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JUDGMENT:
The Plaintiff, Kwasi Somuah,
trading under the name and style
of Design Metal Works, is an
importer of steel products and
general goods. The 1st
Defendant (GMT Shipping Ghana
Limited) is the local agent of
the owners of an ocean vessel
called M/V “Free Destiny” that
carried a consignment of the
Plaintiff’s goods comprising
cold rolled steel sheets which
he imported from Odessa, Ukraine
into Ghana. The imported goods
were at all material times
stored at the warehouse of the 2nd
Defendant, Safebond Company Ltd,
until the goods were delivered
to Plaintiff. The gravamen of
the Plaintiff’s claim is that
one bundle of cold rolled steel
sheets was of a different
specification from the rest of
his consignment described in the
Bill of Lading. The Plaintiff is
thus claiming against the
Defendants jointly and severally
the following:
“a. An order for the return of
the Plaintiff’s 1200 x 2400 x
1.0 bundle of cold rolled steel
sheets to him.
In the alternative, an
order that the Defendants herein
pay to the Plaintiff herein the
cash value of the said one
bundle of cold rolled steel
sheet to him
b. Interest on the said amount
to be paid to the Plaintiff at
the current Commercial Bank Rate
from the date of delivery to the
date of final payment.
c. An order for
general damages.
d. any further order or
orders as the Honourable Court
may
deem fit.”.
The Plaintiff’s case is that he
imported into the country a
total of 102 (One Hundred and
Two) bundles of cold rolled
steel sheets of various sizes
and descriptions per Bill of
Lading No.830-ODE/TEM-03 in
which the descriptions were
given. On arrival at the Port of
Tema, and after paying the
relevant administrative charges
to the 1st Defendant,
Plaintiff states that his
imported goods were stored in
the shed/warehouse of the 2nd
Defendant to be subsequently
delivered to the Plaintiff by 2nd
Defendant.
Plaintiff states further that he
paid an amount of GH¢7,666.50 to
the 2nd Defendant by
way of rent and other charges
due to the 2nd
Defendant for the storing of his
goods in its warehouse.
Subsequently, the goods were
loaded onto an articulator truck
with Registration No. WR 8170L
by the 2nd Defendant
and conveyed to his work place,
but he later realised that one
bundle of the sheets had
description of 1000 x 2000 x 0.9
presumably meant for a customer
in Burkina Faso but which had
been delivered to him instead of
his own bundle with description
1200 x 2400 x 1.00. Plaintiff
says that his complaints to the
Defendants on the matter was not
positively responded to, hence
the present action.
The 1st Defendant
denies the Plaintiff’s claim and
contends that it conscientiously
performed its obligations as
agents of Conti GMT Shipping
Limited by duly delivering the
entire consignment to the 2nd
Defendant. Furthermore, it
declined to accept liability for
the alleged loss of the said
bundle of the Plaintiff’s cold
rolled steel sheet as same was
delivered to the 2nd
Defendant who acknowledged
receipt.
The 2nd Defendant on
the other hand contends that it
received from the vessel a
consignment of 102 bundles of
cold rolled steel sheets with
specific marks and numbers for
delivery to the Plaintiff. 2nd
Defendant kept the cargo as
received from the vessel in
transit sheds pending the
delivery and delivered same to
the Plaintiff. The 2nd
Defendant therefore contends
that it is not liable to the
Plaintiff for any alleged
shortfall in the consignment
since it did not cross deliver
any of the goods received from
the vessel.
The undisputed facts of this
case are that the Plaintiff
imported 102 bundles of cold
rolled steel sheets from
Ukraine. The cargo was carried
by the vessel MV “Free
Destiny”. The said vessel
docked at the Port of Tema with
various steel products consigned
to consignees in Ghana, Mali and
Burkina Faso. It is also an
undisputed fact that each
consignment of the steel
products carried by the said
vessel had different colour
markings on them. Each colour
marking was specific to each
consignment and identified for a
particular consignee. The
Plaintiff’s colour marking was
yellow strokes.
In my opinion, the main issues
for determination are; whether
or not the entire consignment of
102 bundles of cold rolled steel
sheets were received by the
Defendants; whether or not the
Defendants delivered the entire
consignment to the Plaintiff;
and whether or not the
Defendants can be held jointly
and severally liable for any
shortfall in the delivery of the
goods to the Plaintiff.
It is trite law that for every
case there is a burden of proof
to be discharged and the party
who bears the burden will be
determined by the nature and
circumstances of the case.
