CARBON COMMODITIES DMCC vs. HELENA ARTHUR MAWUENYEGA [2018]DLHC3721

Date	2018-07-23
Suit No.	SUIT NO.RPC/122/15
Citation No.	[2018]DLHC3721

HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.)

ANNA FORDJUOR FOR PLAINTIFF

EMMANUEL K. ARTHUR FOR DEFENDANT

[2018]DLHC3721
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">CARBON
COMMODITIES DMCC<o:p></o:p></a>vs.<o:p></o:p>HELENA ARTHUR MAWUENYEGA<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL COURT), KUMASI]<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.RPC/122/15&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; &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: 23RD JULY, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ANNA
FORDJUOR FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EMMANUEL K. ARTHUR FOR DEFENDANT <o:p></o:p>

JUDGMENT<o:p></o:p>

</div>The
Plaintiff in this suit is described as a Free Zone Company registered under the
laws of the United Arab Emirates and carries out the business of supplying
commodities. The defendant is also described as an entity registered under the
laws of Ghana and it is engaged in the business of selling frozen fish.&nbsp; The dispute between the parties came up as a
result of USD 123,900 worth of Fish shipped by the Plaintiff to the defendant
under a contract of sale agreement for which full payment has not been made. <o:p></o:p>Per
the endorsement on the amended writ of summons filed on 19/07/17, the Plaintiff
sought to recover the sum of Sixty- Nine Thousand, One Hundred and Eighty Three
United States Dollars Seventy One cents (US$69, 183.71) and interest thereon at
the current commercial rate from October 10, 2014 to the date of final payment.
However, after the lawyers had filed their final addresses, counsel for the Plaintiff
applied for, and was granted leave, under Order 16 rule 5(1) of C.I. 47, to
amend the indorsement on the Plaintiff’s writ of summons to reflect an amount
of USD 60,730.00 as the sum being claimed from the Defendant instead of&nbsp;&nbsp; US$69,183.71.<o:p></o:p>The
further amended writ of summons and statement of claim were duly filed on
10/07/2018.<o:p></o:p>&nbsp;It is the case of the Plaintiff that the Defendant
had up to ninety days to pay for the fish supplied valued US$ 123,930.00 and
not as and when she sold the fish. But, she has breached this contract of sale.<o:p></o:p>The
Defendant denied liability to the quantum claimed, on the grounds that the
quality and quantity of the fish actually supplied differed from what was
agreed on. Coupled with the intermittent power outage at the time, the Defendant&nbsp;&nbsp; contended that she had to sell the fish at
reduced prices, a situation which was brought to the attention of the Plaintiff.
Again, the Defendant alleged that she transacted with an agent of the Plaintiff
by name Francis Hagan, and the said agent took delivery of part of the
consignment worth GHC 151,410.00, and there is an outstanding balance of GHC
21,410.00 which has to be set off against her indebtedness. She asserted that
per her records, she is entitled to pay US$49,303.06 to the Plaintiff but she
is unable to do so because as of the time of filing her defence, the fish was
still in her cold room.&nbsp; The Defendant counterclaimed
for an order for the Plaintiff to take delivery of the quantity of fish
remaining in her cold room, and for the value to be deducted from any amount
owing to the Plaintiff. These assertions were denied by the Plaintiff in its
Reply. <o:p></o:p>ISSUES FOR TRIAL <o:p></o:p>After
an abortive pre-trial settlement conference, the following issues were set down
for trial:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not Francis Hagan acted as an
agent of the plaintiff?<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not Francis Hagan took some of
the fish supplies (d) to the defendant?<o:p></o:p>3.