ANTONIO OLIMPIO SANTOS FELIX (PLAINTIFF) vs. GIOVANI ANTONELLI & ANOR (DEFENDANT) [2016]DLHC7231

ANTONIO OLIMPIO SANTOS FELIX (PLAINTIFF) vs. GIOVANI ANTONELLI & ANOR (DEFENDANT... [2016]DLHC7231

Date	2016-04-26
Suit No.	CM/0143/16
Citation No.	[2016]DLHC7231

HIS LORDSHIP GEORGE K. KOOMSON (J).

YONNI KULENDI FOR PLAINTIFF/RESPONDENT

ATTA AKYEA SAMUEL FOR DEFENDANTS/APPLICANTS

[2016]DLHC7231
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<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">

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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 26TH
APRIL, 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;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;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>The
main issue requiring my adjudication in this application is as to whether or
not the court should exercise its judicial discretion to preserve the
equipment, machines, vehicles, etc, until the final determination of the
substantive suit.<o:p></o:p>A
summary of the material facts giving rise to the present application is that on
the 27th February, 2015, the parties entered into a memorandum of
understanding whereby the plaintiff agreed to purchase from the 1st
defendant shares in 2nd defendant company.<o:p></o:p>The
parties agreed further in the said MOU that payment for the shares was to be
50% in cash and the remaining 50% to be paid for in kind (in the nature of
equipment, machines, vehicles and spare parts).<o:p></o:p>The
plaintiff subsequently shipped equipment, machines, vehicles and spare parts to
Ghana, with the 2nd defendant as the consignee.&nbsp; The shipment was done in the name of
Moldaterres-Terraplangens e Escavacoes.&nbsp;
The relationship between the parties became sour and the plaintiff
issued a writ of summons claiming, inter alia, a declaration that he is the
lawful owner of the equipment, machines and vehicles, the subject-matter of the
present application and an order directed at the defendants to deliver the said
equipment, machines and vehicles to the plaintiff.&nbsp; The defendants have also counterclaimed for
certain reliefs, one of which is for a declaration that the equipment,
machines, vehicles and spare parts shipped to the 2nd defendant by
Moldaterres –Terraplenagens e Escavacoes Lda, are valued in the sum of
USD700,690.00 and an order directed at the plaintiff to surrender to the 1st
defendant the 3 vehicles, the property of the 1st defendant, loaned
to the 2nd defendant as capital, has been illegally seized by the
plaintiff.<o:p></o:p>I
have read the application and the affidavits and annexures filed in support and
in opposition.&nbsp; I have given regard to
the oral submissions made by both counsel, in support and in opposition to the
application. Thoughtful consideration has been given to order 25 rule 2(1) of
the High Court (Civil Procedure) Rules, 2004 (CI.47) and the principles
governing applications of this nature.<o:p></o:p>In
considering whether to grant or refuse an application for an order for
preservation, the court must first consider whether the property is the
subject-matter of the suit.<o:p></o:p>In
Scott v .Mercantile Accident Insurance Co. (1892) 8 T.L.R. 320, the lower court,
made an order that certain jewellery should remain in the custody of the
police.&nbsp; An appeal against this order was
allowed because it was admitted on the evidence &nbsp;that the property was not the subject matter
of the action, but that only a question might arise about it in the cause or
matter.<o:p></o:p>The
court must also consider that the party against whom the order is being sought
is the person in possession or custody of the property in dispute:<o:p></o:p>See
the case of Garrard v. Edge &amp; Sons (1889) 58 L.J. CH. 397: 37 W.R. 50I. C.A.
See also Wilder v. Wilder (1912) 56 SJ 571.<o:p></o:p>In
the case of LENEY &amp; SONS LTD v. CALLINGHAM &amp; THOMPSON (1908) 1 K.B. 79
at 84, Farwell, LJ stated another consideration a court should have as follows:<o:p></o:p>“The
question of the exercise of the judicial discretion was always based, and is
still based, upon this, that there is property in dispute to some interest in
which the plaintiff shows a prima facie title; and preservation is ensured
until the rights of the parties can be finally determined.”<o:p></o:p>In
other words, the plaintiff must establish a prima facie title to the property
in dispute before a court may decide to grant an application for the
preservation of the properties in dispute.<o:p></o:p>Furthermore,
the court should consider whether there is something which ought to be done to
ensure the security of the property. Thus in Chaplin v. Barnett (1912) 28
T.L.R. 256 it was decided that the rule extends to every case where the court
sees that as between the plaintiff and defendant there is something which ought
to be done for the security of the property.<o:p></o:p>The
court will a</main>