IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
THE DOCUMENT WAREHOUSE LTD - (Plaintiff)
AIRTEL GHANA LTD - (Defendant)
DATE: 19 TH JANUARY, 2018
SUIT NO: CM/BDC/0616/2017
JUDGES: ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
JERRY DEI, ESQ. LED BY VICTORIA BARTH, MRS. FOR DEFENDANT/APPLICANT/RESPONDENT
FRANCISCA AWOTWI, MS. FOR CHARLES ZWENNES, ESQ FOR PLAINTIFF/RESPONDENT
Defendant/Applicant (hereinafter called the Applicant) seeks by this motion an order directed at the Plaintiff/Respondent (hereinafter called the Respondent) to release all documents in Respondents custody, possession and control. In a 23 paragraph affidavit sworn to by one Andrew Allotey, he claim that the Applicant engaged the services of Respondent for the purposes of documentation, storage and management services. That the services were duly rendered by the Respondent using the warehouse of the Applicant under a sublease agreement.
The Applicant claim that it terminated the agreement when it gave the Respondent three months’ notice on the 16th of May, 2017. And as at the time of the termination of the agreement, Respondent was indebted to it in the sums of GH¢305,589.83 and USD$68,572 as being rent accruals with Respondent also claiming that Applicant owed it the sum of GH¢209,680.55. Applicant further claim that the parties initiated steps in respect of reconciliation of accounts. And whiles steps were being taken, Respondent decided not to release the documents of Applicant. To Applicant its present condition has become critical as the Customs Division of the Ghana Revenue Authority (GRA) has requested for the documents for post clearance audit for the period January, 2009 to 31st July, 2017 and the Applicant would be unable to comply with the order of GRA unless the Respondent makes available to it the documents in its custody.
Applicant fear that without the release of the documents GRA may impose penalties and charges and this statutory obligations could only be met when Respondent has release the documents to it. And that even in the unlikely event of Respondent succeeding in its claim, it was only entitled to monetary payments and not one for it to hold onto its documents. Respondent has resisted the application for an order for the release of the documents of Applicant in its custody. First Respondent claim that this is an action in bailment, and with the respondent being the bailee, there is a right that inure to him to retain possession of the property of the bailor in lieu of outstanding fees owed it. And that the contract between the parties stated the right of lien as a right that could be exercised by the Respondent over the property of the Applicant. And this being a contractual obligation, it was entitled to keep possession of same until it’s just debts have been paid. Respondent further claim that if the documents were released, he would be left unsecured with prolonged undue hardship to him and any claim by Applicant of monies due it was only an afterthought, unlawful and flout clause 5:1 of the agreement between the parties.
Finally Respondent contend that with the takeover of the Applicant by Tigo, there is no guarantee that the liabilities of Applicant may also be taken over by Tigo and any protracted litigation beyond a certain period would only frustrate the Respondent’s claim against Applicant and accordingly prays that it right of lien over the documents should be upheld.
Counsel for Respondent has submitted that it has asserted its rights under bailment and common law lien. Bailment arises where a bailee voluntarily takes custody of goods belonging to the bailor. The bailee/bailor relationship may establish rights and obligations that may be independent of a contract. Indeed Black’s Law Dictionary defines bailment as:
“a delivery of personal property by one person (the bailor) to another (bailee) who holds the property for a certain purpose under an express or implied in fact contract. Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title”.
However, this definition that only sees bailment as arising out of contract has been proved to be unhelpful and the commonly acceptable definition is what has been provided by Professor Willeston in his work ‘Law of Contract’ Rev Ed. 1936 that bailment is “the rightful possession of goods by one who is not the owner’. In law bailment may be of different kinds such as actual bailment, gratuitous bailment, bailment for mutual benefit, constructive bailment, involuntary bailment, bailment for hire etc. In this case the bailment in issue is the bailment for hire where a bailee is compensated for the performance of his services. Parking of a vehicle at a car park for safety in return for fees fall into this category of bailment. Being a bailment for hire there is the attendant incident that the bailor must pay for the services rendered to him failing which there is an implied right of lien over the property which is the subject matter of the bailment. Can it therefore be said that the Respondent is legitimately exercising a right of lien? A right of lien is defined by Halsbury’s Laws of England 4th Edition Volume 28 paragraph 502 at page 221 defines a lien as:
“Lien in its primary or legal sense is a right in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and the accrued claim of the person in possession are satisfied. In this primary sense it is given by law and not by contract.”
