AGYEKUM v. ASAKUM ENGINEERING AND CONSTRUCTION LTD.
1990
SUPREME COURT
GHANA
CORAM
- ADADE
- FRANCOIS
- AMUA-SEKYI
- AIKINS JJ.S.C.
- ADJABENG J.A
Areas of Law
- Civil Procedure
- Corporate Law
- Evidence Law
1990
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Asakum Engineering & Construction Ltd. sued its former general manager and director, Maxwell Kwasi Agyeman-Agyekum, for the return of listed machinery and equipment, damages for wrongful detention, mesne profits, and an injunction restraining use of company assets. The defendant, while overseeing the European Development Fund–backed Weija Irrigation Project under the Government of Ghana, formed Ladco Ltd. and used Asakum’s equipment for competitive work. After an initial refusal by Adadevoh J. to strike out the defence, the Court of Appeal set aside a related ruling by Ampiah J., creating a new situation. Lutterodt J. struck out paragraphs 4–9 of the defence and entered judgment for the plaintiffs. The Court of Appeal largely affirmed. On further appeal, the Supreme Court majority (Amuah-Sekyi, Francois, Adjabeng) held the defence disclosed no reasonable answer, endorsed the High Court’s strike-out and judgment on admissions, and dismissed the appeal; Adade and Aikins dissented.
JUDGMENT OF AMUAH-SEKYI J.S.C.
The plaintiffs are civil engineers and the defendant was their general manager. In 1984 the plaintiffs issued a writ against the defendant claiming the following reliefs:
"1. The return of the machinery, equipment and other goods the property of the plaintiffs listed in the attached letter dated 14 September 1984 from W.A.N. Adumua-Bossman to the defendant.
2. ¢7 million damages for the wrongful detention of the said listed goods.
3. Mesne profits as from 17 September 1984 at the rate of ¢1,885,000 per month of 20 working days or in the [p.653] alternative at the rate of ¢94,250 per day until judgment herein or the delivery up of possession of the said listed goods.
4. Further or other relief as in the circumstances may be just, including, in particular, a perpetual injunction restraining the defendant, whether by himself, his servants, agents or privies whomsoever, from retaining or using any one or more of the said listed goods for any purpose whatsoever whilst in his possession, order, custody or disposition."
The plaintiffs filed a statement of claim setting out the facts giving rise to the suit and the defendant filed what he said was a defence to the action.
Believing that the defence did not constitute an answer to the matters alleged in the statement of claim, the plaintiffs applied to the court to strike out paragraphs 4 to 9 of the defence and enter judgment for them. The application was opposed by the defendant who alleged, as part of his case, that he had earlier sued the plaintiffs and obtained a ruling against them. He exhibited a ruling of Ampiah J. (as he then was) to his affidavit and contended that it rendered the current suit incompetent. The application for judgment came before Adadevoh J. who refused it. Significantly, he referred to, and relied on, the ruling of Ampiah J. (as he then was) which bears the date, 9 November 1984.
Both parties then knew that the ruling of Ampiah J. (as he then was) was on appeal to the Court of Appeal. On 25 July 1985 that court gave a judgment allowing the appeal and setting aside the various orders made under the ruling. When, therefore, the plaintiffs decided to have another try they averred in paragraphs 3-6 of their supplementary affidavit as follows:
"3. Since filing the plaintiff-company's similar and unsuccessful motion on 14 January 1985 the legal relationship between the plaintiff-company and the defendant, its former director and expert employee, has