April 19, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
Honisch GMBH, a German company, sued John E. Odametey and Gertex Group Ltd in the High Court (Commercial Division) in Accra, seeking overdue payments for argon gas shipments destined for VALCO. Honisch claimed Odametey received full payment from VALCO but failed to pay Honisch; defendants asserted the contract was with Gertex on CIF terms, that the first shipment was delayed, the second arrived empty, and no insurance existed despite representations. After hearing, the court zeroed in on a threshold procedural matter: capacity. The suit was brought through attorney Mohammed Sahnoon under a power of attorney executed by Peter J. Honisch, not the company, lacking proof of corporate authorization. The instrument was notarized years after the writ was filed and improperly notarized locally despite execution in Germany. Applying Act 549, Act 179, and the Evidence Act, and cases including MacFoy and Huseini v. Moru, the court held the action incompetent for want of capacity and awarded costs against Honisch.
IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT (COMMERCIAL DIVISION) HELD AT ACCRA ON TUESDAY THE 19TH DAY OF APRIL 2016 Suit No. OCC/3/2009 CORAM: JENNIFER DODOO (MRS)JUSTICE OF THE HIGH COURT HONISCH GMBH SUING PER ITS LAWFUL PLAINTIFF ATTORNEY MOHAMMED SAHNOON VRS JOHN E. ODAMETEY DEFENDANTS GERTEX GROUP LTD JUDGMENT The Plaintiff, which described itself as a company based in Germany brought this action via its attorney claiming the sum of €50, 686. 35 which it called overdue payments for goods supplied to the Defendants.
The Plaintiff in its Statement of Claim stated that it negotiated with the 1st Defendant for the supply of argon gas to VALCO.
According to the Plaintiff, on the directions of 1st Defendant, the shipment was made in the name of 2nd Defendant with VALCO as consignee.
It was Plaintiff’s contention that having received full payment from VALCO, the 1st Defendant had failed to pay it.
It therefore complained that the Defendants had by their conduct perpetrated fraud on them The Defendants in their defence stated that the contract for the supply of argon gas was between Plaintiff and the 2nd Defendant, a limited liability company.
It was the Defendants’ claim that a term of the contract was for the gas to be delivered to the 2nd Defendant’s customers on the basis of cost, insurance and freight (CIF). The Defendants also said that the 2nd Defendant was to make payment for each consignment 30 days from the bill of lading date.
It was Defendants’ contention that although the parties agreed to delay the first shipment to enable the 2nd Defendant’s customers to align their business operations with the delivery of the argon gas, the Plaintiff decided to charge them for cancellation when what had transpired was just a delay.
Thereafter the 2nd consignment was never delivered as the container it arrived in was empty.
The 2nd Defendant was forced to make payment and it was on pursuing the insurance claim in respect of the consignment that the 2nd Defendant found out that there was no insurance policy in existence in respect of the cargo.
The Defendants made a counterclaim for damages for fraud and for breach of contract as well as a claim for €13, 490. 00 or its cedi equivalent being the costs for pursuing the insurance claim.
The Defendants also made a claim for €52, 359. 09 being over-invoiced and/or double invoiced for value of argon gas supplied to the 2nd Defendant.
Hearing commenced in this matter by PW1 giving evidence on 8th