Sections 10 – 17 of our
Evidence Decree 1976 (NRCD 323),
state the position of the
law with regard to the burden of
proof There is no paucity of
case law interpreting these
provisions. In Ababio v
Akwasi 111 [1994-95] Ghana Bar
Report, Part 11, 74 the
court stated that a party whose
pleadings raise an issue
essential to the success of the
case assumes the burden of
proving such issue. Reference is
also made to the cases of
Takoradi Flour Mills v Samir
Faris [2005-06] SCGLR 882
and Re Ashalley Botwe Lands:
Adjetey Agbosu & Ors v Kotey &
Ors [2003-04] SCGLR 420
which further elucidate the
burden of proof as statutorily
provided.
The well-known rule of evidence
is that although proof in a
civil case rested on the
plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. It would then rest on
the defendant to rebut the
plaintiff’s evidence. This
position was enunciated by
Justice Mensa-Boison JA, in the
case of Acquaye v Awotwi
[1982-83] 2 GLR 110 when he
stated that the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
I will now look at the evidence
adduced by the Plaintiff in
discharge of the burden of proof
on it. Plaintiff testified
himself and tendered in evidence
a photocopy of the Bill of
Lading (Exhibit “A”) in which
the steel products were
described as follows:
·
1200 x 2400 x 0.70 consisting
of 23 bundles
·
1200 x 2400 x 0.80 consisting of
67 bundles
·
1200 x 2400 x 1.00 consisting of
12 bundles.
Total
102 bundles
Plaintiff’s evidence was that
the 1st Defendant as
an agent of the vessel M/V “Free
Destiny” that carried his
imported goods to Ghana informed
Plaintiff of the arrival of the
goods, and Plaintiff paid
administrative charges to 1st
Defendant. After paying duty to
the Customs Division of the
Ghana Revenue authority, 2nd
Defendant also charged Plaintiff
rent and other charges. The
Plaintiff’s further evidence was
that he realised upon taking
delivery from the 2nd
Defendant that one of the
bundles with description 1000 x
2000 x 0.9 had been delivered to
him in exchange for one of his
own bundles, and complained to
the Defendants. He gave the
value of the missing one bundle
of the cold rolled steel sheets
as GH¢14,796.00.
Yaw Owusu Ansah, the Freight
Forwarder or Clearing Agent who
took delivery of Plaintiff’s
goods from 2nd
Defendant, testified as a
witness for the Plaintiff
(PW1). The original copy of the
Bill of Lading (Exhibit “2”) was
tendered in evidence through
him. He testified that customs
duty of GH¢161,000 was paid
based on the quantity of steel
sheets stated in the Bill of
Lading. He said that he loaded
the imported goods from the 2nd
Defendant’s warehouse on to a
truck after inspecting and
satisfying himself that they
were what had been imported as
per the Bill of Lading, and
delivered them to the
Plaintiff’s warehouse.
Subsequently, he was informed by
the Plaintiff that one of the
bundles did not belong to him.
He said he followed up to the
offices of the 2nd
Defendant Company but realised
that what he had cleared on
behalf of the Plaintiff tallied
with the cargo for the Plaintiff
on the Cargo Manifest.
The 1st Defendant
testified through its
representative Leonard Oklu, the
Deputy General Manager. Mr Oklu
stated in his evidence in chief
that the 1st
Defendant operates as an agent
for Conti GMT Shipping Ltd a
company which charters vessels
to convey goods from one port to
another. He stated that in
October 2008, the 1st
Defendant Company acted as
agents for the vessel M/V “Free
Destiny” which had carried
goods, including Plaintiff’s
goods to the Port of Tema.
In its role as an agent, the 1st
Defendant received the Bill of
Lading (Exhibit “2”) and Cargo
Manifest (Exhibit “3”) before
the arrival of the vessel M/V
“Free Destiny”, and described
the Cargo Manifest as a document
that informs them who is a
consignee of the cargo, the
description and quantity of the
cargo. Mr Oklu also testified
that the 1st
Defendant declared the said
vessel to the Port Authorities
who allocated a place for it to
berth and also nominated a
stevedoring company to discharge
the cargo from the vessel.
After discharge of the cargo,
the entire consignment was
handed over to the 2nd
Defendant Company for safe
keeping awaiting delivery to the
consignees. Mr Oklu also stated
that the 1st
Defendant did not participate in
the discharge of the cargo but
nevertheless nominated a 3rd
Party Tally Company to ensure
that what was discharged from
the vessel corresponded with
what the vessel brought.
