SO ENERGY LTD VS MOTOR VESSEL ADOBIA

The 3rd Defendant/Applicant has applied to this court praying for the 2nd Defendant to post a Counter Bank Guarantee in the sum of GH¢500,000.00 in favour of the 3rd Defendant to indemnify the 3rd Defendant for posting a bank guarantee for the release of 1st Defendant from arrest.

The 2nd Defendant is opposed to the application stating that there was no basis in law and equity for the instant application. They claim that what has been posted by the 3rd defendant is a letter of indemnity and not a bank guarantee.

The issue before this court is whether or not the instant application should be granted?

The Plaintiff instituted suit against the 1st and 2nd Defendants on 30th July 2015 claiming the following reliefs:

(i) An order for the payment of the sum of GH¢366,173.00 arising out of products supplied to the Defendants and which the Defendants have failed and/or refused to pay up on same.

(ii) Interest on the aforesaid sum at the prevailing bank rate fromn the date of filing of this writ to the date of payment for same.

On 31st July 2015 the Plaintiff applied for the arrest of 1st Defendant which was described as lying at the anchorage of the fishing harbour in Ghana and about to set sail.

The court granted the order of arrest and made an alternative order that the Defendants could sign a bond in the form of a Bank Guarantee from a reputable bank in the sum of GH¢500,000.00 to secure the release of 1st Defendant.

Before the 1st and 2nd Defendants could enter appearance and file a defence, the 3rd Defendant applied for leave to intervene in the matter stating that it had advanced certain loan facilities to the 2nd Defendant to finance the purchase of 1st Defendant. In view of this, it had also registered a legal mortgage over the 1st Defendant. This application for leave to intervene was granted to the 3rd Defendant which hereby joined the suit.

The 3rd Defendant afterwards applied to post a bank guarantee in the sum of GH¢500,000.00 for the release of 1st Defendant. The 1st Defendant was accordingly released from custody still without it having entered appearance to the suit.

From the above happenings, it is clear that the 3rd Defendant applied to intervene in the matter to protect its interest (i.e. the mortgage it held over the 1st Defendant).

The 1st and 2nd Defendants on the other hand have stated that the 3rd Defendant had unlawfully taken over the running of the 1st Defendant and have made a counterclaim for the 3rd defendant intervener to