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IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2016
BTL LIMITED - (Plaintiff/ Respondent)
MAERSK GHANA LTD - (Defendant/Appellant)
DATE: 22ND MARCH, 2016
CIVIL APPEAL SUIT NO: H1/30/2016
JUDGES: KANYOKE JA (PRESIDING), ACQUAYE JA, DZAMEFE JA
LAWYERS:
VIVIAN TETTEH FOR DEFENDANT/APPELLANT
EZIUCHE NWOSU FOR PLAINTIFF/RESPONDENT
JUDGEMENT
DZAMEFE, JA
Plaintiff/respondent hereinafter referred to as the plaintiff issued this writ against the defendant/appellant also referred to as defendant in the Accra High Court for the following reliefs;
Specific damages in the sum of Forty-six Thousand Three Hundred and Fifty dollars ($46,350.00) to be paid by defendants to plaintiffs being the cost of 1,030 boxes of fresh yams, the freight, clearing and handling charges in the USA.
Interest on the said sum of Forty-six Thousand Three Hundred and Fifty dollars ($46,350.00) at the commercial bank lending rate of interest from 1st February 2010 to and inclusive of the final date of payment.
General damages for the inconvenience, pain, distress and loss of customers and income to plaintiffs resulting from not fulfilling their contractual obligations to their customers because of defendants’ negligence and resultant damage.
Cost.
The plaintiff is a limited liability company established under the Companies Code and engaged in the export of non-traditional foodstuffs to the USA while the defendant is a shipping company based in Tema.
The plaintiff since 2002 engaged the services of the defendant in shipping their goods to the USA and had so far shipped over hundred, 40 footer containers for them.
On 5th January 2010, plaintiff contracted the defendant to book a 40 footer refrigerated container to ship 1,030 boxes of fresh yams to the USA.
The defendants brought the refrigerated container to Accra on the 11th of January 2010, loaded the boxes of fresh yams and returned it to the Meridian Port Services at the Tema Port on the 12th of January 2010. At the port the Reefer Technician noticed some defects with the container and immediately sent a message to defendants requesting for another refrigerated container to transfer the boxes of fresh yams. The plaintiff said they later received a phone call from the defendant telling them the yams had been transferred to another container. Though the plaintiff sought to see the state of the yams, they were not allowed access by the defendant saying the container was in a restricted area and out of bounds.
The plaintiffs said despite the fact that the refrigerated container had failed Pre-Trip Inspection (PTI), the defendants in a bid to avoid paying damages for their negligence went ahead and shipped the consignment to the USA at a great financial loss to them. The consignment on arriving in the USA was found to have gone bad.
The plaintiffs made a formal complaint to defendants in Ghana and were told to put in a formal claim, which was done by a consultant, Matthews Consult.
Despite the demand notice and several reminders, to defendants to pay for the loss in accordance with international shipping regulations and its own terms and conditions of the contract of carriage, they have failed to pay for the loss.
It is the plaintiffs’ case that defendants blatantly breached the duty of care owed them by their level of negligence exhibited in carrying out the obligation under the contract to ship the 1,030 boxes of fresh yams belonging to them from Ghana to USA hence this action. The plaintiffs stated the particulars of negligence and prayed the court for the reliefs listed above.
The defendants in their defence said they are a limited liability company registered in Ghana and at all times an agent of the carrier, AP Moller Maersk A/S trading as Maersk Line and based in Copenhagen, Denmark. It is their contention that it acted as the agent of the said carrier in entering into the contract of carriage with the plaintiff as evidenced by the Bill of Lading No.801728617 issued on 19th January 2010.
It is the defendants’ case that all they did is to provide the container to the customer, the plaintiff, who did the loading themselves and returned the container to them for shipping. They are therefore not liable for the contents, weights, quantity nor quality of the cargo stored in the said containers.
The defendant admits their attention was drawn to the malfunctioning of the said reefer unit by officials of Meridian Port Services – Paragraph 6 (Statement of defence) [page 13 ROA].
It is their case that they conducted a survey on the condition of the said cargo in the presence of all interested parties including officials of Customs Excise & Preventive Service (CEPS) & the said cargo was found to be fully wholesome before same was shipped to the USA.
The defendants further contend that the said cargo was cleared from the port in the USA by the agents of the consignee without any objection whatsoever.
They also allege that in so far as no notice of loss nor damage and the general nature of such loss nor damage was given to the carrier or its agents at the port of discharge before the delivery of the cargo to the consignee, same constitutes prima facie evidence of delivery of the said cargo in the same condition in which it was received by the carrier for shipment from Tema to Newark (New Jersey) USA.
