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GHANA BAR REPORT 1994 -95 VOL 2

Agbo v Rainbow Windscreen [1994 - 95] 2 G B R 859 – 875  C A

COURT OF APPEAL

ESSIEM, WOOD, ACQUAH, JJA

20 DECEMBER 1995

manner they appeared at the court below. The plaintiff is manufacturer of windscreens and other related items, the defendant is a businessman who runs cargo transport to and from the Tema  harbour and had on diverse occasions conveyed plaintiff’s glassware and other items in containers from the Tema harbour to the plaintiff’s warehouse at the South Industrial Area, Accra.

In March 1990, the plaintiff took delivery of a container of glassware at Tema Harbour. The plaintiff, as usual, called on the defendant to convey the consignment from the Harbour to its warehouse in Accra for a fee of ¢65,000. The defendant’s vehicle, which was to convey the consignment, was an Albion flat body articulator No GX 3396, then driven by one Narh Bruce who testified as DW1. The vehicle collected the container at Shed 11 and drove to the harbour security checkpoint near the exit of the harbour. At the checkpoint, the container fell off the vehicle onto the road. The glasses broke into pieces. The plaintiff thereupon called on the defendant to pay for the broken glasses, but the defendant refused. Hence the instant action was instituted claiming from the defendant:

“(a) The sum of ten million three hundred and five thousand three hundred and sixty three cedis (¢10,305,363) being the purchase price, cost of freight and profit thereof on one container load of double glassware material for the manufacture of double windscreen negligently damaged at the Tema harbour on 22 March, 1990.

(b) Interest at the prevailing bank rate from 22 March, 1990, till date of final judgment.”

In its statement of claim, the plaintiff pleaded that the falling down of the container resulting in the damage to the glassware, was due to the negligent control of the vehicle and proceeded to particularise the negligence of the defendant. Later the statement of claim was amended by describing the defendant as a common carrier. The allegation and particulars of negligence were deleted, and the plaintiff provided particulars of the loss and damage arising from the damage of the glassware.

The defendant, while admitting that he was engaged by the plaintiff to convey its container of glassware from the harbour to the plaintiff’s warehouse in Accra, and further admitting that the said container came off his vehicle around the security check point resulting in the damage to the glass-wares, nevertheless denied being liable to the claim of the plaintiff. For according to him, his driver was not negligent and that the accident happened because of the awkward location of the security check point within the harbour. The defendant further contended that he had agreed with the plaintiff that the latter’s insurers would be responsible for any damage to the container while being loaded and conveyed to the plaintiff’s warehouse in Accra. He maintained also that not all the glasses were broken and that the plaintiff used the unbroken ones in manufacturing windscreens. They therefore alleged that the plaintiff had inflated its claim.

At the trial, the plaintiff called two witnesses in support of its claim, while the defendant testified and called as his only witness, his driver who was at the material time, in charge of the vehicle. In his judgment the trial judge took the view that the fundamental issue is whether the defendant was a common carrier or a private one. After reviewing the relevant authorities he came to the conclusion that the defendant was a common carrier and that he cannot escape liability until he is able to establish that he contracted out of the strict liability of common carriers. He held that the defendant's bare uncorroborated assertion of the restrictive condition is not sufficient. He therefore entered judgment against the defendant for the sum of ¢8,244,291 being the value of the goods together with interest, and cost of ¢200,000. It is this judgment that the defendant disputes in this appeal on the following grounds:

“(1) The trial learned judge erred in law in stating in his judgment that defendant was a common carrier of the plaintiff’s goods and was bound by the common law doctrine of strict liability of carriage of goods.

(2) The trial judge erred in law in ignoring the contract of carriage entered into between plaintiff and defendant with special exemptions inconsistent with the relation of common carrier and customer.

(3) The trial judge erred in law in his interpretation of the case of Majolagbe v Larbi [1959] GLR 190 in relation to the burden of proof and evidence of a single witness touching and concerning the case of defendant.

(4) The trial learned judge erred in law in rejecting the testimony of defendant that damage to the goods carried for plaintiff by defendant would be paid for by the insurers of plaintiff.

(5) The evidence of PW2 Musa Baba that the plaintiff’s goods were insured against damage in transit corroborating the evidence of the defendant was erroneously ignored by the trial judge.

(6) The trial judge failed to appreciate the legal significance of plaintiff’s inability to prove negligence against the defendant or his agents.

