NARROW FISHING & TRADING COMPANY v. JAMES RICHARD QUANSAH & ORS

QUAYE, J. A.

The appeal herein is from the judgment of the High Court, Accra, delivered on 27th July 2000. The action in the trial court was initiated by the plaintiff (now respondent in this judgment) to seek relief from the three defendants therein.

At the trial, evidence was offered by the plaintiff/respondent to support the action.

On the side of the defendants only the 3rd defendant bank sought to resist the claim of the plaintiff.

The trial ended in favour of the plaintiff/respondent as the defence of the 3rd defendant did not find favour with the trial court.

The action of the plaintiff against the 1st and the 2nd defendants was dismissed.

The present appeal is therefore between the 3rd defendant (herein appellant) and the plaintiff (respondent). The respondent entered into an agreement on 3rd December 1993 for the importation of(one thousand) 1, 000 metric tonnes of fresh frozen fish: mackerel, from a United Kingdom based company trading under the name of World Scope Limited.

The said importation was to cost US $455, 000. 00 out of which the respondent was required to deposit twenty per cent the total cost. That worked up to ¢64, 000. 000. 00 (sixty four million cedis) only.

The payment of the twenty per centum deposit of ¢64 million was supported with a guarantee by the 1st defendant who, as the managing director of the 2nd defendant company, undertook to be bound to due performance of the contract between the respondent and World Scope Limited.

Under the said contract, the fish was to be delivered to the respondent on or before the 30th December, 1993, and the respondent was to complete the purchase within thirty days after receipt of the said consignment of imported mackerel.

In spite of the undertaking on the part of the 1st and 2nd defendants they failed to pay the money to World Scope Limited hence the fish was not supplied by them to the respondent.

After this initial failure the 1st defendant who spoke and acted as if he held a lien, and could exercise absolute control of, and determine and/or dictate how the deposit of ¢64, 000, 000. 00 was to be used, took the reluctant respondent to Mauritania for fish, and when that second attempt failed, he lastly decided to buy the fish from a company by the name Hyundai International Trading Corporation c. c. of the Republic of South Africa.

The 1st defendant informed the respondent that he had negotiated for the supply to the respondent the quantity of 2, 000 metric tones of fresh frozen