GENERATION INVESTMENTS COMPANY LTD vs. BULK OIL STORAGE AND TRANSPORTATION CO. LTD [2019]DLHC7544

GENERATION INVESTMENTS COMPANY LTD vs. BULK OIL STORAGE AND TRANSPORTATION CO. L... [2019]DLHC7544

Date	2019-06-21
Suit No.	SUIT NO. CM/RPC/0069/2019
Citation No.	[2019]DLHC7544

HIS LORDSHIP JUSTICE JEROME NOBLE-NKRUMAH JUSTICE OF THE HIGH COURT

KWASI FYNN WITH RAYMOND DORNYOH FOR THE PLAINTIFF APPLICANT

ERNEST ADDO FOR THE DEFENDANT

[2019]DLHC7544
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													<main id="main" class="content" style="min-height: 60rem" >GENERATION
INVESTMENTS COMPANY LTD<o:p></o:p>vs.<o:p></o:p>BULK OIL STORAGE AND TRANSPORTATION CO. LTD<o:p></o:p>[HIGH COURT (COMMERRCIAL 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/0069/2019&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 21ST JUNE, 2019<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>KWASI
FYNN WITH RAYMOND DORNYOH FOR THE PLAINTIFF APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ERNEST
ADDO FOR THE DEFENDANT<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 JUSTICE JEROME NOBLE-NKRUMAH 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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</div>MOTION FOR SUMMARY JUDGMENT<o:p></o:p>The plaintiff applicant herein applies
for summary judgement on its reliefs in this action on grounds that the
defendant has no defense to its claims, having sued for the recovery of the
amount of $5,840,000.00 being the outstanding purchase price of 16 acres of
industrial land purchased by the defendant. The applicant in its affidavit in
support deposes that the defendant continued to refuse to pay the debt even after
it met with the plaintiff and promised to make payments. That after being
served with the present writ of summons and statement of claim, the defendant entered
appearance and filed a defense in which the defendant admitted purchasing the
land and making part payment. That the defendants argument that the plaintiff
still retains ownership of the property and has not transferred same to the
defendant is no defense to the plaintiffs action as per the parties agreement, transfer
of title was to follow after the defendant had made full payment and that
change in purpose as raised by the defendant did not affect the context within
which the parties dealt.<o:p></o:p>In opposing this application the
defendant has argued that by the parties agreement upon payment of 60% of the
purchase price the plaintiff was to transfer the property and not as the
plaintiff applicant deposes to. Further the property was needed for a specific purpose,
a gas project and this project has been taken away from the defendant, and even
then, the property has appreciated in value and consequently the applicant
could sell and make its cash back.<o:p></o:p>Order 14 of CI47 prescribes the procedure
to be followed by the plaintiff who wishes to obtain summary judgement against
a defendant. The court is enjoined to consider whether the plaintiffs claim is
clear and whether the defendant has any defense to it. [See Yartel Boat Building Co. v Annan (1991)
2GLR 11]<o:p></o:p>A defense set up according to the authorities’
only need to show that there is a triable issue. I do not have the benefit of
the parties’ agreement but suffice it to say that the defendant says the
purpose/reason for which it sought to acquire the property via the agreement no
longer exists. Will this be a supervening event? Will it be sufficient to
frustrate the agreement between the parties, granted the fact that a purchaser
can be compelled to pay the unpaid purchase money in a contract of sale of
land? In any case this court on the 6/6/19 granted the defendant leave to amend
its statement of defense. Accompanying the proposed statement of defense is a
counterclaim which raises matters of frustration which require resolution as in
a sense, this cannot be divorced entirely from the reliefs sought by the
applicant herein. In the circumstances therefore I will decline the applicant’s
prayer for summary judgement and same is dismissed<o:p></o:p>

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