It is the defendant’s contention that in so far as it was an agent for the carrier it is exempted from any liability arising whatsoever either in tort or contract in respect of the shipment of the said cargo from Tema to Newark USA. Further that the carrier is exempted from any liability arising whatsoever for any loss or damage to the cargo whilst same was in its actual or constructive possession before loading on board the vessel and after discharge at the port of discharge, however caused.
The defendants deny ever receiving any document nor in-depth information to indicate that the said yams on arrival in the USA were unwholesome and had been destroyed. That by a letter dated 23rd April 2010, it repudiated any form of liability on its part and same was sent to plaintiffs’ solicitors.
The defendant contends that at all material times to the institution of this action the plaintiffs interest, risk and title or property in the goods had passed onto the named consignee Kyeiwaa LLC and therefore plaintiff cannot maintain this action for lack of capacity. That the plaintiff is therefore not entitled to their claim against them.
The plaintiff in their reply averred that on the same day of taking delivery of the refrigerated container, 15th February 2010, and upon opening it at the warehouse in the USA realized the yams had gone bad and her agents immediately made a complaint to the USA branch of the defendant company but was told to direct same to the port of origin or shipment Tema, Ghana.
Plaintiff avers that the unwholesome state of the boxes of yams was confirmed in a sworn affidavit by the warehouse manager Allswell Trading Inc of 23 A Joseph Street Newark USA.
ISSUES FOR TRIAL
At the summons for direction stage 25 issues and 3 additional issues totaling 28 issues were set down for trial in sum [page 23-27 of ROA].
Where at the summons for direction stage issues are set down for trial by both parties, it is incumbent on the trial judge to go through all and see the relevant and non relevant issues. The trial judge is not by law or procedure bound to accept all the issues raised by the parties for trial. Some may overlap or be repetitive and it is the duty of the trial judge to determine the real issues for trial. Issues that are not in dispute are not triable. The trial judge must identify the triable issues in dispute and set same down for trial.
The defendants raised the issue of the plaintiffs’ capacity to institute this action. They contend once the items are shipped property and title in it shifted to the consignee named on the Bill of Laden. Since issues of capacity go to the root of the case it was incumbent on the trial judge to resolve same first and this he did. The trial judge in the judgment held that even though the plaintiff herein had a consignee named on the bill of laden, it could still maintain this action in Ghana to fix the shipper with liability. This reasoning finds support in the Supreme Court case of Royal Dutch Airlines [KLM] & Anor vrs Farmex Ltd [1989-90] 1 GLR 632. The Supreme Court found the shipper liable for breach of contract of carriage and awarded damages against it, even though the goods had been discharged in London where it was found to have been rendered unwholesome due to the negligence of the shipper.
The trial judge also found as a fact that by the terms of the contract, the defendant usurped the plaintiff’s duties by stowing and loading the plaintiffs’ yams into the new reefer container after which the defendant shipped same to its port of destination without the involvement of the plaintiff. This finding is based on the evidence of the plaintiff and corroborated by the defendants own representative in court. He testified that after the loading “we certified that the cargo was in good condition to go on the voyage” – [pg 171 ROA].
The trial court also found as a fact that the defendant was negligent in the contract of carriage that resulted in the damage to the plaintiffs’ yams – [page 172 ROA]
The trial judge held that since the defendants off loaded and reloaded the plaintiffs’ yams without their involvement the defendants assumed responsibility and liability at that point. Any damage to the cargo therefore will obviously be put at the doorsteps of the defendants, hence they are liable to the plaintiffs’ for the damage to the yams.
The court entered judgment for the plaintiff for reliefs (1) as endorsed on the writ of summon. The court also entered judgment for plaintiff for the interest on the principal sum of USD46,350.00., and also awarded general damages to the plaintiffs.
The defendant dissatisfied with this judgment filled this appeal on the following rounds;
The learned trial judge erred in failing to adequately consider the possession of the Bill of Lading Act 1961 (Act 42) and the Sale of Goods Act (137) raised by the defendant which sought to incapacitate the plaintiff as the shipper or consignor from commencing this instant action.
The learned trial judge erred in concluding that the cargo of yams arrived at the port of destination, Newark, USA, in an unwholesome state in the absence of any cogent evidence on record
The learned trial judge erred in awarding the plaintiff special damages of USD$46,350.00 in the absence of any proof by the plaintiff.
The learned trial judge erred in awarding the plaintiff general damages of GH¢20,000.00 in the absence of any proof of damages by the plaintiff.
