FORTUNE GLOBAL SHIPPING AND LOGISTICS LIMITED (PLAINTIFF) vs. THE VESSEL DLB SEA HORIZON & 9 ORS (DEFENDANTS) [2019]DLHC7128

FORTUNE GLOBAL SHIPPING AND LOGISTICS LIMITED (PLAINTIFF) vs. THE VESSEL DLB SEA... [2019]DLHC7128

Date	2019-07-04
Suit No.	SUIT NO: CM/RPC/0641/2018
Citation No.	[2019]DLHC7128

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

BENJAMIN QUORNOOH ESQ. FOR KOFI MBIAH ESQ. FOR THE PLAINTIFF/RESPONDENT.

D.K. AMELEY ESQ. WITH LONGDON SOWAH ESQ. FOR 1ST 2ND 3RD AND 10TH DEFENDANTS/APPLICANTS.

[2019]DLHC7128
																																						<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" >FORTUNE GLOBAL SHIPPING
AND LOGISTICS LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>THE VESSEL DLB SEA
HORIZON &amp; 9 ORS<o:p></o:p>(DEFENDANTS)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL 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: CM/RPC/0641/2018&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;DATE: 4TH
JULY, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>BENJAMIN QUORNOOH ESQ.,
FOR KOFI MBIAH ESQ. FOR THE PLAINTIFF/RESPONDENT.<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">

D.K.
AMELEY ESQ., WITH LONGDON SOWAH ESQ., FOR 1ST, 2ND, 3RD
AND 10TH DEFENDANTS/APPLICANTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;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">RULING<o:p></o:p>

</div>The
instant application seeks an order of review of the order of this court
delivered on the 10th May 2019 in which the court refused an
application to join Akirfa Holdings LLC to this suit as the 12th
defendant. The 2nd, 3rd and the 10th
defendants are opposed to the application. The applicant relies on exhibits EA1
and EA2 which it claims were not available to it at the time that it filed and
moved the application for joinder on the 10th May 2019.<o:p></o:p>The
applicant admits that the 10th defendant herein, WAG SPV I, is the
owner of the 1st defendant vessel, the DLB Sea Horizon. The
applicant says in its supporting affidavit that section B of exhibit EA1 shows
‘the shareholders of Ranger Subsea Nigeria Ltd who is the 5th
defendant in this matter and that Akirfa Holdings LLC, which is sought to be
joined to the suit as defendant number 12, owns 6,000,000 shares in Ranger
Subsea Nigeria Ltd. Exhibit EA2 is said to be record of proceedings in a matter
filed in Houston, United States of America, which also shows in part that the
10th defendant herein is a limited liability company formed in
Delaware, in the United States of America and that the 10th
defendant is the sole owner of the 1st defendant vessel. <o:p></o:p>The
court has taken pains to peruse the writ of summons filed in this matter on the
18th September 2018 and the court does not see the connection
between the 5th defendant, that is, Ranger Subsea Nigeria Ltd and
the 10th defendant. Further, the supporting affidavit does not
disclose the link between the 5th defendant and the 10th
defendant. Indeed exhibit EA1 does not show that Akirfa Holdings LLC holds
shares in the 10th defendant company. It is true that Akirfa
Holdings LLC, is, by exhibit EA1, said to hold 6,000,000 shares in the 5th
defendant but the fact that that is the case does not imply that Akirfa
Holdings LLC holds shares in the 10th defendant so as to make Akirfa
Holdings LLC a member of the 10th defendant company.<o:p></o:p>However,
assuming that Akirfa Holdings LLC holds shares in the 10th defendant
company, the fact of membership of the 10th defendant company does
not entitle the member to sue or be sued for the liabilities of the company
when the company is not incapacitated in any way to take up suits in its own
name either to protect its assets or to recover assets which are owned by the
company or to defend actions brought against the company qua company. The
assets of a limited liability company are the properties of the company and
does not belong to the members of the company. Thus, section 24 of the
Companies Act, 1963, Act 179 provides that:<o:p></o:p>24.&nbsp;&nbsp;&nbsp;Powers of companies:<o:p></o:p>Except to the extent that a company’s Regulations
otherwise provide, a company registered after the commencement of this Act and
an existing company which, pursuant to section&nbsp;19, adopts Regulations in
lieu of its memorandum and articles of association shall have, for the
furtherance of its objects and of a business carried on by it and authorised in
its Regulations, all the powers of a natural person of full capacity.<o:p></o:p>In
Macaura vs. Northern Assurance Company
Limited [1925] AC 619, the plaintiff sold his timber to a Canadian Company
for £27,000 and in return he was given shares in the company to the value of
the cost of the timber sold. The plaintiff then insured the timber with the
defendant. Some weeks later, the timber got destroyed and the plaintiff then
made a claim on the insurance company which declined whereupon he brought an
action to recover the claim. The House of Lords held that the plaintiff has no
insurable interest in the timber since at the time of the insurance the timber
was the property of the Canadian company and therefore the plaintiff could not
claim on his insurance. According to Lord Buckmaster at page 626 of the report:<o:p></o:p>“Now, no
shareholder has any right to any item of property owned by the company, for he
has no legal or equitable interest therein. He is entitled to a share in the
profits while the company continues to carry on business and a share in the
distribution of the surplus assets when the company is wound up.”<o:p></o:p>In
EBM Co Ltd v Dominion Bank [1937] 3 All
ER 555, Lord Russell of Killowen, giving the advice of the Privy Council,
rejected the suggestion that the assets of a company might in substance be
regarded as the assets of the three individuals who constituted its main
shareholders. He said at page 564 that it was:<o:p></o:p></main>