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Contact -
Carriage of goods – Capacity -
Order 1 rule ( 2) - High
Court (Civil Procedure) rules –
Whether or not whether the High
Court Judge could go round the
settled judicial position by the
curious amendment of the title
by the court so motu
HEADNOTES
On14 July 2008, an entity that
goes by the name Khawaja
Brothers Co Ltd purchased, so
the plaintiff alleged, purchased
one thousand bags of sugar from
a company in Accra that was to
be consigned to Kumasi. The
purchaser initially approached
the plaintiff, an employee of a
haulage company to undertake the
contract of carriage but as they
had no vehicles available, the
plaintiff arranged a vehicle
belonging to the defendants to
undertake the contract of
carriage. According to the
plaintiff, the terms of the
carriage were agreed upon
between the driver of the
vehicle and the owner of the
goods but unfortunately, the
vehicle never discharged the
goods at the agreed destination
and all efforts to retrieve the
goods failed, hence the action
herein. The defendants
strenuously contested the action
by denying that there was any
capacity in the plaintiff and
also averred on the merits that
by the practice prevailing in
contract of carriage of goods,
they were unanswerable for the
loss. On these facts, the
plaintiff obtained judgment in
the High Court, Kumasi. An
appeal therefrom to the Court of
Appeal by the defendants
resulted in a reversal of the
decision of the trial court from
which the plaintiff lodged an
appeal to us seeking a judicial
correction.
HELD
If we are right in coming to
this conclusion then the issue
of capacity raised by the
defendants was unanswerable and
accordingly the amendment having
been made wrongly, the case of
the plaintiff was thereby
ruptured and there was nothing
that could be called in its aid
with the result that it failed.
;’The above reasons are
sufficient in our opinion to
dispose of the appeal herein and
we proceed to dismiss same
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) rules, 2004
(CI 47).
CASES
REFERRED TO IN JUDGMENT
Ghana Rubber
Estates Ltd v Criterion
[1984-86] 2 GLR 56,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
JAMES
MARSHALL BELIEB ESQ. FOR THE
PLAINTIFF /RESPONDENT/
APPELLANT.
MICHAEL GYANG
OWUSU ESQ. FOR THE
DEFENDANT/APPLLANT/ RESPONDENT.
________________________________________________________________
GBADEGBE JSC:
On14 July 2008, an entity that
goes by the name Khawaja
Brothers Co Ltd purchased, so
the plaintiff alleged, purchased
one thousand bags of sugar from
a company in Accra that was to
be consigned to Kumasi. The
purchaser initially approached
the plaintiff, an employee of a
haulage company to undertake the
contract of carriage but as they
had no vehicles available, the
plaintiff arranged a vehicle
belonging to the defendants to
undertake the contract of
carriage. According to the
plaintiff, the terms of the
carriage were agreed upon
between the driver of the
vehicle and the owner of the
goods but unfortunately, the
vehicle never discharged the
goods at the agreed destination
and all efforts to retrieve the
goods failed, hence the action
herein. The defendants
strenuously contested the action
by denying that there was any
capacity in the plaintiff and
also averred on the merits that
by the practice prevailing in
contract of carriage of goods,
they were unanswerable for the
loss.
On these facts, the plaintiff
obtained judgment in the High
Court, Kumasi. An appeal
therefrom to the Court of Appeal
by the defendants resulted in a
reversal of the decision of the
trial court from which the
plaintiff lodged an appeal to us
seeking a judicial correction.
Although the submissions
contained in the written briefs
submitted to us by the parties
are considerable, the point for
our decision today is an
extremely short one and although
we have had the assistance of
detailed arguments ranging over
several pages, we hope we should
not be thought disrespectful to
those submissions if we find it
possible to express our views in
comparatively few words.
In our view, a careful
consideration of the record of
appeal and the submissions filed
before us by the parties
discloses that the question that
we have to decide having regard
to the pleadings and the
evidence adduced at the trial is
whether the plaintiff had the
requisite capacity to mount an
action that was based on the
breach of a contract of carriage
to which he was not a party.
