The plaintiff/applicant herein has sued the defendant/respondent herein for, inter alia:

i. The recovery of the sum of GHC67, 351.60 being monies the Defendant siphoned and embezzled from the Mirror Metal shop at Sokoban Ampabame belonging to the Plaintiff

ii. Interest on the said sum at the current bank rate till date of final payment

iii. The recovery of the sum of GHC1, 009.00 being monies the Defendant overpaid to herself as salary

iv. Interest on the said sum at the current bank rate till date of final payment

v. The recovery of the sum of GHC3, 000 being the amount the Defendant withdrew from the accounts of the shop

vi. Interest on the said sum at the current bank rate till date of final payment

vii. The recovery of the sum GHC800.00 being the cost for the eight padlocks the Defendant stealthily took away from the shop

viii. Interest on the said sum at the current bank rate till date of final payment

ix. The recovery of the sum of GHC1, 400 being monies the Defendant stealthily and unjustifiably collected from the said Evelyn

x. Interest on the said sum at the current bank rate till date of final payment

xi. An order of tracing of the items diverted from the Plaintiff’s shop into the Defendant’s shop

xii. An order directed at the Defendant to return all the items in her shop and house to the Plaintiff’s shop at Sokoban Ampabame

Pending trial of the action, the plaintiff, in this application, has applied for an order of inspection and preservation of property under Order 25 rule 2 of the High Court (Civil Procedure) Rule, 2004 (CI 47).

Order 25 rule 2(1) of CI 47 provides:

“On the application of any party to a cause or matter the Court may make an order for the detention, custody of preservation of any property which is the subject matter of the cause or matter or in respect of which any question may arise in the action, or may order the inspection of any such property in the possession of a party.”

My understanding of the above cited legal provision is that it is meant to preserve the subject matter of the cause or matter, or property in dispute in the suit so that the applicant, if successful at the trial, is not deprived of the true or full value thereof.

From the affidavit evidence on record, the plaintiff alleged that the defendant who was her employee had embezzled monies belonging to him. The plaintiff/applicant also alleged that the respondent has opened a shop and stocked same with items from his (applicant’s) shop and has purchased other materials with the money she embezzled. The applicant attached exhibits MMA1 and MMA2 i.e. items in the said shop of the respondent and items found in the respondent’s house respectively. The application is seeking protection over the properties since in the submission of learned counsel for the applicant, if the court does not preserve them during the pendency of the suit the respondent will dissipate them. Counsel cited the case of General Development Company Limited v Rad Forest Products Ltd and Others [1999-2000] 2 GLR 178 and urged on the court to grant the application as the properties are the subject matter of the suit. The defendant/respondent denied the allegation of embezzlement and claimed that the shop belongs to her husband. She attached to the affidavit in opposition waybills, invoices and receipts from the company and enterprises where they acquired the various items from. Counsel for the defendant/respondent argued in his submissions that the items the applicant is praying the court to inspect and preserve is not a subject matter in this case.

He also relied on the General Department Company Limited case (supra) and submitted that there is no dispute over the items which is sought to be preserved and that the plaintiff/applicant has not satisfied the relevant considerations necessary for the grant of an order of preservation.

In General Development Company Limited v Rad Forest Products Ltd and Others [1999-2000] 2 GLR 178, the Court of Appeal spelt out the key considerations that go into the granting of an application for an order for preservation as follows:

“(a) As decided in Garrard v Edge & Sons (1889) 58 LJ Ch 397, CA, the order must be made againstthe person in possession or custody of the property in dispute. See also Wilder v Wilder and Charters (No2) (1912) 56 SJ 571, CA.

(b) The property must be the subject-matter of the suit. Thus in Scott v Mercantile Accident Insurance Co (1892) 8 TLR 431 the lower court made an order that certain jewellery should remain in the custody of the police. An appeal against this order was allowed because it was admitted on the evidence that the property was not the subject-matter of the action, but that only a question might arise about it in the cause or matter.

(c) It was held in Leney& Sons, Ltd v Callingham& Thompson [1908] KB 79 at 84, CA, per FarwellLJ that:“. . . the question of the exercise of the judicial discretion was always based, and is still based, upon this, that there is property in dispute to some interest in which the plaintiff shows a prima facie title; and preservation is ensured until the rights of the parties can be finally determined.”

(d) The case of Chaplin v Barnett (1912) 28 TLR 256, CA decides that the order will be granted so long as there is something which ought to be done to ensure the security of the property.

(e) An order will be made in order to preserve the subject-matter of the suit from destruction: see Strelley v Pearson (1880) 15 Ch D 113 where the court granted an order restraining the defendantfrom ceasing to pump water of a mine for the sole purpose of preventing the mine from destruction.

(f) The court will also grant an order in court to preserve the subject-matter from depreciation physically or in value. So if it is established that it is necessary to do so the court will grant it; hence an order was made in the case of Steamship New Orleans Co v London and Provincial Marine and General Insurance Co [1909] 1 KB 943, CA that a ship lying in a port in Singapore be brought to England for preservation there. However an order may not be made if it will cause undue hardship in carrying it out or will serve no useful purpose.”

Indeed, the foremost consideration in this application is that the property to be affected must be the subject matter of the suit. Thus, recourse to an application for preservation may be had where it is necessary to prevent either of the parties from disposing off or destroying the subject matter of the suit and thereby frustrating the outcome of the suit. I have considered the statement of claim, the affidavit evidence of the parties as well as submissions by both counsel and it is my considered opinion that the properties which the applicant seek to inspect and preserve are not the subject matter of the suit. At best questions relating to the said items are likely to arise in the proceedings since the plaintiff is seeking an order to trace items that were allegedly diverted from his shop by the respondent. These items were, however, not specified by the plaintiff/applicant in his statement of claim. In paragraphs 29, 30 and 31 of the statement of claim, the plaintiffapplicant pleaded as follows:

“29. The Plaintiff avers that unknown to him, the Defendant whilst working in his shop had also opened a shop close to his shop in which she was diverting items supplied to the Plaintiff’s shop.

30. The Plaintiff repeats the immediately preceding paragraph and states that he also noticed that the Defendant used the monies embezzled from his shop to purchase items to stock her said shop and also directed all the customers of the Plaintiff to her new shop.

31. The plaintiff further states that upon a visit to the Defendant’s house he also noticed that that the Defendant had a quantity of his said steel materials in her house.”

The “said steel items” were not particularised nor described in the claim. The applicant deepened the ambiguity when he deposed in paragraph 8 of his affidavit in support of the motion as follows:

“That a subsequent search in the house of the defendant also revealed that she had secretly kept some of the steel materials diverted from and\or purchased with my money in her house.

A picture of the items found in the house of the defendant is hereby attached and marked as Exh MMA 2.”

It seems to me that the applicant is unsure whether the said materials were diverted from his shop or procured from proceeds of the embezzled fund. In applications such as the instant one it is prudent to give better particulars of the subject matter of the application.

The lack of clarity is making the grant of this application very difficult. It is also not apparent from the record that the items sought to be preserved are the subject matter of the suit.

From the foregoing reasons, the application fails. There will be no order as to costs.