Contract - Agreement -
Termination -
Bailment
- Carriage of Goods - Whether
defendant breached the duty of
care under the haulage contract
- Whether plaintiff was not
responsible for the five
consignments for which his
driver did not sign the delivery
notes - Whether it is the
essence of a bailment that goods
are delivered by the bailor to
the bailee -
HEADNOTES
The Plaintiff entered into a
written haulage agreement with
the Defendant on 1st day
of January, 1996 and was
scheduled to terminate on 31st December,
1996, Under the agreement, the
Plaintiff was to transport
petroleum products belonging to
the Defendant from Tema Oil
Refinery (TOR) to their customer
called Sonitra at Yawkwei, near
Konongo on the Accra-Kumasi
Road, The haulage relationship
between the parties continued
without a formal renewal after
the one year duration. In short,
the parties continued to conduct
business under the same terms
and conditions, the defendant
introduced a Fleet
Rationalisation Scheme (FRS)
whereby companies or persons
operating hauling business with
the defendant with fewer than
ten vehicles were to operate
under bigger companies with ten
or more vehicles Pursuant
to the FRS, the plaintiff’s
vehicles were placed under the
control and management of Benko
Limited, the Plaintiff operated
under Benko Ltd. and therefore
he received his payments from
Benko Ltd and not directly from
the defendant. the Plaintiff's
truck was loaded with petroleum
products but none was delivered
to the designated consignee, The
defendant surcharged the
plaintiff via Benko Ltd, The
plaintiff believed that he was
not responsible for the five
consignments for which his
driver did not sign the delivery
notes. Hence Plaintiff issued a
Writ of Summons against the
Defendant -
HELD :-
From the foregoing, it is
apparent that the Plaintiff’s
truck was loaded with all six
consignments though plaintiff’s
driver did not sign five out of
the six delivery notes. The
plaintiff failed to lead
evidence to establish any fault
on the part of the defendant,
and no evidence was forthcoming
that any other person than his
driver took charge of the truck
at all material times. The
plaintiff also failed to rebut
the defendant’s claim that there
was no contract between them.
The appeal therefore fails and
the decision of the Court of
Appeal is hereby affirmed.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Fynn v. Fynn & Osei [2013-2014]
1 SCGLR 726;
Mensah v. Mensah [2012] 1 SCGLR
391;
Musah v. Musah [2011] 2 SCGLR
459
Fabrina Ltd v. Shell Ghana Ltd
[2011] 1 SCGLR 429
Gregory v. Tandoh IV & Hanson
[2010] SCGLR 971;
Obeng v. Assemblies of God
Church, Ghana [2010] SCGLR 300
Ntiri v.Essien [2001-2002] SCGLR
459;
Achoro v. Akanfela [1996-97]
SCGLR 209.
McCutcheon v. David Macbrayne
Ltd. (1964) 1 All ER 430;
Henry Kendall & Sons v. William
Lillico & Sons Ltd (1969) 2 AC
31;
Vacwell Engineering Co. Ltd. v.
B.D.H. Chemicals Ltd. (1971) 1
QB 88;
Circle Freight International v.
Mideast Gulf Exports (1988) 2
Lloyd’s Rep. 427.
In Re Presidential Election
Petition; Akuffo-Addo & 2 Others
(No. 4) v. Mahama and 2 Others
(No. 4) (2013) SCGLR (Special
Edition) 73
In re N (A Minor) (1972) I WLR
596,
Majolagbe v. Larbi (1959)
G.L.R. 190
Plymouth Corporation v. Hurrel
(1968)1 QB 455 CA
Gautret v. Egerton, Jones v.
Egerton (1867)
L.R. 2 C.P. 371; 15 W.R. 638
Edward Nasser & Co. Ltd. v.
McVroom & Another (1996-97)
SCGLR 468;
Amuzu v. Oklikah (1998-99) SCGLR
141;
Apeah and Another v. Asamoah
(2003-2004) 1 SCGLR 226.
S.S. Pleiades & Page v.S.S. Jane
& Lesser (1891) A.C.
259;
65 L.T. 169; 60 L.J.P.C. 59,
Allassan Kotokoli v. Moro Hausa
(1967) GLR 298
Contracts Act, 1960, (Act 25)
section 5(1)
BOOKS REFERRED TO IN JUDGMENT
Black’s
Law Dictionary, 9th edition,
edited by Bryan A. Garner
DELIVERING THE LEADING JUDGMENT
BENIN, JSC :-
COUNSEL.
JAMES AHENKORAH FOR THE
PLAINTIFF/APPELLANT/ APPELLANT
VICTORIA BARTH (MRS) FOR THE
DEFENDANT /RESPONDENT/
RESPONDENT
ннннннннннннннннннннннннннннннннннннн
JUDGMENT
BENIN, JSC
:-
This is an appeal from the
unanimous decision of the Court
of Appeal dated the 19th
day of January, 2012. Oppong
Banahene, the
Plaintiff/Appellant/Appellant is
hereinafter referred to as the
Plaintiff and Shell (Ghana) Ltd.
which is the Defendant/
Respondent/ Respondent is
hereinafter referred to as the
Defendant.
THE FACTS
The Plaintiff entered into a
written haulage agreement with
the Defendant on the 13th
day of May 1996. The agreement,
however, was said to have
commenced on the 1st
day of January, 1996 and was
scheduled to terminate on 31st
December, 1996; it was for one
year certain. Under the
agreement, the Plaintiff was to
transport petroleum products
belonging to the Defendant from
Tema Oil Refinery (TOR) to their
customer called Sonitra at
Yawkwei, near Konongo on the
Accra-Kumasi Road. A copy of
that agreement was put in
evidence as exhibit A.
The haulage relationship between
the parties continued without a
formal renewal after the one
year duration. In short, the
parties continued to conduct
business under the same terms
and conditions as contained in
exhibit A. This business
arrangement continued until late
1998. To be precise, in
November, 1998 the defendant
introduced a Fleet
Rationalisation Scheme (FRS)
whereby companies or persons
operating hauling business with
the defendant with fewer than
ten vehicles were to operate
under bigger companies with ten
or more vehicles. The Plaintiff
had two trucks which were
Mercedes Benz with registration
number GT 4408 E and Man
Diesel with registration number
GR 7805 F. He therefore
fell under persons with fewer
trucks. Consequently, if he was
to continue in business with the
defendant, he was bound to place
his two trucks under one of the
bigger operating companies.