The learned trial judge erred in failing to consider the exemption clauses contained in the conditions or contract of carriage endorsed on the Bill of Lading, Exhibit A which seeks to absolve the defendant from any damage or loss to the cargo arising before shipment on board the carrying vessel.
Costs awarded is harsh and excessive.
Judgment is against the weight of evidence.
Additional grounds of appeal would be filed on receipt of records.
Reliefs sought from this court is to set aside the High Court judgment dated 27th June 2013 and dismiss plaintiffs claim.
SUBMISSION
Ground 1
The learned trial judge erred in failing to adequately consider the provisions of the Bill of Lading Act 1961 (Act
42) and the Sale of Goods Act (137) raised by the defendant which sought to incapacitate the plaintiff as the shipper or consignor from commencing this instant action.
Counsel for the defendant contends that by virtue of the provision of the Bill of Lading Act, 1961 (Act and the Sale of Goods Act (Act 137) the plaintiff did not have the capacity to institute the present suit and that same be dismissed in limine. It is his contention that at all material times to the institution of the suit by plaintiff, both risk and property in the yams, the subject matter of the contract of carriage by sea executed between the parties herein, had passed from the plaintiff to the consignee Kyeiwaa LLC, a legal entity incorporated in USA.
He said exhibit “A” the bill of lading has the plaintiff as the Shipper or Consignor or Exporter of the consignment of the yams and the consignee or receiver or importer in Kyeiwaa LLC.
In support of his contention, counsel referred this court to Section 7 (1) of Act 42 (supra) which states “A consignee of goods named in a bill of lading, and an endorsee of a bill of lading to whom property in the goods mentioned in the bill passes under the contract in pursuance of which the endorsement is made, shall have transferred to and vested in that consignee, the rights and be subject to the same liabilities in respect of the goods, as if the contract expressed in the bill of lading had been made with the consignee or endorsee”.
Counsel submits that there are two types of Bill of Ladings, the Straight Bill of laden, where the consignee is named in the bill. In that instance, the named consignee is the only person who can take legal custody of goods on arrival at the discharge port. This type of bill is non-negotiable. The other is where the Consignee is not named in the bill save for the words “To order or To order of….” This type of bill is negotiable and means that it is only the endorsee of the bill who has the right to take legal custody of the cargo or goods on arrival at the port of discharge.
It is his submission therefore that the rights accruing to the plaintiff in the instant appeal pursuant to the contract of carriage by sea, were by operation of law transferred to Kyeiwaa LLC and the plaintiff was divested with any right to sue on the contract. That it is rather Kyeiwaa LLC that could commence action against the defendant under the contract of carriage and not the plaintiff.
Counsel submits further that from the evidence on record, the contract of carriage was a Cost Insurance Freight (CIF) and not Free on Board (FOB). Being CIF the contract is regulated by Section 61 of the Sale of Goods Act (Act 137) which states “In a cost, insurance, freight, contracts, unless a contrary intention appears;
The seller is bound at the seller’s expense to ship the goods during the agreed period to the port agreed on …..
The seller is bound to transfer to the buyer proper shipping documents in accordance with the terms of the Contract; ….
The goods are delivered to the buyer, and the property in the goods passes to the buyer, on the transfer to the buyer of the bills of lading;
The risk in the goods passes to the buyer when they are shipped or acquired afloat”.
It is his contention that the trial learned judge erred when he sought solace in the case of Royal Dutch Airlines (supra) since that case was regulated by International Rules applicable to carriage by air unlike the present case which is carriage by sea.
While the former is regulated by the Warsaw Convention the later is The Hague Rules (1924) to which Ghana is a signatory. He submits the Royal Dutch case is therefore not applicable to the instant matter and that the provisions of both Act 42 and 137 divested the plaintiff with any title or property in the consignment of yams and it did not have the capacity to bring this instant action.
In their submission, counsel for the plaintiff contends that property in the yams remained with BTL limited, the plaintiffs’, and was not transferred by the mere payment to Maersk Line and upon the goods being ascertained. The buyer refused to accept unwholesome goods and therefore property in the yams still remained with the plaintiff. Plaintiff is therefore the competent person with capacity to sue - [page 111 ROA].
Counsel referred the court to Section 26(1) of the Sale of Goods Act (SOGA) which states “subject to Section 25 of this Act, the property in goods passes under a contract of sale when the parties intend it to pass”. It is his submission that from the evidence of the plaintiff’s representative the property in the yams was intended to pass upon it being wholesome when cleared from the port in the US and not when cleared in an unwholesome state – [page111 ROA].
Counsel also refereed this court to Section 27 of SOGA that states;
“ The risk in the goods in a contract of sale is transferred to the buyer when the parties intend it to be transferred.
