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GHANA BAR REPORT 1993 -94 VOL 1

Ghana Ports & Harbours Authority v ETS Kabore Issoufou

SUPREME COURT

ARCHER CJ, AMUA-SEKYI, AIKINS, WIREDU, BAMFORD-ADDO, HAYFRON-BENJAMIN, AMPIAH JJSC

7 DECEMBER 1993

Practice and procedure - Parties - Amendment - Plaintiff suing in a registered sole proprietorship name - Court has inherent jurisdiction to grant amendment at trial, after judgment or on appeal upon oral application or otherwise.

Statutes - Repeal - Accrued rights - Plaintiff suing Ghana Ports Authority and Ghana Cargo Handling Co Ltd - Both entities merged as Ghana Ports and Harbours Authority under PNDCL 160 - PNDCL 160 s 6 transferring assets of the entities to Ghana Ports and Harbours Authority without express provision for transfer of liabilities - Whether plaintiff may pursue cause of action against the Ghana Ports and Harbours Authority - Interpretation Act 1960 (CA 4) s 8(1)(b),(c) and (e) - Ghana Ports and Harbours Authority Law 1986 (PNDCL 160) ss 6 & 7.

Statutes - Construction - Omission - PNDCL 160 s 6 transferring assets of Ghana Ports Authority and Ghana Cargo Handling Co Ltd to Ghana Ports and Harbours Authority - Draftsman omitting to make reference to liabilities - Whether successor Authority liable for cause of action against its predecessors - Ghana Ports and Harbours Authority Law 1986 (PNDCL 160) ss 6 & 7.

Contract - Discharge - Breach by, - Party defaulting in performance of contract - Innocent party not accepting contract as discharged - Contract undischarged and enforceable.

Shipping - Negligence - Goods in transit - Goods consigned to Ghana delivered into warehouse of Ghana Ports and Harbours Authority - Consignee intending to export goods by road to Burkina Faso - Whether goods in transit - Whether Authority or shipping agents liable for short-delivery of goods - Ghana Ports and Harbours Authority Law 1986 (PNDCL 160) s 84 - Customs Regulations 1976 (LI 1060) reg 65.

Bailment - Warehousing - Limitation of liability - Imported goods warehoused by Ghana Ports Authority - Liability of Authority for loss of goods - Ghana Ports and Harbours Authority Law 1986 (PNDCL 160) s 84.

Interest - Damages - Rate of interest - Damages awarded for loss of goods imported into Ghana - Goods subsequently transported to Burkina Faso - Interest rate prevailing in Burkina Faso at the date of judgment applicable in respect of lost goods - Interest rate prevailing in Ghana applicable to duty paid in Ghana - Courts (Award of Interest) Instrument 1984 (LI 1295).

The plaintiff, a citizen of Burkina Faso, imported a quantity of rice from Pakistan. On arrival at the port of Tema the consignment was discharged by the Ghana Cargo Handling Co Ltd into the transit shed stocking area of the Ghana Ports Authority. It was short-delivered to the plaintiff but both entities denied liability and put the blame on each other. The plaintiff issued a writ against them for the shortfall. During the pendency of the action the assets of both defendants were transferred to the Ghana Ports and Harbours Authority under PNDCL 160 but the statute made no mention of their liabilities. The High Court judge gave judgment for the plaintiff for the value of the short-delivered consignment in US dollars or the cedi equivalent plus interest at 16% being the rate prevailing in Burkina Faso at the time the goods were ordered from Pakistan, from the date of the writ to the date of judgment. The judge however declined the claims for customs duty, interest and handling charges paid on the short-delivery. He omitted also to consider the plaintiff’s application to amend the title of the action. The defendants appealed to the Court of Appeal and the plaintiff also applied for a variation of the award. The plaintiff renewed his application for amendment in the Court of Appeal and the court amended the title of the suit to read: Kabore Issoufou, doing business under the name and style of ETS Kabore Issoufou v Ghana Ports and Harbours Authority. The Court of Appeal dismissed the appeal and upheld the judgment of the High Court but omitted to consider the variation sought by the plaintiff. It held that the goods in issue were not in transit and that the Customs Regulations 1976 (LI 1060) regulation 65 that gave the control of goods in a transit shed to the ship’s agent, did not apply and that the defendants were liable to account for the short-delivery.

The defendants appealed to the Supreme Court and the plaintiff repeated his application for a variation of the awards for interest and port charges etc. In the Supreme Court counsel for the defendant submitted that the oral application to amend the title was improper and wrongfully granted by the Court of Appeal. It was contended further that the Ghana Ports and Harbours Authority was not liable since the Ghana Ports and Harbours Authority Law 1986 (PNDCL 160) section 6 merely transferred the assets of the erstwhile Ghana Cargo Handling Co Ltd and the Ghana Ports Authority to the defendants. The defendants’ counsel contended further that the contract between Ghana Cargo Handling Co Ltd, the Ghana Ports Authority and the plaintiff had been performed in the breach by those entities and that on the commencement of PNDCL 160 there was no subsisting contract between the parties within the meaning and intendment of section 7 of PNDCL 160 to which the Ghana Ports and Harbours Authority could have succeeded. On the issue of liability for the lost goods it was submitted that section 84 of PNDCL 160 expressly exempted the Ghana Ports and Harbours Authority from liability except where the loss was caused by want of reasonable foresight and care, and that since the Court of Appeal had held that the plaintiff’s claim did not flow from negligence, that court ought to have entered judgment in favour of the defendants. It was argued further that the Court of Appeal erred in holding that the defendants were liable because the Customs Regulations 1976 (LI 1060) regulation 65 did not apply.

Held - (1) Courts had a duty to ensure that justice was done in cases before them, and should not let the duty be circumvented by mere technicalities. The power to make the amendment sought was in the inherent jurisdiction of the court. A court would grant such amendment as was necessary to meet the justice of the case either at the trial or any time after judgment or in the appellate court, on the application of a party to the suit, orally or otherwise. In the present case the reason for the mistake was accepted by the Court of Appeal; there was evidence that Kabore Issoufou was the sole proprietor of the business that imported the consignment of rice from Pakistan and that ETS Kabore Issoufou was not a corporate body. Mercer Alloys Corporation v Rolls-Royce Ltd [1972] 1 All ER 211, CA, Hodo v Gbogbolulu (1941) 7 WACA 164, Noble Lowndes and Partners (A Firm) v Hadfields Ltd [1939] 1 Ch 569, W Hill & Son v Tannerhill [1944] 1 KB 472, CA, Mussey v Darko [1977] 1 GLR 147 approved; GIHOC v Vincenta Publications [1971] 2 GLR 24, CA, distinguished.

Per Hayfron-Benjamin JSC. (a) The issue regarding the amendment by the Court of Appeal could easily have been dealt with by reference to the Court of Appeal Rules 1962 (LI 218) rule 31 under which the Court of Appeal had complete control over the appeal transmitted to it and might on its own motion amend any defect or error therein. The fact that it was counsel who drew the attention of the court to the necessity to amend the title did not derogate from the power of the court to effect the amendment.

 (b) I disagree with the proposition that a sole proprietor cannot be allowed to sue as plaintiff under that business name ... Rules 1 and 11 of Order 48A of LN 140A do not apply to sole proprietors suing in the business name. It seems to me that the decision in the Vincenta Publications case turned on the erroneous view which the court took of the Rules of the High Court ... I, however, hold the view that the Registration of Business Names Act 1962 (Act 151) applies to sole proprietors carrying on business in a firm name within the jurisdiction and they may sue as plaintiff in our courts. By section 15 of the Act a sole proprietor’s rights are regulated and his existence as a legal personality recognised ... I would say therefore that the Vincenta Publications case turned on its own facts and is not an authority for the proposition that a sole proprietor cannot be allowed to sue as plaintiff under a business name or style.

(2) The express transfer of assets did not shut the door to transfer of liability as it was possible that it never struck the draftsman that liability needed specific mention of any kind. The application of the maxim, expressio unius, exclusio alterius, in the present case would lead to inconsistency and injustice, and would make s 6 of the Law uncertain and capricious in its operation. Colquhoun v Brooks (1887) 19 QBD 400, Lowe v Dorling & Son [1906] 2 KB 772, Dean v Wiesengrund [1955] 2 QB 120, CA, mentioned; Kwakye v Attorney-General [1981] GLR 944, SC, distinguished.

Per Bamford-Addo JSC. Section 8 of the Interpretation Act 1960 (CA 4) provided that a repeal or revocation of an enactment would not affect any right, obligation, or liability acquired, or incurred thereunder and any legal proceeding or remedy may be instituted, continued or enforced as if the enactment had not been repealed or revoked. The liability for the loss of rice was incurred by the erstwhile Ghana Ports Authority and Ghana Cargo Handling Company Ltd in 1980 and the action herein was instituted in 1981, long before the passage of PNDCL 160 in 1986. Therefore by virtue of s 8(1)(b),(c) and (e) any liabilities which attached to the said companies would be transferred to the new Authority created by PNDCL 160 i.e. Ghana Ports and Harbours Authority in accordance with section 8 of CA 4. The fact that PNDCL 160, sections 6 and 7, made no mention of transfer of liabilities was rather a clear indication that rights and liabilities are to be preserved and pending legal proceedings to be continued in accordance with s 8 of CA 4.

