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ARYEETEY, J.A.
According to the
indorsement on the plaintiffs/respondents writ of
summons they claim for “(1) The delivery or return or
the replacement value of their building at Lawlawvor
Greater Accra Region together with its contents of spare
parts, furniture, stores quarrying, mining and
construction equipment belonging to the plaintiffs and
destroyed or unlawfully appropriated or converted by the
defendants to their own use. (2) Damages for unlawful
conversion and or appropriation or destruction by the
defendants of the said, stores, quarrying, mining and
construction equipment.” Their pleading gives the basis
of their claim as follows: About ten years prior to
filing their Statement of Claim on 15th November 1996,
they were awarded a contract in connection with the Keta
Sea Defence project. For the purpose of that contractual
arrangement with the government, they imported into the
country plant and equipment, which they kept at Metsri
Kassa in the Volta Region to await the commencement of
the execution of the contract. Meanwhile the government
terminated the contract. The respondents therefore
removed the plant and equipment to their quarry site at
Lawlawvor for storage and for hire while they were not
in use by them. They continued to hire out the said
equipment to contractors and other clients until 14th
April 1993 when their quarrying licence was revoked.
Even then, they continued the hiring of their plant and
equipment business until June 1995 when their equipment
at the plant yard at Lawlawvor was consumed by fire set
by agents of the appellants in their effort to gain
access to the quarry site and the said plant and
equipment. Upon investigation, it was disclosed that
after the fire the heavy metal equipment for quarrying,
mining and other heavy construction was gas-cut and
removed from the site. The pieces of metal were taken to
the premises of the appellants who converted them to
their own use. Before the respondents filed their writ
of summons in the High Court, the appellants'
representative had been found guilty of Dishonestly
Receiving contrary to section 146 of the Criminal Code,
1960 (Act 129) and convicted by the Accra Circuit Court.
The appellants on their
part denied the respondents' claim in its entirety. They
made it clear in their Statement of Defence that the
Shai Traditional Council, acting through Nene Okuampah
Korabo IV, invited them to remove scrap materials from a
site at Lawlawvor. At page 201 of Volume II of
"Exhibits" books, there is a letter from Shai
Traditional Council dated 28th March 1994 addressed to
the General Manager of the appellant company. It reads:
“Dear Sir,
AUTHORITY TO REMOVE
SCRAP METALS FROM LORLORVOR-SHAI
1. We have decided to
rid Lorlorvor-Shai of all metal scraps which are items
abandoned over the years.
2. We have therefore
directed WAHOME STEEL LTD. to flame-cut and convey to
Tema all the metal scraps at the site.
3. All the items
collected will be sold to WAHOME STEEL Ltd. based on
Tonage.
4. Nene Okuampa Korabo
IV has been authorized to contact WAHOME STEEL LTD. for
the sale of these items.
Thank you.
Yours Faithfully,
NENE MARTEY CHARTEY
AWAH III
PRESIDENT SHAI
TRADITIONAL COUNCIL”
To enable them gain
access to the scraps the Shai Traditional Council caused
the bush to be cleared. They contended that if indeed
someone set fire at the quarry site that might have been
done at the instance of Shai Traditional Council.
Pursuant to the agreement reached with the Shai
Traditional Council, they conveyed only ten or so tons
of metal scraps from the site to their plant in Tema in
respect of which they made payment at a rate agreed upon
by the parties. The trial judge entered judgment in
favour of the respondents in respect of their claim. The
concluding paragraph of the judgment of the court below
appearing at page 216 of the record of appeal reads:
“What has been the
damage suffered by the plaintiffs in this matter? Though
plaintiffs claimed they used to hire out some of the
machines to companies, PW1 never produced any figures on
how much was realised from such transactions. I
therefore have no figure to guide me in awarding damages
to plaintiffs. The items were plant, equipment, and
others. With replacement value of £14,543,991.37, I
shall allow 10% depreciation on the equipment. In the
absence of damages, I award plaintiffs 50% interest on
the depreciated amount with effect from 22nd June 1995
to the date of final payment. I award plaintiffs costs
of ¢30 million.”
