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J U D G M E N T

MRS. WOOD, J.S.C.: This is an appeal against the unanimous decision of the Court of Appeal. The first appellant, Ghana Ports and Harbours Authority, is the statutory body charged under the laws of Ghana with the management and control of all harbours and ports facilities in this country; while Captain Zeim, the second appellant, is the Master in charge of the Tema Main Port and Fishing Harbour. Nova Complex Ltd, the respondents, are the registered owners of the M V Nova VII and the M V Nova VIII, the subject-matter of these proceedings. At the date of the events which triggered this action, the vessels were berthed at different locations. The M V Nova VII was berthed at the Tema Fishing Harbour, while the sister ship, the MV Nova VIII, was berthed at the Shipyard and Dry-dock of the Tema Port.

On 18 May 2001, the respondents (hereinafter called the plaintiffs) sued the appellants (hereinafter called the defendants) for compensation arising out of the alleged negligent or unlawful beaching of the M V Nova VIII. The defence in the main was an outright rejection of the charge of negligence or unlawfulness, coupled with a counter-charge of negligence against the plaintiffs. The defendants maintained that the beaching was lawfully carried out in line with their statutory duty to maintain ports and harbour safety. They pleaded that this was the only option open to them, when the vessel was found to be listing so heavily at the entrance of the docks that, it stood in danger of sinking and becoming an obstruction, thus posing a real danger to maritime safety.

The trial High Court found as a fact that M V Nova VIII did not list; and further that it was beached in error. On appeal, the Court of Appeal affirmed the finding of liability, though for slightly different reasons, but varied the award of damages by reducing the quantum. Dissatisfied, both parties have appealed to this court for a reversal of the findings and orders with which they are aggrieved. While the defendants are requesting a complete overturn of the liability finding, the plaintiffs are asking for a restoration of the damages originally awarded by the trial court as compensation and an enhancement of the costs awarded.

The grounds of appeal by the defendants

The defendants' original grounds of appeal were as follows:

"(i) the Court of Appeal erred in holding that the alleged admission of negligence by the second defendant without authority was binding on the defendants;

(ii) the Court of Appeal erred in holding that the alleged admission of negligence by the said Capt Zeim, the second defendant, rebutted the presumption that the removal of the vessel from the port by the defendants was done regularly in the course of official and statutory duty;

(iii) the Court of Appeal erred in awarding damages when the self-same court had found that the plaintiffs had not proved the damages suffered; and

(iv) the Court of Appeal erred in affirming the trial court's decision for loss of use."

The defendants filed the following additional grounds of appeal:

"(1) The Court of Appeal erred in law in holding that the plaintiffs-respondents had rebutted the presumption that the defendants-appellants had removed the vessel...

(2) The holding that the second defendant admitted that he beached the vessel MV Nova VIII by mistake was against the weight of evidence.

(3) The decision of the Court of Appeal that the alleged admission by the second appellant [second defendant] was binding on the first appellant [first defendant] is unsupportable in law...

(4) The holding by the Court of Appeal that the second defendant's alleged admission constituted res gestae is unsupportable in law and fact...

(5) The awards of US$600,000 and ¢400,649,992.25 as the market value of the MV Nova VIII are neither supported by the evidence nor decided authority...

(6) The Court of Appeal erred in accepting the insured value of the MV Nova VIII as the market value although the plaintiffs never proffered the insured value as the market value.

(7) The holding that the repairs were undisputed is erroneous in law...

(8) The award by the Court of Appeal of the sum of US$1,700,000 as loss of use of the vessel is unsupportable by the evidence on record.

(9) The award of the sum of £2,658,300 as indemnity for breach of the alleged charter party between the plaintiffs and Fishy Limited is unsupportable in law..."

The grounds of appeal in support of the plaintiffs' cross-appeal

The plaintiffs filed the following grounds of appeal in support of their cross-appeal:

"(i) The Court of Appeal erred in law when it based its decision for reducing the replacement value of MV Nova VIII on the ground that no expert evidence was led on the market value.

(ii) The Court of Appeal erred when it reduced the indemnity awarded the plaintiffs-respondents-respondents by the trial High Court.

(iii) The Court of Appeal did not exercise its discretion properly when it reduced the costs awarded by the trial High Court."

Summary of the arguments by the defendants in support of the appeal

We propose to provide a summation only of the arguments by the defendants. The kernel of the defendants' argument is that, since the Court of Appeal had made the following definitive findings of fact: (i) that the defendants had beached the vessel in the regular performance of their official and statutory duty as managers of the harbour; and (ii) that the vessel had listed requiring beaching, their Lordships in the Court of Appeal fell into clear error when in a "volte-face", they concluded, in the same breath, that these facts were inconclusive of the defendants' innocence and rather constituted a mere presumption, which, on the evidence, the plaintiffs had successfully rebutted. Counsel for the defendants therefore urged us to set this conclusion aside and dismiss the plaintiffs' case. The argument for this proposition was that:

"having regard to these express findings, the finding that the vessel was removed because it had listed was based on the facts on record, buttressed by the plaintiffs' inability to challenge effectively the first defendant witness. By their pronouncements ... their Lordships in the Court of Appeal had upheld the defendants' case. Their lordships had accepted as reasonable, the defendants' explanation for the removal of the vessel from the port, ie that it had listed. The defendants' case was made. What was left was the formal dismissal of the plaintiffs' claim."

To buttress the above argument, counsel referred to their lordships' own evaluation, which they described as positive of the testimony of the first defendant witness which was expressed by the court in these terms:

"The narration cannot be described as romancing or incredible in the light of the totality of evidence on the record and, in particular, the respondents' [plaintiffs'] reliance upon exhibit B, the report of survey of laid up vessels at the port of Tema."