(7) The trial judge erred in law in failing to appreciate the fact that the accident occurred in the harbour when defendant’s driver was being directed by the Ghana Ports and Harbour Authority, agents of the plaintiff to the security check-point located dangerously in the harbour.

(8) Other grounds to be filed when record of appeal is ready.”

No additional grounds were filed. Arguing on behalf of the appellants, Mr Tsegah began with grounds 6 & 7 together, and submitted that since the plaintiff, after amending its statement of claim, did not amend the indorsement on its writ of summons, which contained an allegation of negligence, they were obliged to prove the negligence endorsed on the writ. But then the plaintiff failed to prove any such negligence against the defendant, and the trial judge also failed to address his mind to the issue whether the plaintiff proved the negligence they stated on the indorsement of the writ. Counsel pointed out that the defendant emphatically denied in its statement of defence that he was negligent, and maintained that the accident occurred because of the awkward position of the security checkpoint. Counsel argued that if the trial judge had adverted his mind to the issue of negligence, he would have found that the defendant was in no way negligent.

On ground 3 dealing with the principle of proof in Majolagbe v Larbi (supra) counsel contended that the trial judge misapplied it and that the principle did not provide that a court could not accept the evidence of a single witness. Relying on Ayiwah v Badu [1963] 1 GLR 86, SC counsel contended that the judge erred in not evaluating the defence evidence. On grounds 1 and 2, counsel submitted that the defendant agreed to convey the goods under the understanding that the goods were insured. He contended that the law allowed a common carrier to enter into restricted conditions of carriage, and this was what the defendant did before accepting to carry the plaintiff’s goods. But the trial judge did not advert his mind to the restrictive conditions, which forms the basis of the defence. The judge was only preoccupied with the law of common carriers. Counsel submitted that common carriers were not always bound by the rules of strict liability. In conclusion he submitted that if the trial judge had not misapplied the principle in Majolagbe v Larbi (supra) and had critically evaluated the defence of the defendant, especially on the issue of negligence and the restrictive condition in the agreement, he would have entered judgment for the defendant.

Mrs Beatrice Duncan led by Mr Amegatcher, arguing for the plaintiff on grounds 1, 2 and 6 submitted that the success of the plaintiff’s action depended on whether or not the defendant was a common carrier. She referred to the authorities cited in the judgment, and pieces of evidence, and concluded that the defendant was a common carrier. Thus in her view, the trial judge’s conclusion that the defendant was a common carrier is supported by the record.

On grounds 6 dealing with negligence, Mrs Duncan referred to Chitty on Contracts, 26 ed page 445 paragraph 3165 and submitted that it was not the duty of the plaintiff to prove that the defendant was negligent. She argued that once the defendant was held to be a common carrier the burden shifted onto the defendant to bring himself within the exceptions that were necessary to enable him escape liability. The plaintiff thus had no burden to prove negligence against the defendant. She also argued that for a common carrier to escape liability by any restrictive conditions as alleged by the defendant, the said restrictive conditions must be in writing or at least be in plain language. But the defendant failed to establish any such precise restrictive condition.

On grounds 4 and 5 Mrs Duncan argued that the defendant was unable to establish his contention that the plaintiff told him that the goods had been insured from the harbour to the warehouse. She argued that from the evidence and exhibit D which in her view were properly admitted, it was quite clear that no such assurance was given by the plaintiff. Counsel also submitted that the trial judge correctly applied the principle in Majolagbe v Larbi (supra). On ground 7 she pointed out that the defendant bitterly complained about the position of the security check point. But then the defendant had used this U-turn on several occasions. Why did he then complain on this particular occasion? It did not therefore lie in his mouth to complain and that on the totality of the case, the judgment is sound and unimpeachable.

I will begin with Mr Tsegah’s argument on the failure of the plaintiff to amend its endorsement on the writ after the amendment of the statement of claim. The law, as I understand it, is that where a party issues a writ and a separate statement of claim, the plaintiff may in his separate statement of claim alter, modify or extend his claim without any amendment of the indorsement of the writ. For Order 20 rule 4 of the High Court Civil Procedure Rules 1954 LN 140A provides:

“4. Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ.”