Following the judgment,
the defendants filed the following GROUNDS OF APPEAL:
(a) The judgment is
manifestly against the overwhelming weight of evidence
adduced in the suit;
(b) The learned judge
erred in finding that the scrap material which the
defendant took from Lawlawvor belonged to the plaintiff;
(c) The learned judge
erred in holding that if indeed plaintiff had equipment
in Lawlawvor area it was in the particular area in which
defendant took scrap material;
(d) The learned judge
erred in holding that if indeed the plaintiff had
equipment in the Lawlawvor area it had not abandoned it;
(e) learned judge erred
in ignoring the mass of inconsistencies in the evidence
given on behalf of plaintiff with respect to, inter
alia, the particular items of equipment which it
allegedly had;
(f) The learned judge
erred in disregarding documentary evidence, including
documents provided by the plaintiff to official sources,
including the Circuit Court, the Register of Companies
and the Minerals Commission, which contradicted the
plaintiff's claim as to what equipment it had at
Lawlawvor or at all;
(g) The learned judge
erred in not admitting into evidence a letter dated 19th
February 1993 from the plaintiff and its attachments,
namely a list of the equipment at that time that it had;
(h) The learned judge
erred in expunging the evidence given on behalf of the
defendant by Mr. Kojo Essah, D.W.2;
(i) The learned judge
erred in holding that because the defendant did not join
the Shai Traditional Council in the suit or call the
Shai Traditional Council to give evidence on its behalf
the defendant was responsible for burning the area where
the equipment was alleged to have been kept;
(j) The learned judge
erred in depreciating the equipment at only 10% of their
alleged purchase price given the date the plaintiff
allegedly acquired them and plaintiff’s evidence that
the equipment was hired out from time to time;
(k) The quantum of
damages awarded in favour of the plaintiff was, in the
circumstances of the matter, unfair and excessive;
(l) The quantum of
costs awarded in favour of the plaintiff was, in the
circumstances of the matter, unfair and excessive.
It appears it was the
conviction of the representative of the appellant
company by the Circuit Court, which sparked off this
litigation. However, on appeal the Accra High Court
reversed the conviction by the Circuit Court in respect
of the charge of Dishonestly Receiving against the
defendants’ representative. I would like to take grounds
(a)-(f) of the appeal together, namely:
(a) The judgment is
manifestly against the overwhelming weight of evidence
adduced in the suit;
(b) The learned judge
erred in finding that the scrap material, which the
defendant took from Lawlawvor, belonged to the
plaintiff;
(c) The learned judge
erred in holding that if indeed plaintiff had equipment
in the Lawlawvor area it was in the particular are in
which defendant took scrap material;
(d) The learned judge
erred in holding that if indeed the plaintiff had
equipment in the Lawlawvor area it had not abandoned it;
(e) The learned judge
erred in ignoring the mass of inconsistencies in the
evidence given on behalf of plaintiff with respect to,
inter alia, the particular items of equipment which it
allegedly had;
(f) The learned judge
erred in disregarding documentary evidence, including
documents provided by the plaintiff to official sources,
including the Circuit Court, the Register of Companies
and the Minerals Commission, which contradicted the
plaintiff’s claim as to what equipment it had at
Lawlawvor or at all;
In her judgment dated
30th April 1999, which appears at page 94 of Volume II
of the “Exhibits” book the learned High Court Judge, Mrs
Vida Akoto-Bamfo, J. (as she then was) made the
following pertinent observation at pages 100-102:
“The 1st appellant, the
5th accused was charged with dishonestly receiving 1
Bulldozer and 4 graders all to the total value of
¢400,000,000. According to the charge sheet, the 1st
appellant dishonestly received the items in 1994.
The offence of
dishonestly receiving was explained in section 147(1) of
the Criminal Code as follows:
‘A person is guilty of
dishonestly receiving any property which he knows to
have been obtained or appropriated by any crime if he
receives, buys or in any manner assists in the disposal
of such property otherwise with the purpose to restore
to the owner.’ The prosecution must therefore establish
these ingredients, that the bulldozers and 4 graders
were stolen and that the 1st appellant knew that they
were stolen at the time he bought them.
