PETER KOJO BINEY AND OTHERS vs. GEOFFREY ADEBAYO BINEY AND ATLANTIC PORT SERVICES LIMITED [2017]DLHC3964

PETER KOJO BINEY AND OTHERS vs. GEOFFREY ADEBAYO BINEY AND ATLANTIC PORT SERVICE... [2017]DLHC3964

Date	2017-08-22
Suit No.	SUIT NO: AC/530/2010
Citation No.	[2017]DLHC3964

JUSTICE KWEKU T. ACKAAH- BOAFO

MR. DANIEL SAGU OSEI HOLDS JOYCE AGYEMANG ATTAFUAH’S BRIEF FOR THE PLAINTIFFS

NO REPRESENTATION FOR THE DEFENDANT

[2017]DLHC3964
																																						<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" >PETER KOJO BINEY AND
OTHERS<o:p></o:p>vs.<o:p></o:p>GEOFFREY ADEBAYO BINEY
AND ATLANTIC PORT SERVICES LIMITED<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/530/2010&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: 22ND 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%;
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>Introduction: <o:p></o:p>[1] The Plaintiffs and
the 1st Defendant are shareholders of the 2nd Defendant Company, Atlantic Port
Services Ghana Limited. In this suit, the Plaintiffs accuse the 1st Defendant a
Director and Managing Director of breaching his fiduciary duty to the 2nd
Defendant by not preserving the assets of the Company. The issues for my
resolution in this case include whether the 1st Defendant set up a rival
Company in Liberia for his own benefit as against the interest of the other
shareholders/Directors. The Plaintiffs are therefore seeking an order for
accounts, an order for the payment of One Hundred and Fifty Thousand United
States Dollars ($150,000) as rental fees for the use of the Company’s equipment
in Liberia since 2008. In addition, the Plaintiffs claim interest at the
prevailing bank rate on the amount of $150,000. Moreover, the Plaintiffs claim
damages for breach of contract. <o:p></o:p>[2] Further to the
leave granted by this Court differently constituted, the Plaintiffs commenced
the instant action in a representative capacity on their behalf and on behalf
of other members of Atlantic Port Services for the following reliefs: <o:p></o:p>(a)
An order directed at the 1st Defendant to return the equipment and machinery
from Liberia to the premises of the 2nd Defendant in Ghana.&nbsp; <o:p></o:p>(b)
An order directed at the 1st Defendant to render accounts for the operation and
management of Atlantic Port Services (Liberia) Limited from August 2008 till
date. <o:p></o:p>(c)
An order for the payment of sum of one hundred and fifty thousand United States
dollars ($150,000.00) or its Ghana Cedis equivalent per month being the rental
fee of the said equipment from August 2008 till date of final determination to
the 2nd Defendant. <o:p></o:p>&nbsp;(d) Interest on (c) above at the prevailing
commercial rate with effect from August 2008 until date of final payment <o:p></o:p>(e)
Damages <o:p></o:p>(f)
Costs including Plaintiffs litigation expenses and solicitors professional fees
<o:p></o:p>The Background: <o:p></o:p>[3]
This suit has had a chequered history. After the filing of the amended writ in
2010, the record shows that the 1st Defendant after being served failed to
enter appearance and therefore the Plaintiffs applied for and obtained final
judgment in default of appearance in respect of reliefs (c) and (d). The Court
also granted interlocutory judgment in default of appearance in respect of
reliefs (a) and (b). However, before the Plaintiffs could prove their case on
the merits, the 1st Defendant successfully applied to have the judgments set
aside and was granted leave to file his statement of Defence out of time. A
copy of the Statement of Defence filed by Charles William Zwennes Esq of Messrs
Gaisie, Zwennes Hughes &amp; Company on February 25, 2011. A copy of same was
on the docket until March 2017. I shall later speak to the status of the said
defence in regards to this judgment.&nbsp; <o:p></o:p>[4] At the close of
pleadings numerous issues were set down for determination by the Court. The
Plaintiffs formulated ten issues and the Defendant also formulated nine
additional issues. All the issues were set down by this Court differently
constituted. They are: <o:p></o:p>i.
Whether or not the Defendant shipped equipment of Atlantic Ports Services as
listed in paragraph 10 of the Plaintiff’s Amended Statement of Claim to
Liberia.&nbsp;&nbsp; <o:p></o:p>ii.
Whether or not the shipping of the equipment belonging to Atlantic Ports
Services as listed in paragraph 10 was authorized by Atlantic Ports Services. <o:p></o:p>iii.
Whether or not the Defendant set up another company called Atlantic Ports Services
(Liberia) Ltd in Liberia. <o:p></o:p>iv.
Whether or not the Defendant is the President and also holds 75% shares in
Atlantic Ports Services (Liberia) Limited. <o:p></o:p>v.
Whether or not the Defendant is the sole beneficiary of the proceeds from
Atlantic Ports Services (Liberia) Limited. <o:p></o:p>