Mr Oklu described the cargo of
the Plaintiff as detailed in
Exhibits “2” and “3” and stated
that the two documents tallied.
He stated further that copies of
the Cargo Manifest were
submitted to the Ghana Ports &
Harbours Authority, the Customs
Division of the Ghana Revenue
Authority and also the 2nd
Defendant as shore handlers.
When the stevedores discharged
the cargo they handed them over
to the 2nd Defendant
as shore handlers.
Mr Oklu was emphatic in his
testimony that the goods brought
into the Port of Tema were the
exact quantity and description
as the goods loaded onto the
vessel in Ukraine and same were
discharged by the Stevedores and
handed over to the 2nd
Defendant Company for onward
delivery to the consignees. He
further denied any wrong doing
on the part of the 1st
Defendant and contended that the
1st Defendant cannot
be held culpable for any loss or
non-delivery of the said bundle
of cold rolled steel sheets to
the Plaintiff.
The 2nd Defendant
adduced evidence through its
Traffic Officer, Francis Ampedu
Brenya. He described the 2nd
Defendant as a “receipt and
delivery service provider” in
the Port of Tema. He said that
1st Defendant gives
them the Cargo Manifest even
before the vessel arrives. In
the instant case, the Cargo
Manifest (Exhibit “3”) stated
that there were to two (2)
consignees for the cargo of cold
rolled steel sheets. They were
Design Metal Works, Accra, Ghana
and a certain Profel of Bobo
Dioulasso, Burkina Faso. It
also stated that the colour used
to mark the cargo meant for
Design Metal was yellow, and
that for the consignment for
Burkina Faso was brown. He
corroborated the evidence that
the Stevedores for the
Plaintiff’s consignment was the
Ghana Port and Harbours
Authority (GPHA). The
Stevedores, he explained, carry
the cargo from the vessel and
they stack it to an area that 2nd
Defendant will designate.
Mr. Brenya’s further evidence
was that, before the cargo is
released, the owner of the
consignee or his agent would
have to take a Delivery Order,
amongst other documents, to the
2nd Defendant. 1st
Defendant prepares the Delivery
Order which gives information
about the vessel, the Bill of
Lading, the consignee, the cargo
description, the date of arrival
and rotation number amongst
others. He said that when the
Delivery Order is submitted and
the machinery and personnel are
made available, 2nd
Defendant then delivers the
cargo to the truck provided by
the consignee or his agent.
After that 2nd
Defendant issues waybills to
cover the cargo put on the
truck, and the consignee or his
agent endorses as having
received the cargo, after which
they are dispatched. The
waybills issued in the instant
case were tendered in evidence
as Exhibit “1E” series; they
were eleven (11) in number.
It was Mr. Brenya’s evidence
that his attention was brought
by a Delivery Clerk to the
Plaintiff’s complaint that one
of the bundles of steel was not
part of his consignment.
However, he did not get the
opportunity to verify this
because the Plaintiff never
returned the said bundle. He
also said that they had not
received any complaint from the
other consignee for the steel
products, Profel. 2nd
Defendant as a matter of fact
contacted Profel through their
agent located at the Tema Port,
Gadaniel, but they were informed
that Profel had no knowledge of
the receipt of cargo that did
not belong to them. I will state
here that I accept the evidence
of Mr Brenya that the 2nd
Defendant did conduct the
investigations he said they did.
This piece of evidence thus
debunks Plaintiff’s claim that
the bundle in question was part
of the consignment meant for
Burkina Faso.
Under cross-examination, Mr.
Brenya testified that there was
no short landing; the vessel
brought all the consignment as
manifested. The 2nd
Defendant prepared a report
(Exhibit “4”) which indicated
how much cargo was received; and
it stated that all of the
Plaintiff’s manifested cargo was
received from the vessel, and 2nd
Defendant delivered same.
Exhibit “4” indicated there was
short landing of some of the
cargo carried by the vessel in
question; but that consignment
consisted of steel deform bars
and not Plaintiff’s consignment
of cold rolled steel sheets. The
established short landed
consignment therefore was of a
totally different type of steel
product.
As stated above, the position of
the law is that the duty or
obligation of providing evidence
was on the party against who
makes a ruling on that issue
would be given if he failed to
lead sufficient evidence; see
Section 11 (1) and (4) of the
Evidence Decree, 1975 (NRCD).
See also Duah v. Yorkwa
(1993-94) I GLR 217 at 219.