Pursuant to the FRS, the
plaintiff’s vehicles were placed
under the control and management
of Benko Limited. There was some
disagreement as to who actually
placed the plaintiff’s trucks
under the aegis of Benko Ltd
which was a bigger company
within the terms of the new
scheme. But that
misunderstanding was uncalled
for because the evidence was
clear that the plaintiff did not
qualify under the FRS and being
desirous to continue working
with the defendant, he accepted
to work under Benko Ltd. and had
no problem with that.
A written agreement was executed
between the defendant and Benko
Ltd. to which the plaintiff was
not a party; that agreement took
effect from January 1999 and was
renewed from time to time on the
same terms and conditions.
Thenceforth, the Plaintiff
operated under Benko Ltd. and
therefore he received his
payments from Benko Ltd and not
directly from the defendant. In
effect the defendant had no
direct dealing with the
plaintiff as from January, 1999.
The plaintiff, however, retained
ownership of his two trucks and
employed his own drivers.
On the following dates: 1st
October 2003; 6th, 19th
and 30th January 2004
respectively; 12th as
well as 20th February
2004, the Plaintiff's Mercedes
Benz truck was loaded with
petroleum products but none was
delivered to the designated
consignee, Sonitra. Of all the
six loads only the one on 30th
January, 2004 bears the
signature of the Plaintiff's
driver, Emmanuel Lawerter. The
defendant surcharged the
plaintiff via Benko Ltd. with
the total cost of the six loads
amounting to ₵621,900,180.00
(now GH₵62,190.18), from the
earnings of his plaintiff’s two
trucks placed in Benko Ltd’s
pool, at a monthly deduction
rate of ₵50,000,000.00, (now
GH₵50,000.00), after Benko
Limited had approved of the said
deductions. The plaintiff also
wrote to the defendant approving
of the deductions pending police
investigations into the
diversions. But that approval
was otiose because the defendant
required only the authorisation
of Benko Ltd. as the contracting
party.
The plaintiff believed that he
was not responsible for the five
consignments for which his
driver did not sign the delivery
notes. Hence on the 12th
day of November, 2004, Plaintiff
issued a Writ of Summons against
the Defendant claiming the
following reliefs:
(i) Account of all freight
earned by the plaintiff since
March 2004 under the bulk
petroleum haulage agreement with
the defendant under which the
plaintiff uses his two
articulated tanker trucks,
Mercedes Benz No. GT 4408 F and
Man Diesel No. GR 7805 F, to
convey the defendant's bulk
petroleum products from the Tema
Oil Refinery for redelivery to
Sonitra at Yawkwei near Konongo
and all deductions made from the
said freight earnings by the
defendant to pay the cost of six
consignments or the products
which were loaded by the
defendant into the Mercedes Benz
truck No. GT 4408 F between
1st October 2003, and
20th February 2004
but which were diverted and not
so delivered to Sonitra.
“(ii) Refund of the deductions
in excess of the value of one of
the six consignments loaded into
the said truck on 30th
January 2004 per delivery note
No. 70188844 and invoice No.
70127021 for which the
plaintiff's authorised driver
Emmanuel Lawarter signed the
delivery note.
“(iii) Interest on the said
excess deductions at the
prevailing bank rate from the
date of the deductions up to the
date of judgment.
The Plaintiff’s case as placed
before the trial court was that
though his vehicles were placed
under Benko Ltd, he did not
cease to be the owner thereof.
Plaintiff also claimed that it
was the practice of their
business arrangement that the
driver of the truck who is to
deliver the load must be given a
delivery note and which he must
sign. Of all the six
consignments, it was only the
load diverted on the 30th
of January 2004 that the
Plaintiff accepts responsibility
for because it was only that
load his driver signed the
delivery note. For the
plaintiff, it is the essence of
a bailment that goods are
delivered by the bailor to the
bailee so that in the case of
carriage of goods, the goods
must be delivered to the
carrier. Since his authorized
driver did not sign the delivery
note, the loads were not
delivered to him and therefore
he is not liable to pay for the
five consignments that the
driver did not sign for.
It was also the plaintiff’s case
that under the agreement he had
to submit to the defendant a
qualified driver who would be
trained by the defendant. The
driver is assigned a specific
vehicle and apart from this
driver, no other person is
authorised to drive the vehicle.
According to the plaintiff it
was the duty of the defendant to
check the identity of the person
authorized to drive that vehicle
whenever loaded with products
and in this case, the defendant
had to ensure that only Emmanuel
Lawerter was allowed to bring
the vehicle to the depot to be
loaded and drive it away from
the depot. If the defendant
failed to detect the person who
impersonated Lawerter as the
driver of that vehicle and
allowed that person to load the
truck with the five
consignments, drive it away and
divert the products then it
failed to discharge its duty
with due care and attention. The
defendant therefore breached the
duty of care under the haulage
contract and any loss caused
should be placed at the door of
the defendant and not the
plaintiff. It follows that the
plaintiff cannot be surcharged,
consequently the deductions were
wrongful.
The defendant on its part denied
having any contract with the
Plaintiff. The defendant argued
that it had a contract with
Benko Ltd. only because the FRS
ended their relationship with
the plaintiff. It was Benko Ltd.
that warranted that they owned
the trucks and gave approval for
the deductions.
The learned trial Judge found as
a fact that the defendant knew
that the trucks of the plaintiff
operated under Benko Ltd. after
the FRS for business convenience
of the defendant and exigencies
of the haulage business as
determined by the defendant. The
evidence, however, did not
disclose any contract between
the plaintiff and the defendant,
indeed there was none after the
FRS; the only contract as from
January 1999 was between the
defendant and Benko Ltd.
Again, the trial court held the
view that "the vehicle with
which the products were
diverted was at all material
times under the control of the
plaintiff's driver. The
plaintiff's driver held the keys
to the vehicle. The truck could
be driven by engaging the keys
which the plaintiff's driver
kept exclusively. In all
probabilities, the plaintiff's
driver who had custody of the
vehicle's keys was the one who
drove the vehicle with the
consignments in issue and should
be held responsible for the
diversion"
The learned trial Judge held
that the deduction of ₵50
million per month agreed to by
Benko Ltd. was in order,
therefore the plaintiff was not
entitled to his reliefs.
Consequently in its judgment
dated the 29th day of
June, 2009 the trial court
dismissed the plaintiff's
action.