Summary of the arguments by the plaintiffs-respondents in response to the arguments by the defendants-appellants

A number of submissions were made by counsel for the plaintiffs in answer to the above arguments by the defendants. Firstly, it was submitted that the Court of Appeal never made any such definitive or conclusive findings of fact as ascribed to it. All that the court did, it was contended, was to apply the rebuttable legal presumption of regularity as provided under section 37 of the Evidence Act, 1975 (NRCD 323). Secondly, it was argued that although the court found as a fact that the vessel had listed, it never, on the other hand, came to any conclusive finding that the list was of such a nature or degree that the vessel stood in danger of sinking and blocking the approach to the harbour. Thirdly, it was maintained that, in any event, the court erred in giving credence to the listing of the vessel as the finding is not supported by the evidence.

The Supreme Court's response to the arguments of the parties

The fact that the defendants are mandated to perform a statutory or legal duty has never been in doubt. Their duty as spelt out under the relevant statutes is not only extremely important, but is of a highly specialised nature. It includes keeping the shipping lanes and approaches to Ghana's Ports and Harbours clear of all obstacles that pose danger to or threaten navigational safety and security.

In our view, however, the Court of Appeal's approach to resolving this particular dispute, ran counter to the core issue which emerged from the pleadings and the evidence. It seems to us that, the defendants' unease with the conclusion that the presumption had been successfully rebutted, can be understood when examined viz a viz the principal reason advanced by the court as the reason for the beaching. The Court of Appeal proceeded in the following direction. After having come to the conclusion that the vessel had listed, their lordships proceeded to deal with the issue which lay at the heart of this dispute, not on the basis of what emerged from the pleadings, namely, whether or not the list was so pronounced that the vessel had to be beached, but on the basis of whether or not the defendants did make a fundamental and obviously costly blunder in beaching the wrong vessel. The court proceeded to review the evidence relating to these matters, in some great detail, and concluded that M V Nova VIII was mistaken for the sister ship M V Nova VII, and consequently beached in error. It is this finding of mistake of beaching, which their lordships treated as the rebuttal evidence, which has attracted severe criticism from the defendants. They forcefully contend that the finding that the M V Nova VIII listed should have spelt the doom of the plaintiffs' case.

We are inclined, to some extent, to agree with the defendants' argument that the Court of Appeal's approach is faulty and clearly erroneous, it being contradictory of and inconsistent with the court's own earlier finding that the vessel listed. In this regard, we agree that the court failed to address the real issue that lay at the heart of the entire controversy. The court's approach, in our view, runs against the issues raised by the pleadings and the evidence.

We therefore propose to demonstrate from the pleadings in particular and the evidence that, in this action, the principal issue is whether or not the M V Nova VIII was found to have listed so heavily at the entrance of the dry-docks; that it stood in danger of sinking and blocking the entrance to the docks; and consequently, that in the interest of maritime safety, the defendants had to beach it. It is trite but bears emphasis that in identifying what constitutes the central issue in this dispute, we look at the pleadings and the evidence not only one side, but both sides of the legal divide.

The amended statement of claim filed pursuant to the court's order given on 25 January 2002

The following amended statement of claim was filed by the plaintiffs:

"(8) On 9 March 2001, the deputy to the second defendant went to the dry-dock, boarded and inspected M V Nova VIII to find out whether it was leaking or there was anything unusual but found nothing amiss and was told by the night crew on board also that there was nothing amiss.

(9) Just as the said deputy was about to leave, Captain Zeim and some personnel from the service arrived. The firemen boarded the boat and found no leakage or anything unusual. After the inspection by the firemen, also the second defendant insisted on 'moving' the vessel away and the engineer of the M V Nova VIII suggested that, he, the engineer, could start the engine so that they pilot it away. The said suggestion was dismissed by the second defendant who ordered the crew to disembark and not attempt to board again.

(10)(a) The second defendant then instructed his men to tug the vessel away, and on the following day, it was found beached at Paradise Beach with people looting items from it and warning shots from Navy and Police Personnel did not disperse them.

(15) The defendant beaching of the M V Nova VIII was negligent or otherwise unlawful.

Particulars of negligence

"(i) failing to properly inspect or assess the seaworthiness of M V Nova VIII before beaching same;

(ii) failing to inspect or take note of the M V Nova VII or Nova VIII, that is, the identifying marks on the vessel prior to the beaching; and

(iii) failing to obtain the assistance of the plaintiffs to identify the vessel for beaching before effecting the beaching and thereby beaching the wrong vessel."

Statement of defence

The defendants did not specifically respond to the amended statement of claim via an amended defence. Consequently, their statement of defence of 31 May 2006 to the original statement of claim by the plaintiffs is their answer to the above averments. Apart from the general traverse, the salient paragraphs read:

"(6) In further denial, the defendants aver that on or about 9 February 2001, the defendants received an emergency signal from personnel of the Tema Dry Docks that the plaintiffs' vessel had listed very heavily at the entrance to the dry docks.

(7) Personnel from the defendants' outfit were immediately dispatched to the location where the said vessel had listed and upon examination, the vessel was found to be in a very precarious position, having listed to a degree of about 40 away from the quay, such that to gain entry into the vessel was impossible.

(8) The defendants aver further that frantic attempts made to get the vessel's engineers to institute immediate remedial measures to correct the ships list proved futile since the vessel at the material time had no crew on board save one watchman and a fish attendant who had all scampered away to safety away from the vessel.

(9) The defendants will contend that the failure to maintain at all times aboard the plaintiffs' vessel, a sufficient complement of crew members to keep the vessel trimmed upright and attend to her other shore connections amounted to a gross violation and serious infraction of statutory port regulations.

