REISS & COMPANY LIMITED vs. HENRY NUERTEY KORBOE AND THREE OTHERS [2017]DLCA5022

Date	2017-03-16
Suit No.	SUIT NO. H1/1/2017
Citation No.	[2017]DLCA5022

GYAESAYOR JA (PRESIDING)

ADUAMA OSEI JA

LOVELACE-JOHNSON JA

ADELE ACOLATSE FOR PLAINTIFF/RESPONDENT

THEOPHILUS DONKOR FOR DEFENDANTS/APPELLANTS

[2017]DLCA5022
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													<main id="main" class="content" style="min-height: 60rem" >REISS &amp; COMPANY LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>HENRY NUERTEY KORBOE AND THREE OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. H1/1/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;16TH MARCH, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ADELE ACOLATSE FOR
PLAINTIFF/RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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THEOPHILUS DONKOR FOR
DEFENDANTS/APPELLANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>GYAESAYOR
JA (PRESIDING), ADUAMA OSEI JA, LOVELACE-JOHNSON JA<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>ADUAMA OSEI JA:<o:p></o:p><o:p>&nbsp;</o:p>In
this judgment, the Plaintiff/Respondent is referred to as “the Plaintiff”, and the
Defendants/Appellants are referred to as “the
Defendants”.<o:p></o:p><o:p>&nbsp;</o:p>By
its writ of summons issued in the Fast Track Division of the High Court, Accra,
on the 15th of December, 2008, the Plaintiff sought against the Defendants
jointly and severally a claim for the sum of GH¢920,000.00, “being the cost of the Plaintiff’s
agrochemicals the 1st Defendant fraudulently and in breach of
fiduciary duty and trust to the Plaintiff sold as the Sales Manager of the
Plaintiff company on credit to the 2nd and 3rd Defendants
and other customers but which said sum the 1st Defendant failed to
account for or pay back to the Plaintiff company despite repeated demands”.<o:p></o:p><o:p>&nbsp;</o:p>By
the said writ, the Plaintiff also sought against the Defendants declarations
that it was entitled to trace the above-stated sum of GH¢920,000.00 to certain
specified assets of the 1st Defendant, and to an account from the
Defendants from 2006 to date, in respect of all agrochemicals and agricultural
tools bearing the labels and name of the Plaintiff and packaged in the same way
as Plaintiff’s goods, which the 1st Defendant in breach of &nbsp;his fiduciary duty or in breach of trust to
the Plaintiff imported for the 2nd and 3rd Defendants
from the Plaintiff’s suppliers, Excel Crop Care in India, and were sold by the
1st, 2nd and 3rd Defendants.<o:p></o:p><o:p>&nbsp;</o:p>Again,
the Plaintiffs sought against the Defendants orders for the judicial sale of
the specified properties of the 1st Defendant to satisfy any
judgment it would obtain against the Defendants, to account for all
agrochemicals and agricultural tools the 1st Defendant fraudulently
sold through 2nd and 3rd Defendant companies but proceeds
of which the Defendants failed to pay to the Plaintiff, and for payment to the
Plaintiff by the Defendants of all amounts found due after the accounts had
been taken. General damages were also sought for breach of fiduciary duty, and
interest was sought on the sum that would be awarded as general damages, on the
sum that would be found due under the account, and on the above-stated sum of
GH¢920,000.00. <o:p></o:p><o:p>&nbsp;</o:p>To
justify the above-stated claims, the Plaintiff alleged in its statement of
claim that the 1st Defendant had been its employee since the year
2000, and that at all material times until the 5th of July, 2007,
the 1st Defendant had been its salesman in charge of its
Agrochemical Division. The Plaintiff contended that as its salesman, the 1st
Defendant held a fiduciary and other duty relationships with it that obliged
him, in all his dealings with the Plaintiff, to act in good faith, honestly,
and in the best interest of the Plaintiff. The 1st Defendant was not
to place himself in a conflict of interest position in his dealings with the
Plaintiff. <o:p></o:p><o:p>&nbsp;</o:p>In
respect of the 2nd and 3rd Defendants, the Plaintiff
alleged that they were limited liability companies incorporated by the 1st
and 4th Defendants to carry on, among other businesses, the business
of importing and distributing agricultural inputs and general goods. The
Plaintiff alleged further that the 1st and 4th Defendants
were the Directors and alter egos of the 2nd and 3rd Defendant
companies and that the 1st and 4th Defendants had at all
material times held themselves out to be personally liable for the acts and
debts of the 2nd and 3rd Defendant companies. <o:p></o:p><o:p>&nbsp;</o:p>The
Plaintiff alleged acts and conduct on the part of the 1st and 4th
Defendants in relation to the 2nd and 3rd Defendant
companies that had given rise to the debt of GH¢920,000.00 and contended that
the 1st, 2nd and </main>