LATEX FOAM PRODUCTS LIMITED vs. KWASI DWOMO [2011]DLCA3706

Date	2011-12-22
Suit No.	CIVIL APPEAL NO. H1/05/2012
Citation No.	[2011]DLCA3706

MARIAMA OWUSU (MISS) J.A. (PRESIDING

F.G. KORBIEH J.A

IRENE C. DANQUAH (MS.) J.A.

MRS JANNIFER DJANBEA ASARE FOR 2ND DEFENDANT/RESPONDEN

MR. MUJEEB RAHMAN AHMED FOR PLAINTIFF/APPELLANT

[2011]DLCA3706
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													<main id="main" class="content" style="min-height: 60rem" >LATEX FOAM PRODUCTS
LIMITED<o:p></o:p>vs.<o:p></o:p>KWASI DWOMO<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/05/2012&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: 22ND DECEMBER, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MRS JANNIFER DJANBEA ASARE
FOR 2ND DEFENDANT/RESPONDEN<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
MUJEEB RAHMAN AHMED FOR PLAINTIFF/APPELLANT&nbsp; <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;
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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
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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JUDGEMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A.<o:p></o:p>The
plaintiff/respondent (hereinafter only referred to as the plaintiff) had a shop
at Asokwa in Kumasi where he did retail trading and sold Latex foam mattresses,
among other items. According to the plaintiff he paid a monthly rent of ¢400,000.00
for the shop. The plaintiff entered into an agreement with the defendant/appellant
(hereinafter only referred to as the defendant) under which agreement the
defendant supplied foam mattresses to the plaintiff on credit for sale at the plaintiff’s
said shop. The plaintiff made payments to the defendant after the sales. On or
about 1/10/2007 the plaintiff had to travel to South Africa on an emergency
business trip. Whilst in SouthAfrica, the plaintiff got information from his
wife (whom he had left in charge of the shop at Asokwa) that the defendant had
come to the shop on the 8/10/2007, collected all the goods in it and locked up
the shop amidst her protests. The plaintiff therefore rushed back to Ghana from
South Africa to see things for himself. Upon being satisfied that his shop had
really been closed down in circumstances that were less than pleasant, he took legal
action at the High Court, Kumasi against the defendant claiming the following
reliefs:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:0in;margin-left:33.0pt;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo1">a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Recovery of an amount of GH¢5,714.00
‘representing total stock of goods removed from the Plaintiff’s shop at Asokwa,
Kumasi on the 8th October 2007.’<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp;
Recovery of rent accrued from the date of
closure of the shop to the date of re-opening at GH¢40.00 per month and loss of
daily average profit of GH¢65.00.<o:p></o:p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Damages for wrongful closure of the shop
and an order to re-open the same.<o:p></o:p>Following an application
on notice, the trial High Court ordered the re-opening of the plaintiff’s shop
on the 18/12/2007. Meanwhile, the defendant who had earlier on filed a notice
of appearance through counsel, filed a statement of defence. In its statement
of defence, the defendant admitted that it had had a distributorship agreement
with the plaintiff&nbsp; under which the
plaintiff was supposed to make daily payments of the sales the plaintiff made
of its products but that the plaintiff had refused to do so. The defendant also
averred that ‘as part of the Agreement between it has the right to collect it’s
Products which had been supplied to the distributor&nbsp; but had refused to pay for them After selling
same reduced its indebtedness’ (sic). The defendant also added that the
plaintiff was indebted to the defendant to the tune of GH¢1,496.32 as at the
time the defendant had decided to collect its products from the plaintiff’s
shop. The defendant further averred that the goods collected were worth GH¢1,243.00
and that this amount had been credited to the plaintiff’s account to reduce his
debit balance but that the plaintiff had still owed the defendant GH¢252.00.
The defendant still further averred that it had taken inventory of the products
it collected from the shop; adding that since it entered into the
distributorship agreement with the plaintiff, it had never supplied goods to
the plaintiff worth more than GH¢2,100.00. The defendant had then
counter-claimed for the recovery of GH¢252.00 being the outstanding balance of products
supplied to the plaintiff on credit which the plaintiff had failed to pay for
and interest thereon from 9/10/2007 to the date of final judgment.<o:p></o:p>At
this juncture, the chronology of events is important so I will give a summary
of the chronological account of what happened. Somehow even before pleadings
were closed the trial judge, apparently suo moto, adjourned the case several
times to enable the parties reach an amicable settlement out of court. He
indeed made four such adjournments before finally stating on the 3/7/2008 that
‘It seems to me that they are not willing to settle out of Court so the Court
will settle it for them by hearing it on its merits. Suit is to take its normal
course.’ Apparently taking a cue from the bench, the plaintiff filed his
application for directions on the 8/7/2008 and listed the issues for trial as
follows:<o:p></o:p>