Unless a different intention appears, goods are at the seller’s risk until the property in them passes to the buyer, after which the goods are at the risk of the buyer.
Nothing in this section affects the duties or liabilities of either seller or buyer as a bailee of the goods of the other party or any destruction or deterioration of or damage to the goods which is caused by the fault of either party”.
The issue before this court is whether the plaintiff who is the owner of the yams and therefore the consignor has capacity to institute this action before the High Court.
Capacity –Locus standi refer to the legal capacity of a person to institute an action in a court of law. It is a preliminary issue and is distinct from the merits of the case. The rules on locus standi are the creation of the common law. Capacity goes to the root of the case.
Counsel for the plaintiff in response argues that Kyeiwaa LLC had no contract of sale with the defendant and could not maintain a competent action against it. Instead it had a contract with the plaintiff to supply it with wholesome yams. It is his submission that the yams contracted to be shipped by the plaintiff were wholesome at the point they were taken over by the defendant and having arrived in the USA unwholesome, Kyeiwaa LLC rightfully refused to accept them.
Counsel argue further that at the time of the contract of carriage in the Bill of Lading took effect the yams had already been damaged by the defendants’ negligence and could no longer be the subject of the said Bill of Lading which was made in respect of undamaged yams. The goods having changed nature there was no right capable of being transferred nor vested in the consignee as contended by the defendant.
It is his contention that the plaintiff’s suit at the trial court was in essence for breach of defendants duty to handle wholesome yams handed over to it with care to ensure they were shipped safely to the consignee in the USA. That duty of care was owed to the plaintiff and it was therefore entitled to sue the defendant as it had done to recover in negligence and breach of contract. It is his submission that the plaintiff had the capacity to institute the action. The challenge of its capacity by the defendant is thus misguided.
Counsel contends that while Section 61 (e) of Act 137 provides that the “property in the goods passes to the buyer on the transfer to the buyer of the Bill of Lading (BOL); and sub section (e) states that “the risk in the goods passes to the buyer when they are shipped acquired a float”, the yams had been damaged even before the Bill of Lading (BOL) was transferred to the buyer (Kyeiwa LLC) and even before the shipment with the second container there was no property nor risk to transfer to the buyer as at the time the defendant’s vessel set sail.
It is his contention that although the buyer cleared the yams with the BOL it received, it was only at that point that the unwholesome state of the yams became known to the plaintiff. It is not disputed that the yams handed to the defendant were in a good state. He opined that with the goods having first been stowed in an unfit container it accords with reason to conclude that the damage was caused by the bad container employed by the defendant on the onset saying the action speaks for itself Res ipsa loquitor.
To recap the facts briefly as in the record of appeal, the plaintiff contracted the services of the defendant to ship 1,030 cartoons of yams from Ghana to Kyeiwa LLC in the USA. The defendant gave the plaintiff a reefer container to load the yams and return same to their container yard in the Tema Port as is usually the case. The plaintiff duly complied, loaded the container and returned same to the defendants in very good condition. In the defendant’s yard and the container under their custody and care it was realized that the air conditioning had failed to function in the reefer container. It had failed the Pre-Trip Inspection (PTI) test. There was no evidence in the trial to controvert the fact that the first container failed the Pre-Trip Inspection (PTI) test and found not conducive for the purpose of shipping fresh yams. See exhibit “D”. The defendant on themselves decided to change the container and to reload the yams. This decision was unilaterally taken by them before informing the plaintiff.
When the plaintiff agent got to the scene of reloading they were half way through. There is evidence uncontroverted that the agent was not allowed to inspect the yams in the new container. Since the reload was in the port, the agent had no control over the process but the defendant.
Subsequent to that the container was shipped by the defendants to the USA to the consignee, Kyeiwa LLC. There is also uncontroverted evidence that on the High seas it was realized the new container also developed a temperature default.
The consignee upon receipt of the Bill of Lading (BOL) had the container cleared only to realize all the yams got damaged and became unwholesome.
The consignor, the plaintiff in the case, instituted this action against the defendants in Ghana and had judgment against defendant and being dissatisfied filled this appeal.
The gravemen of the defendants ground ‘I’ is that the plaintiff lacked capacity to institute this action against them and that since it is CIF contract the name on the Bill of Lading (BOL), Kyeiwaa LLC had assumed all the risk and property in the yams and they could institute this action but not the plaintiff who lack capacity.
This case is quite technical and we shall take our time to understand some of the technical words used to enable us understand the issues involved in this appeal. In a contract of carriage of goods by sea, the carrier is any person by whom or in whose name a contract of carriage of goods by sea have been concluded with a shipper. The shipper means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carriage, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea. The consignee is the person entitled to take delivery of the goods.
