ELAND INTERNATIONAL CO. LTD vs. NATIONAL INVESTMENT BANK LIMITED , ELAND INTERNATIONAL GHANA LTD [2015]DLHC11884

ELAND INTERNATIONAL CO. LTD vs. NATIONAL INVESTMENT BANK LIMITED , ELAND INTERNA... [2015]DLHC11884

Date	2015-12-17
Suit No.	SUIT NO. OCC/28/2014
Citation No.	[2015]DLHC11884

HIS LORDSHIP JUSTICE JEROME NOBLE-NKRUMAH

ASARE DANQUAH ESQ FOR PLAINTIFF RESPONDENT

ELI AGBAMAVA FOR 3RD PARTY RESPONDENT

DICK ANYANDI ESQ WITH EDWARD BRIKU BUADU AND HACKMAN ESQ FOR DEFENDANT APPLICANT

[2015]DLHC11884
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													<main id="main" class="content" style="min-height: 60rem" >ELAND
INTERNATIONAL CO. LTD<o:p></o:p>vs.<o:p></o:p>NATIONAL
INVESTMENT BANK LIMITED<o:p></o:p>&nbsp;ELAND
INTERNATIONAL GHANA LTD<o:p></o:p>(3RD PARTY)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: black; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:normal;border:none;mso-border-bottom-alt:solid black 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. OCC/28/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 17TH&nbsp;DECEMBER 2015<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; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: black; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>HIS LORDSHIP JUSTICE JEROME NOBLE-NKRUMAH<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: black; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: black; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:normal;border:none;mso-border-top-alt:solid black 1.5pt;
mso-border-bottom-alt:solid black 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>This
a ruling on a motion on notice by defendant applicant for leave to amend its
counterclaim and third party notice. In moving this motion counsel for the
applicant has argued that the amendment intended will not set up a new cause
nor add new parties or cause any delay. So far as the applicant is concerned
claims in this matter arise from defendants
exhibit EITL2 which derives from exhibit
EITL1 and that the counterclaim is against Plaintiff as well as the 3rd
party.<o:p></o:p>The
Plaintiff in opposing this has urged on the court that the basis of the
substantive suit is their exhibit EITL1
titled Collateral Management Agreement,
which was entered into in 2001 and between the parties to this suit. That plaintiff’s exhibit EITL 2 is an
agreement to which neither the Plaintiff or 3rd party is a party to
and further to this it is nowhere stated in there that defendant will be
indemnified by either Plaintiff or the 3rd party. Counsel plaintiff
further refers to the learned E.D Kom in
his Civil Procedure 3rd edition 1990 at page 108 where the
learned author states amongst others that applications for 3rd party
notices to issue may arise in situations where a ‘def is said to be entitled to an indemnity for instance by an agent
from his principal’ and goes on that there is no such link between the
plaintiff and the 3rd party to merit any indemnity by the 3rd
party in favor of the defendant. <o:p></o:p>&nbsp;Plaintiff
counsel next moves to defendants amendment numbered viv (which ought to be ix
[9]) and argues that the agreement central to the suit mentioned therein is EITL 2 and plaintiff was not a party to
that suit neither did the defendant seek to have plaintiff joined. That this
matter went on appeal and in all that process the defendants left out the
Plaintiff. That in the current circumstances the defendant appears to want to
litigate piecemeal and wants from the Plaintiff what it has lost to a different
party<o:p></o:p>The
3rd party’s opposition is not fundamentally different from that of
the plaintiff. Counsel dwells also on the roles assigned to the parties in the
collateral management agreement exhibit
EIGL 1[EITL1]. That the defendant was the collateral manager and while 3rd
party was the distributer, while defendant had control and managment of the
commodities and had no authority to grant credit sales. That plaintiff’s claim
is basically that it has not received full payment for commodities supplied. He
goes on further that even though the 3rd party signed exhibit EIGL2 [EITL 2] and refers to
the preamble. 3rd party refers to the suit defendant has mentioned
in its proposed amendment and says defendant lost that suit and pleads res
judicata.<o:p></o:p>&nbsp;The
first part of defen</main>