MESSRS LINER MOTORS vs. OCEAN MOTORS LTD & ANOTHER [2019]DLCA8859

Date	2019-12-11
Suit No.	SUIT NO.HI/281/2018
Citation No.	[2019]DLCA8859

OFOE J.A

TORKORNOO J.A

GAISIE J.A

S. K. AMOAH WITH HIM NANA AMA PANYIN AMOAH FOR RESPONDENTS/APPELLANTS

FRANCIS AGBOTSE FOR PLAINTIFF/RESPONDENT

[2019]DLCA8859
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													<main id="main" class="content" style="min-height: 60rem" >MESSRS LINER MOTORS<o:p></o:p>(APPLICANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>OCEAN MOTORS LTD &amp;
ANOTHER<o:p></o:p>(RESP/APPELLANT)<o:p></o:p><o:p>&nbsp;</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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SUIT
NO.HI/281/2018&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; &nbsp; &nbsp; &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:&nbsp;&nbsp; 11th December, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>S. K. AMOAH WITH HIM NANA AMA PANYIN AMOAH
FOR RESPONDENTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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FRANCIS AGBOTSE FOR
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>OFOE J.A, TORKORNOO J.A, GAISIE J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div><o:p>&nbsp;</o:p>OFOE,J.A:<o:p></o:p>Messrs
Liner Motors, the respondent to this appeal, had judgment against the
appellants, a Ghanaian registered company and its Managing Director, in Italy.
It is not in dispute that the judgment was given by a Superior Court in Italy.
There were 6 judgments in all. Being foreign judgments the respondent, in terms
of section 83 of the Courts Act1993, Act 459 and Order 71 rule 9 of the High
Court Civil Procedure Rules, sought and had the judgments registered on the 15th
of June 2016 in other to facilitate their execution against the appellants. When
the appellant /judgment debtor got to know of the registration of these
judgments after entry of judgment had been served on them by substituted
service they applied to have the registration set aside. The reasons they
sought to set aside these judgments were deposed to in their affidavit filed on
the 28th of August 2017 found at page 60 of the record. Their depositions can
be stated as follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; They
had no notice of any trial in Italy in respect of these judgments that were
registered by the trial High Court. No court processes were served on them
indicating that court suits had been instituted against them in Italy<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 
The 2nd defendant/appellant who was the Managing Director had not
had any business with the respondent and the 1st defendant/appellant
who had some business dealings with the respondent does not owe the respondent
the monies it is seeking to recover from it.<o:p></o:p>3&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 
Apart from Liner Car s.r.l they do not know any of the companies whose
judgments have been registered and is to be enforced against them”. <o:p></o:p>The
affidavit in opposition filed by the respondent mentioned that there had been
an earlier writ issued against the appellants for the same reliefs but on the
objection by the appellants to the jurisdiction of the High Court, Ghana, the
suit was struck out. It is the facts from this same suit that the respondent
filed and obtained judgment in Italy which it got registered in Ghana. Other
salient facts deposed to in opposition to the application of the appellant to
set aside the registration can be stated concisely as follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
appellant is indeed indebted to it. The judgments were validly and
appropriately given against it for the said debt by a competent court that had
thoroughly investigated the case and given judgments accordingly. <o:p></o:p>2.<span style="font-style: normal; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The appellant was just being
fraudulent, like some other Ghanaian business men and refusing to admit and pay
its just debts<o:p></o:p>3.<span style="font-style: normal; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
If the appellant was
aggrieved at the judgment of the Italian court all they needed to do was to go
to that court or an appeal court in Italy to question the judgments. Filing the
motion in Ghana to set aside the order of that court was not the appropriate
action”.<o:p></o:p>Conspicuously
absent from the depositions of the respondent was their response in denial of
the allegation of the appellant that they were not notified of any trial in
Italy in respect of the judgments registered by the trial High Court. Counsel
for the appellants argues vehemently that such failure should have been
interpreted by the trial court as an admission.<o:p></o:p>Before
the trial court the appellant’s counsel argued several reasons why they
believed the registration of all </main>