As already indicated, the
Plaintiff was to lead evidence
to establish his assertions and
the Defendants were to lead
evidence in rebuttal. So, did
the Plaintiff establish that the
Defendants failed or neglected
to deliver to the Plaintiff one
of the bundles of cold rolled
steel sheets which were received
by them?
A Bill of Lading, it is trite
learning, describes the nature
of the goods and the
consignee(s). It is also common
knowledge that the description,
nature and quantity of goods
indicated on a Bill of Lading
confirm that the said goods were
carried on the vessel. The
effect of a Bill of Lading is
stated in Halsbury’s Laws of
England (3rd Edition)
Vol. 35 at p. 522, paragraph 747
as follows:
“A bill of lading thus issued is
prima facie evidence of the
receipt of the carrier of the
goods described therein.”
It was held in the case of
Pan African Trading Co & Another
v Holland West Africa & Another
[1976] 1 GLR, 237 at 238
that a carrier of goods was
under an obligation to deliver
the goods to the person who
would properly present the Bill
of Lading.
In the instant case the parties
were ad idem that Exhibits “A”
and “2” covered the goods
imported by the Plaintiff and
aptly described the nature of
the consignment; its quantity
and quality. It appears
therefore that M/V “Free
Destiny” carried into the Port
of Tema the goods stated in the
Bill of Lading. The Cargo
Manifest (Exhibit “3”) also
shows the nature and description
of goods carried by the vessel
in question and confirms that
the Plaintiff’s goods/cargo as
described were loaded on the
said vessel and carried to the
Port of Tema. In view of the
foregoing, it is clear that 102
bundles of rolled cold steel
sheets with the description and
specifications indicated on the
Bill of Lading (Exhibit “2”)
were consigned to the Plaintiff.
As already stated above, the
evidence placed before the Court
is that the duty of the 1st
Defendant on arrival of the
vessel was to notify Customs
Division of Ghana Revenue
Authority and GPHA. The former
is in charge of revenue at the
Port, whereas the latter manages
activities at the Port. GPHA
after receipt of the Cargo
Manifest and upon arrival of the
vessel nominates a stevedoring
company that discharges the
cargo from the vessel and hands
them over to the 2nd
Defendant Company who eventually
releases and delivers the cargo
to the consignees as per the
Bill of Lading and upon the
payment of the relevant customs
duties. In the instant case,
the undisputed evidence before
the Court is that GPHA acted as
Stevedores, discharged all
cargoes including that of the
Plaintiff from the vessel M/V
“Free Destiny” and handed same
over to the 2nd
Defendant Company.
It is interesting to note that
neither the Plaintiff nor his
Agent, Mr. Owusu Ansah, knew
that GPHA acted as the
Stevedores for the Plaintiff’s
cargo. The duties of the
Stevedores, the Court was
informed, are to load and unload
cargo from the vessel. Indeed,
Mr. Owusu Ansah (P.W.1) conceded
under cross-examination that 2nd
Defendant was not registered to
do stevedoring at all and that
it was the Stevedores that
unloaded the cargo from the
vessel and packed them according
to the way they received the
cargo from the vessel. That,
when Mr. Owusu Ansah went to
take delivery from 2nd
Defendant he was shown the
stacking area belonging to the
Plaintiff; he inspected that
stack and he saw that all the
bundles were marked yellow. He
was there when the cargo was
loaded on to the vehicle for
delivery to the Plaintiff.
I have stated above that the
evidence of the 1st
Defendant’s representative, Mr
Oklu, was that the 2nd
Defendant issued a report on the
discharge of the cargo to the 1st
Defendant. This report is
referred to as the “Vessel
Completion Out – Turn Report”;
Exhibit “4”. By this report the
2nd Defendant
informed 1st
Defendant that they received 102
bundles of cold rolled steel
sheets in respect of the Bill of
Lading on behalf of Design Metal
Works from the vessel. To
ensure corroboration, Mr Oklu’s
evidence was that the 1st
Defendant engaged a Tally
Company, Transmarine Consultancy
and Inspection (TCI) Ghana Ltd,
to monitor the discharge of the
cargo from the vessel into the
hands of the 2nd
Defendant.
The Tally Company, by its
report, Exhibit “5”; confirmed
that the manifested quantity of
102 bundles was discharged from
the vessel and handed over to
the 2nd Defendant.
