TRANSIT WORLD SERVICES LTD. vs. JAN VAN RIJSWIJK [2006]DLCA6640

Date	2006-04-28
Suit No.	CIVIL APPEAL NO. H1/339/05.
Citation No.	[2006]DLCA6640

PIESARE J.A. [PRESIDING]

KANYOKE J.A.

APALOO J.A

MR. A. YEBOAH FOR THE PLAINTIFF/RESPONDENT

MR. C. ZWENNES HUGHES FOR DEFENDANT/APPELLANT WITH HIM MR. JONES ADDO

[2006]DLCA6640
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													<main id="main" class="content" style="min-height: 60rem" >TRANSIT
WORLD SERVICES LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JAN VAN
RIJSWIJK<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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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/339/05.&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: 28TH APRIL, 2006<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. A. YEBOAH FOR THE
PLAINTIFF/RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. C. ZWENNES HUGHES FOR
DEFENDANT/APPELLANT WITH HIM MR. JONES ADDO. <o:p></o:p>

PIESARE J.A. [PRESIDING], KANYOKE
J.A., APALOO 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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</div>KANYOKE,
J.A. <o:p></o:p>This
is an appeal against the ruling of the Kumasi Fast Track High Court dismissing
a motion on notice filed by learned counsel for the Defendant/Appellant
[hereinafter called the defendant] praying the court for the following reliefs:
<o:p></o:p>"[1]
An order to set aside the writ of summons and claim in this action and or <o:p></o:p>[2]
An order setting aside or discharging the absconding warrant issued by the
order of the court dated 1/11/2004 for the arrest of the Defendant.." <o:p></o:p>The
grounds for the application as deposed in the supporting affidavit were that
[1] at all material times to the action the defendant was residing in the
Netherlands and domiciled there and [2] that he had no fixed place of abode in
Ghana. In the circumstances therefore prior leave was required to issue the
writ of summons since that writ had to be served outside the jurisdiction of
the court and consequently since no such prior leave of the court was obtained
the writ of summons together with the statement of claim were null and void and
it also followed that the absconding warrant for the rest of the defendant to
provide security was equally null and void and ought to be set aside or
discharged by the court. <o:p></o:p>Before
I proceed to consider the merits of this appeal, it is appropriate to give a
brief account of the facts of the case as pleaded by the Plaintiff/Respondent
[hereinafter called the plaintiff. The Plaintiff is a duly registered and
incorporated company with its headquarters in Kumasi and engages amongst others
in mercantile business. By an agreement reached between the defendant and one
Kwabena Kesse, a shareholder/Director of the Plaintiff in Kumasi customers of
the defendant who had shipped commodities through the defendant in Holland
would collect their bills of lading [BLS] from the said Kwabena Kesse on
"freight-collect" basis. On the "freight collect" basis
custom of trade the consignees or their agents pay the cost of shipment to the
shipping line [or its agent] at the destination before the cargo is released.
By this trade custom, the customers of the defendant were to collect their
required BLS in Kumasi from Mr. Kwabena Kesse who would after ensuring that
these customers had fully discharged their obligations to the defendant, and
any shipping line, release the BLS for the eventual discharge of the cargo at
designated ports. Mr. Kwabena Kesse was to receive commission dues in
Netherlands guilders. <o:p></o:p>This
business between Mr. Kwabena Kesse and the defendant initially went on smoothly
between them. However, sometime later, problems cropped up between them when
somewhere along the line the defendant began to advise the said Mr. Kwabena
Kesse to release outstanding BLS in the Plaintiff's custody to an entity called
Lucens [Ghana] Ltd. Then the Camel's back was broken when somewhere in February
2004 the defendant formally expressed his intention to cease business
relationships with the Plaintiff. The Plaintiff felt displeased by the turn of
events and accordingly caused his solicitor to write to the defendant to take
into account certain facts, issues and financial matters if he [the defendant]
was desirous of ceasing doing business with the Plaintiff. These issues and
financial matters were eventually reconciled and agreed at a meeting between
the plaintiff and the defendant in March 2004 in Kumasi. <o:p></o:p>Among
the issues reconciled and agreed upon at that meeting were the following: <o:p></o:p>[1]
The defendant agreed owing the Plaintiff an amount of Euro 126,880 and <o:p></o:p>[2]
The defendant also agreed owing Plaintiff a "goodwill" sum valued at
Euro 1,344,000 to compensate the Plaintiff for the repercussions that the
sudden cessation of their business relationship might have on the Plaintiff
which "goodwill" was the equivalent of a four year co-operational
invoice. The defendant however failed or refused to pay the above-mentioned
</main>