Most importantly “contract of carriage by sea” means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another. The Bill of Lading (BOL) is a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order or to bearer, constitutes such an undertaking.
The responsibility of the carrier of the goods covers the period during which the carrier is in charge of the goods at the port of loading during the carriage and at the port of discharge. The carrier is deemed to be in charge of the goods from the time he has taken over the goods from the shipper, or a person acting on his behalf until the time he has delivered the goods by handing over the goods to the consignee.
It is pertinent to note that the carrier is liable for loss resulting from loss of or damage to the goods, as well as for delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
Am sure the definition above will make it easier to understand the issues in the instant appeal. From the facts the defendants were to carry the plaintiffs wholesome yams from Ghana to the USA. There is no evidence before us that the yams loaded onto the two containers before shipment were unwholesome else the carrier would not have accepted to carry them. Our reasoning leads to only one conclusion that the yams got spoilt or damaged under the custody and care of the carrier, the defendants. By the contract of carriage, they owe a duty to see to the welfare of the goods. It is their obligation under the contract of carriage to make sure the yams get to the consignee in a perfect state. They cannot by a contract accept to carry a consignment of wholesome yams to the consignee and end up delivering unwholesome yams. They were negligent in their duties by not making sure they deliver wholesome yams to the consignee. They have control over the containers. It is their duty to see to it that the reefer containers function properly, set the temperatures appropriately as required by the contract and make sure they deliver wholesome yams as they took them from the shipper in Ghana.
This case should be viewed essentially in terms of contract between the plaintiff and the defendant. That is, defendant contracted with the plaintiff to provide the latter with a container to ship plaintiff’s yams to the U.S. Defendant was to be responsible for shipping the yams to the U.S.A for a fee. In performing these duties or responsibilities, defendant was negligent. That negligence resulted in plaintiff’s yams getting rotten right from the point of shipment- the condition of the yams further worsens during the carriage of the yams from Ghana to the U.S.A. So strictly speaking the issue for determination in the case is not based on the principle of carriage of goods by sea and the consequences of it but purely and essentially on the principles of contract and consequences of breach by one of the parties.
The consignee naturally is not expected to accept unwholesome yams whether it had already paid for it nor yet to pay. This is unreasonable in the business world and against common sense. Secondly since what was delivered is not what she contracted for, in law she can decide to reject the goods as happened in the instant case. Kyeiwaa LLC was not under any legal obligation to accept the unwholesome yams, and has the right to reject same as unwholesome.
Kyeiwaa had no contract with the carrier and is not therefore under any duty to institute any action against them to recover any loss since she incurred none. The carrier is liable for damage sustained in the event of the destruction or loss of or of damage to any registered lugage or any goods, if the occurrence which caused the damage so sustained took place during the carriage.
We are of the opinion it is the plaintiff who had a contract with the appellant and she had the right to enforce same to recover their losses. This is where she got clothed with capacity to institute this action against the defendants in Ghana. We are of the opinion that the plaintiff had the right to institute this action against the defendants to recover the losses incurred due to the negligence of the carrier. She has the right to institute this action for damages and we hold as such. That ground of appeal is therefore dismissed.
Ground II
The judgment is against the weight of evidence. It is counsel’s for the defendant’s contention that the plaintiff did not lead any evidence to indicate that at the time the defendant caused the transfer of the yams from the earlier container to the other for shipment, the yams were unwholesome and rotten. It is his further contention that the plaintiff was informed of the re-stuffing exercise in the port and their representative came to the scene albeit half way. He claimed the representative was there but failed to raise any objection nor protest on the condition of the yams to the effect that they were unwholesome for shipment to the USA.
Counsel submits that the learned trial judge erred when he held that the defendant commenced its liability from the point of re-loading the container by themselves. The learned judge delivered himself thus “this means that on its own accord, the defendant commenced its liability from that point. In my view therefore, having assumed responsibility at that point, any damage to the cargo thereafter will obviously be put at doorsteps of the defendant, hence the defendant is in my humble view, liable to the plaintiff for the damage caused to the yams as a result of its negligence is handling the carriage of the plaintiffs’ yams”-[pg 172 ROA].
Counsel said this finding of the trial judge was not supported by the evidence on record.
