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ADINYIRA (MRS), JSC:-
This is an appeal against a
judgment of the Court of Appeal,
Accra, dated 12 March 2015. The
background facts to the appeal
are that the
plaintiff/respondent/appellant
[Plaintiff] is a Ghanaian scrap
dealer resident in Italy. In
July 2011, he shipped a 40 foot
container of vehicle spare parts
to the Takoradi Port. The
defendant/ appellant/ respondent
[Defendant] was appointed
stevedores of the cargo. During
the process of moving the cargo
at the port the container fell
heavily onto the deck of the
vessel and got damaged along
with some of its contents.
In negotiations after the
accident, the defendant accepted
responsibility for the loss and
the plaintiff released the whole
container to the defendant in
return for payment of money as
settlement for his loss. A
dispute arose over the
appropriate quantum to be paid
to the plaintiff.
The plaintiff was claiming from
the defendant GH˘
150.000.00 as the value of the
damaged spare parts, GH˘
50,000.00 as anticipated
profits, cost of air tickets
to and from Italy to Ghana and
damages for breach of contract
and interests.
At the commencement of the
trial, the defendant per its
counsel informed the court that
it would not contest the issue
of negligence but contest the
quantum of damages to be awarded
to the plaintiff.
The trial judge entered judgment
in favour of the plaintiff for
an award of GH˘150,000 .00 as
the value of the plaintiff’s
goods negligently damaged by the
defendants, GH˘50,000.00 as
anticipated profits; GH˘10,000.00
as nominal general damages for
breach of contract and cost of
GH˘5,000.00. The judge also
ordered that 24% of the GH˘150,000.00
be deducted as proper duty
payable on the goods imported
into the country by the
plaintiff.
The defendant being aggrieved
appealed against the judgment of
the High Court and on 12 March,
2015 the Court of Appeal allowed
the appeal by varying the
awards. The plaintiff being
dissatisfied filed the instance
appeal and pursuant to leave
granted on 20 December, 2016,
the following grounds of appeal
were filed:
GROUNDS OF APPEAL
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The Court of Appeal erred in
law when it held that
Exhibits ‘A ‘– ‘E’ were only
invoices and therefore were
not authentic to verify that
the corresponding prices to
the goods on the said
invoice did constitute the
actual price, when indeed
the goods indicated on the
invoices were all shipped to
Ghana, and there was no
other credible evidence to
contradict the same.
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The learned Justices of the
Court of Appeal erred in law
and occasioned a grievous
miscarriage of justice when
they relied on Exhibit ‘3’
as authentic when there was
ample evidence on record to
show that there were grave
and obvious inconsistencies
and contradictions on the
information on the said
exhibit.
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The learned justices erred
in law when they held that
the value of the consignment
was only nine thousand five
hundred US Dollars
(US$9,500.00) and by such
holding allowed the
defendant/Appellant/Respondent
to benefit from its own
negligence.
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The learned Justices erred
in law when they held that
Mr. Herbert Agyapong, the
original agent for the
Plaintiff/Respondent/Appellant
continued to be the agent
for the
Plaintiff/Respondent/Appellant
even after the whole
consignment had been
transferred to the
Defendant/Appellant/Respondent
and they had taken over the
goods as a consignee in all
its respects.
Consideration
GROUND A: The Court of Appeal
erred in law when it held that
Exhibits ‘A’ – ‘E’ were only
invoices and therefore were not
authentic to verify that the
corresponding prices to the
goods on the said invoice did
constitute the actual price,
when indeed the goods indicated
on the invoices were all shipped
to Ghana, and there was no other
credible evidence to contradict
the same.
While Counsel for the plaintiff
agreed with the learned justices
of appeal that an invoice may
generally not qualify for a
receipt he however argued that
the circumstances of the case
and the explanations offered by
the plaintiff at the trial was
sufficient to sustain the
finding of the trial court.
Counsel submits that the
defendants did not at any time
put the plaintiff on notice that
they disputed the contents or
the value of the goods as
evidenced by the bill of lading
and the invoices. He argued that
the defendants by their conduct
accepted the value and cleared
the goods and made an advance
payment of GH˘30,000.00 and sold
same. He submitted further that
the defendants had the
opportunity to examine and
ascertain the value of the
goods. Counsel further contended
that the defendant knew the
value of the goods as the
parties entered into terms of
settlement.
Counsel for the defendants
responded that so long as the
plaintiff seeks to recover the
value of his goods, he could
only be entitled to what he had
declared by his agents or at
best the reassessed value placed
on the goods by CEPS.
