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Negligence -
Contract - Breach of duty -
Whether or not the Court of
Appeal rightfully drew the
necessary inferences from the
undisputed facts on record.-
Whether or not the proper
parties were before the court to
have answered the particulars of
negligence -
HEADNOTES
The appellant herein has
appealed against the unanimous
judgment of the Court of Appeal,
Accra, which set aside the
judgment of the trial High
Court, Accra. The facts of this
appeal appear to be devoid of
any serious controversy. The
appellant herein commenced an
action at the High Court, Accra
(Financial Division). He is a
Ghanaian citizen who had lived
in Germany for about
twenty-eight years. When he
decided to come home to stay
permanently he gave instructions
to his wife who was in Germany
to ship his personal belongings
to him in Ghana. In compliance
with his wishes the goods were
entrusted to Messrs Schenger and
Company, Tubengen, Stuggar who
were forwarding agents for the
shipment to the plaintiff in
Ghana. According to the
appellant he waited for several
months and did not receive the
goods and therefore wrote to his
solicitor in Germany to instruct
them to take action on the
matter. His solicitors in reply
informed the appellant that the
goods had indeed arrived in
Ghana on or about the 11th
of November 1990.The appellant
thereupon contacted the
respondent and he was informed
that it had long ago posted
Arrival Notice to the appellant
herein to inform him of the
arrival of goods and as the
respondent failed to clear the
goods, sent the goods to the
State’s warehouse to be
auctioned as unclaimed goods as
required by the laws of
Ghana.The appellant at the State
Warehouse saw the containers in
which his goods were shipped but
bore his corny name and postal
address as Boateng Asante
P.O.Box 5926, Accra. According
to the appellant upon his demand
to be shown the Arrival Notice
the respondent showed him an
Arrival Notice with different
particulars as follows; Boateng
Acanle, c/o Mr. Agyekum P.O.Box
5296, Accra which appeared to be
contrary to and inconsistent
with the other particulars
above. The appellant resorted to
legal action and pleaded breach
of contract, negligence and/or
carelessness against the
respondent herein. The learned
trial High Court judge after
hearing, entered judgment for
the appellant and granted the
appellant the reliefs sought.
The respondent lodged an appeal
at the Court of Appeal, Accra,
which reversed the judgment of
the trial High Court on several
grounds.
.
HELD
The other grounds of appeal
which were argued covered the
issue of damages which were
ignored by the Court of Appeal.
In its judgment the Court of
Appeal was of the view that the
issue of damages ought not to be
considered after it had allowed
the appeal based on the fact and
law that the respondent did not
owe any legal duty towards the
appellant. Of course damages
would certainly flow after
finding of liability against a
tortfeasor. In this appeal we
have endorsed the finding that
the respondent did not owe any
legal duty toward the
appellant. In our opinion, like
the Court of Appeal, it would
not therefore be necessary to
consider any issue of general or
special damages as pressed on us
by counsel of the appellant. We
therefore dismiss the appeal.
These are our reasons for
affirming the judgment of the
Court of Appeal
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act
1975 NRCD [323]
High Court
(Civil Procedure) Rules, 2004 CI
47 of
CASES
REFERRED TO IN JUDGMENT
BENMAX v AUSTIN MOTOR CO. LTD
[1952] 2 WLR 418,
MORRIS v WEST HARTLEPOOL STEAM
NAVIGATION CO LTD [1956] IWLR
177 TONAZZI v BRUNNET [1953] 14
WACA 403.
ACKAH v PERGAH TRANSPORT LTD &
ORS [2010] SCGLR 728
ASHITTEY & OR v DODOO [1969] CC
157 CA
TEMA OIL REFINERY v AFRICAN
AUTOMOBILE LTD [2011] 2
AMOAH v LOKKO & ALFRED QUARTEY
(substituted by) GLORIA QUATEY
[2011] 1 SCGLR 505.
THE REP v ATTORNEY-GENERAL; EX
PARTE QUAYE-MENSAH & OR [1979]
GLR 429 CA
J.S.HOH & MOSELEY (LONDON) LTD v
SIR CHARLES CUNNINGHAM &
PARTNERS [1950] 83 LL R 141
UNIVERSAL STEAM NAVIGATION CO.
