SPPEEDLINE STEVEDORING CO. LTD vs. S. M KOTEI & ANOR. [2007]DLCA6973

Date	2007-02-16
Suit No.	CIVIL APPEAL NO. H1/391/05
Citation No.	[2007]DLCA6973

OWUSU ANSAH J.A (PRESIDING)

KANYOKE J.A

APALOO J.A

MR. A. O. AMPONSAH DADZIE FOR THE 2ND DEFENDANT/APPELLANT.

MR. ADUMOAH BOSSMAN FOR THE 1ST DEFENDANT/APPLICANT

MR. N. AMERGATCHEY FOR THE PLAINTIFFS/RESPONDENTS

[2007]DLCA6973
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													<main id="main" class="content" style="min-height: 60rem" >SPPEEDLINE STEVEDORING CO. LTD<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>S. M KOTEI &amp; ANOR.<o:p></o:p>(DEFENDANTS/APPELLANTS)<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.
H1/391/05&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; &nbsp; &nbsp;DATE: 16TH FEBRUARY 2007<o:p></o:p>

MR. A. O. AMPONSAH DADZIE FOR THE 2ND
DEFENDANT/APPELLANT. <o:p></o:p>

MR. ADUMOAH BOSSMAN FOR THE 1ST
DEFENDANT/APPLICANT. <o:p></o:p>

MR. N. AMERGATCHEY FOR THE
PLAINTIFFS/RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p>OWUSU
ANSAH J.A (PRESIDING), KANYOKE J.A, APALOO 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>KANYOKE
J.A:<o:p></o:p>The
1st defendant/appellant (herein the 1st appellant) was a Chief Registrar whilst
the 2nd defendant appellant (herein the 2nd appellant) was a Deputy Chief
Registrar, both in the Judicial Service, Accra. On the 31st July 1997 the
appellants were appointed by the High Court, Accra as Receivers and Managers of
the plaintiff/Respondent company (herein the respondent company or company)
pending the final determination of a suit involving the shareholders and
directorship of the company. The appellants were by the terms of their
appointment to be entitled to 6% commission of the proceeds of the company
during their tenure of office. The appellants managed the company for 3 and
half years. Subsequently, upon an order of the High Court, Accra, differently
constituted, dated the 31st January 2001; the appellants handed over the
management of the company to the original persons. <o:p></o:p>Before
then the appellants had appointed a firm of auditors Sraha and Associates to
audit the management of the company for the period covered by their stewardship
of the company. The appellants themselves provided all the documents necessary
for the auditing by Sraha and Associates. Sraha and Associates also obtained
verbal information and explanations from the appellants during its work. On the
completion of its work, Sraha and Associates presented its Report to the
appellants who signed same. That Report was tendered in court as Exhibit A. <o:p></o:p>When
the appellants handed over the management of the company to the original
persons the Board of Directors of the company also appointed a firm of
Auditors, - Opoku Andoh and Co. to 'examine the assets, expenses and accounts'
made during the tenure of office of the appellants as Receivers and Managers of
the company. Opoku Andoh and Company used solely as its source of information
for its examination, documents, such as the audited accounts prepared by Sraha
and Associates, as well as invoices, vouchers and cashbooks prepared by the
appellants themselves. At the end of its examination Opoku Andoh and Company
found that a huge sum of money could not be properly accounted for, thereby
leaving the company in a serious financial crisis. <o:p></o:p>Consequently
on the 27th November 2002 the Respondent Company took out a writ of summons
claiming against the appellants jointly and severally the following reliefs:<o:p></o:p>&nbsp;"(1) the sum of ¢4,547,394,000.00 being
monies belonging to the plaintiff which was misappropriated by defendants in
the course of their duty as Receivers and Managers of plaintiff company. <o:p></o:p>(2)
Interest on the said sum from 31st January 2001 to date of final payment. <o:p></o:p>(3)
Costs."<o:p></o:p>&nbsp;In the course of the hearing the Respondent
Company amended the endorsement of the writ and the statement of claim with the
leave of the court to accord with the evidence led. The amended writ then
claimed as follows:<o:p></o:p>&nbsp;"(1) Plaintiff claims against the
defendants jointly and severally the sum of ¢2,617,408,000.00 being monies
belonging to the plaintiff which was misappropriated by the defendants in the
course of their duty as Receivers and Managers of the plaintiff company.<o:p></o:p>&nbsp;(2) A declaration that 6% commission ordered
by the High Court to be paid by to defendants as Receivers and Managers of
Plaintiff Company from 1st November 1997 to 31st January 2001 is payable net of
deductions and not gross. <o:p></o:p>(3)
Interest on the said sum from 31st January 2001 to date of final payment.<o:p></o:p>&nbsp;(4) Costs." <o:p></o:p>Each
of the appellants filed a statement of defence and engaged his own solicitor to
defend the suit. Subsequently the 2nd appellant filed an amended statement of
defence and counterclaimed against the respondent company the following
reliefs:<o:p></o:p>