C.I.L.E. v. CHIAVELLI AND ANOTHER

JUDGMENT OF AMISSAH J.A.

A preliminary objection has been raised to this action proceeding in the courts of this country. The objection is based on the ground that the parties themselves have contracted that disputes between them should be settled by a court in Modena in Italy.

The endorsement to the plaintiffs' writ is as follows:

"The plaintiffs' claim is against the defendants jointly and severally for (a) recovery of the sum of N¢63,061.60 (It. Lit. 37,837,020) being the total value of the plaintiffs' goods as per particulars of claim, sold by the defendants and which the defendants have made use of it and have refused to refund the same sum to the plaintiffs in spite of repeated demands, and (b) the return of the plaintiffs' goods of `O.B.C.' 225 cases of shirts shipped by the Bia River in March 1967, the bills of lading of the said goods which the plaintiffs gave to the defendants and which the defendants have refused to release to the plaintiffs."

The plaintiffs are a company incorporated in Italy. The first defendant is one of the four original shareholders of that company and also one of its three administrators. Until this dispute arose he was the plaintiff-company's local representative in Ghana. Whether he still continues to hold that position or not is a matter for debate. The plaintiffs say in their statement of claim that his representation has been terminated whilst he claims in his defence, that the purported termination was unlawful and of no effect. The second defendants, now described as Timber Imports and Exports of Takoradi (that is, if the first defendant's assumption that by this description the plaintiffs meant the Timber Imports & Exports Co., Ltd., for there is that subtle difference), is another company incorporated in Italy. The statement of claim avers, and the averment is admitted in the defence, that the second defendants are a foreign company incorporated in Ghana. This must be some error because at best if they are a foreign company then they would only have been registered in this country. The first defendant is the managing director of the second defendant-company.

[p.653]

Some time in March this year the plaintiffs consigned a large quantity of goods to Ghana. The person to whom they were consigned, the capacity in which he received as consignee and the nature of the transaction which brought the goods into his hands are all matters of violent disagreement. The plaintiffs' case is that they sent the goods throu