LTD v JAMES MACKENIE [1923] 129
LT 395
BOOKS
REFERRED TO IN JUDGMENT
WINFIELD &
JIROWICZ, TORT 18th
Edition
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH JSC;
COUNSEL
FRIMPONG-
BOADU FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
OSAFO
BUABENG FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
ANIN YEBOAH JSC;
On the 15th of
January, 2014, we dismissed the
appeal from the judgment of the
Court of Appeal and reserved our
reasons. We now proceed to offer
our reasons for the dismissal of
the appeal.
The appellant herein has
appealed against the unanimous
judgment of the Court of Appeal,
Accra, which set aside the
judgment of the trial High
Court, Accra. The facts of this
appeal appear to be devoid of
any serious controversy. The
appellant herein commenced an
action at the High Court, Accra
(Financial Division).
He is a Ghanaian citizen who had
lived in Germany for about
twenty-eight years. When he
decided to come home to stay
permanently he gave instructions
to his wife who was in Germany
to ship his personal belongings
to him in Ghana. In compliance
with his wishes the goods were
entrusted to Messrs Schenger and
Company, Tubengen, Stuggar who
were forwarding agents for the
shipment to the plaintiff in
Ghana.
According to the appellant he
waited for several months and
did not receive the goods and
therefore wrote to his solicitor
in Germany to instruct them to
take action on the matter. His
solicitors in reply informed the
appellant that the goods had
indeed arrived in Ghana on or
about the 11th of
November 1990.
The appellant thereupon
contacted the respondent and he
was informed that it had long
ago posted Arrival Notice to the
appellant herein to inform him
of the arrival of goods and as
the respondent failed to clear
the goods, sent the goods to the
State’s warehouse to be
auctioned as unclaimed goods as
required by the laws of Ghana.
The appellant at the State
Warehouse saw the containers in
which his goods were shipped but
bore his corny name and postal
address as Boateng Asante
P.O.Box 5926, Accra. According
to the appellant upon his demand
to be shown the Arrival Notice
the respondent showed him an
Arrival Notice with different
particulars as follows; Boateng
Acanle, c/o Mr. Agyekum P.O.Box
5296, Accra which appeared to be
contrary to and inconsistent
with the other particulars
above.
The appellant resorted to legal
action and pleaded breach of
contract, negligence and/or
carelessness against the
respondent herein. The learned
trial High Court judge after
hearing, entered judgment for
the appellant and granted the
appellant the reliefs sought.
The respondent lodged an appeal
at the Court of Appeal, Accra,
which reversed the judgment of
the trial High Court on several
grounds. This appeal is before
this court from the unanimous
decision of the Court of Appeal,
Accra.
The appeal has been argued on
three main grounds, namely:
a.
The Court of Appeal erred in
holding that the
defendant/appellant/respondent
was not negligent nor did
contribute to the negligence in
handling the appellant’s cargo
and therefore not liable to the
respondent.
b.
The Court of Appeal erred in
holding that the
defendant/appellant/respondent
cannot be held for the
negligence of its principal, a
foreign company with no address
in Ghana.
c.
The Court of Appeal erred in
refusing to consider the damages
aspect of the respondent’s
appeal.
The first ground of appeal was
seriously argued in detail by
learned counsel for the
appellant. According to
counsel, the evidence on record
on negligence and which was
accepted by the learned trial
judge was erroneously set aside
by the Court of Appeal. He
sought to crticise the judgment
of the Court of Appeal that it
had no right to reject the
findings of fact made by the
learned trial judge and
supported his submissions with
the cases of BENMAX v
AUSTIN MOTOR CO. LTD [1952]
2 WLR 418, MORRIS v
WEST HARTLEPOOL STEAM NAVIGATION
CO LTD [1956] IWLR 177 and
TONAZZI v BRUNNET
[1953] 14 WACA 403.
The principle deducible from the
above cases is that an appellate
court ought not to disturb the
findings of facts made by the
trial court unless those
findings are not supported by
the evidence on record. In this
appeal it would appear that the
evidence on record was not based
on demeanour. It was also not
the case that there were any
serious conflicts in the
evidence of both parties before
the trial court. The evidence
was clearly devoid of
controversy. According to the
evidence of the appellant the
respondent did not correctly
spell his name and also did not
give the right address of the
appellant for the correspondence
to reach him on time when the
goods arrived at the Tema Port.