(3) Where a party in breach of a contract had committed a fundamental breach, the contract would not automatically come to an end. The innocent party could either affirm the contract by treating it as still subsisting, or treat it as finally and conclusively discharged, and the consequences would vary according to the choice preferred. If the innocent party took the first option and made it clear by words or acts, or even by silence, that he refused to accept the breach the status quo ante was effectively preserved, i.e. the contract remained in being for the future on both sides. He would demand that the defaulter performed all contractual obligations as they fell due (provided that he himself performed his obligations). If, however, the innocent party opted that the contract be treated as discharged, his decision ought to be communicated to the party in default. As soon as this was done his election would become final and could not be retracted. The effect would be to terminate the contract for the future as from the moment when the acceptance was communicated to the party in default. On the facts the contract between the erstwhile Ghana Cargo Handling Co Ltd, the Ghana Ports Authority and the plaintiff-respondent though breached still subsisted by virtue of section 7 of Law 160 between the Ghana Ports and Harbours Authority and the plaintiff as if the defendant had entered into it originally. Scarf v Jardine (1882) 7 App Cas 345, Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699, [1968] 3 All ER 513, Harbutt’s ‘Plasticine’ Co Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447, Ward (RV) Ltd v Bignall [1967] 1 QB 534, Heyman v Darwins Ltd [1942] AC 356, Mersey Steel and Iron Co v Naylor Benzon & Co (1884) 9 App Cas 434 cited.

(4) Under s 84 of PNDCL 160 if there was evidence to prove that the loss was caused by want of reasonable foresight and care on the part of an employee of the Authority, the Authority would be liable. The goods were delivered into the warehouse under the control of the Authority as a warehouseman obligated to protect goods in its warehouse. If therefore the said goods or some of them could not be produced, the Authority could not be relieved from responsibility for the loss, unless there was credible evidence that its employees or servants took requisite measures for their protection and safety and that the loss was not caused by want of reasonable foresight and care on its part. Ghana Cargo Handling Co Ltd v Amah’s Ladies and Gents Tailoring Manufacturing Co Ltd [1979] GLR 296 approved.

(5) Regulation 65 of NRCD 114 was meant for goods in transit through Ghana and not for goods discharged in Ghana as the port of consignment. In the former situation no customs duties, etc. were chargeable because the goods were in transit, but in the latter case even though the goods were to be conveyed by land to another country the necessary duties were payable. In its ordinary everyday use the word ‘transit’ was used in the import and export business to indicate carrying something from place to place, the act of passing through. However, in its technical sense the word was used to indicate trans-shipment of goods from one country to another. Regulation 65 was inapplicable in this case as the goods were consigned to Ghana, the duty thereon paid and the consignee transported them to Burkina Faso.

(6) The interest claimed by the plaintiff could be awarded in US dollars from the date of the breach i.e. 9 September 1980 to the date of the judgment at the prevailing interest rate in Burkina Faso as at the date of the judgment, being 16%. The plaintiff is entitled also to interest on customs duty paid in cedis at the rate prevailing in Ghana at simple, not compound, interest under the Courts (Award of Interest) Instrument 1984 (LI 1295). Farmex Ltd v Royal Dutch Airlines and British Caledonian Airways [1989-90] GLR 682 applied.

E D Kom (with him Yao Ohene-Obeng) for the plaintiff.

Nana Akufo-Addo for the defendant.

Cases referred to:

Colquhoun v Brooks (1887) 19 QBD 400 reversed (1888) 21 QBD 52, 4 TLR 495, CA.

Dean v Wiesengrund [1955] 2 QB 120 CA, [1955] 2 WLR 1171, 99 SJ 369, [1955] 2 All ER 432, CA.

Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699, [1968] 3 All ER 513, [1968] 3 WLR 841, CA.

Farmex Ltd v Royal Dutch Airlines and British Caledonian Airways [1989-90] GLR 682.

Frost v Knight (1872) LR 7 Exch 111.

Ghana Cargo Handling Co Ltd v Amah’s Ladies and Gents Tailoring Manufacturing Co Ltd [1979] GLR 296.

GIHOC v Vincenta Publications [1971] 2 GLR 24, CA.

Harbutt’s ‘Plasticine’ Co Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447, [1970] 2 WLR 198, [1970] 1 All ER 225, [1970] 1 Lloyds Rep 15, CA.

Heyman v Darwins Ltd [1942] AC 356, 111 LJKB 241, 166 LT 306, 58 TLR 169, [1942] 1 All ER 337, HL.

W Hill & Son v Tannerhill [1944] 1 KB 472, 113 LJKB 456, 170 LT 404, 60 TLR 410, CA.

Hodo v Gbogbolulu (1941) 7 WACA 164.

Johnstone v Milling (1886) 16 QBD 460, 55 LJQB 162, 54 LT 629, CA.

Kwakye v Attorney-General [1981] GLR 944, SC.

Lowe v Dorling & Son [1906] 2 KB 772, 75 LJKB 1019, 95 LT 243, 22 TLR 779, CA.

Mason & Son v Mogridge (1892) 8 TLR 805.

Mercer Alloys Corporation v Rolls-Royce Ltd [1972] 1 All ER 211, [1971] 1 WLR 1520, CA.

Mersey Steel and Iron Co v Naylor Benzon & Co (1882) 9 QBD 468 affd (1884) 9 App Cas 434.

Miliangos v George Frank (Textiles) Ltd No 2 [1975] 1 QB 487, [1975] 1 All ER 1076, [1975] 2 WLR 555, 119 Sol Jo 322, [1975] 1 Lloyd’s Rep 587, [1975] CMLR 630, CA, affd [1976] AC 443, [1975] 3 All ER 801, [1975] 3 WLR 758, 119 Sol Jo 774, [1976] 1 Lloyd’s Rep 210, HL, Digest Cont Vol D 571.

Mussey v Darko [1977] 1 GLR 147, CA.

Noble Lowndes and Partners (A Firm) v Hadfields Ltd [1939] 1 Ch 569, 108 LJCh 161, 161 LT 138.

Scarf v Jardine (1882) 7 App Cas 345, 360, 361, HL.

Ward (RV) Ltd v Bignall [1967] 1 QB 534, [1967] 2 WLR 1050, [1967] 2 All ER 449, CA.

APPEAL against the judgment of the Court of Appeal.

ARCHER CJ. I have read beforehand the opinion prepared by my brother Aikins JSC and I agree with his reasoning and his conclusion that the respondent is entitled to the remedies he seeks. My brother Hayfron-Benjamin JSC has also placed at my disposal his contribution with which I agree and I have nothing to add.

AMUA-SEKYI JSC. I agree that the appeal of the defendants be dismissed and the application of the plaintiff for a variation of the judgment be allowed.

AIKINS JSC. This appeal is from the concurrent judgments of the High Court and the Court of Appeal upholding the claim of the plaintiff, as against the defendants, for the value of 1412 bags of rice at $36.54 per bag short-delivered plus interest of 16%. It is significant to observe, however, that almost all the arguments urged before this court were canvassed in the Court of Appeal, thereby raising a number of legal issues for determination by this court, namely (1) the capacity of the plaintiff to sue, (2) the liability of the defendants for loss of the goods short-delivered, (3) whether there was a subsisting contract between the parties within the meaning of s 7 of PNDCL 160 and (4) whether or not the goods were in transit to attract the application of the Customs Regulations 1979 (LI 1060).

The facts of the suit are straightforward. In April 1980 the plaintiff, a citizen of Burkina Faso, imported a quantity of rice from Pakistan. The rice was shipped per “M.V. Gulf Heron”, and on arrival at the port of Tema it was discharged by the Ghana Cargo Handling Co Ltd into the transit shed stocking area of the Ghana Ports Authority, Tema. The rice was short-delivered by 1412 bags, and as both the Ghana Cargo Handling Co Ltd and the Ghana Ports Authority denied liability the plaintiff issued a writ against them for recovery of the rice short-delivered. Both defendants put the blame for short delivery on each other.

After an exhaustive examination of the facts and the law involved in this case, the learned trial High Court judge gave judgment for the plaintiff for the value of the 1412 bags of rice in US dollars plus interest of 16% from the date of the original writ, i.e. 27th March 1981 to date of judgment, but declined to grant the claim for customs duty and handling charges on the rice short-delivered together with 20% interest on the amount claimed. Aggrieved by this judgment, the defendants appealed to the Court of Appeal, and the plaintiff also asked for a variation of the decision of the High Court for the value of the 1412 bags of rice from 27th March 1981, the date of the issue of the writ instead of 1st June 1980 when the cause of action arose, plus 16% interest as bank charges, and for judgment in respect of port charges, etc. for the undelivered 1412 bags of rice together with 20% interest from June 1980 to date of judgment.

The Court of Appeal, however, merely dismissed the appeal, thereby upholding the judgment of the High Court without considering the variation asked for by the plaintiff-respondent.

It is from this decision of the Court of Appeal that the defendants-appellants-appellants have come before this court, and the plaintiff-respondent-respondent has also asked for the following variations:

(1) that judgment be entered for the plaintiff-respondent for the value of 1412 bags of rice together with the 16% interest per annum from the 1st of July 1980 to the date of judgment.