(10) Meanwhile, the vessel's list was becoming increasingly more pronounced, and upon realising that any further delay will result in the vessel sinking at the entrance to the dry docks and thereby obstructing navigation within the port, the vessel was removed to the nearest beach away from the shipping lanes.

(11) In further answer, the defendants aver that allowing the vessel to sink at the port would have brought the operations of the dry docks to a halt, and would have cost the GPHA billions of cedis to raise and remove her from the port.

(12) Paragraph (6) of the statement of claim is denied and defendants say that the plaintiffs' vessel was not seaworthy.

(13) In further denials, the defendants aver that at the trial, they would lead evidence to show numerous instances of vessels which had allegedly been issued with seaworthiness certificates but had nonetheless listed and sank within navigable waters.

(14) Paragraph (7) is denied and the defendants aver that they removed the plaintiffs' vessel clear of shipping lanes because she posed a danger or was likely to become an obstruction to navigation at the port.

(15) In further denial, the defendants say that it is rather the plaintiffs which acted negligently under the circumstances.

(16) The defendants aver further that the defendants' actions at all relevant times were lawful to safeguard navigation at the port in accordance with the relevant provisions of the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160), and the Merchant Shipping Act, 1964 (Act 183)."

Reply by the plaintiffs

Aside from joining issue with the defendants on their defence, the plaintiffs specifically pleaded, inter alia:

"(2) In further reply to paragraphs (6) and (7) of the statement of defence, the plaintiffs say that even if the vessel was listing which is denied, the phenomenon of listing is momentary and affects all ships or vessels and can be corrected easily without recourse to beaching the vessel as the second defendant did in this case.

(3) In further reply to paragraph (8) of the statement of defence, the plaintiffs say at the time of the alleged listing there were at least five (5) crew members on the said vessel in addition to the third engineer who was present before the same was towed away and beached on the orders of the second defendant."

Examination of the issues and findings by the court

We concede that an issue relating to the status of the M V Nova VIII and an alleged admission or confession by the second defendant that he did commit a blunder __ which, on the facts, should turn out as quite a serious error __ by beaching the wrong vessel was raised and investigated at the trial. Our observation is that the alleged confession, though part of the res gestae, as we shall demonstrate shortly, were peripheral matters and never really formed the fundamental or real matter in controversy between the parties. Being matters of secondary or subsidiary importance, we intend to treat them as indirect evidence that might assist in the resolution of the primary issue of whether or not the M V Nova VIII had, at the material time, listed so badly or heavily at the entrance of the dry dock, that it had to be removed.

Admittedly, the applicability or non-applicability of the omnia praesumuntur rite et solenmiter esse acta rule never featured at the trial. The trial court proceeded on the alternative basis of which of the two divergent claims does, on balance, give a true picture of the state of the MV Nova VIII at the time it was beached. On the defendants' part, the claim was that the vessel, which was berthed at the entrance of the dry dock, had listed so heavily that it had to be beached to prevent it from sinking and becoming obstructive; while on the plaintiffs' side, the rival claim was that it was a perfectly seaworthy vessel which did not list so extensively that beaching became an absolute necessity.

It was on appeal that for the first time, the applicability or otherwise of the omnia praesumuntur rite esse acta rule came as a legal issue, with the defendants inviting the court to invoke the principle in their favour and discharge them of any wrong doing. The plaintiffs' challenge to the invitation, was premised on the sole ground that the rule was, on the facts clearly inapplicable. However, the Court of Appeal, attracted by the defendants’ argument, ruled that the facts justified an unqualified application of the principle, and concluded that the beaching of the vessel was presumed to have been regularly done by the defendants.

It is therefore extremely difficult to understand the basis on which the defendants now argue that the court affirmatively ruled that the facts were so conclusive they did not admit of any evidence in rebuttal. If the court did, then it was clearly in grave error and the error must be corrected in this court in order to prevent a failure of justice; for as we shall shortly demonstrate, the rule has never been known both at common law and under the statute to fall in the class of irrebuttable presumptions. On the contrary, by its very nature, it has always been characterised as a rebuttable presumption.

We find from the record of appeal that their lordships never concluded either explicitly or by necessary inference that the rule was irrebuttable. This is plainly evident from the following excerpts of the judgment. After referring to what their lordships explained, was what the drafters of the Evidence Act, 1975 (NRCD 323), had in mind in enacting its section 37, they expressed themselves in these terms:

"The Evidence Decree applies to all actions both civil and criminal as is clearly stated in section 178 as follows:

'178(1) This decree shall apply in every action, whether civil or criminal and as provided in section 87 relating to privileges.'"

It is not disputed that the first appellant [defendant] has official responsibility to manage, maintain and regulate the use of facilities at the Tema Port as conferred by the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160). It is equally not disputed that the second defendant is the Harbour Master for the Tema Harbour and equally governed by the same law, PNDCL 160. Indeed, paragraphs (2) and (3) of the plaintiffs' amended statement of claim filed on 25 January 2002 admit these facts. From this premise, it is proper to presume as contended by the appellants [defendants], that the first appellant under the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160), has official responsibility to manage, maintain and regulate the use of facilities at the Tema Port and that at the time of the matters occasioning the present action they are presumed to have been performing their official duty which same was regularly performed through the second appellant [defendant], the Harbour Master. In arriving at this conclusion [we] are mindful also of the evidence led by the appellants [defendants] through their only witness, the first defendant witness, Godwill Yaw Tufuor, and which was not challenged under cross-examination. This witness, who is a marine pilot, was on duty at the Tema Harbour on the night of 9 March 2001 when at about 7.30 pm he had a call that MV Nova VIII was listing and was near the entrance to the dry-dock. When witness got to the vessel, the fire service personnel were already there. According to him, there was only watchman on the vessel and also that when he saw the vessel it was listed (slanted) to the port (left) side." (The emphasis is ours).