The accused persons in
the trial were charged with stealing stone crushers on
11th day of June 1995. It is significant that the 1st
appellant was charged with dishonestly receiving 1
bulldozer and 4 graders. Surely there is a world of
difference between bulldozers and graders on the one
hand and a stone crusher. The graders and bulldozer
could not have been the subject matter of the stealing
charge preferred against the accused persons. In the
circumstances, where the prosecution is required to
prove that the items found in the possession of the 1st
appellant and the items allegedly stolen were different
from the items allegedly received, can it be said that
the prosecution has proved beyond doubt that the items
found in possession of the party were stolen? I think
not.
More importantly, it is
clear from the charge sheet that the theft was supposed
to have occurred on 11th June 1995 and strangely enough,
the 2nd appellant was said to have received the
bulldozer in 1994. It is worth of note that the month
and date in 1994 were not stated. If these items were
received in 1994 and the theft occurred in 1995, it is
obvious that the act of receiving the items could not
have been made before the crime of stealing. On these
grounds alone, the 1st appellant is entitled to an
acquittal. Assuming that the identity of the subject
matter of the charge had no clouds around it, did the
1st appellant know that they were stolen items?
It is clear from the
evidence on record that when the 1st appellant was
approached to buy the items, it took the necessary
precautions, asked the seller to produce a letter from
the Traditional Authority authorising the sale. The
letter was produced and it was after satisfying itself
that the sale was effected. A party who takes steps to
ensure that the items offered for sale were coming from
the proper custody cannot be said to have had guilty
knowledge. It is for these reasons that I quashed both
the convictions and sentences”.
The issue of the
identity of what actually got into the hands of the
appellant company remained illusive throughout the
prosecution of the respondents’ claim against the
appellants. In fact a large portion of the eighty-two
page written submission of the appellants’ statement of
their case has been devoted to discrepancies relating to
various documentary accounts as to what allegedly got
into the hands of the appellants in respect of which the
respondents relate their claim which is in excess of
£14,000,000.00 sterling. I would not succumb to the
appellants’ counsel’s apparent invitation for me to go
through all the details of the discrepancies in the
evidence of the respondents relating to what they were
supposed to have imported into the country and allegedly
got into the hands of the appellants or destroyed at
their instance, which forms the subject matter of the
claim against them. However, we would still have to look
at a few of them. First of all what is made plain in the
judgment of the High Court which I have referred to is
that the subject matter of the stealing charge did not
correspond to what the appellant in the criminal trial,
who represented the appellants in this case was supposed
to have received and therefore was not the subject
matter of the criminal charge of Dishonestly Receiving
against him. That means the subject matter of the Charge
of Dishonestly Receiving was not related to any criminal
charge against any other person. What is worse, the
events that resulted in the charge of Dishonestly
Receiving levelled against the appellants’
representative in the criminal trial were supposed to
have taken place in 1994 while the offence of Stealing
which was supposed to have preceded the charge of
Dishonestly Receiving took place in 1995. That apart,
the items, which constituted the subject matter of the
criminal charge against the appellant in the criminal
trial differed in quantity and value from the items,
which form the basis of the respondents’ claim against
the appellants.
At page 28 of
defendants’ counsels’ written address the following
submissions were made and they deserve a very serious
consideration by this court:
“At page 8 of the
judgment of the court (to be found at pages 202–216 of
the record) the learned trial judge made the following
observation (i.e. from lines 13 to 21 of the said page
8)
‘…Learned counsel for
the defendant subjected PW1 to a very exhaustive
cross-examination… the cross examination was able to
bring out a lot of inconsistencies in the evidence of
PW1 especially as to how the machines were acquired, the
source of acquisition, prices and year of acquisition. I
think learned counsel must be commended for exposing
these inconsistencies…’
In spite of this
observation and the fact that PW1’s testimony was
totally discredited under cross-examination the learned
trial judge found as a fact that the plaintiff company
had indeed imported and acquired the said plant and
equipment for the Keta Sea Defence Project. This
finding, which was clearly made in grave error, was
totally unjustified and not in any way supported by the
evidence on record. It is very unreasonable finding and
constituted an improper appraisal of the evidence on
record.”
I cannot agree more
with the observation of counsel in this regard. What
becomes clear in the very long and unending
cross-examination of the respondents’ Managing Director,
PW1 is the lack of creditable and verifiable information
respecting importation or acquisition of the various
items of plant and equipment listed in paragraph 10 of
the respondents’ pleading. That is not all. There is
also the problem of reconciling what is contained in the
plaintiffs’ pleading and other conflicting lists which
were tendered in evidence as pointed out in the written
address of appellants’ counsel, which by themselves
conflict with each other. As pointed out at page 6 of
the appellants’ counsel written address, at the trail
various lists were presented, which were in several
respects significantly different and contained much
fewer equipment of far lesser value than the
£14,543,991.37 which the plaintiffs claim against the
defendants.