 (2) the claim by plaintiff-respondent in respect of port charges etc. for the undelivered 1412 bags be allowed with interest at the current bank rate per annum from July 1980 to date of judgment.

The first ground argued by the learned counsel for the defendants-appellants was the alleged lack of capacity of the plaintiff-respondent to sue. He submitted that the amendment which sought to clothe the plaintiff-respondent with capacity to sue and maintain the action was improperly applied for, and granted by the Court of Appeal. Learned counsel contended that the application for amendment ought to have been formally made and processes in that regard duly filed, and that the oral application was procedurally wrong and ought not to have been entertained.

It may be noted that the issue of capacity in this case first came up when learned counsel for the defendants addressed the trial High Court, but the trial judge failed to consider the issue, and learned counsel repeated it in his arguments before the Court of Appeal. At this stage the Court of Appeal gave it the attention it deserved and granted the application of counsel for the plaintiff-respondent to amend the title to the suit, and duly amended it to read: Kabore Issoufou, doing business under the name and style of ETS Kabore Issoufou v Ghana Ports and Harbours Authority, applying the case of Mussey v Darko [1977] 1 GLR 147, and distinguishing GIHOC v Vincenta Publications [1971] 2 GLR 24, CA, on which counsel for the defendants-appellants heavily relied.

I must say that the argument of learned counsel for the defendants-appellants that the amendment was improperly applied for and granted by the Court of Appeal does not impress me as sound in law. In my view the courts have a duty to ensure that justice is done in cases before them, and should not let this duty be circumvented by mere technicalities. Since the power to make such amendments rests in the inherent jurisdiction of the courts, the courts can, when the issue is raised either in the trial court any time after judgment is delivered or in the appellate court on the application of a party to the suit (orally or otherwise), grant such amendments as are necessary to meet the justice of the case; see Mercer Alloys Corporation v Rolls-Royce Ltd [1972] 1 All ER 211, CA, at p 214 per Davis LJ; see also Hodo v Gbogbolulu [1941] 7 WACA 164 where the court stated at p 165 as follows:

 “It is the duty of the Courts to aim at doing substantial justice between parties and not to let that aim be turned aside by technicalities ... As soon as any question arose as to capacities of the respective parties it was, in our view, the duty of the court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that that could be done without any hardship to either party.”

Counsel for the defendants-appellants, Nana Akufo-Addo, further contended that the Court of Appeal was bound to follow its decision in GIHOC v Vincenta Publications, supra. It is pertinent to note that in the Vincenta case the business name in which the plaintiff, the sole proprietor, sued was Vincenta Publications. The plaintiff’s actual name was Vincenta Alisa Onuku which was completely different from the firm name. The Court of Appeal held that though a single person cannot sue in a firm name either under rule 1 or rule 11 of Order 48A, Order 16 r 2 gives the court power to add or substitute a plaintiff where action has been taken in the name of the wrong person. However, the application to amend the name of the respondent to read “Vincenta Alisa Onuku trading under firm name and style of Vincenta Publications” was refused because the respondent’s application was to substitute an existing person for a business name that was not a person. Perhaps the Court of Appeal would have been of a different view if the respondent had sued in the firm name of Vincenta Alisa Onuku Publications or V A Onuku Publications.

English decisions were considered in the Vincenta case. The first was Noble Lowndes and Partners (A Firm) v Hatfields Ltd [1939] 1 Ch 569. There, one Mr N F Lowndes entered into a contract with defendants in the name of Noble Lowndes and Partners under the mistaken impression that there was a partnership between himself and five other persons. When Lowndes sued the defendants later he described the plaintiffs as “Noble Lowndes and Partners (A Firm)”. Mr Lowndes applied to amend the title substituting his name for that of the plaintiffs when the defendants discovered that there was no such firm and also applied to strike out the action. The court allowed the amendment by striking out “and Partners (A Firm)”, i.e. all the plaintiffs except one, and left that one, “Noble Lowndes”, as the sole plaintiff.

The second case, W Hill & Son v Tannerhill [1944] 1 KB 472, CA, which followed the decision in the Lowndes case, is a case where one Walter Hill carried on business alone and without partners under the name of “W. Hill & Son”. Mr Hill’s car was damaged and he took action against the driver of the other vehicle. The solicitor’s clerk inadvertently stated “W Hill and Son” in the writ to be the plaintiff. Later, Mr Hill applied for an order substituting as plaintiff in the action “Walter Hill trading as W Hill & Son”. The application was granted and affirmed on appeal. It was held that as W Hill was an actually existing person and the real person in the action, he was entitled to the order. Scott LJ reasoned as follows at pp 474 - 475:

 “... when the writ issued in the name of ‘W. Hill & Son’ there was an individual person in fact interested in the claim. His description as ‘W. Hill & Son’ was a mistake by a clerk. The question is whether that mistake is more than a mistake in form. In my opinion, it is not. Under Order 48A r 1, one person, even if he is carrying on business in a firm name, cannot issue a writ in the firm name, but if a real person does issue a writ in his own name, say, of ‘W. Hill’, the fact that he adds the two additional words ‘and Son’ does not prevent his still being the real plaintiff in the action.

The application under the order for directions that his name should be written in full as ‘Walter Hill’ instead of ‘W. Hill’ obviously by itself would have been unobjectionable. The addition asked for, ‘trading as W. Hill and Son’ as if he were a firm, is mere useless and inappropriate surplusage, but it does not prevent the fact that it was Walter Hill himself who was going to be the plaintiff just as he had originally in the writ been the plaintiff. For these reasons I think the master and the judge were right in allowing the amendment.”

Concurring with this view, Du Parcq LJ added at p 475:

“It is clear that a single person trading under a firm name is not entitled to issue a writ in a firm name, but it is wrong to say that when this writ was issued in the name of ‘W. Hill & Son’ it was issued in the name of a non-existent person ... If the writ had been issued in the name of ‘W. Hill & Son Ltd’, the case would have been very different, because ‘W. Hill & Son Ltd ‘ indicates a legal entity and a person. I do not say what we should have done or what the learned judge would have been in a position to do if there had been no ‘W. Hill’ of the address given and the owner of the lorry had been someone of a different name trading in the name of ‘W. Hill & Son’. A question may arise about that some day, but in this case there is a ‘W. Hill’, and all that need be said is that ‘and Son’ ought not to have been added.” (Emphasis supplied.)

In the circumstances, it seems to me that the Court of Appeal was right to distinguish the Vincenta case from the instant case, and it would be wrong to argue that when the writ was issued in the name of ‘ETS Kabore Issoufou’ it was issued in the name of a non-existent person.

It is my view also that the Court of Appeal rightly applied the decision in Mussey v Darko [1977] 1 GLR 147. In that case the basis of the suit was a deed of agreement expressly made between Okofoh Enterprise of Takoradi per its manager Rexford Ayeh Darko and Mr Anthony Arthur Mussey (MTB), timber contractor of the Western Region of Ghana and dated June 1969 bearing the registration No AC 2583/70, in which it was agreed that the buyer, Okofoh Enterprises, would advance various sums of money to the contractor for the payment of timber to be supplied at a later date. The case for the respondent was that after some advance had been made the appellant failed to carry out his obligation under the contract resulting in a balance of ¢4,492.86 due to Okofoh Enterprises which the appellant refused to refund. A writ therefore issued at the instance of the respondent in the name of the firm, the ostensible party to the agreement. This mistake was due to the inadvertence of the solicitor’s clerk when transmitting the names of the parties from the said deed of agreement to the writ of summons, where he completely omitted the name of R A Darko.

Though the appellant disputed the respondent’s capacity to maintain the action, for some unknown reason this lack of capacity was not pursued, though made an issue. When judgment was entered for the respondent he applied for amendment of the title substituting the name of the respondent on the ground that there was a bona fide mistake by counsel because though the deed of agreement between the parties expressly named R A Darko as its manager, the name was omitted when the particulars of the agreement were being transferred onto the writ. The bona fides of the respondent was accepted by the learned trial judge and he granted the application to amend. The appeal by the appellant was dismissed by the Court of Appeal which held that where the sole proprietor of a business mistakenly sued in the firm’s name, and later gave reasonable explanation for his mistake, the court could treat the mistake as a mere misnomer and grant an application to have the title to the writ amended.

The Vincenta case was distinguished because in that case neither the appellant nor his counsel disclosed the proprietor or proprietors of the firm. Secondly, counsel was not even sure whether the firm was registered under the Registration of Business Names Act 1962 (Act 151). The inability or reluctance of the firm (i.e. Vincenta Publications) to put all their cards on the table for the benefit of the court astounded the learned judges.

In the present case, the name of the sole proprietor has been disclosed, and the reason for the mistake was accepted by the Court of Appeal which granted the amendment. In my judgment the action taken by the Court of Appeal was right in law. Here also there was enough evidence to show that Kabore Issoufou is the sole proprietor of the business, that it was he who imported the quantity of rice from Pakistan, and that ETS Kabore Issoufou is a business name which had been registered since 1965 and not a corporate body. Furthermore, the business name is almost the same as that of the sole proprietor of the business. The Court of Appeal was therefore right in amending the title to the suit to read: Kabore Issoufou, doing business under the name and style of ETS Kabore v Ghana Ports and Harbours Authority.