Indeed, after reviewing the general tenor of the cross-examination which followed, and describing it as being rather terse and perfunctory and lacking in precision or depth, their lordships' conclusion was:

"The appellants [plaintiffs] have cited a number of authorities, albeit foreign authorities, on what constitutes listing and what could cause a ship to list..., but all these are irrelevant in view of the admission of the testimony of first defendant witness by non-contradiction, thus establishing a prima facie, a presumption of rightness on the part of the appellants [defendants]. This therefore shifts the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact on the respondents [plaintiffs]. In discharging this burden, the respondent company called one Ras Seth Dagmah (the first plaintiff witness) an executive director of the company to testify." (The emphasis is ours).

A passage relied on by the defendants from Broom's Legal Maxims (10th ed), in support of their contention, belies any suggestion that the maxim raises an irrebuttable or conclusive presumption. The passage reads:

"Again, where acts are of an official nature, a presumption arises in favour of their due execution. In these cases the ordinary rule is, omnia praesumuntur rite et solenmiter esse acta donee probetur in contrarium __ everything is presumed to be rightly and duly performed until the contrary is shown. The following may be mentioned as general presumptions of law illustrating this maxim: - that a man, in fact acting in a public capacity was properly appointed and is duly authorised so to act; that in the absence of proof to the contrary credit should be given to public officers who have acted, prima facie within the limits of their authority, for having done so with honesty and discretion."

The Court of Appeal, rightly considered the case in two stages. The learned justices first limited their findings to the prima facie stage of the proceedings; with the second stage covering the evidence led in respect of the entire case. Was the court right in its approach, findings and conclusions? We do think so.

That the defendants are mandated to perform a statutory or legal duty has never been questioned. Theirs is a very important and specialised duty which includes keeping Ghana shipping lanes clear of all obstacles that pose danger to or threaten maritime safety.

The contention that the analysis or the evaluation of the evidence by the Court of Appeal resulted in a full fledged concrete finding of facts in the defendants' favour, admitting of no evidence in rebuttal has been shown to be clearly misleading and not supported by the record. At law, the maxim, which has gained statutory recognition in our jurisdiction, applies not only to official, judicial, and governmental acts, but also to duties required to be performed by law. The relevant section, ie section 37(1) of the Evidence Act, 1975 (NRCD 323) provides: "It is presumed that an official duty has been regularly performed."

The Commentary on this statutory provision, which serves as an undoubted aid to its interpretation, reiterates the common law position that the rule as is "generally applied to judicial and governmental acts," may also be applied to "duties required to be performed by law." Even more important, section 30 of NRCD 323, stipulates clearly that, section 37(1) which was invoked at the defendants' behest, by law, falls in the class of presumptions which by virtue of the fact that they permit contrary evidence to be led, are described as rebuttable, conditional, inconclusive or disputable presumptions. It is trite learning that presumptions of this kind, have a prima facie effect only and the presumed facts may therefore be displaced by evidence. Section 30 provides that: "Rebuttable presumptions include but are not limited to those provided in sections 31 to 49 and 151 to 162."

A rebuttable presumption, in the language of section 20 of the Evidence Act, 1975, "imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact." It follows that whenever the maxim is applied, the person against whom it is invoked and who is entitled to lead evidence to refute the presumption, is at liberty to prove that there was in fact no due regularity or performance of the official or statutory duty in question. Evidence may be led to show also, for example, that the person is not a public officer or is not duly authorised so to act, or that the person acted outside the limits of his or her authority, or that they acted in bad faith or that theirs was an improper exercise of discretion. The learned authors of Halsbury's Laws of England (3rd ed), Vol 15 para 620, in setting out the scope of rebuttable legal presumptions stated:

"The nature of a presumption of law is that the court treats as established some fact of which no evidence has been given, and when rebuttable, it can have no weight capable of being put in the balance against opposing evidence which is believed. It does not follow that such a presumption may be rebutted in every case by any evidence however slight. The rebutting evidence must be considered on its merits: its credibility is neither increased nor diminished by the existence of the presumption; but if it is believed the presumption is displaced."

On the given facts of this case, the evidential burden, shifted on to the plaintiffs to prove that the beaching was not regularly carried out, and that as averred in their pleadings, any list, even if it existed, was not to the degree or extent that would have caused the MV Nova VIII to sink, necessitating its immediate beaching. The rebutting evidence in proof of these facts deserves to be considered on the merits and if believed, would displace the presumption. The critical question therefore is whether as found by the Court of Appeal, the plaintiffs discharged this evidential burden.

We agree with their Lordships in the Court of Appeal that sadly, this important and highly technical case was handled in a rather lackadaisical manner by both sides, thus making adjudication slightly difficult. While it is true that witnesses are weighted but not counted; and that a whole host of witnesses are not needed to prove a particular point. However, our own observation is that this case was not handled by the defendants, in particular, with diligence. It was plain from the initial stages of the proceedings, that the parties were faced with a highly contentious dispute of a rather technical nature which required the putting forward of the right calibre and number of witnesses. As things stood, each side called only one witness, and paid such scant attention to the cross- examination of the other side that, the Court of Appeal was compelled to describe their respective inputs in not so complimentary terms. The court described the cross-examination of the first defendant witness by the plaintiffs as "rather terse and perfunctory as if nothing indeed was at stake", and not touching "the crucial matters in dispute between the parties." Furthermore, the court castigated the plaintiffs for their failure to raise questions discounting the "observation made by the defendant witness that the vessel had listed to the left side in cross-examination that followed his evidence in chief." The court observed that:

"This lapse had dire consequences for the respondents [plaintiffs]. This is because the effect of not cross-examining the witness on a crucial piece of testimony is a manifestation of their adoption of the testimony and thereby making it unnecessary to call further evidence."