The plaintiff was not satisfied
with the judgment of the High
Court, so he appealed against it
to the Court of Appeal on these
grounds:
“ (i) The judgment is against
the weight of evidence.
(i) The judgment is wrong
because it was based on
irrelevant matters and not on
matters relevant to the case
before him.”
The Plaintiff's argument before
the Court of Appeal was that the
case is one that falls within
the law of carriage of goods
which is a branch of the law of
bailment. For Plaintiff to be
liable, the products must be
bailed with him through his
driver. According to Counsel for
Plaintiff, bailment of the
products would arise when they
were put onto the vehicle and
its owner becomes a bailee of
the products if they were
delivered to a person he had
authorised to drive the vehicle
on each occasion by signing the
delivery note. Counsel's
contention therefore is that
since the Plaintiff's authorised
driver did not sign for five of
the six consignments the
Plaintiff is not liable because
he did not become the bailee of
the products.
Counsel also contended that the
learned trial High Court Judge
in determining the issue took
into account irrelevant matters
which, inter alia, were
questions raised by the learned
trial Judge regarding the person
who kept the keys to, and
exercised control over, the
Plaintiff's vehicle.
Defendants on their part quoted
from Halsbury's Laws of
England, 4th
Edition, Vol. 2 paragraph 1801
at page 830 on the definition of
bailment and added that the
learned trial Judge was
satisfied that all the elements
of bailment were present.
Counsel for defendant contended
that: "it is the requirement of
the contract that the driver
should acknowledge receipt by
signing the delivery note that
constitutes bailment.
Admittedly, if the driver had
signed the delivery note that
would have been clear evidence
of the delivery and possession.
His failure to sign the delivery
note cannot negate bailment
especially where, in the
circumstances of this case,
there is other material before
the court in the form of
admission by the plaintiff in
his pleadings that the
defendant's products were loaded
into his vehicle for delivery at
Yawkwei which clearly shows
delivery and possession."
It was the case of the defendant
that the appeal should be
dismissed for the reason that
the Plaintiff was a bailee of
the products and submitted that
the plaintiff was responsible
for making good the loss
incurred by the defendant.
The Court of Appeal in its
judgment pointed out the
dichotomy between "issuance of
delivery notes" and "signing of
the delivery notes". The Court,
per Aduama Osei JA, stated that:
"to say therefore that a
delivery note was not signed is
not the same as saying that the
delivery note was not issued.
Since the Plaintiff does not
plead that in the present case
the delivery notes were not
issued the inference of what I
draw from what has been pleaded
is that the usual practice
prevailed and the delivery notes
were issued but were not signed
by the Plaintiff's driver."
The Court of Appeal also held,
again per Aduama Osei JA, that
"if the Plaintiff's vehicle has
been loaded and his driver has
been issued with a delivery
note, then there has been
delivery in fact. The failure of
the driver to sign the delivery
notes does not negate what has
in fact taken place." For his
part, Ofoe JA took the position
that under the express terms of
the contract between the parties
herein-exhibit A-as well as the
various contracts between the
defendant and Benko Ltd,
delivery took place when the
defendant loaded the truck with
products, and so he concluded it
was not the driver’s signature
that constituted delivery.
On the issue of the learned
trial High Court Judge taking
into account irrelevant matters,
the Court of Appeal was of the
view that the trial Judge did
not ponder over irrelevancies.
The Court of Appeal concluded
that the Plaintiff was liable
for the diversion and the trial
Court was justified in denying
him the reliefs he claimed in
this suit. The Court therefore
dismissed the appeal and
affirmed the trial Court's
judgment.
It is from the judgment of the
Court of Appeal delivered on the
19th day of January,
2012 that the plaintiff has
appealed to this Court. The
grounds of appeal filed on 26th
January, 2012 are:-
(i) The Court of Appeal
misdirected itself in failing to
appreciate that the delivery
note issued in respect of every
consignment put on board the
plaintiff's vehicle when signed
by the plaintiff's agent, his
authorised driver, performs the
same receipt function which a
bill of lading performs, when
signed by the master of a ship
in respect of goods put on board
the ship.
(ii) The Court of Appeal
misdirected itself in law by
thinking that whenever the
Defendant puts a consignment on
board the plaintiff's vehicle it
ipso facto rendered the
plaintiff liable to pay for the
consignment if undelivered to
the consignee.
(iii) The Court of Appeal erred
in failing to appreciate the
legal significance of the course
of business which required that,
apart from every other security
check in respect of every
consignment put on board the
plaintiff's vehicle the
accompanying delivery note must
be signed by the plaintiff's
authorised driver to signify
that the driver had received the
consignment on board.
(iv) The Court of Appeal erred
in law in not appreciating that
owing to the course of business
that existed between the two it
was the duty of the Defendant to
ensure that a delivery note is
issued in respect of each
consignment it put on board the
plaintiff's vehicle was signed
by the plaintiff's authorized
driver as his agent and that it
was negligent on the part of the
Defendant to allow the vehicle
to leave its yard with the five
consignments on board when the
authorized driver was not the
one who signed the delivery
notes accompanying them before
the vehicle left the yard.
(v) The Court of Appeal erred in
failing to appreciate that the
plaintiff's authorised driver
would be acting outside the
scope of his authority or
employment with the plaintiff
any time he drove the
plaintiff's vehicle with
consignment on board out of the
Defendant's yard without the
delivery note.
Additional ground of appeal
filed by the plaintiff was that:
Having regard to the peculiar
defence the defendant put up in
its statement of defence to the
plaintiff's actions, the trial
court and the Court of Appeal
were wrong in dismissing the
action after the trial court had
made findings of fact that the
Mercedes Benz and Man Diesel
trucks belonged to the plaintiff
which he used in carrying the
petroleum products under an
agreement with the defendant.
CONSIDERATION OF GROUNDS OF
APPEAL
The crux of plaintiff’s argument
to the Supreme Court is that his
authorized driver did not sign
the delivery notes so he is not
liable. The defendant maintained
that they had no contract with
the plaintiff. Indeed the
present arguments are not
materially different from those
before the High Court and the
Court of Appeal. In view of this
we will treat all the grounds of
appeal together, but
additionally grounds (iv), (v)
and the additional ground will
each be addressed in some
detail.