For example, at page
198 of the Vol. II of “Exhibits” books we have an
exhibit whose descriptive mark does not show and headed
“ITEMISATION VALUE OF STOLEN QUARRY AND OTHER EQUIPMENT
AT LAWLAWVOR BEING PROPERTIES OF ROCKSHELL INTERNATIONAL
LIMITED. The “Grand Total” is given as
¢1,099,361,975.00.
At page 206 of the same
volume, under a similar heading the value of the
equipment is given as ¢1,669,348,000.00. In that
instance, a “CERTIFICATE OF DECLARATION” is attached to
it at page 207 in the following words.
“THIS IS TO CERTIFY THE
TRUE AND CORRECT OF ITEMS FROM OUR LAWLAWVOR QUARRY
BEING THE PROPERTIES OF ROCKSHELL INTERNATIONAL LIMITED
AS INDICATED ON THE FRONT PAGE OF THIS ISSUE.
R. S. D. TEI
(EXECUTIVE
CHAIRMAN)—DATE: 15/3/92
NENE NAGAI KASSA
VII DATE: 15/3/92
(CHIEF OF AGOMEDA AND
CARETAKER OF ROCHSHELL INT. LTD. QUARRY EQUIPMENT) AT
LAWLAWVOR”
There appears to be no
explanation for the variation of the value of the same
set of items in two instances. In addition, what is made
clear by the “CERTIFICATE OF DECLARATION” quoted above
is that the two lists would be of no relevance to the
case which has resulted in the instant appeal.
Significantly, according to the certificate quoted above
the items were stolen on 15th March 1992, some three
years or so before those items were supposed to get into
the hands of the appellants. Looking at the date of the
certificate which is in 1992, in the light of the
totality of the facts, it cannot be said that the items
listed have anything to do with what the appellants were
alleged to have received, which formed the subject
matter of the charge of Dishonestly Receiving which was
supposed to have taken place in the year 1994. From the
evidence on record, it is not possible to verify
accurately the identity of the items and their
corresponding prices in pounds sterling as listed by the
plaintiffs in their pleading. Indeed looking at the
evidence adduced on their behalf, the respondents
completely failed in their bid to go beyond mere
averments in their pleading and to furnish the court
with corroborative evidence of facts, official
documentary records and receipts relating to the
acquisition and operation of their plant and equipment
as demanded by the circumstances of their case, in order
to aid the court in arriving at a just conclusion as to
the identity and the value of the goods allegedly stolen
or destroyed for which the appellants were to be held
liable. (See the case of Majolagbe v. Larbi & Ors.
[1959] G. L. R. 190.)
At this stage I would
like to consider briefly the values placed on some of
the items listed in the Statement of Claim. Items 33 and
35 contained in paragraph 10 of the Statement of Claim
may be the only items in the respondents’ list whose
values could be verified from the evidence on record
with some degree of certainty. Item 33 gives the value
of ’50 tons of assorted metal scraps’ as £462.96 while
item 35 gives the value of ‘building burnt down’ as
£31,851.85. This would have to be compared with what the
respondents paid for them. At page 200 of Vol. II of
“Exhibits” books, on the letterhead of W. A. Wiafe is
recorded the transaction between respondent company and
representatives of W. A. WIAFE as follows:
“TERMS FOR THE SALE OF
RAMPS, BUILDINGS, GENERATING SETS ETC. TO MESSRS
ROCKSHELL INTERNATIONAL LIMITED.
At a meeting held at
Accra between Messrs. W. A. Wiafe, L. K. Wiafe and S. D.
Ntiamoah, and R. S. D. Tei, Chairman of Rockshell
International Limited the following was decided.
(i) W. A. Wiafe agreed
to dispose of ramps, scraps, building, generating sets
etc. to Rockshell International Limited at a price to be
determined upon valuation of the assets by a competent
valuer.
(ii) Rockshell
International Limited is to pay on account to W. A.
