AMPRATWUM MANUFACTURING CO. LTD. vs. DIVESTURE IMPLEMENTATION COMMITTEE [2009]DLSC2477

Date	2009-07-29
Suit No.	CIVIL APPEAL NO. J4/2/2009
Citation No.	[2009]DLSC2477

ATUGUBA J.S.C. (PRESIDING)

AKUFFO (MS) J.S.C.

ANSAH .J.S.C.

DOTSE J.S.C.

BAFFOE-BONNIE J.S.C.

M. Y. ASARE BEDIAKO FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

ASAKKUA AGAMBILA FOR THE DEFENDANT/APPELLANT/RESPONDENT

[2009]DLSC2477
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													<main id="main" class="content" style="min-height: 60rem" >AMPRATWUM MANUFACTURING CO. LTD.<o:p></o:p>vs.<o:p></o:p>DIVESTURE IMPLEMENTATION COMMITTEE<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/2/2009<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 29TH JULY, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>M.
Y. ASARE BEDIAKO FOR THE PLAINTIFF/RESPONDENT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ASAKKUA
AGAMBILA FOR THE DEFENDANT/APPELLANT/RESPONDENT<o:p></o:p>

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

ATUGUBA
J.S.C. (PRESIDING), AKUFFO (MS) J.S.C., ANSAH .J.S.C., DOTSE J.S.C.,
BAFFOE-BONNIE J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;BAFFOE-BONNIE,J.S.C:-<o:p></o:p>The
Appellant a limited liability company involved in the business of manufacturing
shoulder pads rented a purpose-built cloak room from now defunct GIHOC Footwear
Company Limited, hereinafter called the Landlord, in 1996. The Tenancy
agreement was to last for a period of 4 years and it could also be determined by
a month’s notice to a party. <o:p></o:p>On
7th August 1997 as a result of importation of heavy machines from Germany the
Appellant sought permission for the use of vacant spaces on each side of the
cloak room for the installation of the machines. This permission was granted by
a letter dated 15th August 1997, titled ERECTION OF TEMPORARY STRUCTURE.&nbsp; The fee charged for this space was Six
hundred thousand cedis( page 92 of the record)<o:p></o:p>Upon
the expiry of the term of tenancy, a new agreement was entered into between the
Landlord and the Appellant which was to commence on the 1st of August 2000 to
31st December 2004 at a monthly rent of Three Hundred thousand cedis( page 105
of the record.) It must be pointed out the renewed tenancy was in respect of
one of the Landlord’s Warehouse and did not include the temporal structure
built by the Appellant.<o:p></o:p>Interestingly
less than two months after renewal of the tenancy, the Landlord Company was put
on divesture by the Government of Ghana its sole shareholder acting through its
Agency, DIC. By a Daily Graphic publication dated Monday 25th September 2000,
interested investors were invited to make offers for the acquisition of one or
more of the landlord’s assets. The consultants for the divestiture Price Water
House Coopers invited the Appellant by a letter dated 29th September 2000 to
make bid towards the purchase of the property of the landlord company which the
Appellant occupied. ( Page 89 of the record). The Appellants put in a bid but
did not hear from the Respondent.( Page 4 paragraph 12 of Statement of Claim.)<o:p></o:p>The
Respondent, by a letter dated the 24th of March 2004,nine full months before
the expiry of the renewed tenancy, notified the Appellant that the Landlord
Company has been divested to Newark Commercial Capital Corporation of the Czech
Republic. Consequently their tenancy would not be renewed when it expired on
the 31st of December 2004. The letter further directed the Appellant to vacate
and give up possession of the warehouse by the end of their tenancy. (page 91
of the Record)<o:p></o:p>According
to Appellants they wrote a letter to the Respondent company claiming
compensation for the temporal structures it erected on the Landlord company
premises but the answer was in the negative. ( page 4 paragraph 16 - 18 of the
Statement of Claim)<o:p></o:p>By
a letter dated 9/12/04 the Appellant was informed by the new owners of the
Landlord acting through its lawful attorney that they wish to enter into a new
agreement with the Appellant concerning the tenancy of the warehouse by a
letter dated, but no agreement materialized.(Pg 94 of proceedings)<o:p></o:p>Feeling
aggrieved at the turn of events the Plaintiff filed a writ in the High Court
Kumasi against the Respondent claiming,<o:p></o:p>1&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the Recovery of the sum of Sum of Four
Hundred and Thirty-Six Million old Ghana Cedis being the cost of Extension made
to the Landlord’s Company, <o:p></o:p>2&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; interest on the amount and <o:p></o:p>3&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; injunction to restrain the Respondent its
servants, agents or anybody claiming title from the Defendant from ejecting the
Appellant from the premises.<o:p></o:p>Judgment
was given in favour of the Appellant by the High Court on 13/06/06.&nbsp; On appeal, The Court of Appeal, on 05/03/08,
set aside the decision of the High Court on a very fundamental issue of whether
the Respondent was the proper party to have been sued. <o:p></o:p>The
Court of Appeal&nbsp; per Apaloo J.A.&nbsp; concluded (at page 144),<o:p></o:p>“…..the DIC was not the proper person
to be Defendant in this case. Accordingly we allow the appeal and set aside the
judgment of the lower court.<o:p></o:p>The Appellant, dissatisfied with this
judgment, has appealed to this court on&nbsp;
five grounds. Ground 4 reads;<o:p></o:p>“ The Court was palpably wrong in the
finding and limiting the function of the DIC to only Section 4(1) of PNDCL 326
and describing the DIC as a mere advisory tool to the Government for the
Divestiture by the State of any of its interests in any Statutory Corporation and
also the DIC was not the proper persons to be the defendant in this case.”<o:p></o:p>