We do not find any merit in the
submissions by the plaintiff as
he was put on notice from the
commencement of the trial he had
to prove the quantum of his
claim. Furthermore counsel’s
insistence that the parties
entered into terms of settlement
in which they agreed on the
value of the goods is misplaced.
Both the trial and appeal courts
were ad idem that settlement
between the parties failed and
the suit was referred for trial.
In this case it was the
plaintiff who bore the burden of
proof and not the defendant to
produce the required evidence of
such quality of credibility of
the contents and value of the
goods short of which his claim
may fail. See sections 10 and
11 of the Evidence Decree
and Ackah v Pergah Transport
Ltd [2010] SCGLR 728
Furthermore, the plaintiff’s
claim for the sum of
GH˘150,000.00 was a claim for
special damages of the actual
value of the goods which he had
paid for before the damage. It
is trite law that a claim for
special damage must be strictly
proved. It was therefore not
sufficient for the plaintiff to
to merely repeat the bare
assertions in his pleadings and
to rely solely and heavily on
invoices, Exhibit ‘A’- ‘E’ which
the Court of Appeal rightly
rejected that they were not
receipts as there was nothing on
these invoices to show the
plaintiff actually paid 71,050
Euros for the goods itemized on
these invoices. It is pertinent
to quote in extenso the
reasoning of the Court of Appeal
lordships per Kanyoke JA at
pages 358 to 360 of the record
of appeal [ROA]:
“There is clearly a difference
and a distinction between an
Invoice and a Receipt as known
in the commercial world… In
brief, an invoice provides or
indicates evidence of a
potential sale transaction only;
on the contrary a receipt
provides or indicates a
completed sale transaction. But
in some circumstances, an
invoice may operate as an
invoice as well as a receipt.
It is a question of fact in each
case whether a particular
invoice also constitutes a
receipt. For example, an
invoice may also constitute a
receipt where the word “PAID” is
affixed to it or a “PAID STAMP”
is put on it. In the instant
case, it is true that all
Exhibits Aš to Eš contain client
code, the name and address of
the plaintiff, an invoice
number, date, mode of payment as
well as vat information on
them. But there is no express
indication on any of them to
show that the plaintiff did in
fact pay for the goods or
products listed on these
invoices to indicate on a
preponderance of the
probabilities that the prices
stated on each of these invoices
were the actual prices the
plaintiff paid for those goods
or products… An invoice
therefore does not constitute a
final and completed sale
transaction between the seller
and the buyer; on the contrary a
Receipt constitutes a final and
completed sale transaction
between the seller and the
buyer... It is therefore my
considered opinion that the
trial judge erred grievously in
law and fact when she treated
Exhibits Aš to Eš as Receipts.
That finding is not supported by
these documents, i.e. Exhibits
Aš to Eš or by any other
evidence on the record. Apart
from tendering and relying on
Exhibits Aš to Eš to establish
his case that he purchased the
goods listed in these exhibits,
the plaintiff adduced no other
evidence, documentary or oral to
prove that he actually paid for
those goods at the price or
prices indicated in those
exhibits. For example, an
examination of Exhibit Bš
reveals that the expression in
that exhibit Bš at page 181 of
the ROA is “Total Payable:
2,460.00. Again, on Exhibit A
at page 178 of the ROA has the
expression “Total Invoice:
36,125.00.” If the plaintiff
actually paid 2,460.00 for the
goods in Exhibit Bš, why was the
word “Payable” used therein
instead of the word “Paid”.
Similarly, if the plaintiff had
actually paid 36, 125.00 in
respect of the goods listed in
Exhibit Aš, one would have
expected the seller to write
therein “Total amount paid:
36,125.00”. In the light of the
fact that all exhibits Aš to Eš
are invoices and not receipts,
the trial judge ought to have
been circumspect and cautious
and not speculative in treating
them as receipts and thereby
concluding that they provided
credible evidence of the value
of the goods in the damaged
container totaling 70,000.00
Euros or the Cedi equivalent of
Gh˘150,000.00.”
We affirm the reasoning of the
Court of Appeal in setting aside
the award of GH˘150,000.00, as
the invoices did not provide
sufficient, strict and credible
evidence that he actually did
spend that amount of money to
purchase and ship those goods to
Ghana.
GROUND B: The learned
Justices of the Court of Appeal
erred in law and occasioned a
grievous miscarriage of justice
when they relied on Exhibit ‘3’
as authentic when there was
ample evidence on record to show
that there were grave and
obvious inconsistencies and
contradictions on the
information on the said exhibit.