Accordingly in amending a statement of claim the plaintiff may without amending the endorsement, alter, modify or extend his claim without any amendment of the indorsement of the writ. For as Jessel MR said in Large v Large (1877) WN 198, a statement of claim when served takes the place of the writ the indorsement on which then ceases to be of consequence. Hence a plaintiff is permitted in his statement of claim to alter, modify or extend the original claim to any extent, and to claim further or other relief, without amending the writ, provided it does not completely change the cause of action indorsed on the writ without amending the latter (Cave v Crew 62 LJCh 530, Ker v Williams, 30 Sol Jo 238) or introduce an entirely new and additional cause of action which cannot be conveniently tried with the original claim (United Telephone Co v Tasker Sons & Co (1888) 59 LT 852) or introduce a claim which the court has no jurisdiction to entertain.

A defect in a writ may be cured by a proper statement of claim which may operate in the same way as leave to amend; see Hill v Luton Corporation [1951] 2 KB 381, Pontin v Wood [1962] 1 QB 594 at 601 CA, Sterman v EW & WJ Moore Ltd [1970] 1 All ER 581 at 584. If in his statement of claim the plaintiff drops all mention of any cause of action mentioned or any relief claimed on the writ he would be deemed to have elected to abandon it. See Cargill v Bower (1878) 10 Ch D 502, Lewis & Lewis v Durnford (1907) 24 TLR 64. It follows therefore that the plaintiff having in its amended statement of claim, dropped the allegation of negligence in its original statement of claim was deemed by its amendment to have abandoned its claim of negligence as appearing on the writ. The plaintiff was therefore not obliged to prove negligence.

Now the undisputed aspects of this case are that the plaintiff engaged the defendant at a fee of ¢65,000 to convey its container of glassware from inside the Tema harbour to its warehouse in Accra; that in furtherance of this service, the defendant used his Albion Flat Body Articulator vehicle No GX 3396; that the vehicle was at the material time driven by DW1, Narh Odamteng Bruce; that the glassware container was duly put on the vehicle at or near Shed 11 at the harbour and driven to the security check point; that around the security check point in the harbour, the container fell off the vehicle resulting in the breaking of the glassware.

On those undisputed facts the plaintiff claimed the reliefs in the writ, on the basis that the defendant as a common carrier was liable to make good the damage to the container. Now a common carrier is defined as a person who publicly professes to undertake for reward to transport goods: See Chitty on Contracts, Vol 2, 23rd ed paragraph 482 at page 244. And in the instant case, as Mr Tsegah rightly pointed out, the defendant did not deny that he was a common carrier. DW1, in cross-examination was asked:

“Q   You carry goods of all kinds for a fee.

A     Yes.”

Now the liability of a common carrier vis-à-vis a private carrier is explained in Chitty on Contracts Vol 2, 23rd ed paragraph 488 at page 248 as follows:

“The private carrier’s liability extends only to loss or damage caused by his own or his servants negligence, the burden of disproving which is on him even if the carriage is gratuitous. But the common carrier is prima facie, strictly responsible for all loss or damage that occurs in the course of transit, subject, at common law, to the plea of any of four “excepted perils”. Coupled with the disproof of negligence on the part of the carrier or his servants.”

After pointing out that the liability of the common carrier is often described as an insurer’s liability, the learned authors stated:

“To escape his insurers liability the common carrier must prove both (i) that the loss or damage was caused by a act of God, an act of the Queen’s enemies, inherent vice in the goods or the consignor's own fault and (ii) that no negligence on the part of the carrier or his servants contributed to the loss or damage.”

On the strength of the above authority, Mr Tsegah submitted rightly in my view, that the trial judge after expatiating on the law on common carriers and coming to the conclusion that the defendant was a common carrier, did not proceed further to determine whether the defendant was able to establish absence of negligence on his part. He contended that the defendant did sufficiently establish that he was not negligent, and therefore ought not to have been found liable.

Now an appeal is by way of rehearing, and since all the record from which the trial judge based his decision is before us, nothing forbids the appellate court from going through the record to determine whether notwithstanding the failure of the trial judge to consider the issue of disproof of negligence by the defendant there is evidence to entitle this court to find whether the defendant disproved negligence on his part.

Before I proceed on this exercise, I take note of the fact that the defendant contends that he is not an ordinary common carrier but a common carrier with restrictive conditions in his contract with the plaintiff. I will return to this after a consideration of the disproof of negligence.

The defendant having admitted being a common carrier was obliged, in order to escape liability, to establish, inter alia, that he was not negligent. How did he do this? In paragraphs 8, 9, 10 and 11 of his original statement of defence which he later amended by adding more paragraphs thereto, the defendant pleaded:

“8 In further answer to the said paragraph, defendant avers that at the security checkpoint the said driver manoeuvred the said vehicle slowly and carefully in order to position the said vehicle for inspection by the harbour security officers.