The next issue treated by counsel for the defendants-appellants was whether the defendants-appellants were liable for the loss of the goods in view of the provisions of the Ghana Ports and Harbours Authority Law 1986 (PNDC Law 160). Learned counsel contended that the Court of Appeal erred in affirming the trial court’s holding that the defendants were liable by virtue of s 7 of PNDC Law 160. He contended that though section 6 of the Law expressly transferred the assets of the erstwhile Ghana Cargo Handling Co Ltd to the defendants-appellants, the statute was silent on the transfer of liabilities, and that if the legislature had intended to transfer liability it would have expressly done so, relying on the maxim expressio unius est exclusio alterius, in Kwakye v Attorney-General [1981] GLR 944, SC to buttress his argument.

In reply learned counsel for the plaintiff-respondent, Mr E D Kom, submitted that to accept this contention would lead to an incongruous situation, whereby, for example, bills in respect of electricity and telephone calls, income tax and social security deductions and terminal benefits that were due and payable before the enactment of the Law could abate. Mr Kom submitted that in relation to the maxim, it is settled that the unius must be of the same type of thing, namely the mention of goats, sheep and cows does not exclude grasshopper and that the mention of assets in the Law does not ipso facto exclude liabilities before the Law.

The maxim as appearing in the Kwakye case was applied by Charles Crabbe JSC at pages 1023-4 of the report. There Justice Crabbe was dealing with procedures in trials in absentia and in praesenti. To appreciate the learned judge’s line of thinking I would like, at the expense of getting you bored listening to me, to quote what he said in extenso:

 “A trial in absentia is a procedure formerly unknown to us in the administration of justice in this country. When, therefore, the Armed Forces Revolutionary Council amended AFRCD 3 by AFRCD 19, one would have thought that the procedure to be followed would also be specified. No such thing was done. We are thus left with the procedure already outlined in section 5 of the Armed Forces Revolutionary Council (Special Courts) Decree 1979 (AFRCD 3). That procedure would thus govern a trial in praesenti as well as a trial in absentia. For, as the maxim of interpretation goes, expressio unius est exclusio alterius - the express mention of one person or thing is the exclusion of another. So if the Decree expressly mentions a particular procedure without more then all other procedures are excluded.

The same idea is more forcefully stated by yet another maxim, expressum cessare tacitum - when there is express mention of certain things, then anything not mentioned is excluded. If it was the intention of the law-makers that the procedure already set out should not govern trials in absentia, they would have said so when the Decree was subsequently amended making it possible for trials to be conducted in absentia. These are the hard, cold facts of the matter. It is impossible for me to suppose otherwise. And I am thus obliged to consider the trial of the plaintiff in the light of the procedure set out in section 5 of the Decree. That is the law which governs the matter.”

The maxims, expressio unius est exclusio alterius and expressum facit cessare tacitum, apply to the interpretation of statutes as well as other documents. But it is important to appreciate that their application must be with caution because the omission to mention things which appear to be excluded may be due to inadvertence or accident or because it never occurred to the draftsman that they needed specific mention.

The two situations that arise in the present case are first, that section 6 of PNDCL 160 expressly transferred the assets of the erstwhile Ghana Cargo Handling Co Ltd to the Ghana Ports and Harbours Authority, and second that the Law was silent on the transfer of the company’s liabilities, and the view of Nana Akufo-Addo is that if the legislature had intended to transfer liability it would have expressly done so. That appears to me to be a wrong exposition of the law. It seems to me that the express enactment does not shut the door to further implication as contained in the maxim, expressio unius est exclusio alterius as Mr Kom also contends. It is possible that it never struck the draftsman that liability needed specific mention of any kind.

Mr Justice Wills succinctly put it this way in Colquhoun v Brooks (1887) 19 QBD 400 at p 406:

 “I may observe that the method of construction summarised in the maxim ‘Expressio unius exclusio alterius’ is one that certainly required to be watched. Perhaps few so-called rules of interpretation have been made more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind, and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant.”

When the case went on appeal to the Court of Appeal Lopes LJ had this to say, ((1888) 21 QBD 52 at p 65):

 “The maxim ‘Expressio unius exclusio alterius’ has been pressed upon us. I agree with what was said in the Court below by Wills, J., about the maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”

In Lowe v Dorling [1906] 2 KB 772, Farewell LJ agreed with the opinions of Wills J and Lopes LJ and spoke of expressum facit cessare tacitum as follows:

 “Acts of Parliament are not, in my experience, expressed with such accuracy and precision as to justify the court in striking out unambiguous words in order to make a sentence grammatical or logical. The generality of the maxim expressum facit cessare tacitum which was relied on, renders caution necessary in its application. It is not enough that the express and the facit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist.”

I must say that the maxim expressio unius est exclusio alterius is no more than an aid to construction, and has very little weight where it is possible to account for the inclusio unius on grounds other than intention to effect the exclusio alterius; see Dean v Wiesengrund [1955] 2 QB 120, CA, at page 120 per Jenkins LJ.

In my judgment the application of the maxim in the present case would lead to inconsistency and injustice, and would make s 6 of the Law uncertain and capricious in its operation.

Nana Akufo-Addo next submitted that there was no subsisting contract between the parties within the meaning and intendment of section 7 of PNDCL 160, since the contract between Ghana Cargo Handling Co Ltd, Ghana Ports Authority and the plaintiff-respondent had been performed in the breach by the original defendants. As a result he contended that on the commencement of PNDCL 160, whatever contract that may have existed, had been discharged by breach, occasioning the plaintiff’s action in March 1981.

While admitting that a breach of contract, whatever form it takes, entitles the innocent party to maintain an action for damages it is my view that the law, as buttressed by a long line of authorities, is that the right of a party to treat a contract as discharged emanates from two types of cases. First, where the contract has been repudiated by the party in default before performance is due or before it has been fully performed. Secondly, where the party in default has committed a fundamental breach, that is, the promise that has been violated is of a major as distinct from minor importance; see Heyman v Darwin Ltd [1942] AC 356 at pp 378, 398, Mersey Steel and Iron Co v Naylor Benzon & Co (1884) 1 App Cas 432. Repudiation in this sense may be explicit or implicit.

It must be pointed out that, even if all further liability has been wrongfully repudiated by one of the parties, or one party has been guilty of fundamental breach, the contract will not be considered as having automatically come to an end. This is so because the familiar test of offer and acceptance serves to determine the common intention of the parties. Where, for example, A and B are parties to an executory contract and A indicates his inability, or expresses his unwillingness to perform his outstanding obligations, he is in effect making an offer to B that the contract shall be discharged. Therefore B is presented with an option to either refuse or accept the offer: see Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699, CA. To be precise, B may either affirm the contract by treating it as still subsisting, or he may treat it as finally and conclusively discharged, and the consequences vary according to the choice that he prefers.

If the innocent party takes the first option, and fully aware of the facts, makes it clear by words or acts, or even by silence, that he refuses to accept the breach as a discharge of the contract the status quo ante is effectively preserved, i.e. the contract remains in being for the future on both sides, and each party has a right to sue for damages for past or future breaches; see Harbutt’s ‘Plasticine’ Co Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447 at pp 464-5. A seller of goods, for instance, who refuses to treat fundamental breach as a discharge of the contract remains liable for delivery of possession to the defaulting buyer, while the latter remains correspondingly liable to accept delivery and to pay the contractual price: Ward (R V) Ltd v Bignall [1967] 1 QB 534, CA.

In Denmark Production Ltd v Boscobel Production Ltd [1968] 3 WLR 841 at 858 Winn LJ said:

 “It seems to me that the process of ending or indeed of varying a contract by repudiation is the converse of that of making the same contract; each process operates by offer and acceptance, or their equivalents; each is essentially bilateral. Where A and B are parties to an executory contract if A intimates by word or conduct that he no longer intends, or is unable, to perform it, or to perform in a particular manner, he is, in effect, making an offer to B to treat the contract as dissolved or varied so far as it relates to the future. If B elects to treat the contract as thereby repudiated, he is deemed, according to the language of many decided cases, to “accept the repudiation” and is thereupon entitled (a) to sue for damages in respect of any earlier breach committed by A and for damages in respect of the repudiation, (b) to refrain from himself performing the contract any further.

On the other hand, if B elects in such a situation, or is taken by reason of his silence to have elected, not to treat the contract as at an end, he may require A to perform any contractual obligations as they fall due in the future (provided that he himself performs any simultaneous or precedent obligations), including, as a particular example, the making of payments for which the contract provides. In such a case the contract remains in force for the advantage or disadvantage, as events fall out, of either party.” (Emphasis supplied.)

