Eastern Alloys Co. Ltd v. Silver Star Auto Ltd.
July 14, 2016
COURT OF APPEAL
GHANA
CORAM
- Kanyoke, J.A. (PRESIDING)
- Acquaye, J.A.
- Sowah, J.A.
Areas of Law
- Civil Procedure
- Contract Law
July 14, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Silver Star Auto Ltd sued Eastern Alloys Co. Ltd in 2007 for unpaid workshop services on 25 Mercedes-Benz Actros trucks, ending in a consent judgment in January 2008. After its failed bid in April 2014 to stay execution and set aside that consent, Eastern Alloys filed a fresh action seeking damages for gear box defects and breach of implied warranty. The Commercial Division struck out the suit under Order 11 r.18(1)(b),(d), finding the defects were known and should have been raised in the 2007 case. On appeal, Sowah, J.A. affirmed, applying res judicata principles (Henderson v Henderson; Greenhalgh v Mallard) and permitting extrinsic evidence, concluding the cause accrued by late 2006 and the appellant’s pleadings omitted critical dates, thus constituting piece‑meal litigation. The appeal was dismissed, with Kanyoke, J.A. (presiding) and Acquaye, J.A. concurring.
SOWAH, J.A:
This is an appeal against the Ruling of the High Court Commercial Division dated 29th May 2015 striking out the plaintiff’s writ of summons and statement of claim on the ground that they constituted an abuse of process.
The plaintiff/appellant who is dissatisfied with that decision has filed this appeal.
The Notice of Appeal dated 17th June 2015 has the following two grounds of appeal:
1. The decision of the Court is not supported by the affidavit evidence on record.
2. The trial judge erred in striking out the Plaintiff’s suit.
For clarity and ease of reference, the plaintiff/appellant in this appeal who was the defendant in an earlier suit at the Commercial Court numbered RPC/268/07 will hereafter be referred to simply as the “appellant” whilst the defendant/respondent herein who was the plaintiff in the earlier suit will be called the “respondent”. Background facts The brief background facts are as follows: On 10th September 2007, the respondent filed a writ of summons against the appellant herein.
That Suit Number RPC/268/07 was titled Silver Star Auto Ltd vs. Eastern Alloys Co. Ltd.
The respondents claim was for an outstanding balance of money owed by the appellant in respect of workshop services rendered by the respondent on Benz trucks purchased by the appellant from the respondent.
The appellant filed a statement of defence and counter-claim in that Suit.
At the close of pleadings, the dispute was settled at the pre-trial settlement stage and a consent judgment duly entered on 30th January 2008.
On or about 17th April 2014, the appellant issued the writ of summons which is the subject-matter of this appeal.
This was after its application to stay execution and set aside the consent judgment had been dismissed on 4th April 2014.
The claims on the writ of summons relate to 25 units of Mercedes Benz Actros trucks and were for general damages for breach of implied warranty of fitness, replacement value of affected trucks and costs.
The respondent filed a statement of defence to the action contending that the action was barred under the Limitations Act, and further contending that the appellant was estopped from bringing the action by reason of the earlier consent judgment.
The respondent then brought an application under Order 11 rule 18 (1)(b)(d) of the High Court (Civil Procedure) Rules 2004, C.I. 47 for the writ and statement of claim to be struck out on the grounds that the matters raised in the appellants statement of c