9 Defendant says that while the said driver was slowly managing and controlling the said vehicle at the checkpoint in the harbour the container suddenly tilted to one side and fell to the ground in the harbour in the presence of the harbour security guards.

10 Defendant says that the said accident did not occur through the negligence of his driver but was occasioned by the manner in which the harbour authority located the security check point in the harbour, which required heavily loaded articulators to negotiate U-turn for inspection.

11 Defendant says that the awkward location of the security checkpoint has caused many accidents in the harbour.”

Now since the mere pleading of the above averments does not constitute evidence, what evidence in proof of the above allegations did the defendant produce?

Notwithstanding the averment in paragraph 9 of the defence that the accident occurred in the presence of the harbour security guards, not a single guard was called to testify. Only the driver in charge of the vehicle, DW1 testified on how the accident happened. He said in evidence in chief:

“The loading was supervised by PW1. When the container was loaded I moved the vehicle after tightening the container belts. They were 3 new belts. We were asked to go to the security check-point before leaving the harbour. From Shed 11 there were three turns to the security check-point.”

He later on continued.

“When I was negotiating the bends nothing happened until I reached the security gate. When I reached the security gate, I had to turn round before stationing the vehicle for security check to be conducted. I was negotiating the curve when I heard a loud noise. I turned and saw that the belt was broken and the container fell from the vehicle.” (Emphasis mine.)

It is clear from the driver’s evidence that all what he knows is that there was a loud noise, then he turned, saw the belt broken and the container fell off the vehicle. He did not see the container tilting to one side as pleaded in paragraph 9 of the defence. But more importantly, the driver in his evidence did not attribute the cause of the accident to the awkward positioning of the security check point. Nowhere in his evidence did he say that it was the awkward position of the security check-point that led to the accident as pleaded in paragraph 10 of the defence. However awkward the security check-point was located, DW1 admits that he succeeded in going through all the three bends to the checkpoint. Now the defendant has been a long-standing carrier of the plaintiff’s goods from the harbour to its warehouse. DW1, the driver, said in his evidence in chief:

“I have carried the goods of the plaintiff to its factory many times.”

He was then asked in cross-examination:

“Q     You passed through the same security checkpoints

A      We did not always pass there.

Q      You have passed there several times.

A      Yes.”

The defendant himself testified in chief as follows:

“I have a fleet of lorries which I use in collecting goods from Tema to Accra. I have a business connection with plaintiff. I started with them since 1988.”

The questions then are: why then on that particular occasion did the container fall off the vehicle? Had the driver on previous occasions not been making the same turning for inspection? And if he had previously negotiated the turning for inspection why did the container fall on this occasion? Did the driver have any body to direct him behind? Or did the driver himself check the state of the container when he got to the gate, before starting to make the turn?

Indeed as said earlier, the driver never attributed the accident to the alleged awkward position of the security checkpoint neither had he ever complained to the plaintiff about the alleged awkward position of the checkpoint. He was asked in cross-examination:

“Q     You have never complained to the plaintiff that you could not safely transport the goods through the security check point?

A      No.”

Furthermore although the defendant pleaded in paragraph 11 of the defence that the awkward position of the security checkpoint had caused a number of accidents, not a single instance of such accident was testified to by the defendant and the driver. The defendant's reliance on the alleged awkward position of the security checkpoint is therefore utterly without basis. And although I concede that the evidence of a single witness can sustain a claim, the evidence of the driver in this case does not show the precautionary measures he took to prevent the container from falling off the vehicle. He did not show why on that occasion, as opposed to other occasions he had passed through the same checkpoint, the container fell off. Merely going slowly is not enough. Once he was in charge of the vehicle he must show what measures he adopted as a reasonable man to safeguard the container falling off. In my view the driver's evidence is not enough to exonerate the defendant from negligence. In Blyth v Birmingham Waterwooks Co (1856) 11 Ex 781 at 784 we have the classical definition of negligence in the following words:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing some thing which a prudent and reasonable man would not do.”

And in Charlesworth on Negligence 5th Ed, paragraph 2 page 1, it is stated:

“An act is negligent when it is done, not with the desire of producing a particular result, but actually producing that result by carelessness or indifference.”

I find therefore that the defendant was unable to disprove negligence as required of him, if he were to escape liability.