Counsel for the Plaintiff argues
that at no point did the
plaintiff authorise the agent to
submit Exhibit 3 to the Ghana
Link Network Services [GLNS] or
to anyone else and that it was
the agent who suo motu
conjured a list of items and
their corresponding prices. He
argued further that the Court of
Appeal ought to have accepted
the values of the invoices
rather than accept the value
imposed by CEPS as there was
evidence that GLNS and CEPS did
a shoddy job.
We do not find any merit in this
ground of appeal as the Court of
Appeal did not say
or make any finding that Exhibit
3 was authentic.
It was clear from the evidence
on record that the clearing
agent Herbert Agyapong was
engaged by the Plaintiff to
clear the container for him when
it arrived at the Takoradi
Harbour. The clearing agent was
expected in the normal course of
business to fill a pre-entry
import declaration form on
behalf of the plaintiff and
present to the destination
inspection company and then to
CEPS for the correct duties to
be assessed before the goods can
be cleared.
It was clear from the
plaintiff’s own evidence that he
told the clearing agent of the
items in the container but did
not tell the agent their value
nor furnished him with the
invoices. The question is how
else was the agent to assess and
declare the value of the items
in the container without being
furnished with documentation of
their actual prices? The
clearing agent was bound to do a
guess work or as is the common
practice to under declare the
value of the goods in order to
attract low custom duties.
The clearing agent processed
and declared the value of the
plaintiff’s goods as $3,339.00
on the Import Declaration Form,
Exhibit 3, based on information
contained in Exhibit 4, an
invoice, prepared by the Mafer
s. r.1., the consignor of the
plaintiff, and presented it to
the Ghana Link Network Services
[GLNS]. When Exhibit 3 and 4
were handed over to Customs,
Excise and Preventive Services
[CEPS] by GNLS; CEPS reassessed
the value of the goods at
$9,885.75.
.
The trial judge in examining
Exhibit 3 found it to contain
discrepancies and forgeries and
rejected them and held that the
plaintiff who said he did not
instruct his clearing agent to
place such value on the goods
because that was not their value
could disassociate himself from
it.
However the Court of Appeal
overturned this finding and held
the plaintiff was to be fixed
with liability with the fraud or
forgery of his agent, as the
agent was bound to make a false
declaration regarding the value
of the items plaintiffs has
shipped without supplying him
with any documentation to work
on.
We affirm the Court of Appeal’s
decision on this issue as it is
trite law that where an agent
acts within the scope of his
authority and commits fraud or
forgery or any crime, he fixes
liability on his principal even
if committed for his sole
benefit of the agent. Akortsu
v State Insurance [1972] 2 GLR
22
From the foregoing, the appeal
on ground B fails. For the same
reasons we dismiss GROUND D
of the appeal as the Court of
Appeal’s finding was not that
the agency between the plaintiff
and Herbert Agyapong continued
after the goods were assigned to
the Defendant.
GROUND C: The learned
justices erred in law when they
held that the value of the
consignment was only nine
thousand five hundred US Dollars
(US$9,500.00) and by such
holding allowed the
defendant/Appellant/Respondent
to benefit from its own
negligence.
This ground of appeal is rather
a misapprehension by counsel of
the rational for the award of
the sum of $9,887.75 to the
plaintiff. The sum of $9,887.75
awarded was not for the actual
value of the goods which the
plaintiff had failed to prove
but as a reasonable compensation
for his loss.
The Court of Appeal having found
that the plaintiff had failed to
strictly prove his claim for
special damages of GH˘150,000.00
for the cost of his consignment
went on to award him general
nominal damages of $9,887.75
(the assessed value of the goods
by CEPS) for his loss as there
was sufficient evidence on
record to show that he has lost
property through the negligence
of the defendant. The learned
justices could have fixed the
award of damages at $3,339.00
the value declared by the
plaintiff’s agent, they were
however magnanimous in adopting
the assessed value by CEPS.
We will dismiss this ground C of
appeal.
From the foregoing the appeal
fails in its entirety and is
dismissed. Accordingly, we
affirm the judgment and orders
of the Court of Appeal.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME COURT)
ANSAH, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
J.
ANSAH
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
AKOTO-BAMFO (MRS.), JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
V. AKOTO-BAMFO (MRS.)
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
D. K. AMELEY WITH HIM DESMOND
SACKEY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
VICTORIA BARTH WITH HER
BENEDICTA AKITA FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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