This appeal is against the
concurrent findings of fact and
conclusion of the Court of
Appeal and the High Court. The
Supreme Court has, in a number
of cases, given the criteria for
allowing an appeal against the
concurrent findings of fact and
conclusions of the lower courts
that had dealt with the case.
The Supreme Court has held that
as a second appellate court it
will not ordinarily interfere
with findings of fact made by a
trial court and confirmed on
appeal by an appellate court; it
will intervene only in some
circumstances and situations,
the categories of which are not
closed. So the intervention in
each case will depend on its
peculiar facts. See the
following cases: (1) Fynn v.
Fynn & Osei [2013-2014] 1
SCGLR 726; (2) Mensah v. Mensah
[2012] 1 SCGLR 391; (3) Musah v.
Musah [2011] 2 SCGLR 459; (4.)
Fabrina Ltd v. Shell Ghana Ltd
[2011] 1 SCGLR 429; (5) Gregory
v. Tandoh IV & Hanson [2010]
SCGLR 971; (6) Obeng v.
Assemblies of God Church, Ghana
[2010] SCGLR 300; (7) Ntiri
v.Essien [2001-2002] SCGLR 459;
(8) Achoro v. Akanfela [1996-97]
SCGLR 209.
According to the
Black’s Law Dictionary, 9th
edition, edited by Bryan A.
Garner, at page 162 bailment has
been defined as “a delivery
of personal property by one
person (the bailor) to another
(the bailee) who holds the
property for a certain purpose
under an express or
implied-in-fact contract”
In law, in order for bailment to
exist, the bailee must have both
the intent to possess the
property, and actual possession
of the property. The bailor
intends that the property will
be returned to him at the end of
a specified period of time, or
after the purpose for which the
property was given has been
accomplished. It does not
necessarily arise from an
express contract.
In this case the bailment arose
any time the defendant loaded
products on the plaintiff’s
truck and it ended upon the
products being offloaded at
Yawkwei to Sonitra as the
consignee appointed by the
defendant. And as long as the
products remained undelivered to
Sonitra, the carrier was
responsible for it.
It was not disputed that all the
six consignments were in fact
put on board the Mercedes Benz
truck number GT 4408 F. The
plaintiff asserted this fact in
paragraph 5 of his statement of
claim wherein he pleaded that:
"On the following dates, that is
1st October 2003, 6th
January 2004, 19th
January 2004, 30th
January 2004, 12th
February 2004 and 20th
February 2004 the Mercedes Benz
truck was loaded at the Tema Oil
Refinery by the defendant with
petroleum products to be
delivered at Yawkwei to Sonitra
but the products were diverted
and never delivered there or at
any other place to Sonitra."
In his evidence-in-chief the
plaintiff testified on this
matter as follows:
”I rely on paragraph 5 of the
statement of claim. The products
collected as stated in the
paragraph were not in fact
delivered. Invoices and waybills
were prepared on each of the
dates referred to in the
paragraph. On all those dates,
Emmanuel Lawartey was my
driver.”
Despite these clear admissions,
the Plaintiff’s contention is
that, as long as his driver,
Emmanuel Lawarter did not sign
the delivery notes, the
consignments were not delivered.
He argued that it was a practice
of the parties that the driver
should sign the delivery notes.
At this point it is necessary to
consider the nature of the
agreement between the defendant
and Benko Ltd. which enabled the
plaintiff’s trucks to be used to
cart petroleum products for the
defendant. Three of such
agreements were put in evidence
but even a cursory look at them
would show that the contents
were the same except the dates
and vehicle details.
It must be noted here that in
all the series of Agreements
entered into between the
defendant and Benko Ltd it is
stated that after every vehicle
was loaded, there shall be given
to the driver a delivery note,
without specifically providing
for signature. For instance it
is provided in article 2(b) of
exhibit 4 that:
"The Company shall provide the
Contractor or the driver of the
vehicle with delivery tickets,
invoices or other necessary
documents for the delivery of
products and Contractor shall
deliver products only in
accordance with such delivery
tickets, invoices or other
documents. Contactor shall be
responsible for the safekeeping
and proper handling of all such
documents."
The plaintiff does not allege
that his driver was not given
the said delivery notes. In fact
the plaintiff himself swore to
an affidavit in support of a
summons and attached all the six
delivery notes; these were
marked as Exhibits OB.1 - OB.6.
The following extracts from the
cross examination of the
plaintiff by counsel for the
defendant is relevant:
"Q On 17/12/04 you swore to
an affidavit in support of a
summons for an order for
accounts.
A. Yes
Q. Kindly look at this document.
Is that your application and
affidavit attached?
A. Yes
Q You noticed that there are
several exhibits attached to
that affidavit, is that correct?
A Yes
Q I believe the Exhibits number
OB.1 - OB.6. What are Exhibits
OB.1 to OB.6?
A They are delivery notes of
products.
Q When is OB.1 dated?
A 1/10/03
Q Does OB.1 name the
Carrier? Does it have the name
of the Carrier on it?
A Yes
Q Who is the carrier?
A Benco Ltd.
Q Does it identify the
vehicle?
A Yes
Q What is the number of the
vehicle?
A GT 4408 F
Q I believe that is the
Mercedes Benz Truck; right
A Yes
Q Does it identify the
driver of the vehicle?
A Yes
Q What is the name of that
driver?
A Emmanuel Larwatey
Q And as you said that
delivery note is from Shell.
A Yes
Q Who was the product to be
delivered to?
A Sonitra
Q. Look at OB. 2 and tell us
when it is dated.
A 6/1/04
NB. Counsel applies to tender
the summons and affidavits in
evidence through plaintiff. No
objection by counsel for
plaintiff. Admitted and marked
Exhibits 1, 1(a) - 1(f)
Q Exhibits 1(a) - 1(f) relate
to GT 4408; is that (sic).
A Yes
Q In all of them the carrier
is Benco Ltd. Is that correct?
A. Yes
Q In all of them the driver
is Emmanuel Larwartey
A Yes, Emmanuel Larwetey
Q And in all of them the
consignee is Sonitra is that
correct?
A Yes"
It is therefore clear from the
exhibits that OB.1 and 1(A) are
the delivery notes issued on 1st
October 2003, OB.2 and 1(B) are
the delivery notes issued on 6th
January 2004, OB.3 and 1(C) are
delivery notes issued on 19th
January 2004, OB.4 and 1(D) are
delivery notes issued on 30th
January 2004, OB.5 and 1(E) are
delivery notes issued on 12th
February 2004 and OB.6 and 1(F)
are delivery notes issued on 20th
February 2004.