But perhaps one can pardon the respondents [plaintiffs]. As we have already demonstrated, the response of the plaintiffs is that whether or not there was a list is not so crucial as most ships will experience it at one time or the other, in much the same way that all Ghanaians at one time or the other, would have an attack of malaria. The crucial question they urged for the court's consideration, is the nature or extent of the list, whether it was so pronounced that the vessel had to be beached. We do not think that they found it strategically prudent to assist the defendants fill in the gaps in their evidence-in-chief. No one should have expected that they would, through cross-examination, lead their opponents, who were silent on such salient facts as that the vessel was in grave danger of sinking, to supply more graphic details of the extent of the list and the associated danger.

It does not come as a surprise that the defendants therefore did not fare too well with regard to the evidence which the plaintiffs supplied at the trial. They failed to challenge the testimony of the first plaintiff witness that he met as many as six of his staff at the scene while the vessel was being towed away; and further that, contrary to the defendants' claim, these were the men on the vessel when the second defendant arrived at the scene, but who were forced out of the vessel on the false premise that it was listing. The defendants also failed to challenge his testimony that the head of security, one of the six men, on inspecting the vessel, found it upright and not listing. Again, they failed to challenge the first plaintiff witness on those crucial parts of his evidence, which alleged that the second defendant confessed that he had made a mistake in that he had beached the wrong vessel.

In the light of the court' own observations as regards the plaintiffs, does the failure to cross-examine on these crucial matters not spell dire consequences for the errant defendants as well? Not surprisingly, the court in recognising these lapses on the defendants' part said this of them:

"It is worth noting that at the close of the evidence-in- chief of the first plaintiff witness, he was subjected to a cursory cross-examination, which made it unnecessary to call further evidence on certain crucial matters he testified on. The first plaintiff witness was not cross-examined on his assertion that MV Nova VIII was seaworthy. The defendants also failed woefully to state their side of the occurrence by way of cross-examination."

Notwithstanding these lapses, our view however, is that the strict rule in this court's forty year old case of Fori v Ayirebi [1966] GLR 627, SC, namely, that when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact, was mis-applied by the Court of Appeal. Indeed, from the present state of the law, it is now clear that the full repercussions that ordinarily ought to flow from a party's failure to mechanically and dutifully cross-examine an opponent, has gradually been reduced by such factors or qualifications as illiteracy of a party not represented by counsel and against whom the fact is alleged in evidence; or even if so represented, by advance notice to the opponent that the allegation of fact would be strenuously resisted. The rule is therefore clearly subject to exceptions, one of them being, if the witness had had notice to the contrary beforehand (see In re Johnson (Decd); Donkor v Prempeh [1975] 2 GLR 182). We should think that if the pleadings are so comprehensively plain on the face of it that the alleged fact is not being admitted but challenged, and even more importantly, contrary evidence is subsequently led by the person against whom the fact is alleged clearly disputing the fact, as indeed happened in this instant case, the strict reliance on or slavish application of such a technical rule must be rejected. In this case, where both sides were guilty of failing to cross-examine the other side, and supplied whatever evidence they had on the issues in question, we would hesitate to apply the rule with such force or rigidity, and more so to one party only.

Also, if the court thought it disgusting that the defendants failed to call any of the alleged occupants of the vessel at the time it was beached, in view of the stand taken by the plaintiffs, the failure by the defendants to produce experts to demonstrate that in spite of the certificate of seaworthiness, the list of the M V Nova VIII was such that the vessel would have sank, is in our view even more appalling. Indeed, although the rules emphasise that only material facts may be pleaded, but not the evidence by which the pleaded facts are intended to be proved, the defendants, nevertheless, promised (per their pleading in paragraph (13) of their statement of defence) to: "lead evidence to show numerous instances of vessels which allegedly had been issued with seaworthiness certificate but had nonetheless listed and sank within navigable waters." They failed to fulfil this vow which, from all the indications, were intended to support the claim that had the vessel not been removed and beached, it would have sank and obstructed the approach to the dry-dock.

Having examined the totality of the evidence, we are of the opinion that the plaintiffs successfully discharged the burden of displacing the presumption that the vessel listed so heavily it stood in danger of sinking and had therefore to be beached. As rightly found by the trial court, the evidence shows that the vessel had gone through extensive repair work and refurbishment. On the day of this unfortunate incident, the marine surveyors and the Inspectorate Division of the Ministry of Transport and Communications, had thoroughly inspected the vessel, found it perfectly seaworthy and issued it a seaworthy certificate. The evidence of the plaintiffs, on balance, suggests that the story about a list, and which was so pronounced that the vessel had to be beached, cannot be true.

The evidence of the defendants only witness, the marine expert, was that they found only a little bit of water in the vessel. There was not the faintest suggestion that even as they were in the vessel, more water continued to list or pour into the vessel. And we were completely left in the dark as to how this little bit of water, could constitute such a serious list that the only option was to beach the vessel without any further delay. The defendants themselves must have known that as persons entrusted with such highly specialised or technical work, there was the need to demonstrate by way of some credible evidence, that a certified seaworthy vessel with a little bit of water in its hatch, stood in danger of sinking. Unfortunately, we never had the benefit of that persuasion. His evidence was that the water could have been pumped out, but the fire service discounted that on the basis that it was too dark. And yet he admitted that the fire service vehicle had sufficient lights, implying that, in any event, the little bit of water could have been pumped out. We reproduce the evidence as follows:

"Q. The fire service tenders that you have, have very powerful lights.

A. Yes.

Q. And where there is an emergency at night and they are called they carry those powerful lights in addition to emergency kit.