Counsel argued that though the plaintiff pleaded particulars of negligence, they woefully failed to lead any cogent evidence in proof of same. It is also his argument that the plaintiff failed to lead any evidence to establish the allegation that the yams were destroyed. They failed to tender any certificate of destruction even though she said she had it. [page 42 ROA]. It is the defendant’s case that they have evidence that the yams on arrival at Newark port in USA were fumigated meaning they were wholesome. He said if a cargo is wholesome that is when it is fumigated and then released to the consignee. This is a specific allegation of procedure by the defendant but the cardinal principle of allegations in civil actions is that “he who alleges must prove”. They however failed to tender any certificate of fumigation. They however tendered exhibit ‘IC’ which is the receipt of fumigation. Giving the defendant the benefit of the doubt that there was fumigation, that however does not solve the issue of whether fumigation is only for wholesome food or for all kind of foodstuff entering the port.
Counsel submits “once there is evidence of payment for fumigation, it is most probable that the consignment of yams was wholesome, contrary to the findings of fact made by the learned trial judge” –[page 38 of submission].
Counsel himself said “most probable” which means it is not certain whether the yams were wholesome or not. He cannot however blame the Judge for his conclusion that they were wholesome. We should not lose sight of the fact that the plaintiff has been doing this business with the defendant for thirteen years, the evidence says. Why will she institute this action if the yams got there safely and wholesome.
The trial judge cannot fault the plaintiff’s representative for not objecting to the re-packing of the yams since they were already half way through. Secondly, they loaded wholesome yams just the previous day in a functionable container. The defendants disputed the fault at their end. The plaintiff cannot be blamed for not raising any objection thinking it was just a transfer and re-stowing. The re-stuffing was supervised by the staff of the defendants who sealed the container and shipped that very day.
Counsel alleges the plaintiff pleaded and particularized negligence but they failed to lead any evidence to that effect. There is no need wasting much of our time on that issue. The Shipper gave goods and wholesome yams to the Carrier to carry to the USA. It got there unwholesome. There is evidence the reefer container had problems even here in Ghana. When it failed the Pre Trip Inspection (PTI) test. There is evidence the defendants knew of this malfunction since December 2009, some months prior to the shipment, but gave that container out to the plaintiff. This piece of evidence stands uncontroverted by the defendants. Again, on the High Seas, the new container also developed a fault. These are all issues of fact raised and admitted into evidence by the trial court.
Per the contract of carriage the defendants owe a duty of care to the plaintiffs which they failed to observe. The action speaks for itself. We therefore do not know what other evidence the defendants expect the plaintiffs to lead to establish the negligence.
When an appellant raises this omnibus ground of judgment against the weight of evidence it is incumbent on that appellant to demonstrate where the judgment went wrong. The meaning is that he is alleging the trial judge used some pieces of evidence not on record nor supported by the evidence against him which affected the decision against him or there are some pieces of evidence which he failed to use to his detriment.
In the case of Tuakwa vrs. Bosom [2001-2002] SCGLR 61 the Supreme Court directed the appellate court what to do in such a situation when it held:
“An appeal is by way of rehearing, particularly where the defendant, … alleges in his notice of appeal that, the decision of the trial court is against the weight of the evidence. In such a case… it is incumbent upon the appellate court, in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, as to satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.
It is the defendants’ duty to demonstrate to the appellate court the lapses in the judgment appealed against. Djin vrs. Musah Baako [2007-2008] SCGLR 686.
An appeal is by way of re-hearing, particularly where the defendant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon the appellate court, in a civil case to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself but on the balance of probabilities, the conclusion of the trial judge are reasonably or amply supported by the evidence. 1. Tuakwa V. Bosom [2001-2002] SCGLR 61, Oppong Kofi & ors. vrs. Atibrukusu II [2011] 1 SCGLR 176 Koglex Limited (No.2) vrs. Field [1999-2000] SCGLR 175 and 4. Gihoc vrs. Hanna Assi [2005-2006] SCGLR 458.
Essentially, the effect of the ground of appeal, was to invite the Court of Appeal to review the whole of the evidence, documentary and oral adduced at the trial and come out with a pronouncement on the weight of evidence in support of the judgment of the trial court or otherwise. Where the findings were based on established facts, the appellate court was in the same position on the trial court to draw its own inferences from the established facts.
We think the trial judge considered all the relevant evidence before coming to his conclusion. The findings were supported by the facts before the court. This court is always cautious not to interfere with findings of fact made by the trial court since he was in a better position to see the parties in the trial. It can only do so when it’s absolutely necessary especially only if the holdings were not supported by the facts before the court or that the trial court relied on other extrinsic facts or wrong law. We shall therefore not interfere with the findings of the court on that issue and that ground of appeal is dismissed.
Ground III:
The trial judge erred in awarding the plaintiff special damages of USD46,350.00 in the absence of any proof by the plaintiff.