It is noted that Emmanuel
Lawartey's name appears on each
of the six delivery notes. It is
therefore undisputed that
Lawartey took possession of all
the six consignments. At any
rate there is no other evidence
that apart from Emmanuel
Lawertey any other driver took
the truck there to be loaded. In
effect the presumption that
Emmanuel Lawertey was the driver
at all material times has not
been rebutted; indeed the
plaintiff admitted it in his own
testimony as quoted above.
Consequently, the issue that
remains to be resolved is
whether the absence of the
driver's signature on five of
the six delivery notes in
respect of the consignments
absolves the carrier Benko Ltd
and by extension the plaintiff
from responsibility for the
diverted cargo.
As earlier pointed out, the
agreement does not specifically
state that the driver should
sign the delivery note as issued
by the defendant. But the
plaintiff pleaded that the
practice that has been accepted
by the parties is that the
driver should sign. The
defendant did not specifically
deny or admit this averment. But
there was a general traverse
which was sufficient to put the
matter in issue.
It is clear from all the
delivery notes put in evidence,
namely exhibits OB1 through OB6
that there was a portion for the
carrier’s signature. At the
hearing the defendant did not
deny that it was a practice that
the carrier or his authorized
agent who is his driver should
sign each delivery note. As
stated by the learned author
Goode in his book titled
Commercial Law, 4th
edition at page 97: “Where
parties have consistently
contracted on certain terms, so
that it may reasonably be
assumed that the transaction
under consideration was intended
to be governed by the same
terms, the court will usually be
willing to find that the terms
apply, even if not expressly
adopted in relation to the
transaction.” See these
cases: McCutcheon v. David
Macbrayne Ltd. (1964) 1 All ER
430; Henry Kendall & Sons v.
William Lillico & Sons Ltd
(1969) 2 AC 31; Vacwell
Engineering Co. Ltd. v. B.D.H.
Chemicals Ltd. (1971) 1 QB 88;
Circle Freight International v.
Mideast Gulf Exports (1988) 2
Lloyd’s Rep. 427.
From the foregoing, it is
correct that it was the practice
of the parties in the carriage
business between the defendant
and Benko Ltd that the carrier
should sign the delivery note,
but it was never intended to
replace article 10 of the
contract. What then was the
effect on the bailment if the
carrier or his agent failed to
sign the delivery note? This is
the meat of this matter which
has inexplicably lasted several
years in the court system.
Let us examine the specific
terms of the contract to find
out when delivery to the carrier
is deemed to have taken place.
The plaintiff contends that
delivery takes place when and
only when his agent, being his
driver, has signed the delivery
note. The defendant contends
that delivery takes place when
it has loaded the products on
board the truck and issued a
delivery note to the driver. In
this regard we shall make
reference to the earlier
agreement between the parties
herein, exhibit A, as well as
the subsequent agreements
between the defendant and Benko
Ltd. in order to discover what
the parties actually intended
should constitute delivery. The
relevant provisions of these
contracts are the following:
Article 4 of exhibit A is headed
‘DELIVERY’ and it states in
clause 4.1 that: Delivery of
products shall be deemed to take
place upon loading into the
Contractor’s vehicle. Risk and
property in the products shall
pass to the Contractor and
remain with the Contractor until
re-delivery of the product to
the designated consignee.
Re-delivery shall be deemed to
take place upon the Contractor
obtaining a signed Consignee
sign and Return invoice
confirming actual delivery of
the products therein stipulated.
Article 10(a) of exhibits 2, 3
and 4 provides that:
The Contractor shall be
responsible for the Products
once delivered into the vehicle
of the Contractor and shall be
liable to the Company for any
loss, damage or destruction of
products, whether due to
leakage, fire, theft, damage,
contamination, collision with
any object or from any cause
whatsoever excluding the sole
negligence of the Company…………..
From the provisions of the
contracts just quoted above, it
is clear the parties understood
and intended that delivery
should take place the moment the
supplier loaded the carrier’s
truck with their products.
Whatever happened thereafter was
the responsibility of the
carrier, unless the fault could
be attributed to only supplier,
the defendant herein.
But the parties did not agree
nor was it within their
contemplation that even if the
driver took the consignment but
failed to sign the delivery note
the carrier would not be
responsible. In effect it is not
their agreement or understanding
that the driver’s signature puts
finality to the whole agreement.
The driver remains the
plaintiff’s driver and agent, a
fact the plaintiff admits. Their
prime responsibility was to cart
petroleum products from Tema to
Yawkwei and deliver same to
Sonitra. The defendant’s core
responsibility is to pay for the
service when rendered. These are
the key terms of the contract.
Failure to sign the delivery
note becomes a factor if and
only if either party is
disputing that a particular
transaction has taken place; on
the part of the carrier, that
his truck was never loaded with
any particular consignment. But
that is not the situation on
hand where the plaintiff admits
his vehicle was loaded with all
six consignments on the six
occasions. He does not attribute
the diversion to the defendant,
and indeed he does not say that
the defendant was the cause of
the diversion or knew about it
or facilitated it. His driver
even diverted the one that he
signed for. And once the
products were taken by the
plaintiff’s approved driver and
on the vehicle designated for
that purpose, Benko Ltd. and by
extension the plaintiff was
fully answerable for the
diversion. The plaintiff’s
interpretation of the role to be
played by the signature has
elevated the practice to the
status of ‘sine qua non’ of the
contract which clearly was not
intended by the parties. The
practice cannot and does not
supersede the clear intent of
the parties as expressed in
article 10 of the contract
quoted above. Indeed actual
loading of goods to the driver
is paramount to the contract and
constitutes delivery within the
meaning of the contract and not
the signature, and that makes
more business sense.
On the facts before the court,
the plaintiff bore the burden to
lead evidence from which it
could be concluded that the
diversion of the product after
it had been loaded on his truck
was attributable to the
defendant. It is not sufficient
to say the plaintiff was not
responsible because the
practice, albeit an implied term
of the contract, was violated
when that violation could not be
attributed to the defendant.
There was no evidence before the
court that any other person than
the carrier’s driver took the
vehicle there to be loaded.
