ALFA ENTERPRISES LTD. v. PAN AFRICAN TRADING CO. AND ANOTHER

JUDGMENT OF JIAGGE J.A.

Jiagge J.A. delivered the judgment of the court. The Nichenen Co., Ltd. of Tokyo, Japan shipped 108 steel envelopes of galvanised iron sheets valued at US $49,769.75 to Tema on the Straat Freedom, a vessel belonging to the first defendant company. The goods were consigned on the bill of lading to Banque Libane Francaise registered in Lebanon. The consignee endorsed the bill of lading to the first plaintiff who in turn endorsed it to the second plaintiff through the Standard Bank of Ghana Ltd.

On presentation of the bill of lading by the second plaintiff it was discovered that the first defendant had already released the goods to Alfa Enterprises Ltd., a company indicated on the bill of lading as notifying party. The third defendant signed an indemnity of ¢5,000 for the release of the goods which were subsequently traced to the second and fourth defendants.

The second defendant averred in his defence that he had purchased the goods from Alfa Enterprises Ltd. The fourth defendant in his defence, denied that he ever purchased steel envelopes of galvanised iron sheets but admitted that he purchased 1,500 bundles of Star Brand corrugated iron sheets from the second defendant at the cost of ¢25,560. The second defendant applied for an order for a joinder of Alfa Enterprises Ltd. as co-defendant.

Alfa Enterprises Ltd. also applied to be joined as co-defendants. The court in dismissing the application held that the applicants had been struck off the register of companies, that the applicants took no action to have their names restored on the register but formed a new company which purported to take over the assets and liabilities of the old company. The court held further that the new company could not properly be joined as a party to the suit because it was not in existence when the goods [p.573] were shipped and could not have any rights in the iron sheets at that time; further that section 261 (5) of the Companies Code, 1963 (Act 179), did not apply to the circumstances of this case.

The name Alfa Enterprises Ltd. by a ruling of the High Court was restored in the register of companies and the application for joinder was later granted making Alfa Enterprises Ltd. and George Djabanor, as director of the company, co-defendants.

The co-defendants in their defence averred that the first plaintiff was the parent company in Lebanon of Establishment Tanios Saba & Co. (Ghana) Ltd. and that Mr. Ashkar, a manager of the first plaintiff comp