Harbutt’s ‘Plasticine’ Ltd v Wayne Tank Ltd (supra), however, was a case where the defendants contracted to design and install equipment in the plaintiff’s factory for storing and dispensing heavy wax, which had to be liquefied under heat for the manufacturing process, and the defendants’ servants, in order to have the wax liquid for tests, switched on the heating and left the plant unattended overnight, resulting in the bursting of the whole installation into flames, thereby destroying the factory. It was held on appeal that the defects in design (together with the negligent switching on and leaving the plant unattended and the resulting fire) amounted to a fundamental breach which brought the contract to an end, leaving the innocent plaintiffs with no option but to treat it as terminated. Lord Denning, MR at pp 464-5 made the following pertinent observations:

 “There was no repudiation in this case by the defendants - not at any rate, in the proper sense of denying they are bound by the contract. The defendants have always acknowledged the contract. All that has happened is that they have broken it. If they have broken it in a way that goes to the very root of it, then it is a fundamental breach. If they have broken it in a lesser way, then the breach is not fundamental.

In considering the consequences of a fundamental breach, it is necessary to draw a distinction between a fundamental breach which still leaves the contract open to be performed, and a fundamental breach which itself brings the contract to an end.

(i) The first group.

In cases where the contract is still open to be performed, the effect of a fundamental breach is this: it gives the innocent party, when he gets to know of it, an option either to affirm the contract or to disaffirm it. If he elects to affirm it, then it remains in being for the future on both sides. Each has a right to sue for damages for past or future breaches. If he elects to disaffirm it (namely, accepts the fundamental breach as determining the contract), then it is at an end from that moment. It does not continue into the future. All that is left is the right to sue for past breaches or for the fundamental breach, but there is no right to sue for future breaches.

(ii) The second group.

In cases where the fundamental breach itself brings the contract to an end, there is no room for any option in the innocent party.”

It will be seen therefore that the significance of the rule that the contract continues in existence is well-illustrated by cases where a party has repudiated his obligations. In a situation like this the innocent party “keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.” See Frost v Knight (1872) LR 7 Exch 111 at p 112 per Cockburn CJ, Johnston v Milling (1886) 16 QBD 460 at p 467, per Lord Esher.

If for any reason the innocent party decides to opt that the contract should be treated as discharged, his decision must be communicated to the party in default. As soon as this is done his election is final and cannot be retracted: see Scarf v Jardine (1882) 7 App Cas 345 at p 361 per Lord Blackburn. The effect is to terminate the contract for the future as from the moment when the acceptance is communicated to the party in default.

It is my view, therefore, that the contract between the erstwhile Ghana Cargo Handling Co Ltd, the Ghana Ports Authority and the plaintiff-respondent though breached still subsists and by virtue of section 7 of Law 160, it being subsisting immediately before the commencement of the Law and entered into for the purposes and the functions of the ports, continues to subsist between the Ghana Ports and Harbours Authority and the plaintiff-respondent as if the Authority had entered into the contract.

Again, on the question of liability for the loss of goods learned counsel for the defendants-appellants submitted that under section 84 of PNDCL 160 the defendants-appellants are expressly exempted from liability for the loss, misdelivery or detention of, or damage to, or in the custody of the appellants, except where the loss, misdelivery, etc. is caused by want of reasonable foresight and care on the part of the appellant or any of its employees. Counsel contended that negligence flows from this provision and, as the Court of Appeal held that the plaintiff-respondent’s claim does not flow from negligence, that court should have entered judgment in their favour. In counsel’s view the Court of Appeal wrongly relied on Ghana Cargo Handling Co Ltd v Amah’s Ladies and Gents Tailoring Manufacturing Co Ltd [1979] GLR 296 which, according to counsel, “had as its sheet anchor, the Railway and Ports Authority Act 1962 (Act 115), now wholly repealed and replaced by PNDCL 160”, and that the case was also based on the common law contract of bailment.

It must be noted that the Ports Act 1962 (Act 115) was not directly repealed by PNDCL 160. That Act was first repealed by the Railway and Ports Act 1971 (Act 358) which was itself repealed by the Ghana Ports Authority Decree 1977 (SMCD 96). PNDCL 160 in turn repealed SMCD 96. It will be seen therefore that there were two intervening statutes on the Ports Authority between Act 115 and PNDCL 160. Now section 84 of PNDCL 160 states:

“84(1) Subject to the provisions of this Law or any contract the authority shall not be liable for the loss, misdelivery or detention of, or damage to, or deterioration of, goods-

(a) delivered to, or in the custody of, the Authority otherwise than for the purposes of carriage;

(b) accepted by the Authority for carriage, where the loss, misdelivery, detention or damage occurs otherwise than when the goods are in transit;

except where the loss, misdelivery, detention or damage is caused by want of reasonable foresight and care on the part of the Authority or any employee of the Authority.” (Emphasis supplied.)

I do not think the portion where the emphasis is supplied can rightly be interpreted simply to connote negligence on the part of the Authority when the goods are deposited in its warehouse. My understanding of this provision is that where there is evidence to prove that the loss of goods was caused by want of reasonable foresight and care on the part of the Authority, or an employee of the Authority, the Authority is liable.

In the present case there is evidence on record that when Messrs Alraine (Ghana) Ltd, the clearing agents of the plaintiff-respondent, wrote exhibit A to Ghana Cargo Handling Co Ltd on 2 September 1980, the reply from the latter company, exhibit C, contained the following:

 “We refer to your letter No. EDA/ca/401184-80 of 2-9-80 in connection with the above mentioned packages [loss of 1412 bags of rice] and wish to inform you that after a thorough search, we have been unable to trace for delivery the said packages which appeared on the Landing Tally sheets and were discharged into the Transit Shed/Stocking Area of the Ports Authority when they ceased to be in our possession, custody and control. Please note that we are not liable for any loss of goods after the discharge or deposit of the said goods into the Shed or Stocking Area of the Ports Authority.”

It is clear from the above passage that the goods were removed and delivered at the warehouse under the control of the Ports Authority who are constituted warehousemen. The Authority was therefore not relieved from the obligation to protect the goods in their warehouse. If therefore the said goods or some of them could not be produced, the Authority cannot be relieved from responsibility for their loss, unless there is credible evidence that the employees or servants of the Authority took requisite measures for the protection and safety of the goods under their control, and that the loss was not caused by want of reasonable foresight and care on the part of the Authority or any servant-employee of the Authority; in other words, that the goods in the Authority’s warehouse disappeared without want of reasonable care on their part for ensuring the security of the warehouse against theft or loss.

It may be noted that though the Ports Authority Act 1962 (Act 115) has been wholly repealed, section 84(1) of PNDCL 160 was a reproduction of section 86(1) of the Act. The section states:

 “86 (1) subject to the provisions of this Act or any contract the Authority shall not be liable for the loss, misdelivery or detention of, or damage to or deterioration of, goods—

(a) delivered to, or in the custody of, the Authority otherwise than for the purpose of carriage;

(b) accepted by the Authority for carriage, where the loss, misdelivery, detention or damage occurs otherwise than when the goods are in transit;

except when the loss, misdelivery, detention or damage is caused by want of reasonable foresight and care on the part of the Authority or any servant of the Authority...”

In the Amah’s Ladies and Gents case the defendants carrying on business of master porters and stevedoring services at the harbour, agreed to collect the plaintiffs’ goods from a ship and deliver them to the plaintiffs at an agreed fee. The goods were collected and deposited at the warehouse of the Railway and Ports Authority, but the next day it was detected that some of the goods were stolen and others damaged whilst being stored in the warehouse which was under the control of the Authority under the provisions of the Ports Act 1962 (Act 115). The plaintiffs sued the defendants, and the trial judge held that the defendants had breached their common law contract of bailment which continued until the delivery of the goods.

On appeal by the defendants against the award of damages for loss of goods, the Court of Appeal held that though on the facts a contract of bailment of a special class, i.e. for hire of work and labour had been established, and defendants were prima facie liable to take proper precaution for the safety of the goods entrusted to them, they were nevertheless protected from liability for the loss of the goods deposited in the warehouse by reason of the express provisions of s 66(d) of Cap 147 and section 86(1) of Act 115 which constituted the Railway and Ports Authority as warehousemen responsible for the protection of goods in the warehouse.

It must be observed that in this case only the Ghana Cargo Handling Co Ltd was sued that is why the defendants escaped liability. Perhaps the plaintiffs might have had judgment in their favour if they had sued the Ports Authority as well. I have had occasion to check on Cap 147 and have realised that there might have been a typographical error. I think it should read Cap 167 which is the Customs Ordinance. Cap 147 deals with Land and Native Rights.

Though at the time the cause of action in the present case arose the Customs Ordinance had been replaced by the Customs and Excise Decree 1972 (NRCD 114) the substance of the provisions of section 66(d) of the Ordinance had been reproduced in section 125(1) and (2) of NRCD 114. Be that as it may, since there is evidence that the goods were deposited in the warehouse of the Ghana Ports Authority, the Authority, now merged with the Ghana Cargo Handling Co Ltd, cannot escape liability, so is the composite Authority, i.e. the Ghana Ports and Harbours Authority.

In my judgment therefore the case of Ghana Cargo Handling Co Ltd v Amah’s Ladies and Gents Tailoring Manufacturing Co Ltd (supra) was not wrongly applied by the Court of Appeal as contended by the defendants-appellants.

