VICTOR PAPER (GH) LTD. vs. RADJEN GRAPHIC ARTS LTD., JONAS ROBINSON AND ARYEE EMMANUEL APREKU DENTU [2009]DLHC7870

VICTOR PAPER (GH) LTD. vs. RADJEN GRAPHIC ARTS LTD., JONAS ROBINSON AND ARYEE EM... [2009]DLHC7870

Date	2009-12-09
Suit No.	BC 65/2008
Citation No.	[2009]DLHC7870

HIS LORDSHIP E. K. AYEBI APPEAL COURT JUDGE SITTING AS ADDITIONAL HIGH COURT JUDGE

[2009]DLHC7870
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													<main id="main" class="content" style="min-height: 60rem" >VICTOR PAPER
(GH) LTD.<o:p></o:p><span lang="EN-US" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>RADJEN GRAPHIC ARTS LTD., JONAS ROBINSON AND ARYEE EMMANUEL
APREKU DENTU<o:p></o:p>[HIGH
COURT (COCOA AFFAIRS), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

BC 65/2008&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
9TH DECEMBER, 2009<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP E. K. AYEBI, APPEAL COURT JUDGE
SITTING AS ADDITIONAL HIGH COURT JUDGE<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;
padding:0cm 0cm 1.0pt 0cm">

</div>RULING ON DEFENDANTS’ MOTION TO AMEND STATEMENT OF
DEFENCE AND COUNTER-CLAIM<o:p></o:p>In this case, the claim of the plaintiff is for
¢160m being the value of the stationery received, used but not paid for by the
defendants pursuant to an agreement dated 5th April 2005.<o:p></o:p>In their statement of defence, the defendants
denied the existence of any such agreement as alleged by the plaintiff because
they received no such stationery.&nbsp; They
asserted that the stationery they received from the plaintiff had been paid
for.&nbsp; On the other hand, defendants
counter-claimed for <o:p></o:p>(a)&nbsp;&nbsp;
The
unpaid salary of the 2nd defendant, an executive-director for seven
years service amounting to ¢126million.<o:p></o:p>(b)&nbsp; An amount of ¢84m being rent of office
accommodation used by plaintiff’s managing director.<o:p></o:p>(c)&nbsp;&nbsp;
An
mount of ¢90million spent on the repairs of a printing machine plaintiff’s
managing director bought for the 1st defendant.<o:p></o:p>(d)&nbsp; ¢35million being the estimated cost of a polar
cutting machine owned by the 1st defendant but sold by the managing
director of the plaintiff.<o:p></o:p>At the close of pleadings, the main issue which the
plaintiff set out to be determined is whether or not the 2005 agreement binds
the defendants.&nbsp; The remuneration of the
3rd defendant as well as the condition of the machine bought for the
defendants were also made issues.<o:p></o:p>The defendants on the other hand set out as many as
17 additional issues.&nbsp; Most of these
issues have no relevance to plaintiff’s claim and the counter-claim of the
defendants themselves.&nbsp; This is because
issues raised therein were not pleaded at all.&nbsp;
What I however gleaned from some of the issues is that, defendants
alleged they were deceived into signing a paper which plaintiff now referred to
as the 2oo5 agreement (14), the plaintiff has deviated from its core business
of printing to establish defendant company (6), the parties were in a Danida
partnership (1, 3 &amp; 3) and that Mr. Olsen made himself managing director of
the plaintiff company without paying for his shares (8).<o:p></o:p>But then, the trial commenced and plaintiff
completed her evidence through her Managing Director, Mr. Olsen who was
extensively cross-examined.&nbsp; The
defendants then brought this motion for leave to amend their statement of
defence and counter-claim.&nbsp; In practice,
amendments are governed by Order 16 of the High Court (Civil Procedure) Rules,
2004 (C.I. 47).&nbsp; It is provided in r.11
of Order 16 that, in the application for leave to amend, the applicant shall
specify precisely the nature of the amendment and an affidavit may be
used in the application for leave to amend.&nbsp;
Then if the applicant decides to use an affidavit, then a copy of the
proposed amendment must be exhibited.<o:p></o:p>However, in the application before the court,
applicants neither stated the nature of the amendment in the motion paper nor
in the purported affidavit attached.&nbsp; I
called it a purported affidavit because the contents of the affidavit are
rather the grounds of the proposed amendment.<o:p></o:p>Surprisingly, there is nothing new in the said
proposed amendment.</main>