Wiafe Esq., the sum of one million cedis
(¢1,000,000.00).
(iii) Rockshell
International Limited is to engage the services of a
competent valuer to value the assets and pay the
balance, after deducting the ¢1,000,000.00 to W. A.
Wiafe, Esq.
Dated at Accra this
29th day of August 1989.”
At page 199 of volume
II of the ‘Exhibits’ books we have a record of a
documentary exhibit whose descriptive mark is not
visible and which is headed “QUANTIFICATION OF QUARRY
EQUIPMENT/BUILDING PURCHASED FROM MR. W. A. WIAFE BY
ROCKSHELL INTERNATIONAL LIMITED AT LAWLAWVOR ON 12TH
SEPTEMBER 1991”.
The total value of the
equipment together with the building is given as
¢94,600,000.00 by the plaintiffs. This contrasts sharply
with the amount of ¢1,000,000.00 which the respondents
paid to the representatives of W. A. Wiafe in 1992.
Indeed, at page 200 of Vol. II of ‘Exhibits’ books,
there is an indication that that amount was paid by
cheque No. 744911 of 12th September 1991; the very day
the value of the “EQUIPMENT/BUILDING PURCHASED FROM MR.
W. A. WIAFE” quoted above was assessed. It is worthy of
note that in their assessment of the value of the
building and equipment purchased from Mr. W. A. Wiafe
the respondents ask for ¢94,600,000.00 although they
paid only ¢1,000,000.00 for the items. With regard to
items 33 and 35 of paragraph 10 of the Statement of
Claim quoted above the respondents give the values of
the metal scraps and the burned building as £462.96 and
£31,851.85 respectively. That means they ask for a total
of £32,314.81 in respect of what they only paid
¢1,000,000.00 for.
Also at page 121 of
vol. II of “Exhibit” books, when Lawrence Kegnon Wiafe,
son of the late W. A. Wiafe was asked in
cross-examination whether the items at the quarry site
were scraps or workable he replied that they were
scraps. He also stated that thieves were pilfering some
parts. The cross-examination of P.W.2, Samuel Douglas
Ntiamoah at page 124 of the record of appeal produces
the following result.
“Q. At the time you
disposed of the items were the equipment in workable
condition?
A. Since 1961 all the
equipment and machine had been abandoned and moreover in
between there had been a fire outbreak demolishing
things there”.
That, of course,
suggests that there had been fire outbreak at the quarry
site before W.A. Wiafe sold what was left of his
equipment for his stone quarrying business and the
structures on the land to the plaintiff. This implies
that the respondents’ contention that the appellants’
agents were responsible for the alleged fire at the
quarry site, which destroyed the respondents’ plant and
equipment, has to be looked at critically. I his
judgment, the learned trial judge explains how he
arrived at the value of the items, which form the
subject matter of the respondents’ claim, as follows:
“I now come to the
value of the plant and equipment lost by the plaintiffs.
At page 10 of the statement of claim, the plaintiffs
have given the replacement value of items lost or
destroyed as ¢14,543,991.37. I have already referred to
exhs. K – K16. The Keta Sea Defence Project contract sum
was ¢1,623,795,83335 made up of local currency of
¢730,708,126.00 and foreign currency of $15,668,205.43.
If the plant and equipment were mortgaged as collateral
for the performance of the contract, then surely the
value of the plant and equipment so mortgaged would
either be equal to, or more than the contract sum. It
would therefore not be out of place if plaintiffs say
the value of plant and equipment was over £14 million.
The pro forma invoices give credence to this.”
I quite agree with
counsel for the appellants that the pro forma invoices,
which the learned trial judge relied on, would have
little or nothing to do with providing the prices of the
items, which are listed in the Statement of Claim. The
uncertainty, which shrouded the exact nature of items,
which got into the hands of the appellant company and
for which they could be held accountable in this case
was exposed during the criminal prosecution of the
appellant company’s representative and others before the
Circuit Court. In the criminal trial before the Circuit
Court, Stephen Awuku, Detective Chief Inspector, PW6
testified on behalf of the prosecution. His
cross-examination by counsel for the 5th Accused person
(who was a representative of the appellant company)
brought out a revealing background to the prosecution of
the representative of the defendant company on the
charge of Dishonestly Receiving. When PW6 was cross-
examined on 15th May 1996, he gave the following answers
at page 141 of Vol. II of ‘Exhibits’ books:
“Q. Did you discover
some of these items at Wahome Steel?