A. Yes."

But perhaps the conduct of the defendants, from which this court can infer male fides and plain dishonesty, and consequently, a clear falsehood that the M V Nova VIII was sinking, can be ascertained from the entries contained in their signalman's log book. It is recorded there at 2220 as follows:

"THE MV NOVA VIII AGENT IS ON THE PHONE LINE WHAT MESSAGE SHOULD WE TELL THEM 2221 JUST TELL THEM NOTHING." (The emphasis is ours).

One would have thought that in these matters, transparency and honesty are the true hall hallmarks of genuine conduct and work regularly performed. The question is, why the defendants were anxious to keep the matter under secrecy? What was the motive or the point of hiding or keeping the true facts away from the owners of the vessel? In our view, this evidence of dishonest conduct detracts from the credibility of the defendants' claim that the vessel was listing heavily.

Additional grounds (2),(3),(4) and (5) and original ground (1) of the defendant's grounds of appeal

We shall proceed to examine the additional grounds (2)-(5) and the original ground (1) of the defendants' grounds of appeal which state as follows:

"(2) The holding that the second defendant admitted that he beached the vessel M V Nova VIII by mistake was against the weight of evidence.

(3) The decision of the Court of Appeal that the alleged admission by the second appellant-defendant was binding on the first ppellant [defendant] is unsupportable in law...

(4) The holding in the Court of Appeal that the second defendant's alleged admission constituted res gestae is unsupportable in law and fact...

(5) The awards of US$600,000 and ¢440,649,992.25 as the market value of the M V Nova VIII are neither supported by the evidence nor decided authority..."

"Original ground (1). The Court of Appeal erred in holding that the

alleged admission of negligence by the second defendant without

authority was binding on the appellant [first defendant]."

Both the trial High Court and the Court of Appeal, found as a fact that Captain Zeim, the gentleman at the centre of this whole drama, who for inexplicable reasons, never gave evidence at the trial, had admitted to the first defendant witness that he had beached the vessel wrongly. The circumstances under which a court may interfere with the concurrent findings of facts of two lower courts are quite stringent: see Achoro v Akanfela [1996-97] SCGLR 209; and Abrasiwa II v Otu [1996-97] SCGLR 618. We cannot justifiably reverse this crucial finding of fact, since it has not been demonstrated that there is some clear error on the part of the two lower courts. Also, the debate about whether or not this admission binds the first defendant, in the words of the defendants' counsel, need not detain us because the more pertinent question is: do these admissions, which in law could qualify as a contemporaneous statement, which therefore forms part of the res gestae, however, unequivocally, bind the second defendant, who as already noted, never testified at the trial in denial of these crucial facts? Again, we have been urged to overturn the Court of Appeal's finding that the alleged admission formed part of the res gestae on the basis that that conclusion is supportable in law. We can only interfere with this finding if we discern any legal error or if the factual findings are unsupported by the evidence on record. On this issue, however, we find no legal basis for interfering with their lordship's considered opinion on the issue, which was expressed in these terms:

"It is very clear from the evidence on record that the admission attributed to the second appellant [defendant] was made when the first plaintiff witness confronted him (the second appellant [defendant]) in the latter's office the very next day following the event. This to [us] was sufficiently proximate to the actual event, when the stress caused by the event had not at all worn off so as to bring it within the contemplation of the rule."

At law, a contemporaneous event was one which took place at the same time as another event or immediately after the event, so that the two could be regarded as having occurred at the same time. A contemporaneous statement, that is, a statement which was made contemporaneously with the occurrence of a matter under inquiry in a court of law, was clearly admissible in evidence. Halsbury's explanation of the requirement of contemporaneity "is to prevent fabrication or reduce them to a mere narrative." When as in this case, the issue arises whether or not a statement is admissible in evidence on the basis that it forms part of the res gestae, it is to be left entirely to the adjudicator to determine the critical issues of "contemporaneity" or spontaneity, given the event or condition in question; the declarant who made the statement complained of; the nature of the statement and the time line or proximity between the event and the making of the statement, or the circumstance under which the alleged statement came to be made; and then rule on whether or not the statement should be excluded or received in evidence. Since these matters are clearly issues of fact, an appellate court would interfere only where the findings are not supported by the evidence or the inferences drawn therefrom are not justified. Their Lordships in the Court of Appeal properly exercised their undoubted right in this direction and we find no legal basis for disturbing their reasoned decision that having regard, inter alia, to the fact that the admission was made the very next day and so sufficiently proximate to the actual event, it should be received in evidence.

In any event, where was the second defendant when evidence of the admission was being received through the first defendant witness? Section 6(1) of NRCD 323 provides that:

"6(1) In every action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by the evidence shall be made at the time the evidence is offered."

The law is that a party who fails to object to the admission of evidence, which in his opinion is inadmissible, would be precluded on appeal under section 5(1) of the Evidence Act, 1975 (NRCD 323), from complaining about the erroneous reception, unless it can be demonstrated that the wrong reception has occasioned a substantial miscarriage of justice. The criteria for determining what constitutes a substantial miscarriage of justice, have also been set out in section 5(2) of the Act (reproduced in the headnote above). The defendants' case was not shown to have fallen within the exceptions to the rule.

Award of damages

In ship collision cases, as pointed out by the learned author of McGregor on Damages, the owners of the lost ship are entitled to restituo in intergrum. The normal measure of damages is therefore the market value of the ship as at the time and date of destruction. The principle is said to have been propounded first by Dr Lushington in The Clyde (1856) Swab 23, 24. In the case of The Liesbosch Dredger v S S Edison [1993] AC 449 at 459 Lord Wright, in redefining the legal position on the normal measure of damages, said:

"The true rule seems to be that the measure of damages in such cases is the value of the ship to her owner as a going concern at the time and place of her loss. In assessing that value, regard must naturally be had to her pending engagements, either profitable or the reverse."