From the processes, it is quite
plain that as the plaintiff did
not claim to be either a party
to the contract of carriage or
had the interest of the owner of
the goods assigned to him, he
did not have the slightest
interest. So stated, the
principle on which this case
turns, privity of contract being
of ancient origin has long been
settled without any conflict of
authority and requires no
reference to decided cases to
sustain it. Accordingly on the
proven facts, the decision of
the learned trial judge that
purported on the facts of this
case to amend the title of the
suit in the course of his
judgment to enable the capacity
of the plaintiff to read
“Nassiru Abdulai Banda (Agent)
suing on behalf of himself and
Khawaja Brothers Co Ltd” was
without authority and must be
avoided.
It is interesting to observe
that although the learned trial
judge agreed with the principle
enunciated by the Court of
Appeal in the case of Ghana
Rubber Estates Ltd v Criterion
[1984-86] 2 GLR 56, which was
binding on him to the effect
that no agent could maintain an
action in his own name whether
the principal was named or
unnamed, he thought that he
could go round the settled
judicial position by the curious
amendment of the title by the
court so motu, but that course
of procedure on the facts was
not open to him as the case of
the plaintiff was thereby
changed. In this respect, we
observe straightaway that the
learned justices of the Court of
Appeal were right when they came
to the position that on the
evidence placed before the trial
court, the plaintiff throughout
the case was the agent of
Zimbabwe Transport Company
Limited and never established
that he was the agent of the
owners such as to have enabled
the learned trial judge to
purport to amend the title for
the purposes of enabling the
real issues in controversy
between the parties to be
determined. The amendment, we
hasten to say had the effect of
overreaching the defendant in
view of the objection that they
had taken to the capacity of the
plaintiff, which point required
to be ruled upon in the
judgment. What transpired in the
course of the judgment in
relation to the amendment by the
learned trial judge of the
plaintiff’s capacity that was
under challenge judge cannot be
justified either under Order 1
rule 2 or Order 16 rule 7 of the
High Court (Civil Procedure
Rules) CI 47. The learned
justices of the Court of Appeal
in our thinking were on firm
ground in observing at page 231
of the record of appeal in
regard to the said amendment
thus:
“But in so doing, the learned
trial judge said that he was
doing so in order to avoid a
multiplicity of suits. This
apparently was in reference to
the mandate given to trial
judges and many decided cases
and distilled into a statutory
obligation in Order 1 rule (
2) of the High Court (Civil
Procedure) rules, 2004 (CI 47).
But as stated earlier, the issue
of capacity is so fundamental to
justice that it cannot be
sacrificed on the altar of
expediency or for the sake of
avoiding multiplicity of suits.
As pointed out by learned
counsel for the appellant the
issue of capacity was one of the
issues on which the case was
fought. The appellant maintained
all along that the respondent
did not have the capacity to
institute the action………….
Indeed, his counsel maintains
that the respondent entered into
the contract on his own steam.
It was therefore palpably wrong
for the learned trial judge to
belatedly clothe the respondent
with the capacity to sue on the
basis that he wanted to avoid a
multiplicity of suits. By so
doing, the trial judge was
unwittingly allowing the
respondent to get away with the
legal requirement that whoever
institutes an action in a
representative capacity has the
burden to discharge, i.e. prove
that at the time when he
instituted the action he was
clothed with capacity so to do.”
If we are right in coming to
this conclusion then the issue
of capacity raised by the
defendants was unanswerable and
accordingly the amendment having
been made wrongly, the case of
the plaintiff was thereby
ruptured and there was nothing
that could be called in its aid
with the result that it failed.
The above reasons are sufficient
in our opinion to dispose of the
appeal herein and we proceed to
dismiss same.
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
JAMES
MARSHALL BELIEB ESQ. FOR THE
PLAINTIFF /RESPONDENT/
APPELLANT.
MICHAEL GYANG
OWUSU ESQ. FOR THE DEFENDANT/APPLLANT/
RESPONDENT. |