Counsel for the defendant argued that the plaintiff in its statement of claim did not specifically plead the damages by particularizing same contrary to law. That the procedure is that a claim for special damages, same must be specifically pleaded, particularized and strictly proved. Delmas Agency Company Ltd. V. Food Distribution Company Ltd. [2007-2008] SCGLR 748.
Counsel submitted that the plaintiff failed to plead and particularize the cost of the 1,030 boxes of yams, the amount paid for freight, clearing and the handling charges before proceeding to prove them at the trial. He said all these were missing in the plaintiffs pleadings and evidence adduced at the trial and cannot be entitled to special damages.
Counsel contends that the plaintiff is not entitled to freight since it was paid in the USA by Kyeiwa LLC. Plaintiff also never established the cost of the yams both in Ghana nor the USA to enable the court determine any quantum of damages. It is also his contention that the learned trial judge erred in his judgment when he held “in my view, no serious evidence has been introduced by the defendant to upset the plaintiff’s claim in respect of the value of the goods or the incidental expenses claimed.”
Counsel argued that this assertion by the trial judge flies across the face of the settled principle of evidence that he who asserts must prove and that it was imperative on the part of the plaintiff to lead satisfactory evidence in support of its claim for special damages. Failure to satisfy this condition meant the party is not able to discharge the evidential burden imposed on it by law. The defendant challenged the cost of the yams and therefore the burden of proof is on the plaintiff to discharge same successfully.
Counsel submits that the plaintiff having failed to lead cogent evidence on the claim of special damages, the plaintiff was not entitled to the relief of special damages. The plaintiff in defence of this ground submitted Exhibit ‘C’ (delivery order) showing USD11,453.36 as costs payable to Maersk and other outings and exhibit ‘IC’ showed fumigation cost of USD1,184.50 totaling USD12,637.56 leaving the balance of USD33,712.04 as the cost of the yams inclusive of plaintiffs profit margin and brokerage fees. To them the learned trial judge did not stray when he took all these into account and granted the relief as claimed by the plaintiff. It is their case that in so far as the established principle is to restore a party to the position he would have been but for the acts occasioning the loss in question the judge was right and his conclusion was sound in law irrespective of the nomenclature used to describe the award.
Special damage is damage of a kind which is not presumed by law but must be expressly pleaded and proved.
Special damage is such pecuniary loss as can be precisely quantified and is such a loss as the law will not presume to be consequence of the defendants’ act, but which depends in part, at least, on the special circumstances of the case. It must therefore also be explicitly claimed on the pleadings, and at the trial, it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendants’ conduct. A mere expectation or apprehension of loss is not sufficient. No damages can be recovered for a loss actually sustained, unless it is the natural or probable consequence of the defendants’ act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. See (1) H. Parsons (Livestock) Ltd. vrs. Uttley Ingham & Co. Ltd. [1978] QB 791, Hadley vrs. Baxendale [1854] 9 Exch 341.
The reason for which special damages are to be specifically pleaded and particularized is to give enough detail to inform your opponent of the case he will have to meet, if possible, enable him to make his own calculation of their amount.
In the instant appeal, there is no evidence on record as to the cost of the yams. The plaintiff never led any positive evidence to establish the cost of the yams. I would have expected them to call the seller or the source of their supply to testify to the cost of the yams or at least some evidence from the open market as to cost of yams during that period. There was also no evidence as to the cost of yams in the US market at that time. The plaintiff just saying in her evidence that fresh yams were then expensive in the USA and would have made much profit is not enough prove of the cost of the yams. This I do not think is enough to deserve special damages.
The plaintiff was able to establish the payment to Maersk for USD11,453.36, cost of fumigation USD1,184.50 totaling USD12,637.86. This they deducted from their claim of USD46,530 and had a balance of USD33,712.04 saying that is the cost of yams. We do not think the plaintiff by this method had established the actual cost of the yams she lost.
It is trite learning that a party who has given particulars of how his total loss is made up must strictly prove each of the particulars or else is not entitled to anything in respect of the particulars that he is unable to prove. It does not imply that, where a party endorses a sum certain on his writ of summons as special damages he must prove the full amount endorsed or he would not be entitled to anything.
See Clipper Leasing Corporation vrs. AG & Ghana Airways GMJ 5th September 2016.
Even though the plaintiff failed to prove special damages, it is still entitled to an award of nominal damages for the unwholesome yams as a result of the negligence of the defendant. See the case of Ahenkora vrs. Mubarak [1972] 1 GLR 429 at 430. Nominal Damages does not mean small damages but an amount to be determined by the court sufficient enough to adequately compensate the plaintiff for the loss of his goods. The amount should be as near as possible to the amount lost or value of the goods endorsed on the writ of summons. See the case of Norgbey vrs. Asante [1992] 1 GLR 586 at 516 per Acquah JSC (as he then was). See also Royal Dutch Airlines (supra).