He had on the pleadings charged
the respondent of negligence and
carelessness and pleaded the
particulars of negligence in his
amended statement of claim as
follows:
PARTICULARS OF NEGLIGENCE AND/OR
CARELESSNESS
a.
Writing wrongly the name BOATENG
ACANLE instead of BOATENG ASANTE
b.
Writing wrongly the postal
address c/o MR. AGYEKUM, P.O.BOX
5296 instead of P.O.BOX 5926
c.
Failing or refusing to notify
the plaintiff the arrival of the
goods
d.
Failing or refusing to take any
or sufficient measures to ensure
that the plaintiff received the
notification before transferring
the goods to the State Warehouse
e.
Transferring the plaintiff’s
goods to the State Warehouse as
unclaimed when no notice of the
arrival of the goods had been
sent to the plaintiff.
The above particulars of
negligence and/or carelessness
were stoutly denied in the
amended Statement of Defence.
Basic rules of evidence required
that the appellant who pleaded
negligence or carelessness
against the respondent upon
denial by the respondent assumed
the onus of proof. This court,
per its the worthy president in
the recent often-quoted case of
ACKAH v PERGAH
TRANSPORT LTD & ORS [2010]
SCGLR 728 stated the law lucidly
after referring to sections 10
and 11 of the Evidence Act 1975
NRCD [323] as follows at page
736:
“It is a basic principle of the
law of evidence that a party who
bears the burden of proof is to
produce the required evidence of
the facts in issue that has the
quantity of credibility short of
which his claim may fail”
The evidence led by the
appellant sufficiently
established that his name and
address were in a manner which
was contrary to and inconsistent
with the one given to his agent
in Germany where the goods were
shipped. The appellant’s
attempt to prove the particulars
of negligence against the
respondent found favour with the
learned trial judge. However,
the appellate court reversed the
findings on negligence. The
Court of Appeal found as
follows;
“The conduct of the defendant’s
principal by providing an
address different from the one
given to him by the shipper
amounts to negligence. The onus
of negligence on the part of the
defendant’s principal in Germany
has been proved on the
preponderance of probabilities.
It is in consonance with section
11(4) and 12 of the Evidence Act
NRCD 23”
It must be made clear that the
particulars of negligence were
pleaded against the respondent
who was the only party to the
suit as defendant. The
appellant from the evidence
which appeared to be
documentary, never made up a
case of negligence against the
respondent who was the only
party sued to answer the
allegations pleaded in the
particulars. In the judgment by
the Court of Appeal, Dennis
Adjei, JA found as follows:
“ I find as a fact that the
defendant was not negligent when
he reproduced the name and
address of the plaintiff as
BOATENG AKANLE, c/l MR. AGYEKUM,
P.O.BOX 5296, ACCRA NORTH
because it was the actual
information on the manifest. I
would like to state that in the
Shipping Industry, Arrival
Notice is just a complimentary
as all the relevant information
concerning the goods are on the
bills of lading. The inordinate
delay on the part of the
plaintiff to clear the goods
from the port would have been
addressed if the carrier was a
party to the suit”
We cannot fault the Court of
Appeal in anyway on the above
findings of facts exonerating
the respondent from negligence.
As the facts appeared not to be
in dispute, the Court of Appeal
was clearly within its powers
when it drew the necessary
inferences from the undisputed
facts. This is supported by a
long line of authorities since
the case of ASHITTEY & OR
v DODOO [1969] CC 157 CA
was decided by the Full Bench
when it held as follows:
“where the facts upon which a
judgment is based are inferences
drawn from primary facts an
appellate court is in just as
good a position as the trial
court to draw these inferences,
and where a court of Appeal is
of the considered view that
wrong inferences have been drawn
by the trial court, it
(Appellate Court) can properly
substitute its own findings for
those of the trial court”
In our respectful opinion, the
Court of Appeal rightfully drew
the necessary inferences from
the undisputed facts on record.
It was therefore the duty of
learned counsel for the
appellant to have demonstrated
before this court where the
Court of Appeal went wrong, and
the miscarriage of any injustice
resulting therefrom. As the
inferences drawn by the Court of
Appeal were clearly supported by
the undisputed and the
documentary evidence on record
we will not disturb the findings
based on the recent decisions of
this court in TEMA OIL
REFINERY v AFRICAN
AUTOMOBILE LTD [2011] 2
Schlr 907 and AMOAH v
LOKKO & ALFRED QUARTEY
(substituted by) GLORIA
QUATEY [2011] 1 SCGLR 505.