The next issue raised by the defendants-appellants, which I think is of minor importance, is whether the goods in the present case were in transit to attract the application of regulation 65 of the Customs Regulations 1976 (LI 1060). Learned counsel for the defendants-appellants submitted that the goods were in transit to be transported by road to Ouagadougou and so the applicable law is the Customs Regulations 1976 (LI 1060), and that the Court of Appeal erred in holding that regulation 65 of the Customs Regulations was not applicable. The issue arose when the Court of Appeal was dealing with the question whether the doctrine of res ipsa loquitur is applicable in this case, and the court upheld the contention of the defendants-appellants that the doctrine was inapplicable. The court said inter alia:

 “In respect of (1) above [i.e. whether the defendants-appellants owed a duty to the plaintiff-respondent] counsel referred to the Customs Regulations 1976 (LI 1060) regulation 65, and submitted that by this provision it was the agent of the ship which conveyed the goods who had control over the goods whilst in transit. Counsel for the respondent replied rightly, in my view, that the regulation was not applicable as the goods in issue were not in transit.”

I would have thought that should have been the end of the matter, but learned counsel for the defendants-appellants has chosen to raise the issue again condemning the decision of the Court of Appeal. In response learned counsel for the plaintiff-respondent, Mr E D Kom, in his statement of case filed on behalf of his client counteracted as follows:

“With due respect goods are said to be ‘in transit’ when they are on arrival at a port trans-shipped into another port where they are cleared on payment of customs duty. Goods are not in transit when on arrival at a port customs duty is paid and they are later transported elsewhere or to another country. These goods were consigned to Ghana even though the consignee upon delivery took them out of the country. This does not make the goods as those in transit. If the goods were consigned to Angola and they happened to be landed in Ghana they are in transit hence no customs duty will be paid. I submit the CA is right in holding that the goods were not in stricto senso in transit hence LI 1060 is inapplicable.”

Regulation 65 of the Customs Regulations 1976 states as follows:

 “65(1) The agents of aircraft and ship discharging goods into transit sheds shall have control of such goods while in such sheds so far as their storage and delivery are concerned;

Provided that no person shall deliver any goods from any transit shed or open any package without the authority or except in accordance with the directions of the proper officer.

(2) This regulation shall apply (so far as applicable) to goods discharged into and stored in any part of the customs area, other than a warehouse, outside a transit shed.”

Surely this regulation is meant for goods in transit through Ghana so far as their storage and delivery to another aircraft or ship for onward trans-shipment to the final port of entry, are concerned, and not for goods discharged in Ghana as the final port to which the goods are consigned. In the former no customs duties, etc. are charged on the goods because they are in transit, but in the latter even though the goods are to be conveyed by land to another country, say Burkina Faso, the necessary duties are paid.

The word ‘transit’ is defined in the Advanced Learner’s Dictionary of Current English (2nd edition) as ‘conveying or being conveyed, across, over or through: goods lost (delayed) in transit meaning while being carried from one place to another. And Funk and Wagnall’s Standard Dictionary, International Edition defines the word as “the act of passing over or through; the act of carrying across or through; conveyance”.

In its ordinary every day use the word ‘transit’ is used in the import and export business to indicate carrying something from place to place, the act of passing through. This is how the word is used in evidence in this case to show that the goods were not meant to be consumed in Ghana but were to be transported by road to Ouagadougou. However, in its technical sense the word is used to indicate trans-shipment of goods from one country to another. “Transit shed” as used in the regulations is defined in section 275 of the Customs and Excise Decree 1972 (NRCD 114) as “any building in a customs area, appointed by the Comptroller by notice in writing for the deposit of uncustomed goods,” and “uncustomed goods” is defined to include goods liable to duty on which the full duties have not been paid and any goods, whether liable to duty or not, which are imported or exported or in any way dealt with contrary to the provisions of this Decree relating to customs.

I seem, therefore, to agree with the contention of Mr Kom quoted above, and hold that the Court of Appeal was right in holding that regulation 65 was inapplicable in this case.

The last ground of appeal is that the judgment of the Court of Appeal was not supported by the weight of evidence. On this ground learned counsel for the defendants-appellants submitted that the court’s inference from the facts that “there is no room for anyone to say that some of the rice was delivered into the plaintiff’s truck directly from the ship...” was erroneous. Learned counsel contended that exhibit CA 1 accepted by the Court of Appeal, offered a reasonable account of the disbursement of the consignment and was of probative value.

After carefully examining and evaluating the evidence I seem to agree with the Court of Appeal that exhibit CA 1 does not help the defendants’ case. If anything at all, it supports the plaintiff’s claim. The exhibit contains:

Quantity tallied - 53,800

Quantity delivered - 52,289

Balance - 1,511

Hence by exhibit CA1, 1,511 bags were missing and were to be accounted for. As learned counsel for the plaintiff-respondent rightly submitted, the report, exhibit CA I, “does not show that some of the rice was delivered direct into the plaintiff’s truck without being landed into the transit shed”. It is clear from exhibit C, a letter written by the defendants’ Tema Manager, that he admitted that after a thorough search they had been unable to trace for delivery the said packages, i.e. 1412 bags of rice which appeared on the Landing Tally Sheets, and were discharged into the transit shed. Furthermore, the Investigation Record prepared by Mr E O Laryea of the defendants’ outfit, exhibit 1, contains the following:

 “Quantity remaining as shortage if any -

1412 Tallied

No trace 523 short landed.

x                               x                      x

Out turn report 52,388 delivered.

523 short landed, 1412 short delivered.”

The foregoing supports the Court of Appeal’s finding that there was nothing wrong with the findings of fact made by the trial court, that in their view the trial judge considered the evidence of the defendants before arriving at his conclusion. I agree with the Court of Appeal that it will be wrong therefore for that court, an appellate court, to disturb the findings made by the trial court.

The trial judge gave judgment in favour of the plaintiff for the value of 1412 bags of rice short-delivered at $36.54 per bag, and ordered interest to be paid on the said amount at the rate of 16% per annum, i.e. the prevailing interest in Burkina Faso at the time goods were ordered from Pakistan by the plaintiff, from 27-3-81, the date the original writ issued, or the equivalent of the total amount in cedis. The Court of Appeal did not make any variation of this award of damages and the plaintiff-respondent has asked for the following variation:

(1) That the interest on the value of the 1412 bags of rice must date from 9th September 1980, i.e. the date of the loss of the goods and not from 27th March 1981, the date of issue of the writ of summons.

(2) Refund of customs duty paid on the 1412 bags of rice short delivered, plus interest based on current bank rate from date of payment of the duty to date of judgment.

The rate of interest that is normally awarded by the courts in this country is based on the provisions of the Courts (Award of Interest) Instrument 1984 (LI 1295) which states as follows:

 “Where in any civil cause or matter the Court makes an order for the payment of interest on any sum due to the plaintiff ... the rate at which such interest shall be payable shall be the Bank rate prevailing at the time the order was made by the Court, but no compound interest shall be awarded.”

I understand the bank rate in the Instrument to mean the bank rate prevailing in this country at the time the order is made by the court. This is not different from what obtains in the United Kingdom as clearly shown by cases like Miliangos v George Frank (Textiles) Ltd No 2 [1976] 1 AC 443. That was a case where the plaintiff, a Swiss seller, claimed against the defendants, English buyers, the sums due for goods supplied under the terms of contracts, made between the parties. The contractual price was expressed in Swiss francs and the seller amended his pleadings to claim the sums due in Swiss francs instead of an equivalent sum in sterling. The judge, Bristow J, held that he was bound to give judgment in sterling. The seller appealed and the Court of Appeal set aside the judgment, entered judgment for the plaintiff in Swiss francs, and ordered, that the case be remitted to the judge to determine the amount of interest. On restoration of the action to the judge he held:

 “(1) That the question whether a plaintiff was entitled to recover interest by way of damages on the judgment sum was to be determined by the proper law of the contract but, if there was a right to such interest, the amount was determined by the lex fori; that since the law of Switzerland gave a right to interest by way of damages, the court was empowered to award interest to the plaintiff in accordance with section 1 of the Law Reform (Miscellaneous Provisions) Act 1934.” (Emphasis supplied.)

This to me means that the quantum of interest was to be determined in accordance with English law (lex fori), not Swiss law though the trial English court gave judgment to the plaintiff in Swiss francs.

The Courts (Award of Interest) Instrument 1984 (LI 1295) came up for interpretation before this court in Farmex Ltd v Royal Dutch Airlines and British Caledonian Airways [1989-90] GLR 682. This court by a majority of 4-1 gave judgment in favour of the plaintiff company for £23,800 damages for breach of contract of carriage. A consequential order was made by this court for interest to be paid on the said damages, thus restoring the order made by the learned trial judge, Lutterodt J which had been set aside by the Court of Appeal on the ground that the plaintiff had been indemnified in full. The award of interest by the trial judge to the plaintiff was to be calculated at the prevailing bank rate in accordance with LI 1295. This was upheld by this court but the defendants subsequently asked for a review for a clarification of this court’s judgment, contending that the judgment was ambiguous as to the rate of interest applicable. Learned counsel for the defendants submitted, first that the common sense approach should be applied in this case, namely, that the interest rate should be that in UK where the sterling is the legal tender, and secondly that the Miliangos case should be used as a guide in ordering interest to be paid in sterling. This court in a split decision of 3-2 acceded to the request of the defendants, and held -

(1) That the application of LI 1295 of 1984 must be limited to transactions dealt with in local currency and must not be stretched to cover and include transactions involving the use of foreign currencies.