On the facts of that case, the true measure was expressed by Lord Wright as follows:

"The value of The Liesbosch to the appellants capitalized as at the date of the loss, must be assessed by taking into account (1) the market price of a comparable dredger in substitution; (2) costs of adaptation, transport, insurance, etc to Patras [the place of the collision]; (3) compensation for disturbance and loss in carrying out their contract over the period of delay between the loss of The Liesbosch and the time at which the substituted dredger could reasonably have been available for use in Patras including in that loss such items as overhead charges, expenses of staff and equipment, and so forth thrown away, but any special loss due to the appellant's financial position. On the capitalized sum so assessed, interest will run from the date of the loss."

Another principle which was born out of another ship destruction case, The King Magnus [1891] P 223, 235 and followed in The Liesbosch (supra), is that the uniform rule which "has long existed that interest is awarded in the case of total destruction of a ship" applies whether the destruction occurred by collision or otherwise. These principles are clearly applicable to this instant case where the beaching has resulted in a total loss of the vessel to the owners.

Both parties have, however, complained about the damages awarded by the Court of Appeal. Thus the defendants filed the additional grounds (5), (6) and (7) of appeal and also original ground (iii) respectively as follows:

"(5) The awards of US$600,000 and ¢440,649,992,25 as the market value of the Nova VIII are neither supported by the evidence nor decided authority..."

(6) The Court of Appeal erred in accepting the insured value of the MV Nova VIII as the market value although the plaintiffs never proffered the insured value as the market value.

(7) The holding that the repairs were undisputed is erroneous in law..."

"(iii) The appellants contend by the additional grounds (5), (6), (7) and original ground (iii) that the substituted award of $600,000 and ¢440,649,992.25 is not supported by the record or decided authority."

The respondents, the plaintiffs as the cross-appellants, have, on the other hand, criticised the reduction of the award given by the trial High Court and urged that we replace it with the original award of the much larger sum of US$2,658,986.

Both the trial High Court and the Court of Appeal, rightly concluded that the plaintiffs are entitled, by way of damages, to the replacement value of the vessel, M V Nova VIII. What the trial court did was to accept lock, stock and barrel, the value of US$2,658,986 assessed by a private firm of accountants (as per a document, exhibit L) on the basis that the document was never objected to. The Court of Appeal's approach was, commendably in line with the duty of the court not merely to act as a "rubber stamp" but to evaluate the evidence and accord it the desired weight or probative value. We do not think the suggestion from the defendants is that the court had no business scrutinizing the evidence and giving to the claimants what they were justly and fairly, from the available credible evidence, entitled to. In this regard, the Court of Appeal acted fairly to both parties. The well-reasoned opinion of the court on how much the plaintiffs were, on the basis of reliable evidence, entitled to is that:

"In The Ironmaster (1859) Swab 441, it was held that, in the absence of a clear market value, the best evidence of value is the opinion of those who knew the vessel shortly before; the next best evidence is the opinion of those who are conversant with shipping generally; while the original cost, the cost of repairs due and the sum at which insurance had been taken out, though evidence of the value, was of inferior weight. Did the respondents [the plaintiffs] lead any evidence to establish the market value of the beached trawler? There is no evidence of the market value of the trawler on the record. The entries in exhibit I on the value amount to a statement of the market value of MV Nova VIII.

An invoice was tendered (exhibit D) giving estimates for the repair as ¢440,649,992.25. No reason was given for not submitting a receipt of actual payment, which leads to the inference that no payment was made. However, in view of the fact that the appellants [defendants] did not dispute that the vessel underwent repairs, it is only fair to grant the figure stated in exhibit D. The rehabilitation was undertaken to enhance the value of the trawler from its pre-repair insured value of (US$600,000) six hundred thousand dollars at the time of its submission to the dry dock by the value stated in exhibit D... The appellants [defendants], relying on The Ironmaster fore-quoted, submitted that the respondents [plaintiffs] ought to have adduced evidence on the market value of the vessel which they failed to discharge, hence the award of the replacement value ought to be set aside because there was no basis for it. Much as we agree that the respondents [plaintiffs] suffered a great loss by their failure to adduce expert evidence as to the market value of the trawler, there, they are not without a remedy because the very authority of The Ironmaster does not discount at all other considerations including those based on the original cost except to grade them as being of inferior weight. Besides there is nothing to commend the values attributed to the rehabilitation to the M V Nova VIII in exhibit I to us for the very reasons [we] stated earlier, to wit, non-compliance with section 125(1) of NRCD 323."

The Court of Appeal further provided detailed and justifiable reasons why the other claims such as "mechanical repairs and refrigeration" could not be acceded to. Their lordships rightly observed that:

"These mechanical repairs and refrigeration certainly are not part of the works addressed in the invoice exhibit D, being works undertaken in the dry-dock. The exhibit L for its part does not indicate the source of those figures so recorded nor how reliable they are. Those claims cannot be sustained as part of the rehabilitation unsupported as they stand, not even by an invoice, as with the dry docks work."

Also the rejection of the other heads of claim was amply and rightly justified by the Court of Appeal on the following grounds:

"Other heads of claim listed in exhibit L relate to other equipment and accessories on board. Here again the authors of exhibit L did not disclose the source of these figures stated therein and the basis of their reliability. All the items stated, if indeed, they were installed in the trawler, could be backed by valid receipts of purchase that would have been attached to back the claims made therein and those also covering the installation works. The failure to do so renders those entries unreliable as, not being in accordance with section 125(1) of NRCD 323."

