SUPER PAPER PRODUCTS CO. LTD vs. KYOMATSU TRADING CO LTD. AND OTHERS [2014]DLCA2963

Date	2014-05-22
Suit No.	CIVIL APPEAL NO. H1/31/2010
Citation No.	[2014]DLCA2963

KUSI-APPIAH J.A (PRESIDING)

OFOE J.A

DZAMEFEJ.A

ANTHONY KWAKYE FOR PLAINTIFF/APPELLANT

GEORGE ESHUN FOR DEFENDANTS/RESPONDENTS

[2014]DLCA2963
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													<main id="main" class="content" style="min-height: 60rem" >SUPER PAPER PRODUCTS CO.
LTD<o:p></o:p>vs.<o:p></o:p>KYOMATSU TRADING CO LTD.
AND OTHERS<o:p></o:p>&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;[COURT OF APPEAL, ACCRA]&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; <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">

CIVIL
APPEAL NO. H1/31/2010&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
MAY, 2014<o:p></o:p>

</div>COUNSEL:&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; <o:p></o:p>ANTHONY KWAKYE FOR
PLAINTIFF/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">

GEORGE
ESHUN FOR DEFENDANTS/RESPONDENTS<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:0in 0in 1.0pt 0in">

KUSI-APPIAH
J.A (PRESIDING), OFOE J.A ,DZAMEFEJ.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;
padding:0in 0in 1.0pt 0in">

JUDGEMENT<o:p></o:p>

</div>OFOE,J.A.<o:p></o:p>The plaintiff is a Ghanaian
registered company. 1st and 3rd defendants are Chinese registered
companies. The 4th defendant was the Managing Director of the
plaintiff companies at the same time the Managing Director of the 3rd
defendant company. As for the 2nd defendant it is the case of the
plaintiff that he was falsely put up, with his knowledge, by the 4th
defendant as the Managing Director of the 1st defendant company but
behind the scenes it was the 4th defendant who was in charge of that
company. The main allegation of the plaintiff is that the 4th
defendant in his dual position as Managing Director of these two companies and
with the influence that he had over the 1st defendant company
manipulated all these Chinese companies and succeeded in defrauding the
plaintiff company of several millions of dollars. The 4th defendant
had the collaboration of the 1st and 2nd defendants in
perpetrating this fraud. The plaintiff’s allegation continued, that the fraud
was perpetuated through over invoicing and double pricing of machinery and
equipment that the plaintiff bought from the 1st and 2nd
defendant on the advice of the 4th defendant. It was to seek redress
in claiming these monies that were fraudulently paid in excess to the 1st
and 2nd defendant that it went to court seeking to set aside the
contract, exhibit A, that formed the basis of the transaction and retrieve any
monies overpaid to the defendants. <o:p></o:p>The brief facts of this case
can be stated as follows: <o:p></o:p>The plaintiff on the advice
of its managing director, the 4th defendant, agreed to expand its
products from producing toilet rolls to include other paper products. This
expansion required acquisition of additional machinery and equipment which
initially was to be procured through finance sourced by 3rd
defendant company. When all approvals from the relevant governmental agencies
had been procured for the importation of the said equipment and machinery and
an agreement exhibit B had been signed between the plaintiff and the 3rd
and 4th defendants for the supply of these machinery, the 4th
defendant disclosed to the plaintiff company that the 3rd defendant
was no longer able to discharge its duty procuring the funds for the import of
the required machinery and equipment for the plaintiff. The 4th
defendant recommended another Chinese company to take over this duty of
sourcing for funds from the 3rd defendant. The recommended company
was the 1st defendant company. This was accepted by the plaintiff
company. Fresh proforma invoices for the importation of the machinery and
equipment had to be submitted by the 1st and 2nd defendants,
who formed the basis of an agreement, exhibit A, between the plaintiff and the
1st defendant company spelling out each parties obligations. Mr. C.O.
Nyanor, the chairman of the plaintiff company signed for the plaintiff company.
One of the issues between the parties for resolution by the court was whether
this agreement was executed by the 4th defendant on behalf of a Mr.
T. A. Lai, the 1st defendant’s Managing Director, or it was executed
by T. A. Lai himself. It is the case of the plaintiff that it was the 4th
defendant who executed this agreement in Ghana for the 1st defendant
in the presence of a staff of the plaintiff company, making it look as if it
was signed by the 2nd defendant and that the agreement was never
executed by T. A. Lai or any officer of the 1st defendant company.&nbsp; <o:p></o:p>The machinery and equipment
were imported and delivered all right but plaintiff contended that some of the
invoices were fraudulently inflated with items which could not be part of the
cost of the machinery because they were all post landing charges. Other
questionable costs on the invoices, according to the plaintiff, were amounts
which the 1st defendant, by the contract exhibit A, should have paid
for but because of the fraudulent manipulation of the invoices plaintiff rather
paid for them. Plaintiff questioned also payment of salaries to the engineers
brought in by the defendants to install the Stock Preparatory Machinery, cost
of the construction of Chestroom, cost of installation of the machinery and
equipment and disputed the payment for commissioning of the said machinery. The
defendants in violation of the contract also failed to supply the laboratory
equipment and failed to impart the technical knowhow to the plaintiffs to
enable its own workers operate the machinery and equipment. Important equipment
like the Digesters and Straw Cutters which would have enabled the plaintiff to
make </main>