(2) That when LI 1295 was enacted it was never contemplated or intended to apply to cases where the court orders payment to be made in a foreign currency.

(3) That the courts in Ghana cannot give judgment for payment of any debt, money or damages except in cedis, and if they do otherwise, then the rules governing monetary transactions in that foreign currency in the foreign country must prevail unless otherwise expressly provided for and agreed upon by the contracting parties.

(4) That this is a case where the common sense approach is the best solution, that having awarded damages in sterling at best interest can only be awarded at a rate at which an equivalent sum may have been borrowed in the commercial market, that is the rate prevailing in London.

It follows from the Farmex Ltd decision, supra, therefore that the interest requested by the plaintiff-respondent can be awarded in US dollars from the date of the breach i.e. 9th September 1980 to the date of this judgment, and I so hold. It is contended by the plaintiff-respondent that the prevailing interest rate in Burkina Faso as at the date of this judgment is the same as 16% claimed by the plaintiff-respondent. The defendants-appellants not having challenged this contention, the plaintiff-respondent will be entitled to interest of 16% interest per annum on the award made in this judgment.

With respect to the refund of customs duty which the learned trial judge, Omari-Sasu J had refused to grant as claimed by the plaintiff together with the 20% interest on the amount paid for the simple reason that the plaintiff had failed to produce the relevant receipts to cover the payment, learned counsel for the plaintiff-respondent submitted that the payment was covered by exhibit L. I have had a look at the exhibit, and I am satisfied that the exhibit does cover the payment made. I would therefore order an enquiry by the Registrar of the court to compute the amount so paid.

I am also of the view that the plaintiff is entitled to the interest claimed and I grant it. As the sum is in cedis the interest on it is to be calculated at the bank rate prevailing in this country at the time this order is made at simple interest, and not at compound interest, in accordance with the Courts (Award of Interest) Instrument 1984 (LI 1295).

In the result I would dismiss the appeal and give judgment in favour of the plaintiff-respondent.

WIREDU JSC. I have had the privilege of reading beforehand the opinions of my brothers Aikins and Hayfron-Benjamin JJSC. Their reasoning and conclusions accord with my views of the merits of this case. I have therefore resolved to concur in dismissing this appeal. I have however decided to record my personal reservation on the opinion and views expressed by my brother Aikins JSC on the issue raised for determination in Farmex Ltd v Royal Dutch Airlines and British Caledonian Airways [1989-90] GLR 682.

To me, the issue was not merely one of interpretation of LI 1295 (1984) but was one as to the scope and extent of its application, i.e. whether LI 1295 (1984) was to be applied in all cases even if the general award was in foreign currency? The majority of this court held that where the award was in foreign currency, the rate of interest ought to be calculated on the prevailing rate applicable in the country whose currency was used in making the award. Save as explained above, I agree with the conclusion.

BAMFORD-ADDO JSC. I also entirely agree with the reasons and conclusion reached in the lead judgment just delivered by my brother G E K Aikins JSC. I would however comment very briefly on the ground of appeal namely, that the appellant was not liable for the loss of the goods namely, 1412 bags of rice, in view of section 6 and 7 of the Ghana Ports and Harbours Authority Law 1986 (PNDCL 160). This ground concerns the issue of liability. It is the case of the appellants that in view of section 6 and 7 of PNDCL 160 the Court of Appeal was wrong in holding the appellant liable for the loss of 1412 bags of rice, property of respondent. The reason given for this contention is that PNDCL 160, the Ghana Ports and Harbours Authority Law 1986, which took over the erstwhile Ghana Cargo Handling Co, the Ports Authority and Takoradi Lighterage Co, in section 6 of that Law transferred the assets of these companies to the new authority but made no mention of liabilities, therefore no liabilities were transferred to appellant-authority; that had the legislature intended to transfer liabilities, it would have expressly stated so as it did assets. I am afraid that this argument cannot absolve the appellant from liability in view of the provisions of section 8 of the Interpretation Act 1960 (CA 4) which applied to every legislation in this country unless of course the contrary is specifically stated in any law. Section 8 of CA 4 states as follows:

“8(1). A repeal or revocation of an enactment shall not ...

(b) affect the previous operation of the enactment or anything duly done or suffered thereunder or;

(c) affect any right, privilege, obligation or liability acquired, accrued, or incurred thereunder or; ...

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”

The liability for the loss of rice was incurred by the erstwhile Ghana Ports Authority and Ghana Cargo Handling Company Ltd in 1980, which were sued in 1981, long before the passage of PNDCL 160 in 1986. Therefore by virtue of s 8(1)(b)(c) and (e) any liabilities which attach to the said companies would be transferred to the new Authority created by PNDCL 160 i.e. Ghana Ports and Harbours Authority in accordance with s 8 of CA 4. The fact that PNDCL 160 sections 6 and 7 made no mention of transfer of liabilities does not affect the operation of CA 4 to all legislation in Ghana including PNDCL 160. This is rather a clear indication that rights and liabilities are to be preserved and pending legal proceedings to be continued in accordance with s 8 of CA 4. If the legislature had intended to exclude the operation of s 8 of CA 4 to PNDCL 160 this would have been specifically stated in PNDCL 160.

In a similar case as this where the same type of argument was considered, namely the case of Essilfie v Ghana Ports Authority [1980] GLR 469 at 475, it was held that:

“These provisions in s 8(1) of C.A. 4 - the Interpretation Act 1960 especially ss (1) (c) and (e) have the effect of saving every liability which attaches to the erstwhile [Ghana] Railway and Ports Authority [created under the Railway and Ports Act 1971 (Act 358] and which was to be adjudicated upon as well as all rights of any person in a legal proceeding to recover any damages, compensations, debt etc. This, indeed, must dispel the applicant’s enchantment that the plaintiff’s action abated when S.M.C.D. 95 [Ghana Railway Corporation Decree 1977] and S.M.C.D. 96 [Ghana Ports Authority Decree] came into force.

After obtaining his judgment against the Ghana Railway and Ports Authority which, ex facie was regular, the plaintiff was entitled to go into execution against either the Ghana Railway Corporation or the Ghana Ports Authority (or against both of them) on whom had devolved all the assets, liabilities and property of the erstwhile Railway and Ports Authority.”

The Ghana Ports and Harbours Authority, having taken over the assets and property of the erstwhile Ghana Cargo Handling Co and the Ports Authority must be deemed to have also taken over all the obligations of those companies and therefore the appellant cannot escape liability to the respondent. I might add that I find enough evidence on record to support the finding of both the High Court and Court of Appeal that the appellant is liable to the respondent for the value of 1,412 bags of rice not delivered to him. This ground of appeal consequently fails. The other grounds of appeal being unmeritorious, it is my opinion that this appeal must be dismissed.

HAYFRON-BENJAMIN JSC. I am in full agreement with the reasons and the conclusions arrived at in the judgment of my learned and respected brother Aikins JSC and I will also dismiss the appeal. However, my mind has been exercised on one matter on which I feel I should express myself.

An examination of the record will show that the only issue set down for trial was:

 “1. Whether or not both defendants are jointly and severally liable to pay for the value of the 1412 bags of missing rice belonging to the plaintiff.”

Nowhere in the pleadings or any of the several amendments filed by the defendants - now appellants - was the issue of the capacity of the plaintiff, now respondent, to institute the action challenged other than by casual and conflicting answers to the plaintiff’s original statement of claim which read:

 “The plaintiff is a company incorporated in the Upper Volta and doing business as an importer.” (Emphasis mine.)

In their respective statements of defence, in the case of the lst defendants, it is stated:

 “The lst defendants deny paragraph 1 of the statement of claim and will in any event put the plaintiff to strict proof thereof.”

and in the case of the 2nd defendants it is stated:

 “The 2nd defendants are not in a position to admit or deny paragraph 1 and 6 of the statement of claim and put the plaintiff to strict proof of same.”

In so far as the rules of pleadings are concerned the inability of the 2nd defendants to deny the specific averment contained in paragraph 1 of the plaintiff’s statement of claim amounted to an admission of the matters therein. In the face of this conflict in their defences it was no wonder that the plaintiff did not consider it an issue to be pursued in the case. From the record the defendants were not concerned to make the plaintiff’s capacity an issue in the case. Further, cross-examination of the plaintiff was silent on the issue of capacity in spite of the fact that the plaintiff gave definitive evidence on the matter. Said he in examination-in-chief:

 “I have registered a company and it is registered under the law of Burkina Faso as an importer and exporter. I see a photocopy of a document in court. It is a certificate of incorporation of my company.” (Emphasis mine.)

Then again in further examination-in-chief the plaintiff continued:

 “I have told this court that my company is registered in Burkina Faso. I have my certificate of registration translated into English by the Ghana Institute of Languages and I pray to tender this in evidence.”

No objection was taken to the admission of the certificate of registration and it was admitted in evidence as exhibit D.

In view of the total disregard by defence counsel of this very important evidence on the issue of capacity it beats my imagination how the issue of capacity became such an important issue that before us counsel for the appellants considers this ground of appeal founded on the issue of capacity becomes the king-pin of the appeal.

