WEST AFRICA QUARRY LTD. vs. GODFRED SUMABE AND 3 OTHERS [2018]DLCA4860

Date	2018-01-18
Suit No.	CIVIL APPEAL NO. HI/5/2018
Citation No.	[2018]DLCA4860

KUSI-APPIAH JA (PRESIDING)

HONYENUGA JA

KWOFIE JA

MR. KWASI BLAY FOR THE 1st AND 2ND APPELLANTS

MISS ABIGAIL TETTEH FOR THE RESPONDENT

MR. EMMANUEL KOFI DARKO WITH HIM EDMOND DIAMOND ADDO FOR THE

DIRECTORS OF THE PLAINTIFF/RESPONDENT AND GHACEM

[2018]DLCA4860
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													<main id="main" class="content" style="min-height: 60rem" >WEST AFRICA QUARRY LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GODFRED SUMABE AND 3
OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. HI/5/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 JANUARY, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. KWASI BLAY FOR THE 1st AND 2ND APPELLANTS<o:p></o:p>MISS ABIGAIL TETTEH FOR THE RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>KUSI-APPIAH JA
(PRESIDING), HONYENUGA JA, KWOFIE JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="text-align:center;border:none;
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</div>HONYENUGA,
JA<o:p></o:p>This appeal is
against the Ruling of the High Court (Commercial Division), Accra dated the 24th
day of January, 2017.&nbsp; In the said
ruling, the High Court dismissed the 1st and 2nd
defendants/appellants application to attach the properties of the
plaintiff/respondents and its Directors for non-payment of the Judgment debt
dated the 31st day of July 2015.&nbsp;
In this appeal, the 1st and 2nd
defendants/appellants would be simply referred to as the appellants and the
plaintiff/respondent and the Directors as the respondents.<o:p></o:p><o:p>&nbsp;</o:p>The facts of this
appeal may be stated as that the respondent initiated an action against the
appellants and others at the High Court, Commercial Division, Accra claiming
inter alia an injunction to restrain them from interfering with the
respondent’s quiet possession of the concession and quarry to mine
limestone/dolomitic limestone, and refund of GH¢2.3million.&nbsp; The appellants among others counterclaimed, claiming
recovery of GH¢1,829,650.00 being outstanding balance on the contract executed
by the appellant at the instance of the respondent.&nbsp; The 3rd defendant thereon also
counterclaim which left the 4th defendant to only file a Statement
of Defence.&nbsp; Upon the close of pleadings,
an application for directions was taken and the case was heard to its
finality.&nbsp; The learned trial judge in his
judgment entered judgment for the appellants and the 3rd and 4th
defendants therein, upon their counterclaim for general damages for breach of
contract among other claims together with various costs.&nbsp; On the 22nd day of June 2016, the
appellants filed a motion on notice for leave to attach the properties of the
Directors of the respondent on the grounds that the respondent company failed
to pay the judgment debts, that a garnishee order issued against the respondent
yielded no more than GH¢674,151.91 and that the appellants had not sighted any
valuable movable and immovable properties to be attached to defray the
outstanding judgment debt.<o:p></o:p>The motion was
vehemently opposed.&nbsp; Upon hearing both
counsel for the parties, the learned trial judge dismissed the motion and
another motion to pierce the veil of the respondent based on the principles of
company law, that the Directors cannot be held liable and that the corporate
veil could not be pierced in aid of execution in the circumstances of the
case.&nbsp; It is against this ruling that the
appellants have appealed to this court, praying that the ruling be reversed
based on the following grounds:<o:p></o:p>“(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in the
exercise of discretion in refusing the application for leave to attach the
properties of Directors and Officers of the plaintiff/respondent company
brought under Order 43 Rule 5(1)(bb) of C.I. 47 as amended filed on 11/7/2016.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in her
ruling that the judgment could not be effected against the Directors and
Officers of the plaintiff/respondent company because they were not parties to
the suit.<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in her
failure to give separate rulings in respect of the application filed by the
appellants herein and another application filed by the 3rd defendant
seeking to pierce the corporate veil in aid of execution filed on 4/7/2016.<o:p></o:p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge failed to
adequately consider the case of the 1st and 2nd
defendants/appellants.<o:p></o:p>Further
grounds of appeal to be filed upon receipt of a copy of the record of proceedings”.<o:p></o:p>It is noted that
further grounds were not filed and they are considered abandoned.<o:p></o:p><o:p>&nbsp;</o:p>I would consider
the ground of appeal as filed and argued by the learned counsel for the
appellants.&nbsp; Counsel first argued ground
(i) of the notice of appeal and straight away attacked the learned trial
judge’s decision for having agreed with a submission that the appellants’
application was incompetent in failing to show that the Order 43 Rule 5(1)(bb)
of C.I. 47 relied upon included rules 5(1)(a) and (b) which they conveniently
left out in making the application before he followed it with the sub sections
(aa), (bb) and (cc) and that alone was sufficient to dismiss the
application.&nbsp; Counsel submitted that in
making reference to the Rules of Court the entire Rules under the Order </main>