There is no evidence the
defendant knew that somebody
other than the plaintiff’s
driver had taken the vehicle
there to be loaded. That
explains why all the delivery
notes bore the same vehicle
number and the same driver’s
name. There has been no
explanation as to why five of
the six delivery notes bore
different signatures from that
of Lawartey; everything is being
left to conjecture. The only
person, Lawartey, who could have
assisted the court unravel the
mystery was not called to
testify and no acceptable
explanation for his absence was
proffered. The plaintiff was
obliged to explain why his
driver who he admits was in
charge of the vehicle at all
material times did not sign the
delivery notes. If somebody else
signed without his knowledge and
authorisation, why did he not
make a complaint to anybody
after the first diversion? The
fact that this continued on five
occasions without any complaint
leads to the irresistible
conclusion that the plaintiff’s
driver was involved in the
deals. At the end of the day,
the court is unable to determine
with certainty, on a balance of
probabilities, that the
defendant was culpable. The
plaintiff who assumed the burden
of producing evidence and of
persuasion would be adjudged to
have failed in the light of
sections 11(1) and 14 of the
Evidence Act, 1975 (N.R.C.D.
323).
EFFECT OF FAILURE TO SIGN
DOCUMENT
The issue of whether or not
failure to sign a document will
invalidate the document or
affect its validity or
effectiveness has received
judicial pronouncements in a
number of constitutional cases.
Even though the instant case is
one based on contract, the
principles enunciated in the
constitutional cases can be
applied.
One such case is In Re
Presidential Election Petition;
Akuffo-Addo & 2 Others (No. 4)
v. Mahama and 2 Others (No. 4)
(2013) SCGLR (Special Edition)
73, where it was noted that
even though the Constitution
1992 used the words “shall sign”
in article 49, the Supreme Court
per the majority decision held
that failure to sign the pink
sheets did not invalidate the
declared results. The presiding
officers who failed to sign did
not do so because of any wrong
doing; for example being
compelled not to sign or because
of any fraud or irregularity,
inter alia. As a matter of fact
no evidence was led to show that
failure to sign was as a result
of any wrong or influence from
someone.
It is noted that failure to sign
the delivery notes could be as a
result of an error. In re N
(A Minor) (1972) I WLR 596,
where one of the three justices
failed to sign the reasons for
the decision, Sir George
Baker P said at page 597:
In the present case the
justice’s reasons are signed by
two justices. We have been told
by Mr. Eady, who was present
before the justices, that in
fact three justices sat and that
it appears from a letter from
the justices’ clerk that the
justice who has not signed was
the chairman of the justices.
The inference which I would draw
from that is that the chairman
dissented from the view of the
other two justices. It is not
satisfactory that this court
should be left to draw that
inference, which may be wrong.
It may be that the failure to
sign is simply an administrative
error, or because the chairman
has been ill or abroad, or
something of that kind…”
In effect the court was left
conjecturing what might have
accounted for the failure to
sign the document. In the
instant case, the court is left
wondering why the signature on
the delivery notes is not that
of Lawartey even though he was
in charge of the truck at all
times. Was he the one who
authorized somebody else to sign
because he was busy or what? Or
did he intentionally place a
false signature on them in order
to conceal the deal? There are
numerous unanswered questions
because the key witness did not
testify on the material fact
which was capable of proof. thus
apart from sections 11 and 14 of
the Evidence Act, the principle
in Majolagbe v. Larbi (1959)
G.L.R. 190 is applicable to
deny the plaintiff’s claim for
lack of evidence. Thus there
must be certainty about the
reason for the lack of
signature, for the absence of a
signature should not be fatal to
the substance of an agreement if
it has in fact been executed by
either party in accord with the
terms of the contract.
In Plymouth Corporation v.
Hurrel (1968)1 QB 455 CA a
statute required the signature
of the town clerk in order to
render a notice issued under the
legislation the act of the local
authority. Salmon L. J.
commenting on the signature of a
town clerk on a notice to a
person in control of a house
under the authority of the local
council said this at pages
465-466: “Clearly the only
purpose of having the town
clerk’s signature upon the
notice is to provide some
evidence that it has been duly
authorised by the local
authority. The signature in
itself has no magic about it. It
would be absurd for the
legislature to provide for proof
that the notice had been given
or issued by the authority of
the local authority and yet
leave a signature upon it still
to be strictly proved. ”
From the statement of Salmon
L.J, the signature is just to
provide some evidence that the
notice was issued by the
appropriate officer, but the
validity of the notice did not
depend on the clerk’s signature,
if indeed a notice was issued.
Applying this principle to the
instant case, the driver’s
signature provides some form of
evidence that delivery to him
has been made. Hence, in
instances where he does not sign
but other evidence showed that
delivery was in fact made to him
in terms of the specific
provisions of the contract in
force, it would be unjust to
hold otherwise.
The reason for failure to sign a
document covering a transaction
must clearly exist and the
defendant must be found to have
induced it or at least
contributed to it for his
benefit, in order to establish
liability against him. It should
not be left to conjecture or
guess work as to what might have
prompted the failure to sign;
for it is not in every case of
lack of signature that renders
an agreement invalid in the
absence of clear agreement to
that effect. And even in those
cases where there has been a
failure to sign in clear breach
of an agreement, equity would
not allow the plaintiff to take
the benefit of the service
rendered under the terms of the
contract without paying for it,
albeit on a quantum meruit
basis. It would only entitle a
plaintiff to resile from the
rest of the agreement. For the
principle of unjust enrichment
would not allow a court of
equity to allow the plaintiff to
get away with the gains made by
his agent to the detriment of
the defendant.
DUTY OF CARE
In ground (iv) of the appeal,
the plaintiff is saying that the
defendant had the duty to ensure
that his driver signed the
delivery notes. And in his
earlier submissions, he said
defendant should have ensured
that no other driver than
plaintiff’s driver brought the
truck to the yard to be loaded,
sign the delivery notes, and
drive the truck away. In effect
he is raising negligence against
the defendant. This, with
respect to the plaintiff, is not
supported by the agreements and
evidence on record.
The plaintiff did not plead
negligence against the
defendant; he was required to
plead it specifically, and
indicate the nature of the duty
of care in what ways it was
breached. It was held in the
case of Gautret v. Egerton,
Jones v. Egerton (1867)
L.R. 2 C.P. 371; 15 W.R. 638,
that negligence should be
pleaded and the pleading should
contain the facts upon which the
supposed duty is founded and the
duty to the plaintiff with the
breach of which defendant is
charged. It is not enough to
show that defendant has been
guilty of negligence without
showing in what respect he was
negligent and how he became
bound to use care to prevent the
loss.
