ANTONIO OLIMPIO SANTOS FELIX (PLAINTIFF) vs. GIOVANI ANTONELLI & ANOR (DEFENDANT) [2016]DLHC7230

ANTONIO OLIMPIO SANTOS FELIX (PLAINTIFF) vs. GIOVANI ANTONELLI & ANOR (DEFENDANT... [2016]DLHC7230

Date	2016-03-23
Suit No.	SUIT NO. CM/0143/16
Citation No.	[2016]DLHC7230

HIS LORDSHIP GEORGE K. KOOMSON (J).

YONNI KULENDI FOR PLAINTIFF/RESPONDENT

ATTA AKYEA SAMUEL FOR DEFENDANTS/APPLICANTS

[2016]DLHC7230
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													<main id="main" class="content" style="min-height: 60rem" >ANTONIO
OLIMPIO SANTOS FELIX<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GIOVANI
ANTONELLI &amp; ANOR<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), 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. CM/0143/16&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 23RD MARCH, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>YONNI
KULENDI FOR PLAINTIFF/RESPONDENT<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">

ATTA
AKYEA SAMUEL FOR DEFENDANTS/APPLICANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP GEORGE K. KOOMSON (J).<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="margin-bottom:0in;margin-bottom:.0001pt;
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">RULING<o:p></o:p>

</div>In this application, the Defendants/Applicants
(herein referred to as ‘the Applicants’) pray the court for an order for the
Plaintiff/Respondent (herein called ‘Respondent’) to provide security to cover
the defendants costs in the matter. The core contention of the applicants is
that the Respondent is not ordinarily resident in the jurisdiction and does not
have any known assets in the realm and therefore falls within the category of
persons against whom this Honourable Court may make an order for security for
costs. <o:p></o:p>Let me briefly set out the material facts giving
rise to this application. The Defendants were sued by the plaintiff on the 17th
of February, 2016. The Applicants entered appearance and filed a statement of
defence and counter claim on the 23rd of February, 2016 and 3rd
of March, 2016 respectively. On the 17th of March, 2016 the
Respondent filed an application for interim preservation of property. Then, on
the 23rd of February, 2016, the Applicants also filed the present
application for security for costs. On the 8th of March, 2016 the
Respondent filed his reply and defence to the counter claim. <o:p></o:p>The case of the Applicants is that the Respondent
is a Portuguese citizen and has no known address in Ghana. Applicants referred
to the writ of summons and the paragraph one of the statements of claim to
support their contention. Applicants further contended that the Respondent has
no known assets in the realm. Applicants therefore contended that if costs is
awarded against the Respondent at the end of the trial, it would be impossible
to execute same against the Respondent. Counsel for the Applicants made reference
to the following cases to support the case of the Applicants, namely, EDUSEI v
DINERS CLUB SUISSE SA [1982-83] GLR 809; GATCO CHEMPHARM v PHARMADEX GH. LTD
[1999-2000] 2GLR 262.<o:p></o:p>Counsel for Applicants further contended that the equipment
which the Respondent shipped to the 2nd defendant company cannot be
the properties of the Respondent as the said equipment were consigned to the 2nd
Applicant. Being the consignee, the 2nd Applicant has title to the
said equipment. The case of KAGUIN ENERPRISE GH. LTD v UMARCO GH. LTD [2000]
SCGLR 530 was referred to the court in support of this contention by counsel
for Applicants. Counsel further referred to the case of BANK OF WEST AFRICA LTD
V APENTENG &amp; ANOR [1972] 1GLR 153.<o:p></o:p>In conclusion, counsel for Applicants opined that
the Respondent has no interest in the equipment, having consigned them to the 2nd
Applicant. Respondent should therefore be compelled to provide security to
answer any costs that this court may award against him in favour of the Applicants
at the end of the trial.<o:p></o:p>In response to these submissions, the Respondent
also contended that it is not in all cases that a plaintiff fails to provide an
address or when a plaintiff is not ordinarily resident in the jurisdiction, that
the court automatically exercise the given discretion under order 24 rule 1 of
CI 47 to order the said plaintiff to provide security for costs. In the opinion
of counsel for Respondent, this court must have regard to all the circumstances
of the case. Counsel for Respondent referred the court to Practice and Procedure
in the Trial Courts of Ghana by S.A Brobbey J.S.C, specifically page 398
paragraph 911.<o:p></o:p>In the view of counsel for the Respondent,
whichever way this matter is looked at, the fact remains that the Respondent either
owns the equipment or 30% shares in the 2nd Applicant Company. It is
therefore the case of the Respondent that whatever interest that the Respondent
have, be it equipment or 30% shares in 2nd Applicant Company, must
be seen as an interest in properties in the realm. Having these interest in any
of these properties, the Respondent does not fall under the category of persons
against whom the court may make an order for security for costs. <o:p></o:p>I have read the affidavits and annexures attached
thereto, filed by the parties. I have also read the pleadings filed by the
parties. Regard has been given to the oral submissions made by both counsel. I
have also given thoughtful consideration to the order 24 rule (1) of CI 47 and
the authorities on security for costs. It is however useful for me to reproduce
the order 24 rule (1) of CI 47 and also refer to some of the authorities on the
matter. &nbsp;<o:p></o:p>Order 24 rule (1) of CI 47 provides:<o:p></o:p>