Moreover, the representative of
the 1st Defendant, Mr
Brenya, testified that the
Plaintiff’s Agent, Mr. Owusu
Ansah submitted documents before
the preparation of the Delivery
Order to enable him take
delivery of Plaintiff’s cargo
and that the documents submitted
covered 102 bundles of the said
goods for which the 1st
Defendant issued the Delivery
Order to enable him take
delivery of Plaintiff’s cargo
from 2nd Defendant.
It is therefore assumed that
P.W.1 inspected the goods before
submitting the documents. The
Delivery Order was tendered in
evidence as part of Exhibit “6”.
The 1st Defendant’s
representative also testified
that a general report on all the
cargo stated in the Manifest and
carried by the vessel, was
issued (Exhibit “7”). The said
report indicated that the 102
bundles of cold rolled steel
sheets as manifested were
discharged without any missing.
This piece of evidence was not
challenged under
cross-examination and it is
trite learning that failure to
cross-examine amounts to
admission; See Foli v.
Ayeribi (1996) GLR 627 SC
and Hammond v. Amuah (1991)
GLR 89.
I will therefore find that from
the evidence before the Court
the said 102 bundles of cold
rolled steel sheets consigned to
the Plaintiff were received by
the 1st Defendant and
same delivered to the 2nd
Defendant. I will also find
that the 2nd
Defendant delivered same from
its warehouse to the Plaintiff’s
Agent by loading the goods onto
a truck brought by the said
Agent.
Nonetheless, Plaintiff is
claiming that one of the bundles
delivered to him was not one of
those described in the Bill of
Lading, and therefore the
Defendants should be held
jointly and severally liable for
the wrong delivery of goods to
him? However, the Plaintiff
himself appeared to exonerate
the 1st Defendant
when he testified under
cross-examination as follows:
Q: So you know for the 1st
Defendant GMT their duty is to
discharge the Cargo from the
vessel and take it to Safebond.
A: Yes, my Lord.
Q: So Safebond ie the 2nd
Defendant will receive the goods
as per the cargo manifest.
A: Yes, My Lord.
Q: So if there is any short
delivery or shortfall or if
there are any discrepancies
Safebond or 2nd
Defendant will bring it to the
notice of the shipper.
A: that is exactly so.
Q: So you will agree with
me that the obligation of 1st
Defendant will come to an end
the moment they take delivery,
discharge all the goods,
transfer them with the Cargo
manifest to Safebond.
A: My Lord, that is so.
Sometimes when we are going to
pay when there is any short fall
we will be told.
Q: So in this instance
there was no shortfall so you
were not told of anything.
A: It was at Safebond that
some of the goods got missing
because they did not take their
time in checking the goods
Interestingly, Mr. Owusu Ansah,
Plaintiff’s Agent did same for
the 2nd Defendant;
that is exonerating them. This
is what he said under
cross-examination:
Q: I am putting it to you
that Safebond is not a company
registered to do stevedoring at
all.
A: Yes my Lord.
Q: And therefore
stevedoring of the cold rolled
steel was not done by Safebond.
A: Yes my Lord.
Q: where was this
cargo that you cleared?
A: Shed 7 they
have an office there.
Q: It was the
open stacking area?
A: Yes my Lord
Q: And the cargo had
stacked in lots depending on who
the consignee is?
A: Yes my Lord.
Q: I am suggesting to you
that it was the stevedore who
took the cargo from the vessel
and packed them according to the
way he received them from the
vessel.
A: Yes my lord.
Q: when you went to take
delivery you were shown the lot
belonging to Mr. Kwesi Somuah is
that not correct?
A: Yes my Lord.
Q: And you
inspected that lot?
A: Yes my Lord.
Q: You said it
was coloured?
A: It was
coloured
Q: Ant it was
yellow?
A: Yes my Lord.
Q: And you saw
all to be yellow?
A: Yes my Lord.
Q: Were you there when the
cargo was loaded onto the
vehicle for delivery to Mr.
Kwesi Somuah?
A: Yes my Lord.
Q: You did not notice any
difference in colour with the
cargo that was loaded?
A: Yes my Lord.
Q: And it was when you got
there that according to you, you
were informed?
A: Yes my Lord
Q: I am suggesting to you
that they delivered what they
received to you.
A: My Lord I
agree.
He testified further as follows:
Q: I also want to suggest
to you that the stevedores were
Ghana Ports and Harbour
Authority?
A: My lord please
I didn’t know.
Q: And it was Ghana Ports
and Harbour Authority that took
the lots for Mr. Somuah and
damped it at the place that you
went to see it.
A: Yes my Lord.