A. No. because Wahome
had by them melted them. I asked Mr. Vandyck about the
items and he said they couldn't be traced.
Q. Did you receive a
list of equipment from other persons?
A. Yes from PW1.
Q. How many?
A. Two or more—but I
didn’t receive all on the same day—Yes exhibit B may be
that exhibit F—It is possible exhibit B might have been
received first.
Q. I put it to you, you
are telling lies if you say you received exhibit B on
1-9-95.
A. Not true exhibit F
... received by me but I cannot be specific.
Q. When did it come
into your possession?
A. I can’t be specific
Q. And that you
tendered exhibit F when you were bringing in Wahome.
A. It may or may not be
possible
Q. That is why you put
in items that you decided to charge Wahome.
A. The list was not
prepared by me so, it is not correct that I tendered it
when I wanted to rope in Wahome.
Q. Why did you tender
exhibit F when you had already tendered exhibit B?
A. Wahome charge sheet
was based on items, which their employee claimed to have
marked on them and sent to steel work. Well I don’t know
why exhibit F was tendered as I was not prosecuting…
The cross-examination
continued on 21st May 1996 at pages 143 and 144 of Vol.
II of “Exhibits” books as follows:
“Q. How did you know
the items that were stolen?
A. It was a statement
made by one Paul Ackah of Wahome and mentioned the
machines on which he worked on them. It was later on
that the complainant brought list of the items, which
were on the site, and the list brought to me later….
Q. Did your
investigations reveal that these items were stolen?
A. Yes—in the course of
investigation, one Paul Ackah of Wahome made a statement
to the police and in the statement, he told the police
that when he went to work on the machine. It was the day
the items were brought that I realised when it was
stolen.
Q. So when exactly were
the items stolen?
A. In respect of
Wahome, it was in 1994.
Q. What items did
Wahome receive?
A. 1 bulldozer valued
at ¢240m, 4 graders at ¢40m each.
Q. Exhibit F—are the
items Wahome received on exhibit F.
A. Yes…
Q. I put to you if PW1
had lost these items, then he costed them before 1992
going by the certificate read.
A. That may be true.
Q. That is why in 1995
when 2–5 accused were charged you had not taken
statement from Wahome.
A. Yes that is true”.
The nature of the
respondents’ claim seems to suggest that the appellants
are responsible for the loss and destruction of all
their plant and equipment listed in paragraph 10 of the
Statement of Claim and therefore liable to pay for their
replacement value. However, the evidence on record shows
that there is an indication that some pieces of metal
scrap were found in the possession of others who faced
criminal prosecution. It is therefore necessary to look
closely at the evidence on record with the view of
ascertaining what allegedly came into the hands of the
appellants or what was destroyed at their instance.
In the course of the
criminal proceedings before the Circuit Court, there was
the impression that the respondents got to know what
exactly got into the hands of the appellant company
during the criminal investigation. In fact as revealed
by the cross-examination of PW6 quoted above, the
prosecution was positive that Paul Ackah, a former
employee of the appellant company, made a statement to
the police and that that brought to their knowledge what
the defendants took away. Therefore, to make everything
clear, it would not be out of place if the whole of the
testimony of Paul Ackah, who testified in the criminal
trial before the Circuit Court as the seventh
prosecution witness (PW7), were reproduced. We have his
evidence on oath at pages 147 and 148 of Vol. II of
“Exhibits” books as follows:
“My name is Paul Ackah.
I work at Wahome Steel as a welder… I know Mr. Vandyck
the 5th Accused of all the Accused persons. I know
Awuah, a driver at Wahome. I know A5 as my Scrap Manager
at Wahome Steel. On 9th August 1994, I was still
employed at Wahome. Yes on the day in question—A5
assigned me duties at Shai area. I started this job but
I did not complete. On the first day I went, the place
was bush, so I was not able to cut the scrap. I was
there on 6 occasions. I don’t remember the date I went
the first time but I went there on 6 occasions. On the
second occasion too the place was still bush so I
returned on the third day, it was still bush. On the 4th
day when I went the bush was burnt. The remnants that
were not burnt were the ones that I cut. On the 5th day,
I continued with the cutting because I didn’t complete
it on the 4th day. On the 6th day I went to continue
with the work, I was on the work when a certain chief
and his elders came and asked me who authorized me to do
the work and I replied that it was my employers Wahome.
