinafter called the appellants) the following reliefs;<o:p></o:p>&nbsp;“(a) An order compelling defendants to pay for
necessaries supplied to the defendants vessels by plaintiff and<o:p></o:p>&nbsp;(b) General damages for breach of contract to
jointly manage and/or operate the defendant vessels”. <o:p></o:p>The writ of summons was
accompanied by a statement of claim. The brief facts of the case are that by an
agreement signed on the 30th day of October 1999 between Tally Trade and
Services of L.L of Delaware, United States of America (USA) represented by a Mr.
Jean Heinmets and the respondent herein, the Tally Trade and Services was to
deliver two fishing vessels i.e. Partner one and Kasse to the port of Tema from
Estonia to be operated jointly with the respondents. The said agreement which
was tendered as exhibit A conferred certain rights and obligations on both
parties. One of these obligations was that the respondents were to obtain
fishing licenses for the vessels upon their arrival in Ghana to enable them
operate. The respondents however failed to obtain the requisite licenses for
the operation of the vessels when they arrived at the port of Tema in Ghana.
The appellants therefore on their own obtained licenses and commenced
operations. Displeased with the conduct of the appellants, the respondents
filed a suit at the High Court, Tema titled Gorman’s Investments Ltd v. Jean
Heinmets and three others claiming against the appellants the following
reliefs;<o:p></o:p>&nbsp;"(a) Specific performance of agreement
entered in respect of the vessels M/V Kasse and Partner 1 and <o:p></o:p>(b) An order compelling defendants to
pay all the debts as agreed upon with interest at current bank rates."<o:p></o:p>&nbsp;This suit was eventually settled between the
parties resulting in the court accepting the settlement and entering it as
consent judgment on the 20th January 2000. Under the consent judgment both
parties were to jointly operate the vessels in terms of the Agreement signed
between them in 1999. Subsequently the respondents alleged that the appellants
were sailing the vessels out of the territorial waters of Ghana in a bid to
abscond. Consequently upon an application made to the court, the vessels were
arrested by officials of the Ghana Navy and brought back to the port of Tema
upon an order of the court. Then on the 8th day of February 2000 the respondents
instituted this action against the appellants herein claiming the reliefs above
quoted. <o:p></o:p>The appellants resisted
the action and filed a statement of defence and counterclaim. In that statement
the appellants counterclaimed for; <o:p></o:p>“(a) Damages for breach of the
contract dated 30/7/1999. <o:p></o:p>(b) General damages for breach and for
unlawful arrest of the vessels and incidental expenses incurred by defendants
thereby.<o:p></o:p>&nbsp;(c) Further or other reliefs as in the
circumstances may be just.”<o:p></o:p>&nbsp;Summons for directions and additional issues
were subsequently filed by the parties but before they could be taken, the
respondents on the 28th day of March 2001 applied and were granted leave to
amend the endorsement on the writ of summons and paragraph 4 of the statement
of claim and serve same within ten (10) days on the appellants. But the
respondents filed the amended processes on the 23rd day of April 2001 i.e. 26
days outside the time specified in the order granting leave to amend. The
respondents also filed the amended processes as of right i.e. without obtaining
leave of the court for extension of the order. <o:p></o:p>Before the respondent
could open their case learned counsel for the appellants raised a preliminary
objection to the acceptance of the amended processes for the reason of
non-compliance with order 28 r. 7 of the High Court (Civil Procedure) Rules,
1954 (L.N 140A) by the respondents. The trial High Court Judge overruled the
objection for the reason that:<o:p></o:p>&nbsp;“By Court: Since being granted leave to
amend defendants (appellants herein) have made five court appearances and taken
directions and agreed with plaintiff on claims for hearing of the suit. Court
agrees with plaintiff that under these circumstances it will be inequitable to
strike out the amendment processes — which has been filed and served as null
and void…” <o:p></o:p>The appellants did not
appeal against this in</main>