We think that the facts of the
case required that the appellant
ought not to have been the sole
defendant to answer a claim of
this nature. The proper parties
were not before the court to
have answered the particulars of
negligence pleaded against only
the respondent herein. The
basic principle of common law of
cardinal importance regulating
joinder of parties is that the
misjoinder or non-joinder of any
party shall not operate to
defeat any cause or matter and
the court may determine the
issues or questions in dispute
so far as they affect the rights
and interests of the persons who
are parties to the cause or
matter. It therefore behoves
litigants to pursue their claims
against the right parties in
every cause or matter.
This proposition of the common
law is statutorily supported by
Order 4 rule 5 (1) of the High
Court (Civil Procedure) Rules,
CI 47 of 2004. If the
forwarding agents residing in
Germany had been made parties to
this case, the appellant could
(based on the undisputed oral
and documentary evidence)
probably have made a case
against them. For a name which
is mispelt may have far-reaching
consequences in law. See THE
REP v ATTORNEY-GENERAL;
EX PARTE QUAYE-MENSAH & OR
[1979] GLR 429 CA. From the
facts a duty of care was imposed
on them to have given the
correct name and address of the
appellant for the correspondence
to reach him on time. There was
therefore a clear breach of duty
which in law is the basis of any
claim in negligence. Negligence
generally results from a breach
of legal duty to take care which
results in damage to a person.
But it is stated in WINFIELD
& JIROWICZ, TORT 18th
Edition at pate 151 as follows:
“ It is not for every careless
act that a person may be held
responsible in tort law, nor
even for every careless act
that causes damage. He will
only be liable in negligence if
he is under a legal duty to take
care. [Emphasis ours]
We are of the opinion that there
was no legal duty imposed on the
respondent herein, the claim
against the respondent based on
negligence or carelessness
obviously fails. However,
learned counsel for the
appellant argued this ground by
referring to several cases on
the law of agency which we think
we owe a duty to him to address
in this appeal.
The Court of Appeal was of the
view that the evidence did not
disclose that the respondent
herein was to be held liable for
acts or omissions of his
principal who was residing
outside the jurisdiction. It
proceeded to cite one of the
leading cases on agency, which
is J.S.HOH & MOSELEY (LONDON)
LTD v SIR CHARLES
CUNNINGHAM & PARTNERS [1950]
83 LL R 141 in which the House
of Lords held inter alia that
there is no longer any
presumption that an agent acting
for a principal who is outside
the jurisdiction would be held
personally liable for acts or
omissions of the principal.
Quite apart from the fact that
the evidence could not disclose
that the respondent was to be
held liable for acts or
omissions of the principal
living outside, the Court of
Appeal was of the opinion that
the respondent throughout the
transaction did not exhibit any
conduct to assume
responsibilities of his
principal living outside the
jurisdiction. In support of
this findings the Court of
Appeal cited UNIVERSAL STEAM
NAVIGATION CO. LTD v
JAMES MACKENIE [1923] 129 LT
395 in which the House of Lords,
held that where an agent shows
himself as an agent of a
principal he cannot be held
personally liable for acts or
omissions of his principal
unless by his conduct covertly
or overtly he assumed the
responsibilities of his
principal. We think that the
inferences drawn from the
uncontroverted facts support
this basic proposition of law
and we need not disturb it.
The other grounds of appeal
which were argued covered the
issue of damages which were
ignored by the Court of Appeal.
In its judgment the Court of
Appeal was of the view that the
issue of damages ought not to be
considered after it had allowed
the appeal based on the fact and
law that the respondent did not
owe any legal duty towards the
appellant. Of course damages
would certainly flow after
finding of liability against a
tortfeasor. In this appeal we
have endorsed the finding that
the respondent did not owe any
legal duty toward the
appellant. In our opinion, like
the Court of Appeal, it would
not therefore be necessary to
consider any issue of general or
special damages as pressed on us
by counsel of the appellant. We
therefore dismiss the appeal.
These are our reasons for
affirming the judgment of the
Court of Appeal.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
FRIMPONG-
BOADU FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
OSAFO BUABENG
FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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