The issue of capacity first appeared in the written submission of counsel for the appellants (defendants) in the High Court when he wrote thus:

 “The writ was issued by ETS Kabore Issoufou. Under cross-examination, the plaintiff agrees that the company is an unincorporated trading company. When he was challenged to produce his company certificate, he submitted exhibit D which is the official translation of the said certificate. Under the section captioned, 10 - Type of Trade - we have the name of the enterprise, Kabore Issoufou. It is my humble submission that if the said company were an incorporated one, the “Ltd” would have been added to the name.

Further, when one looks at exhibit E, it is clear that the name of the company is ETS Kabore Issoufou. Counsel’s submission is that since the said company was not a legal person, it is wrongful at law for him to have sued in the company name. He ought by law to have sued in his personal name.”

Counsel for the defendants in the High Court relied on the case of Wadad Haddad Fisheries v State Insurance Corporation [1973] 1 GLR 501 and made some incoherent submissions which I will ignore for the purposes of this opinion. The relevant matter, however, is that it is not correct that the plaintiff had agreed that his company was “unincorporated”.

The plaintiff had stated in his amended statement of claim that “[t]he plaintiff is a company incorporated in Burkina Faso”. This pleading was completely ignored by defendants in their “Defence to the Amended Statement of Claim”. Further, when the plaintiff asserted in examination-in-chief that his business was registered in Burkina Faso only two questions were put to him under cross-examination from which one could not come to the conclusion that the plaintiff’s company was “unincorporated”.

These two questions and answers were:

 “Q.      Your company ETS Kabore, is it a limited liability company or what?

A.        I do not understand this”.

and then later in the cross-examination

“Q.       ETS Kabore is your personal company?

A.        Yes.”

In my view the learned High Court judge rightly ignored this submission and rested his opinion on the single issue agreed by the parties for trial. Except for his rejection of the plaintiff’s claim for customs duty - which we have allowed in this court - the learned trial judge’s conclusions were unassailable.

Before Their Lordships in the Court of Appeal the defendants by their additional grounds of appeal raised two grounds specifically attacking the issue of the plaintiff’s capacity. Great reliance was placed on the case of GIHOC v Vincenta Publications [1971] 2 GLR 24. Counsel contended that the GIHOC case, supra, dealt with the construction of Order 48A rules 1 and 11 of LN 140A. In counsel’s submission the GIHOC case, supra, dealt with “whether a firm, unincorporated, i.e. a business enterprise and (sic) (can) sue as such enterprise.”

Considering counsel’s submissions Their Lordships concluded that (1) capacity had not been made an issue in the High Court, (2) the court had the power to make such amendment as will be necessary to determine the real issues in controversy between the parties and (3) the GIHOC case was clearly distinguishable from the appeal before them. Accordingly Their Lordships granted an application to amend the title to read:

 “Kabore Issoufou, doing business under the name and style of ETS Kabore Issoufou v Ghana Ports and Harbours Authority.”

Their Lordships dismissed the appeal.

Before us the defendants, still appellants have by their statement of case submitted, inter alia, that:

 “It is our respectful submission that the amendment which sought to clothe the plaintiff-respondent-respondent belatedly, in our view, with capacity to sue and maintain the action was not only erroneously granted but also improperly applied for. Counsel for the plaintiff-respondent-respondent made the application, orally, whilst responding to the appellant’s submissions. It is contended that the application for amendment before the Court of Appeal ought to have been formally made and processes in that regard duly filed. The oral application was procedurally wrong and ought not to have been entertained. Be that as it may, it is our further contention that the Court of Appeal was bound to follow its decision in the case of GIHOC v Vincenta Publications [1971] 2 GLR 24. It is also note-worthy that, the Court of Appeal agreed with appellant’s contention that ETS Kabore Issoufou, the purported plaintiff in the action was a mere business name and not a corporate body, implying that it was not a legal person. Upon so holding, it is our contention that the Court of Appeal was bound to follow the GIHOC case (supra) and accordingly proceed to hold that the plaintiff, not being a legal person, had no capacity to sue.”

This submission raises two issues. First the defendants contend that Their Lordships in the Court of Appeal were wrong in acceding to the oral application of the plaintiff’s counsel to amend the title of the case. Second, that Their Lordships were bound by the decision in the Vincenta Publications case, supra. In my respectful opinion the defendants were wrong on both issues.

The issue whether “the application for amendment before the Court of Appeal ought to have been formally made and processes in that regard duly filed” can be easily dealt with by reference to the Court of Appeal Rules 1962 (LI 218). A careful reading of the rules shows quite clearly that there are two types of amendments contemplated by those rules. Rule 8(5) reads:

 “8(5) The appellant shall not, without the leave of the Court, urge .... but the Court may allow the appellant to amend the grounds of appeal ...” (Emphasis mine.)

and rule 31 reads:

 “31. The court may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal ...” (Emphasis mine.)

It will be observed from these two rules that whereas in the case of grounds of appeal, the appellant has to seek the leave of the court to amend his stated grounds, by rule 31 the court has complete control over the record of appeal which is transmitted to it and may on its own motion “amend any defect or error” therein. In the instant appeal therefore the fact that it was counsel who drew the attention of the court to the necessity to amend the title did not derogate from the power of the court to effect the amendment. In my view there was clear authority for Their Lordships’ amendment of the title of the case.

I think a lot of capital has been made of the Vincenta Publications case in this and other cases which have come before the courts. The arguments contend that Order 48A rule 11 of LN 140A is relevant when a single person carrying on business in a firm name sues as a plaintiff. Indeed at page 25 of the report in the Vincenta Publications case, supra, part of the contention of learned counsel for the appellant was stated thus:

 “Mr Korsah contended that as rule 11 enables a person carrying on business within the jurisdiction in a name or style other than his own name to be sued as a defendant, Vincenta Publications could not come to court under that name or style as a plaintiff. In other words, that name would have sufficed and would have been permissible if Vincenta Publications had been sued as defendants.”

On the basis of the above submission the court came to the conclusion that:

“The English case of Mason & Son v Mogridge (1892) 8 TLR 805 relied on by Mr Korsah decided that a single person cannot sue in a firm name either under rule 1 or rule 11 of Order 48A. In our opinion the Mason case is a correct and sound decision and whoever is the sole proprietor of Vincenta Publications cannot be allowed to sue as plaintiff under that business name or style.”

With all due deference to Their Lordships in the Vincenta Publications case, supra, I am of the view that while the law was correctly stated, it was however wrongly applied. I disagree with the proposition that a sole proprietor cannot be allowed to sue as plaintiff under that business name. I think the Rules of Court were made for specific purposes and it will be most inappropriate to read into them their application to situations not contemplated by any such rules. Rules 1 and 11 of Order 48A of LN 140A do not apply to sole proprietors suing under the business name. It seems to me that the decision in the Vincenta Publications case turned on the erroneous view which the court took of the Rules of the High Court. Judging by the conduct of the respondent’s counsel before Their Lordships, it was obvious that counsel had not treated the court with candour. I however, hold the view that the Registration of Business Names Act 1962 (Act 151) applies to sole proprietors carrying on business in a firm name within the jurisdiction and they may sue as plaintiff in our courts. By section 15 of the Act a sole proprietor’s rights are regulated and his existence as a legal person is recognised. The section reads:

 “Where any person required to furnish statement of particulars or of any change in particulars makes default in so doing, the rights of such defaulter under, or arising out of, any contract made or entered into by, or on behalf of, such defaulter in relation to the business in respect of which particulars were required at any time while he is in default, shall not be enforceable by action or other legal proceedings either in the business name or otherwise.

Provided that,

(a) the defaulter may apply to the High Court for relief against the disability imposed by this section, and the High Court, on being satisfied that the default was accidental, or due to inadvertence, or some other sufficient cause, or that on other grounds, it is just and equitable to grant relief, may grant such relief either generally or as respects any particular contract and on such conditions as the High Court may impose;

(b) nothing herein contained shall prejudice the rights of any other parties as against the defaulter in respect of such contract as aforesaid;

(c) if any action or proceeding is commenced by any other party against the defaulter to enforce the rights of such party in respect of such contract nothing herein contained shall preclude the defaulter from enforcing in that action or proceeding by way of counterclaim, set-off or otherwise, such rights as he may have against that party in respect of such contract.”

I would say therefore that the Vincenta Publications case turned on its own facts and is not authority for the proposition that a sole proprietor cannot be allowed to sue as plaintiff under a business name or style.

Their Lordships in the Court of Appeal were right in amending the title of the case in order to demonstrate that the plaintiff was carrying on business in a firm name. But in my respectful opinion it was not really necessary. The evidence revealed quite clearly that the plaintiff was a registered firm in Burkina Faso and was not carrying on business within the jurisdiction. The consignment of rice was in essence only in transit to Burkina Faso through the port of Tema. Our attention has not been drawn to any law which prevents foreign firms or companies from suing in our courts and I know of none.

By their pleadings the defendants put up conflicting defences - one denied liability while the other, by implication, admitted liability. When the two organisations were fused into the Ghana Ports and Harbours Authority the substratum of their defences fell and they were liable to the plaintiff.

AMPIAH JSC. I have had the privilege of reading the reasons and conclusions of my brother Aikins JSC. I agree with him. I have nothing useful to add.

Appeal dismissed; judgment varied accordingly.