Order 11 Rule 8 of the High
Court (Civil Procedure) Rules,
2004, C.I. 47 requires inter
alia, that a party should plead
specifically any matter, both
factual and legal, which he
alleges makes the claim or
defence of the opposite party
not maintainable. Negligence is
one such matter that ought to be
raised on the pleadings to
enable the other party the
opportunity to react to it and
not to be taken by surprise.
But the plaintiff did not raise
this in his pleadings, not even
in his reply after the defendant
had denied the existence of any
agreement between them. But from
existing authorities and
statute, the court could
consider the question of duty of
care arising from negligence if
evidence to that effect was
adduced at the hearing without
objection. Reference is thus
made to the provisions of
sections 5 and 6 of the Evidence
Act, (1975) N.R.C.D. 323, which
enable a court to consider
evidence adduced at the trial
without objection. Moreover, in
cases where fraud was not
pleaded but the record disclosed
some evidence was led at the
hearing the court accepted and
relied on it to establish fraud.
See these cases: Edward
Nasser & Co. Ltd. v. McVroom &
Another (1996-97) SCGLR 468;
Amuzu v. Oklikah (1998-99) SCGLR
141; Apeah and Another v.
Asamoah (2003-2004) 1 SCGLR 226.
The principle deducible from
these cases is applicable to an
issue founded on negligence,
that even if it is not pleaded
but evidence is admitted on the
record without objection and the
evidence is not rendered
inadmissible on legal grounds,
the court cannot ignore it,
unless it will result in a
miscarriage of justice.
The position is not different
from what has obtained in
England. For instance in the
case of S.S. Pleiades & Page
v.S.S. Jane & Lesser (1891)
A.C. 259; 65 L.T. 169; 60
L.J.P.C. 59, it was held
that where negligence was not
raised on the pleadings and no
evidence of it was led by either
party at the hearing, it could
not be raised for the first time
at the final appellate court.
Thus for ground (iv) to hold,
there must be some evidence on
the record even in the absence
of a plea. Upon an examination
of the record, one does not find
any direct evidence alluding to
the alleged duty of care that is
the subject of this ground of
appeal. It appears it was an
inference drawn from the
evidence that since the vehicle
was driven to the defendant’s
yard to be loaded it was the
defendant’s duty to ensure that
the driver would sign the
delivery note.
A court is entitled to draw
inferences from accepted
evidence but in a civil case it
must reach the required standard
of proof on a balance of
probabilities. We would examine
it as there appears to be an
inference of negligence
deducible form the plaintiff’s
total presentation. So it is in
that light that the question of
duty of care founded in
negligence is being examined. In
the case of Allassan Kotokoli
v. Moro Hausa (1967) GLR 298
Edusei J. spelt out the three
elements of negligence namely:
duty, breach of that duty and
damage resulting from the
breach. These elements impose an
obligation on the plaintiff to
prove that the defendant owes
him a duty; that the defendant
has breached the duty and
thirdly, the breach must have
occasioned damage to the
plaintiff.
Looking at the practice which
the plaintiff complains of, it
is the driver who is supposed to
sign the delivery note. The
Plaintiff cannot therefore put
the duty on the defendant when
the latter had delivered the
note to the driver. Nonetheless,
it could be explained that it
was in the interest of the
defendant as well to ensure that
the plaintiff’s driver did sign
the delivery note if only to
avoid controversy and litigation
such as has engulfed the parties
herein. But for its part the
defendant is relieved from any
such duty in the face of
undisputed evidence that it
loaded the truck with the
products on all the dates in
question and issued the delivery
notes to the driver. In these
circumstances, no negligence is
attributable to the defendant
for the failure by the
plaintiff’s driver to sign the
delivery notes.
AGENCY
Turning next to ground (v) of
the appeal, supra, it borders on
agency. Under Agency
relationship, the Principal is
liable for the actions of his
agent within the scope of the
authority given to the Agent.
What has been in issue is the
signature of the driver. The
evidence on record shows that
Plaintiff's driver was given the
delivery notes. If the driver
leaves defendant's yard without
the delivery notes, it is the
negligence of the driver. The
driver is the Agent of the
plaintiff. The Plaintiff being
the principal is liable for the
actions of his agent in that
agency relationship. The failure
to sign does not constitute a
major departure from the task
given to the driver. The
driver’s key duty was to drive
the truck to the loading point
and ensure that it was loaded
and he was issued with a
delivery note and carry the
consignment to Sonitra at
Yawkwei. Once the truck leaves
the loading point, the defendant
has nothing to do with the truck
again until it has discharged
the product at its destination.
The carrier’s responsibility for
the driver and the vehicle
remain throughout and does not
shift to the defendant unless
there is evidence to the
contrary that the defendant did
not put the particular
consignment on board the truck.
Then the defendant would have to
satisfy the court that it did in
fact load the truck. The
plaintiff has accepted that the
defendant had discharged its
prime duty of giving the
plaintiff’s agent the
consignments against delivery
notes. The lack of signature, it
is stressed again, does not
derogate from the fact that the
driver took the consignments on
the Mercedes Benz truck on each
of the six occasions. It must
also be pointed out that even if
no delivery notes were issued,
the fact that the plaintiff had
admitted that his truck was
loaded with the products and
that his driver was at all
material times in charge of the
truck, it would be sufficient
proof of delivery to his driver.
And in the absence of any
evidence of any collusive fraud
against the defendant, the
plaintiff would be responsible
for his agent’s actions. The
carrier should therefore be
liable for the diversion of the
consignments.
NATURE OF CONTRACT
Finally reference is being made
to the Plaintiff’s additional
ground of appeal.
This ground is being discussed
in detail because the plaintiff
is still saying that he has a
separate agreement with the
defendant despite the FRS. This
claim is seriously contested by
the defendant who has maintained
throughout that it did not have
any contractual relationship
with the plaintiff and that they
had agreement with Benko Ltd,
per paragraphs 1 to 4 of their
statement of defence and also at
the hearing. Their case had
consistently been that after the
FRS, it had no contract with the
plaintiff so in effect the
plaintiff could not claim under
the contract between them
(defendant) and Benko Ltd.
