THE DOCUMENT WAREHOUSE LTD. vs. AIRTEL GHANA LTD [2018]DLHC3485

Date	2018-01-19
Suit No.	SUIT NO.CM/BDC/0616/17
Citation No.	[2018]DLHC3485

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2018]DLHC3485
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">THE
DOCUMENT WAREHOUSE LTD.<o:p></o:p></a>vs.<o:p></o:p>AIRTEL GHANA LTD<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
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.CM/BDC/0616/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 19TH JANUARY, 2018<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>Defendant/Applicant (hereinafter called the Applicant)
seeks by this motion an order directed at the Plaintiff/Respondent (hereinafter
called the Respondent) to release all documents in Respondents custody,
possession and control. <o:p></o:p>In a 23 paragraph affidavit sworn to by one Andrew
Allotey, he claim that the Applicant engaged the services of Respondent for the
purposes of documentation, storage and management services. That the services
were duly rendered by the Respondent using the warehouse of the Applicant under
a sublease agreement. The Applicant claim that it terminated the agreement when
it gave the Respondent three months’ notice on the 16th of May,
2017. And as at the time of the termination of the agreement, Respondent was
indebted to it in the sums of Gh¢305,589.83 and USD$68,572 as being rent
accruals with Respondent also claiming that Applicant owed it the sum of
Gh¢209,680.55.<o:p></o:p><o:p>&nbsp;</o:p>Applicant further claim that the parties initiated
steps in respect of reconciliation of accounts. And whiles steps were being
taken, Respondent decided not to release the documents of Applicant. To
Applicant its present condition has become critical as the Customs Division of
the Ghana Revenue Authority (GRA) has requested for the documents for post
clearance audit for the period January, 2009 to 31st July, 2017 and
the Applicant would be unable to comply with the order of GRA unless the
Respondent makes available to it the documents in its custody.<o:p></o:p><o:p>&nbsp;</o:p>Applicant fear that without the release of the
documents GRA may impose penalties and charges and this statutory obligations could
only be met when Respondent has release the documents to it. And that even in the
unlikely event of Respondent succeeding in its claim, it was only entitled to
monetary payments and not one for it to hold onto its documents.<o:p></o:p><o:p>&nbsp;</o:p>Respondent has resisted the application for an order
for the release of the documents of Applicant in its custody. First Respondent
claim that this is an action in bailment, and with the respondent being the
bailee, there is a right that inure to him to retain possession of the property
of the bailor in lieu of outstanding fees owed it. And that the contract
between the parties stated the right of lien as a right that could be exercised
by the Respondent over the property of the Applicant. And this being a
contractual obligation, it was entitled to keep possession of same until it’s
just debts have been paid. <o:p></o:p><o:p>&nbsp;</o:p>Respondent further claim that if the documents were
released, he would be left unsecured with prolonged undue hardship to him and
any claim by Applicant of monies due it was only an afterthought, unlawful and
flout clause 5:1 of the agreement between the parties. <o:p></o:p><o:p>&nbsp;</o:p>Finally Respondent contend that with the takeover of
the Applicant by Tigo, there is no guarantee that the liabilities of Applicant
may also be taken over by Tigo and any protracted litigation beyond a certain
period would only frustrate the Respondent’s claim against Applicant and
accordingly prays that it right of lien over the documents should be upheld.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for Respondent has submitted that it has
asserted its rights under bailment and common law lien. Bailment arises where a bailee voluntarily takes custody of goods
belonging to the bailor. The bailee/bailor relationship may establish rights
and obligations that may be independent of a contract. Indeed Black’s Law
Dictionary defines bailment as: <o:p></o:p><o:p>&nbsp;</o:p>“a delivery of personal
property by one person (the bailor) to another (bailee) who holds the property
for a certain purpose under an express or implied in fact contract. Unlike a
sale or gift of personal property, a bailment involves a change in possession
but not in title”. <o:p></o:p>