Q: As for Safebond their
only duty was for them to load
the lots that was assigned to
your client unto the vehicle.
A: Yes my Lord.
Need I say more? It is clear
that Plaintiff through his Agent
was offered every opportunity to
do an inspection of the cargo
before delivery of same. The
evidence before the Court is
that Plaintiff’s Agent signed as
having taken delivery of the
proper cargo. So to all intents
and purposes the cargo that was
delivered to the Plaintiff’s
Agent and his driver was the
right cargo as evidenced by the
various exhibits.
It is also important to note
that the alleged different
bundle has not been sighted by
anybody except the Plaintiff.
The Plaintiff did not afford
even his own Agent who had
testified that he inspected the
goods before they were delivered
to him, the opportunity to
inspect the said bundle and
satisfy himself that what the
Principal (Plaintiff) had told
him was indeed the case.
The Plaintiff sought to
establish that he was prevented
from sending the bundle in
question back to the Port
because he was allegedly told
that the goods could not be
received into the Port after
they had been cleared and
delivered to the Plaintiff. In
my opinion that does not appear
to be the case. Indeed the
Plaintiff per his Solicitor in a
letter to the 2nd
Defendant (Exhibit “D”)
complained about the alleged
wrongful delivery. In response
to this letter the 2nd
Defendant wrote (Exhibit “F”) to
deny the said claim. Paragraph
6 of the letter stated as
follows:
“If indeed our client want a
refund or a claim on the bundle
he would have to return the
wrong item in question and then
redirect his concerns or claim
if any to the vessel owners or
their agents, GMT Shipping
(Ghana) Limited.”
From the evidence before the
Court, Plaintiff has not
returned the said bundle as at
date. I will therefore find
that there is no credible
evidence before the Court to
support the assertion that one
of the bundles received by the
Plaintiff was not part of the
consignment meant for the
Plaintiff.
Counsel for Plaintiff submitted
in his written address that in
taking delivery of the cargo
from the Stevedores, and on
behalf of the Plaintiff the 2nd
Defendant became a bailee of the
cargo and was duty bound to
deliver the same cargo that it
received for delivery to the
Plaintiff. Indeed, in the case
of John Holt Shipping
Services v Edward Nassar & Co
Ltd [1971] 1 GLR 205 the
position of the law was stated
that the shipowner’s liability
did not at common law cease on
the landing of the cargo; though
he was no longer liable as a
carrier, he incurred a new
liability as a warehouseman,
which is the liability of a
bailee, not of a common carrier.
The duty of a bailee to take all
reasonable precaution for the
safety of the goods bailed to
him was enunciated in Bright
v Graphic Corporation [1980] GLR
833. See also Busi &
Stephenson (Ghana) Ltd v Opoku
[1962] 2 GLR 96.
However, based on the evidence
placed before the Court, I have
made a finding that the same
cargo which was received by the
vessel was the same that was
delivered to the Plaintiff. And
that, Plaintiff’s authorised
agent, P.W.1 accepted that this
was the case at the time that
they were taking delivery.
Thus, if there was any
variation or difference in the
description of one bundle, and
the same became apparent at the
Plaintiff’s warehouse, at a time
when the cargo or consignment
was entirely under the care and
control of the Plaintiff,
(through his agent), the 2nd
Defendant cannot be held liable
for any breach of duty imposed
on it as a bailee.
In the opinion of the Court, the
evidence adduced by the
Plaintiff in proof of his
assertions was so insufficient
that the immortalized statement
of Ollenu J (as he then was)
in Mojolagbe v. Larbi [1959] GLR
190 @ 192 is very apt here.
This is what he said:
“Proof
in law is the establishment of
facts by proper legal means.
Where a party makes an averment
capable of proof in some
positive way, e.g. by producing
documents, descriptions of
things, reference to other
facts, instances, or
circumstances, and his averment
is denied, he does not prove it
by merely going into the witness
box and repeating that averment
on oath, or having it repeated
on oath by his witnesses. He
proves it by producing other
evidence of facts and
circumstances, from which the
court can be satisfied that what
he avers is true.”
In conclusion I will hold that
the Plaintiff has not proved his
claim against the Defendants,
and will dismiss the Plaintiff’s
claim in its entirety.
Costs assessed at GH¢2,500.00 in
favour of each Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
J.E. JAINNIE
- PLAINTIFF
KWASI BLAY
- 1ST
DEFENDANT
D.K. AMELEY
- 2ND
DEFENDANT.
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