I went with gas cutter, oxygen, and acetylene and hose,
shifting spanner. I went with another person to
undertake the assignment by name Thomas Debra. These
inputs were carried to the site by the company’s car. I
was only assigned one vehicle for the job but I don’t
remember the number. The driver is called Isaac Awuah. I
also went there with one Wisdom another driver in the
company… Yes, in the course of investigations the police
contacted me and I gave a statement as I have narrated
to this court.”
He gave the following
answers in cross-examination:
Q. You said on the 6th
day whilst there, a chief and elders came to confront
you— do you know the chief?
A. Yes—Nene Nagai Kassa
(PW5).
Q. Did he confront you?
A. He asked who
authorized me and I told him Wahome Steel sent me. He
told me holding sticks, and told me that I shouldn’t
come to work there again. Then the chief identified my
other worker as being Adagbe and said we are lucky so as
they brought sticks and other things, we were frightened
and never go there again.
Q. After this incident,
did you meet the chief anywhere?
A. Later our company
sent me to Kpando when we were returning, we looked at
the site and saw PW5 and some elders and a truck parked
there.
Q. Did you see anything
in the truck?
A. I did not see
anything in the truck, as we were passing by.
We are now aware of
what PW7 told the Circuit Court in the course of the
criminal proceedings and it cannot be said that the
information he supposedly gave to the police as to the
amount of metal he worked on represented in any way the
list of items contained in paragraph 10 of the Statement
of Claim. It is interesting to note that according to
PW7 he went to the quarry site in August 1994 when he
was confronted by PW5 and some elders. It must be
remembered that he testified on behalf of the
prosecution and he was not treated as a hostile witness.
The effect of his testimony is that as far back as
August 1994 the respondents’ accredited caretaker, Nene
Nagai Kassa VII (PW5) became aware of the activities of
the appellants’ employees at the respondents’ quarry
site and he did not deem it necessary to inform the
respondents’ managing director, (PW1) who had appointed
him caretaker of the equipment at the quarry site, about
it. I am quite sure that as caretaker, if it had come to
the notice of P.W.5 that the appellants’ employees had,
by their activities at the quarry site, caused what
amounted to total loss or destruction of the plant and
equipment belonging to the respondent company at the
quarry site, he would have passed on the information to
the company’s managing director. In fact as brought out
by the cross-examination of PW6, at the inception of the
criminal prosecution before the Circuit Court the
defendant company was not involved in any way. The
respondents’ managing director had not been informed
about what the appellants’ employees had done at the
quarry site in 1994. On 11th June 1995 Nene Nagai Kassa
VII, PW5 was in the company PW1 when they saw some
persons who were in the process of loading some metal at
the quarry site onto a vehicle to be taken away.
Obviously, those persons did not come from the appellant
company. I do not therefore think that there is any
justification for holding the appellants responsible for
anything that might have been taken away from the quarry
site.
Among the issues that
were listed for trial at the Summons for Direction stage
in the court below it is the eleventh one, which to me
is the most pertinent. It reads: “Whether or not the
Defendants are responsible for all the items of plant
and equipment and other stores including a building that
were burnt down, destroyed or cut by gas welding and
transferred to the Defendants’ premises for subsequent
conversion without the plaintiffs’ knowledge or
consent.” As demonstrated in this appeal there is
nothing to show by way of evidence that the appellants
had anything to do with the rather long list of plant
and equipment, which were allegedly stolen from the
quarry site or destroyed by fire at that place. The
appeal therefore succeeds. This takes care of all the
other grounds of appeal. The judgment and costs of the
court below are set aside.
(SGD)
B. T. ARYEETEY
JUTICE OF APPEAL
I agree.
R. T. ANINAKWAH
JUSTICE OF APPEAL
I also agree.
G. M. QUAYE
JUSTICE OF APPEAL
COUNSEL
MR. PETER ZWENNES WITH
MR. JAMES ADDO
FOR THE
DEFENDANTS/APPELLANTS
MR. WILLIAM ADDO FOR
PLAINTIFFS/RESPONDENTS |
