W.J. DYNAMICS LTD vs. CONFIGURED TECHNOLOGY LTD, BUAFO ARKO AND B&B COMPANY LTD [2011]DLHC4201

Date	2011-04-20
Suit No.	SUIT NO. BC 179/2007
Citation No.	[2011]DLHC4201

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

AYITEY ARMAH TETTEH FOR THE PLAINTIFF

E.O. ARMAH FOR THE DEFENDANT

ADJEI-LARTEY FOR THE 3RD PARTIES

[2011]DLHC4201
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													<main id="main" class="content" style="min-height: 60rem" >W.J. DYNAMICS LTD<o:p></o:p>vs.<o:p></o:p>CONFIGURED TECHNOLOGY
LTD, BUAFO ARKO AND B&amp;B COMPANY LTD<o:p></o:p>[HIGH
COURT, (FINANCIAL DIVISION 1), ACCRA]<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">

SUIT NO. BC 179/2007&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: 20TH APRIL, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AYITEY
ARMAH TETTEH FOR THE PLAINTIFF<o:p></o:p>E.O.
ARMAH FOR THE DEFENDANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ADJEI-LARTEY
FOR THE 3RD PARTIES<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE P. BRIGHT MENSAH<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="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;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>This
is an interesting case.<o:p></o:p>On
the 24th day of January, 2007 the Plaintiff issued a Writ of Summons claiming
against the defendant, the judicial reliefs mentioned here below:<o:p></o:p>1.&nbsp;&nbsp;&nbsp; The recovery of the sum of ¢206,500.00
being the outstanding balance of boots/shoes supplied to the defendant, which
they have refused to pay despite repeated demands.<o:p></o:p>2.&nbsp;&nbsp;&nbsp; Interest on the said amount at the current
bank rate from 1st January, 2006 to date of final payment.<o:p></o:p>3.&nbsp;&nbsp;&nbsp; Cost.<o:p></o:p>However,
by a Statement of Defence filed on 4th October, 2007 the defendant claimed that
the shoes, the subject matter of this suit, were meant for Buafo- Arko of Accra
to be sold and to account to the Plaintiff.&nbsp;
It was averred that Buafo- Arko approached the Managing Director of the
defendant company, Kofi Simpey for financial assistance to be able to sell the
shoes.&nbsp; Sempey agreed to assist him and
issued two (2) cheques in the value of ¢70m and ¢30m respectively in favour of
the Plaintiff company.&nbsp; On the basis of
that assertion that Kofi Sempey only assisted Buafo-Arko to be able to purchase
the shoes from, and to account to the Plaintiff, and that Configured Technology
Ltd were therefore not liable to W.J. Dynamics Ltd, the defendant successfully
applied for 3rd Party proceedings joining Buafo-Arko and his company, B &amp; B
Company Ltd to the suit as 3rd Parties.<o:p></o:p>It
recalls that upon being the 3rd Party directions on the 28th of October, 2009,
the court proceedings under Order 15 r 4(3) of the High Court (Civil Procedure)
Rules, 2004 (CI 47), and having regard to the pleadings filed by the defendants
and the 3rd Parties, did enter judgment for the Plaintiff on the reliefs
claimed as endorsed on the writ of summons.&nbsp;&nbsp;
The judgment was, however, stayed and the court directed the defendant
to take out an Application for Directions for the court to determine whether or
not it was the 3rd Parties who were liable to the claims of the Plaintiff.<o:p></o:p>By
the statement of defence filed by the 3rd Parties and given the defence filed
earlier by the defendant in response to the Statement of Claim by the
Plaintiff, it was eminently clear that the Plaintiffs supplied some cartons of
shoes and was therefore entitled to be paid for them.&nbsp; But the cardinal issue was which of the
parties ie the defendant or the 3rd Parties was liable to pay for the shoes.<o:p></o:p>Now,
by a Notice of Application for Directors filed by the defendant on 08/12/09 the
Issues which were set out between the defendant and the 3rd Parties for the
consideration of the court were as follows:-<o:p></o:p>1.&nbsp;&nbsp;&nbsp; The capacity of the Third Parties at the
time the Plaintiff supplied to the Third Parties, the total quantity of 258
cartons (2,441 pairs) of shoes/boots.<o:p></o:p>2.&nbsp;&nbsp;&nbsp; The terms and conditions agreed between the
Plaintiff and the Third Parties for the supply of the said quantity of
shoes/boots to the Third Parties.<o:p></o:p>3.&nbsp;&nbsp;&nbsp; Whether or not the two (2) cheques in the
sums of Gh¢7,000.00 and Gh¢3,000.00ssued by the defendant to the Plaintiff was
to assist the Third Parties meet a demand made by the Plaintiff on the Third
Parties to provide for the sale of the shoes/boots supplied by the Plaintiff to
the Third Parties.<o:p></o:p>4.&nbsp;&nbsp;&nbsp; Whether or not the issuance of the said
cheques was made upon terms agreed between the defendant and the Third Parties
and in consideration of the 1st Party sub-contracting to the defendant a
contract he had won to service the fax machines of the Agricultural Development
Bank (ADB) nationwide.<o:p></o:p>5.&nbsp;&nbsp;&nbsp; Whether or not the Third Parties complied
with the terms of the said agreement.<o:p></o:p>6.&nbsp;&nbsp;&nbsp; Whether or not the Third Parties were
commissioned agents of the defendant or received and sold the said shoes and
boots in their own right as sellers.<o:p></o:p>7.&nbsp;&nbsp;&nbsp; Whether or not the Third Parties are liable
for the claims of the Plaintiff.<o:p></o:p>As
stated supra, from the pleadings filed by the defendant and the 3rd Parties it
was eminently clear that the Plaintiffs supplied some cartons of shoes which
were to be paid for by either the defendant or the 3rd Parties.&nbsp; The defendant had paid part with ¢206m still
outstanding.<o:p></o:p>