SAMUEL BERVELL ACKAH v. EXPRESS MARITIME SERVICES LIMITED _ ORS

RULING

LARTEY J. A.:

This is an application for stay of execution of the ruling and orders contained in the decision of the High Court, Tema, made on 13th June, 2002. By the orders, a Receiver/Manager was appointed for the first defendant/company, and all the four directors in this suit were also restrained from holding themselves out as directors.

The main argument which was canvassed in support of this application was that the ruling and orders emanating therefrom are so manifestly wrong and unlawful that they ought not be allowed to be acted upon or enforced in law until the final determination of the appeal. The point was made that having regard to the endorsement on the writ of summons and the statement of claim it was obvious that the plaintiffs claim was for a collection of certain rights. Indeed there was no claim for Receiver/Manager; neither was there any claim for injunction against the directors. It was thus submitted that where a party to an action fails to make a final claim in his endorsement he cannot claim what is not on his writ. That being the case the learned judge was wrong in granting the reliefs by an interlocutory application.

Reacting to this particular point and finding support in COLEBOURNE VRS. COLEBOURNE 1876 1 ch. D. 690 it was contended on behalf of the plaintiff that it is not at all necessary that the appointment of a receiver should have been indorsed on the writ or even claimed by the statement of claim, unless the appointment forms substantive part of the relief sought. But it should be pointed out that the case cited involved the administration of an estate under a will brought by a sister as plaintiff against her brother. The application of this authority to cover the present case, where not even an injunction was claimed is of doubtful application.

The submission was made on behalf of the defendants that granted for purposes of argument that there is absence of claim for receiver on the writ to warrant the omission to be treated as not necessary, the company being dealt with in this case is one regulated by the Companies Code, (Act 279) and the regulations made thereunder as well as the regulations of the company itself. Therefore any act done, such as the appointment of a receiver, should be seen to be in conformity with the provisions of the Code.

For the plaintiff it was argued that the trial judge exercised his discretion pursuant to Order 50 r.7 of the High Court (Civil Procedure) Rules 1954 (LN 140A) which