Osborne Concise Law Dictionary also defines lien as follows:
‘‘A lien is the right to hold property of another for the performance of an obligation. A common law lien lasts only so long as possession is retained. A possessory lien is the right of the creditor to retain possession of the debtor’s property until his debt has been satisfied. A particular lien exists only as a security for the particular debt incurred; while a general lien is available as a security for all debts arising out of similar transaction between the parties...A charging lien is the right to charge property in another’s possession with the payment of a debt or the performance of a duty’’
See also the cases of GOLDEN GRACE LTD v TAKORADI FLOUR MILLS J4/22/2011; NYANKOMA AHENKRO RURAL BANK v NANA YAW HI/111/10 dated 27/10/2011.
For lien to come into operation there must first be two parties with one being a creditor and the other debtor. Two that goods might have come into the possession of the creditor. Three that the goods belongs to the debtor. Four that the debt was due and owing and five that a demand had previously been made and the debtor has refused to pay. As to whether the debt are due and owing has become the subject matter of this suit where the Defendant/Applicant claim that some monies are also due it. It is not my duty at this stage to delve into contractual interpretation as to the Applicant not having any right of set off. Generally therefore, the Respondent has asserted a right of lien over the documents by his refusal to release them.
Nonetheless, it has been contended by the Applicant that this assertion of a right of lien cannot hold in the circumstances of this case. Why? Among the grounds upon which a right of a lien may be lost include loss of possession by the bailee to the chattel, waiver of the right, where the identity of the chattel is lost or co-mingled with others as to make identification impossible and finally where recourse is had by the bailee to other options for the enforcement of his right other than the right of a lien. See Halbury’s Laws of England 4th Ed. Volume 2 paragraph 1550. In this suit the Respondent claim per his relief the recovery of an amount of GH¢209,680.55 as the storage fees together with interest and cost. Having sued for its fees I agree with learned counsel for Applicant that once the Respondent has taken the invidious option of suing for the recovery of monies it claim is due it, its’ right of lien must be deemed to have been lost as it cannot hold on to the documents and at the same time sue for its fees. And in any case Respondent did not issue the writ for the enforcement of his right of lien or sale of the documents. The documents are not saleable as it is of intrinsic value only to the Applicant.
Another equally important issue that the Applicant has raised in his affidavit is the claim that the Customs Division of the Ghana Revenue Authority (GRA) has requested the Applicant to make available the documents that Respondent is holding on to for the purposes of system review of the source documents for a post clearance audit. Exhibit ‘AA5’ is the letter from the GRA dated the 23rd of August, 2017 a number of documents have been listed as needed by GRA for the exercise.
Under the Customs Law, 2015, Act 891, section 7 it states that:
The Authority may conduct a post –clearance audit after the release of goods The Commissioner General may
Select a persons for post –clearance audit based on the risk profile of the person and
Authorize a post clearance audit to be conducted ...
Applicant is under a statutory duty to provide the listed documents to GRA for the exercise and failure to provide them will attract penalties including criminal ones under the law. In this respect, any right of lien over the documents, if any at all, is overridden by a superior claim to the documents which claim is founded under the statutory obligations of the Applicant. Even if the right of lien were to be still vested in the Plaintiff, upon the demand of those documents by the GRA, such right of lien must automatically give way to this superior claim for the fulfillment of a statutory obligations.
To rule otherwise would be for the court to give a blank cheque for the violation of a statutory duty under the tax laws of Ghana. As the courts have emphasized time and again that a court is not supposed to give a ruling that is contrary to a statute. Date-Bah JSC in the case of REPUBLIC v HIGH COURT, ACCRA (FAST TRACK DIVISION) EX PARTE GHANA LOTTO OPERATORS ASSSOCIATION (NATIONAL LOTTERY AUTHORITY INTERESTED PARTIES)  SC GLR 372 @ 401 that:
“No judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament... The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders. The end of the judicial oath set out in the second schedule of the 1992 Constitution is as follows: “I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana”.
In that same case Atuguba JSC stated at page 397 that:
“It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute such as Act 722 s. 58 (1) – (3) is, unless expressly or impliedly provided, a nullity”.
To accede to the submissions of learned counsel for Plaintiff, Zwennes, Esq would be for the court to give its blessings for the violation of the tax laws of Ghana. The court refuse to be complicit in such an enterprise. The application has profound merits and accordingly succeeds. The Plaintiff is hereby ordered by the court to release all the documents of Defendant in its custody to Defendant within the next seven days inclusive of today.
I make no order as to cost.