In his reply, the plaintiff
admitted being aware of the FRS
but said it was merely an
administrative action by the
defendant. But he went on to
admit in paragraph 8 of the
reply that his vehicles went
under Benko Ltd. whilst he still
retained his ownership of the
vehicles. However, the plaintiff
maintained in his reply that
notwithstanding this
administrative arrangement, he
continued to operate with the
defendant under the terms of the
contract between them and that
is exhibit A. He emphatically
pleaded in paragraph 13 of his
reply that: ’’…….there is a
contract of carriage still in
existence between him and the
defendant under which he has
been surcharged.’’
The parties set this issue down
for determination:
(6) Whether at the material time
the plaintiff had a contract
with the defendant to carry its
petroleum products.
As earlier mentioned, the
defendant has maintained that it
did not have any contract with
the plaintiff after the FRS in
1998. So at the trial court the
defence counsel urged the court
“to dismiss the plaintiff’s
action on the ground that there
is no contract between the
plaintiff and the defendants
whereby the defendants would be
an accounting party to the
plaintiff.”
And before this court
defendant’s counsel submitted
that “as far as the defendant
was concerned, the plaintiff was
a stranger to the haulage
agreement and the deductions it
made in respect of the
diversions were made against the
account of Benko Limited. It was
therefore not liable to the
plaintiff for his claim.”
It is necessary to determine
whether exhibit A was in force
as from January 1999. One of the
key elements in the haulage
contract was that the carrier
was to make available his
vehicles which would be
incorporated as a term of the
contract. Indeed the list of
vehicles was always annexed to
each contract. Any subsequent
variation in the availability of
a vehicle would have to be
notified to the supplier and
agreed to by him. It was also a
key element that the carrier
would be paid directly,
(according to PW1 into their
bank account) for each service
rendered to the supplier.
Paragraph 5 of exhibit A stated
in clear terms that payment
shall be made to the contractor,
in other words the carrier.
Therefore the plaintiff was
being paid directly by the
defendant pursuant to exhibit A.
But the undisputed evidence on
record shows that since the
plaintiff’s vehicles went under
the aegis of Benko Ltd. he did
not receive any payment from the
defendant again, except through
Benko Ltd.
From the foregoing, it was very
obvious that the plaintiff was
no longer dealing directly with
the defendant because exhibit A
was no longer in force. It had
been replaced with the various
agreements between the defendant
and Benko Ltd following the FRS.
These agreements also contained
similar clauses that payment
would be made to the contractor
or carrier in respect of the
vehicles which had been
incorporated into the contracts
to cart the products. The
plaintiff’s own witness PW1
stated that they were the ones
who dealt with the defendant and
they were the ones who paid for
any service rendered by the
plaintiff’s vehicles which they
had placed in their own pool of
vehicles under the agreements.
As earlier pointed out, another
key element in the contract is
the insertion of the particular
vehicles to be used in executing
the contract. In exhibits 2, 3
and 4 either or both vehicles
belonging to the plaintiff were
listed in the schedule as part
of the vehicles being operated
by Benko Ltd. and plaintiff was
aware of this arrangement and
agreed to it and accepted the
benefits under them through
Benko Ltd.
It is thus wrong for the
plaintiff to maintain that he
had a separate agreement with
the defendant after the FRS. The
defendant was therefore right in
their position that they have
nothing to do with the plaintiff
as there is no contractual
relationship between them. That
explains why the surcharge was
made against the account of
Benko Ltd.; and it was the
latter which passed it on to the
plaintiff because it was his
truck which was involved.
It is also significant to note
that the agreements between the
defendant and Benko Ltd. were
not made to benefit the
plaintiff as a third party so
section 5(1) of the Contracts
Act, 1960, (Act 25) cannot even
be applied in his favour. The
said section 5(1) provides that:
Any provision in a contract made
after the commencement of this
Act which purports to confer a
benefit on a person who is not a
party to the contract, whether
as a designated person or as a
member of a class of persons,
may, subject to the provisions
of this Part, be enforced or
relied upon by that person as
though he were a party to the
contract.
It is therefore understandable
why the plaintiff was still
relying on exhibit A, for
without that he would have no
cause of action against the
defendant. Counsel for the
plaintiff recognized the fact
that the defendant’s contention
had been that the plaintiff had
no cause of action for stated
reasons. It is, however,
inexplicable why the plaintiff
resorted to the non-existent
contract, exhibit A, even when
he had admitted in
cross-examination that from
November 1998 the defendant did
not enter into any haulage
agreement with him. He was also
not party to the agreement
between defendant and Benko Ltd.
He also admitted under cross
examination that between the
period of rationalization and
2004 his Mercedes truck was
carting products for the
defendant but not under his
name. Indeed Pw1 admitted under
cross-examination that all
invoices for payment in respect
of the plaintiff’s trucks were
issued in the name of Benko Ltd.
and payments for them were made
directly to Benko. The only
logical inference is that for
that period his truck was
working under Benko Ltd. under
the terms of the agreements
between Benko Ltd. and the
defendant.
The plaintiff could not sue to
enforce the agreements between
the defendant and Benko Ltd
since they were not made for his
benefit as a third party. And
there was also no agreement
between him and the defendant;
consequently, there was no basis
for the claim. The defendant’s
contention was therefore
justified.
CONCLUSION
From the foregoing, it is
apparent that the Plaintiff’s
truck was loaded with all six
consignments though plaintiff’s
driver did not sign five out of
the six delivery notes. The
plaintiff failed to lead
evidence to establish any fault
on the part of the defendant,
and no evidence was forthcoming
that any other person than his
driver took charge of the truck
at all material times. The
plaintiff also failed to rebut
the defendant’s claim that there
was no contract between them.
The appeal therefore fails and
the decision of the Court of
Appeal is hereby affirmed.
(SGD) A. A. BENIN
(JUSTICE OF THE
SUPREME COURT)
(SGD) V. J M. DOTSE
(JUSTICE OF THE SUPREME
COURT)
(SGD)
ANIN YEBOAH
(JUSTICE OF THE
SUPREME COURT)
(SGD) N. S. GBADEGBE
(JUSTICE OF THE SUPREME
COURT)
(SGD)
G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
JAMES AHENKORAH FOR THE
PLAINTIFF/APPELLANT/ APPELLANT
VICTORIA BARTH (MRS) FOR THE
DEFENDANT /RESPONDENT/
RESPONDENT
|