VAL CAP MARKETING v. THE OWNERS OF M v. VINTA
1999
COURT OF APPEAL
GHANA
CORAM
- LAMPTEY, JA. (PRESIDING)
- WOOD (MRS.) J A.
- BROBBEY, J A
Areas of Law
- Civil Procedure
- Maritime Law
- Contract Law
- Evidence Law
- Conflict of Laws
- Commercial Law
1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Val Cap Marketing sued the Owners of the vessel M/V Vinta in the High Court, Accra, claiming USD 70,543.82 for fuel allegedly supplied to the vessel and sought to arrest the ship. The Owners denied any contract with Val Cap and raised limitation and capacity defenses. The High Court dismissed the Owners’ Order 25 application and, relying on affidavits and extrinsic materials, entered judgment for Val Cap. On appeal, the presiding judge held that Order 25 points of law must be decided on the pleadings alone, criticized the High Court’s use of inadmissible affidavit evidence and its raising of maritime lien issues sua sponte, and found that the writ was incompetent because the vessel and Owners were outside the jurisdiction when the writ was issued, no leave under Order 2 rule 4 was obtained, and admiralty service requirements under Order 9 rule 14 were not met. He allowed the appeal and set aside the High Court’s ruling and judgment, declaring the proceedings a nullity. Other members agreed to set aside the judgment and would remit the matter for trial on the merits.
JUDGMENT
LAMPTEY, JA:
On 12th August 1993, Solicitors acting for Val Cap Marketing took out a writ of summons in the High Court, Accra against the Owners of M/V Vinta and claimed against the owners the reliefs endorsed on the writ of summons. The address Val Cap provided for service of process on the Owners was stated as "Port of Tema Ghana". At the time of filing the writ of summons the solicitors for Val Cap filed a motion ex-parte supported by affidavit by which Val Cap sought an order for a warrant for the arrest of the vessel M/V Vinta. By their action Val Cap claimed as follows:—
"The sum of US. $70,543.82 being principal and interest as at 10th August 1993 being the cost of 300.02 metric tonnes of intermediate fuel oil sold and delivered to the defendants"
The writ of summons and the statement of claim were served on one Captain Praveen Malham on 13th September 1993 at Tema Harbour. Solicitors acting for the Owners filed a statement of defence by which the Owners challenged and disputed the capacity of Val Cap to sue them. In the statement of defence the owners pleaded that they had not entered into any contract with Val Cap:
"for the sale and delivery of fuel oil and further that there was no such contract between the parties and that the action was statute-barred."
In the circumstances the solicitors of the Owners filed a motion on notice pursuant to Q. 25 rr 2, 3 & 4 and also invoked the inherent jurisdiction of the court to dismiss the action of Val Cap. The application was supported by an affidavit to which was annexed a "book" running into 284 pages and labelled "affidavit of Robert S. Delange ". As was to be expected, Val Cap filed an affidavit in opposition against the dismissal of its action. The trial court heard the application on its merits. It dismissed the application of the Owners and entered judgment for Val Cap for the amount endorsed on the writ of summons. The Owners were aggrieved by the judgment and appealed to this court.
I must confess that this appeal caused me great deal of anxiety hence we called upon counsel for Val Cap to argue as a preliminary issue of law the procedure followed by the trial court, in particular, whether or not the trial judge was right in law when he entered judgment for Val Cap at that stage of the proceedings. In his written statement of case on the above issue, counsel for Val Cap questioned the authority of this court to place such a burden and obligation on him since he was counsel for the r