FORTUNE GLOBAL SHIPPING AND LOGISTICS LIMITED (PLAINTIFF) vs. THE VESSEL DLB SEA HORIZON & 9 ORS (DEFENDANTS) [2019]DLHC7129

FORTUNE GLOBAL SHIPPING AND LOGISTICS LIMITED (PLAINTIFF) vs. THE VESSEL DLB SEA... [2019]DLHC7129

Date	2019-05-24
Suit No.	SUIT NO: CM/RPC/0641/2018
Citation No.	[2019]DLHC7129

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

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

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

[2019]DLHC7129
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													<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;
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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;DATE: 24TH MAY, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>KOFI MBIAH ESQ. WITH
BENJAMIN QUORNOOH ESQ., FOR THE PLAINTIFF/RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>In
the present application, the applicants, the 1st 2nd 3rd
and the 10th defendants pray this court for an order to dismiss the
present suit against the 1st defendant and release the 1st
defendant from arrest. <o:p></o:p>The
background to this application is captured in the supporting affidavit.
Following the issuance of a writ of summons and a subsequent order for the
arrest of the 1st defendant vessel in September 2018, the applicants
filed a statement of defence in which they denied the claims of the plaintiff
and, in particular, certain averments contained in the plaintiff’s statement of
claim. <o:p></o:p>Subsequent
to this, an order was made, upon application, for the plaintiff to furnish
security for the costs of the applicants in the action and also for the
plaintiff to provide further and better particulars of the averments in its
statement of claim. This order was made on the 28th February 2019
and the plaintiff/respondent herein was given twenty-one (21) days within which
to comply with the said order. The plaintiff failed to comply with the orders
of the court. However, on the 28th March 2019, the plaintiff applied
for and was granted extension of time to comply with the orders of the court
dated the 28th February 2019. Indeed, time was extended for eight
more days and instead of complying with the said orders the plaintiff rather
chose to file an application for stay of execution on the last date that the
extended time was to expire. There is nothing on the docket to show compliance
by the plaintiff with the orders of the court made on the 28th
February 2019. The instant application therefore seeks an order of the court to
dismiss the plaintiff’s action, at least, against the 1st defendant.<o:p></o:p>The
plaintiff/respondent says that the present application was earlier made by the
defendants/applicants and dismissed by the court. The court has examined
exhibits EA1 which the plaintiff has exhibited to prove their assertion of a
dismissal of the same application and the court finds that the application that
was dismissed was not one based upon the failure of the plaintiff to furnish
security for cost but was an application in which the applicants herein, sought
an order of the court to compel the plaintiff to pay the associated costs
arising out of the arrest of the 1st defendant or in the alternative
an order of the court releasing the 1st defendant from arrest for
failure of the plaintiff to pay the necessary costs associated with the arrest
of the vessel.<o:p></o:p>The
plaintiff/respondent also says that it has filed an appeal against the orders
of the court made on the 28th February 2019 but as shown in the
ruling delivered on the application for stay of execution of the orders made on
the 28th February 2019, no valid appeal against the orders is pending
before the Court of Appeal. For, as pointed out, the said Notice of
Interlocutory Appeal filed by the plaintiff/respondent herein was filed to and
before the High Court, Commercial Division and also addressed to the Registrar
of the Commercial Court; a clear violation of Rule 8(3) of the Court of Appeal
Rules, 1997, CI 19 and thus rendering the whole process invalid. Indeed, there
is no appeal pending against the said orders of the court. At any rate the
pendency of an appeal does not serve as a stay of execution of any orders or
any judgment given by the court.<o:p></o:p>It
should also be pointed out that the instant application is not one that seeks
to set aside the writ of summons and statement of claim filed by the
plaintiff/respondent and neither is the application an abuse of the process of
the court as the respondent seems to suggest in the supplementary affidavit it
filed on the 26th April 2019.<o:p></o:p>The
instant application is brought under Order 24 rule 2 of the High Court (Civil
Procedure) Rules, 2004. CI 47 which states that:<o:p></o:p>2.&nbsp;&nbsp; Default
of plaintiff<o:p></o:p>Where a plaintiff defaults in giving the security
required by an order, the Court may, on an application by the defendant dismiss
the cause or matter against the defendant who obtains the order.<o:p></o:p>The
undeniable fact before the court is that up to date the plaintiff/respondent
has failed to comply with the orders of the court for it to furnish security
for costs in favour of the applicants herein. No cogent reason has been given
for the plaintiff’s failure. The court will, on the basis of rule 2 of Order 24
of the Rules of Court, dismiss the plaintiff’s action against the 1st
defe</main>