But was the defendant a common carrier with restrictive conditions in the contract of carriage as submitted by Mr Tsegah? In resolving this let me point out that I have found no authority in support of Mrs Duncan’s submission that the restrictive condition must be in writing. But I accept that for any such condition to be effective, it must be plain and precise.

In paragraphs 16 and 18 of the statement of defence, we have:

“16 In answer to paragraph 6 of the amended statement of claim defendant avers that it was also orally agreed between the plaintiff and defendant that any damage to the said goods while being loaded or carried within the harbour shall be the responsibility or the insurers of plaintiff since the said goods were shipped cost insurance and freight from Belgium to Ghana.

18 In answer to paragraph 7 of the amended statement of claim defendant says that he agreed to carry the said goods from outside the harbour to the said bonded warehouse safely.” (Emphasis mine.)

From paragraphs 16 and 18 therefore the defendant’s case is that the restrictive condition was that damage to the goods within the harbour would be borne by the insurers of the goods as the goods were shipped c.i.f. from Belgium to Ghana and that it is only goods carried from outside the harbour to the plaintiff’s warehouse that he contracted to carry safely. In other words, the defendant would be liable in respect of damage occurring in the course of his transportation from outside the harbour. Accordingly he pleaded in paragraph 23 of the said amended defence:

“23. At the trial defendant will contend that since the said accident occurred within the Tema port and was not due to the negligence of defendant and since the plaintiff had orally agreed that damages to the said goods within the port should be covered by insurance, plaintiff is not entitled to the reliefs claimed.” (Emphasis mine.)

But at the trial, the defendant goes beyond his pleaded defence, and says that the agreement was that the goods had been insured from where they were ordered up through the Tema harbour to the warehouse of the plaintiff. He said in evidence:

“They said they had insured the goods from where they were ordered up to the warehouse.”

And when, according to the defendant, the plaintiff demanded ¢8.5 for breakages, he told them:

“I told them it should be paid by the insurance company. Without the insurance I would not have carried the goods from the harbour. I was not shown the shipping documents. I do not know the country of origin.”

Now the defendant who is a long-standing carrier of goods from the Tema harbour to places in Ghana, is bound to know that the insurance on goods shipped c.i.f. covers damage and loss from the country of origin up to the landing of the goods at the port of destination. The insurance does not cover damage after it had landed in the port, let alone damage from the port of landing to where ever the warehouse of the buyer is.

Be that as it may, the plaintiff vehemently denied any such restrictive condition. And since there was no documentary evidence as basis of that contention, the determination of that issue depended on the oath of the defendant against that of the plaintiff. In other words it depended on the credibility of the witnesses. In such circumstances, the law is well settled that the trial judge who saw and heard the witnesses was in a decidedly better position than the appellate court and that if there was evidence to support his findings, an appellate court could not reverse those findings.

Thus in Kyiafi v Wono [1967] GLR 463 at 466, CA Ollennu JA said:

“It must be observed that the question of impressiveness or convincingness is products (sic) of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the court of first instance is in a decidedly better position then the appellate court.”

Accordingly in Abono v Sunkwa [1962] GLR 154 at 156, the then Supreme Court said:

“It is not the function of a Court of Appeal to disturb a finding where credibility of witnesses had been in question.”

The type of findings with which an appellate court can legitimately interfere are set out by Lord Reid in Benmax v Austin Motors Co Ltd [1955] 1 All ER 326 at 327, HL as follows:

“But in cases where there is no question of the credibility of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

In the instant case, although I concede that the evidence of a single witness, if found credible can sustain a claim, the trial judge who saw and heard the defendant found his evidence not sufficiently reliable to enable him accept his version and I have not been convinced that the trial judge did not take proper advantage of his having seen and heard the witnesses. Indeed given the disparity in his pleaded defence and evidence in court as to the scope of the alleged insurance, that is whether within the harbour or up to the plaintiff’s warehouse, one cannot fault the trial judge in finding as he did. The submission on this ground also fails.

Mr Tsegah also argued that the trial judge erred in admitting in evidence as exhibit D, the defendant’s letter marked without prejudice. Now the trial judge did not refer to nor rely on the contents of this exhibit D in his judgment and I will therefore not bother to discuss the point. In the end I am satisfied that the conclusion arrived at by the trial judge is sound and the appeal must fail. The appeal is accordingly dismissed and the judgment of the court below is affirmed with cost.

ESSIEM JA. I agree.

WOOD JA. I also agree.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner