INTERTEK GHANA LIMITED vs. LUSHANN INTERNATIONAL ENERGY LTD DEFENDANT [2017]DLHC3960

Date	2017-08-18
Suit No.	SUIT NO: AC/716/2015
Citation No.	[2017]DLHC3960

JUSTICE KWEKU T. ACKAAH- BOAFO

MR. STEPHEN CHARWAY HOLDS KWAKU OSAFO BUABENG’S BRIEF

NO REPRESENTATION FOR THE DEFENDANT

[2017]DLHC3960
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													<main id="main" class="content" style="min-height: 60rem" >INTERTEK GHANA LIMITED<o:p></o:p>vs.<o:p></o:p>LUSHANN INTERNATIONAL
ENERGY LTD DEFENDANT<o:p></o:p>[HIGH
COURT (GENERAL JURISDICTION 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: AC/716/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 18TH AUGUST,
2017.<o:p></o:p>

NO
REPRESENTATION FOR THE DEFENDANT <o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>Introduction: <o:p></o:p>[1] This action is
brought for the recovery of outstanding sum of money due the Plaintiff for
contractual services rendered by the Plaintiff at the request of the Defendant.
The Plaintiff contends that by a contract for Inspection and Testing Services
entered into between the parties, it rendered services at the request of the
Defendant and for its benefit but the Defendant has neglected and/or refused to
pay for same despite the demands made. In addition, the Plaintiff claims
interest at the prevailing bank rate on the outstanding sum. Moreover, the
Plaintiff claims damages for breach of contract. <o:p></o:p>[2] Having failed to
pay the outstanding debt for the services rendered the Plaintiff commenced the
instant action for: <o:p></o:p>1.
Recovery of the sum USD$291.041.20
and GH¢628.584.18 being outstanding
balance due Plaintiff for contractual services rendered by Plaintiff for
Defendant at the request of the Defendant. <o:p></o:p>2.
Interest on the above amounts at the prevailing bank rates from 1st April, 2015
till the date of final payment. <o:p></o:p>3.
Damages for breach of contract. <o:p></o:p>[3] When the suit came
before me for trial, the Defendant Company and its Lawyer were absent. From the
record of service, the Defendant’s lawyer of record Addo Atua &amp; Co Legal
Practitioners, located at Essie Lodge, Kojo Thompson Road at Adabraka, Accra
were duly served with numerous hearing notices including one for May 10, 2017.
As usual the Defendant’s lawyers sent a letter seeking an adjournment of the
trial which had been adjourned few times previously on the grounds that the
assigned lawyer was travelling outside the jurisdiction. No date was proposed
and no indication was given as to when the lawyer was to return. The Court
therefore rejected the letter and proceeded with the trial but adjourned for
Counsel to attend to cross-examine the witness. The Court notes that since the
Defendant contested the Plaintiff’s initial application for summary judgment
which was refused in December 2015 the Defendant and its lawyer have failed to
attend Court.&nbsp; <o:p></o:p>[4] Pursuant to the
provisions of Order 36 Rule 2 (a) of CI 47, I proceeded to hear the evidence of
the Plaintiff. I also note that numerous hearing notices were served after the
trial started and the Defendant was given the opportunity to attend and to
cross-examine the Plaintiff’s witness but it failed to attend and counsel
too.&nbsp; <o:p></o:p>Plaintiff’s Evidence &amp; Defendant’s
Pleadings: <o:p></o:p>[5] Plaintiff’s
evidence given by Mr. Samuel Kuuku Cann Jnr Assistant Operations Manager
(Petroleum) per his witness statement filed on January 20, 2017 and adopted at
trial is that the Plaintiff Company entered into an agreement with the
Defendant for Inspection and Testing Services referred to as “Contract No.
LUSHINT/01/13” on the 24th April, 2013. According to the Plaintiff the
Defendant contracted the Plaintiff to provide inspection and testing services
for the <o:p></o:p>Defendant
in respect of its offshore operations at Saltpond. According to the Mr. Kuuku
Cann the contract stipulated that the Plaintiff provide the inspection and
testing services on the Motor Tanker (MT) “Olympic Faith” by sampling all
“designated tanks including the vessel’s tank, the delivery tanks, inspection
of storage (FSO) tanker tanks before discharge”. Also, the Plaintiff after
discharge was required to inspect the delivery vessel’s tanks for the purposes
of preparing an industry related report and then issue certificate of
quantity/quality commonly referred to in the oil industry as “Q and Q” and
letters of protest among others. A copy of the contract signed was tendered and
marked as Exhibit “A”. <o:p></o:p>[6] The Plaintiff’s
further testimony is that it performed its obligations as stipulated in the
agreement to its ability and satisfaction of the Defendant such that on no
occasion did the Defendant complain about the performance. Mr. Kuuku Cann Jnr
further testified that all invoices raised were sent to the Defendant which
honoured same until it “started defaulting in honouring the invoices of the
Plaintiff”. According to the Plaintiff the Defendant owes the amount endorsed
on the writ of summons being, US$291,041.20 and GH¢628,584.18. The Plaintiff’s
witness further testified that it made several demands on the Defendant to
honour the outstanding invoices but the Defendant has failed to do so. The
Plaintiff tendered Exhibit “B”, being a letter dated 23rd February 2015 and
written by the Defendant’s Chief Executive Officer, Quincy Sintim Aboagye in
which he admitted the Defendant’s indebtedness in the sum of US$488,770.59.&nbsp; <o:p></o:p>[7]