The Court of Appeal justifiably refused to give full weight to exhibit L, containing the particulars of the replacement notwithstanding that it had been admitted without objection. Under section 125(1) of the Evidence Act, 1975 (NRCD 323), it is not every entry of a business record that may be admitted in evidence or accorded full weight, if received in evidence, but only those entries of transactions which satisfy these three statutory requirements, namely: that (i) the entry was made in regular course of business; (ii) the entry was made contemporaneously with the event in question; and (iii) the sources of information, the time and method of preparation were such that the facts contained in the entry can be said to be reasonably trustworthy. Section 125 of NRCD 323 reads:

"125.(1) Evidence of a hearsay statement contained in a writing made as a record of an act, event, condition, opinion or diagnosis is not made inadmissible by section 117 if

(a) the writing was made in the regular course of a business;

(b) the writing was made at or near the time the act or event occurred, the condition existed, the opinion was formed, or the diagnosis was made; and

(c) the sources of the information and the method and time of preparation indicate that the statement contained in the writing is reasonably trustworthy."

In this regard, the plaintiffs bore the burden of leading evidence in proof of these three elements. Producing the firm to prove the sources of their information, the method and time of preparation to enable the court to assess the trustworthiness or otherwise of exhibit L, would have been the neatest way of discharging this burden. Having failed to do this, the plaintiffs cannot complain about the decision of the Court of Appeal to utilize the only other available and reliable evidence of the vessel's replacement value.

The defendants' additional and original grounds of appeal against award for damages for indemnity in favour of the plaintiffs

The following additional ground (9) and original ground (iii) were respectively filed by the defendants against the award of damages for indemnity in favour of the plaintiffs:

"(9) The award of the sum of £2,658,300 as indemnity for breach of the alleged charter party between the plaintiffs and Fishy Limited is unsupportable in law..."

"(iii) The Court of Appeal erred in affirming the trial court's [award] for loss of use."

Under these grounds, the defendants argue that the Court of Appeal erred in awarding the additional sum of US$1,800,000 in substitution for the award of US$2,658,300 awarded by the trial court as indemnity for the defendants' tort, on the basis that the plaintiffs never put in a claim for indemnity and never led evidence in proof of this claim. The circumstances under which the indemnity issue arose for consideration are neatly summed up by the Court of Appeal in these terms:

"The trial judge adopted a strange procedure when he purported to have taken judicial notice of a writ issued by Fishy Ltd against the respondents [plaintiffs]... [H]ow can the trial judge, by merely seeing a writ issued by Fishy Ltd against the respondents and attached to the respondents' counsel's reply, conclude that it amounted to a frustration of a contract? A mere attachment of document by counsel to a reply, with the greatest respect, cannot bring that matter within the tribunal's knowledge in law. The trial judge's reliance upon the contents of the attached document in those circumstances to ground the award of US$2,658,300 as indemnity for the [defendants' tort] cannot be supported and the same must be set aside."

As was decided in The Liesbosch (supra), the measure of damages to be awarded to the owners of the lost vessel, should be capitalized to include: (a) the market price of the vessel as at the time and date of destruction: (b) costs of adaptation, transport, insurance, etc; and (c) compensation for loss suffered by the owners in carrying out their contract. It does follow that the payment of an indemnity as under the terms of a contract, if properly proved, could be capitalized under the head of loss of profit by the owners of the vessel. The Court of Appeal must be commended for rejecting outright the attempt by the plaintiffs to introduce facts which have not been pleaded, and in respect of which no evidence has been led. We are therefore at a complete loss as at how in that same vein, the court proceeded to make an award of US$1,800,000.

What was the basis? The Court of Appeal surmised that by clause 4(b) of the charter party agreement, exhibit C, the plaintiffs have bound themselves to pay US$2,658,300 to Fishy Co Ltd. Where is the evidence that in the circumstances of this case, Fishy Ltd would have pursued the claim in court or even been entitled, on the facts, to any compensation at all, since from the clear wording of clause 4(b) on which the claim is allegedly based, "vis majeur" is accepted? Indeed, a most common valid defence open to the defendants in charter party disputes is the well-known doctrine of frustration, the leading authority on the point being the House of Lords decision of Bank Line Ltd v Arthur Capel & Co [1919] AC 435. Any award based on a supposed claim for indemnity, which was neither pleaded nor proved is therefore, in our view, purely speculative and should be disallowed. The award of US$2,658,300 is hereby set aside.

Loss of use of vessel

The Court of Appeal affirmed the claim under this head and awarded as much as US$1,700,000, based on a contract in respect of which the Court of Appeal, rightly in our view, raised some genuinely troubling questions. Going by The Hebridean Case, and certainly pure common sense, the plaintiffs are, indeed, entitled to payment for some loss of profit. We, however, find the award of US$1,700,000 based on evidence, which the court in its own wisdom has discredited, rather excessive. In the circumstances, having regard to the uncertainties in the shipping industry and vicissitudes of life, we think an award of $900,000 would meet the justice of this case.

Award of costs

While we commend the Court of Appeal for setting aside the award of costs in a Ghanaian court in dollars, we think that the ¢20,000,000 awarded as costs is rather on the low side. We would raise the cost to ¢50,000,000. The cross-appeal in respect of the costs awarded therefore succeeds.

Interest

This court awards interest only on the replacement value of the vessel assessed at $600,000 at the United States dollar rate as stipulated by the Bank of Ghana and as per the Court of Appeal decision, namely, from the date of beaching to date of judgment, 29 July 2004 or its cedi equivalent, and £440,649,992.25 together with interest at the prevailing bank rate from the date of beaching to the date of judgment 29 July 2004.

Subject to these variations, the appeal is dismissed.

G. T. WOOD (MRS)