Much as we believe plaintiff lost some yams and deserve damages, we do not think plaintiff has been able to establish the amount of USD46, 530.00 as specific damages. However we hold the plaintiff is entitled to nominal damages but not special damages as cost for the yams. We hereby award the plaintiff nominal damages of USD30,000 or it Ghana Cedis equivalent.
That ground of appeal partially succeeds.
Ground IV:
The learned trial judge erred in awarding the plaintiff general damages of Gh¢20,000.00 in the absence of any proof by the plaintiff.
It is counsel’s contention that the plaintiff failed at the trial to establish any of the reasons indicated in the relief based on which it is claiming the general damages. Counsel said the trial judge in his judgment found that the plaintiff failed at the trial to prove its claim for general damages yet went ahead to award the plaintiff general damages in the whooping sum of Gh¢20,000.00 which he termed as nominal. He opined that considering the amount of USD46,230 already awarded by the learned trial judge as specific damages the sum of Gh¢20,000.00 cannot be termed nominal.
Counsel submits that a claim for damages is not automatic; it requires proof of cogent evidence as to why the applicant is entitled to it.
In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury. The rule for damages can and frequently vary based on the type of claim which is presented. Damages attempt to measure in financial term the extent of harm a plaintiff has suffered because of a defendant’s action. Damages are distinguishable from costs, which are the expenses incurred as a result of bringing a law suit and which the court may order the losing party to pay.
The purpose of damages is to restore an injured party to the position the party was in before being harmed. As a result, damages are generally regarded as remedial rather than preventive or punitive. Before an individual can recover damages, the injury suffered must be recognized by law as warranting redress and must have actually been sustained by the individual.
The law recognizes three (3) major categories of damages;
i. Compensating
ii. Nominal
iii. Punitive
Compensating is intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct. Nominal consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced an invasion of rights and punitive is awarded not to compensative a plaintiff for injury suffered but to penalize a defendant for particularly egregious, wrongful conduct.
Counsel for the plaintiff in opposing this ground referred this court to the case of In Yungdong Industries Ltd. vrs. Roro Services & Ors. [2005-2006] SCGLR 816 @ 339 where the Supreme Court held:
“General damages is such as the law will presume to be the natural or probable consequence of the defendants act. It arises by inference of the law and therefore need not be proved by evidence and may be averred generally. The law implies general damage in every infringement of an absolute right”
In the instant appeal, the plaintiffs claim (iii) states;
“General damages for the inconvenience, pain, distress and loss of customer and income to plaintiffs resulting from not fulfilling their contractual obligation to their customers because of defendants’ negligence and resultant damage”.
Counsel for the plaintiff submits that it is settled by the authorities that general damages are earned even when value is not particularly shown and that ‘nominal’ damages in such situation should mean ‘reasonable’ and not ‘small’. He supported his contention with the following cases;
1.Hullblyth (Gh. Ltd.) & Anor. vrs. Anglogold Ashanti Ltd. [2015] 59 GMJ 89 @ 111 – 112, Court of Appeal
2.Norgbey & Anor. vrs. Asante & Anor. [1992] 1 GLR 506 @ 517
It is trite learning that an appellate court will generally only interfere with damages awarded by a trial court in the exercise of its discretion on the ground that:-
The trial judge had acted on some wrong principles of law
That the amount awarded was so extremely high or so very small as to make it in the judgment of the appellate court an entirely erroneous estimate of the damages to which the plaintiff is entitled.
See Societe General de Compensation vrs. Ackerman [1972] 1 GLR 413 CA
The measure of damages in cases of total destruction of goods was the market value of the goods destroyed at the time and place of the destruction. If the market value could not be ascertained, the cost of replacement would be appropriate. But the defendant will not be entitled to the cost of replacement where it was unreasonable to demand an exact replacement, the guiding principle being “restitutio in integrum”. See Zakaria & Ors. vrs. Billa & Ors. [1992] 1 GLR 42 per Benin, J.
The trial judge in the judgment said; “the next issue is the general damages claimed by the plaintiff for the inconveniences, pain, distress, loss of customers and income as a result of the defendants negligence in failing to honour its obligation under the contract of carriage. The plaintiff failed at the trial to establish any of the reasons indicated in the relief based on which it is claiming the general damages. However, it is said that damages follows the breech, and parties must be restored to their former position as close as possible. In the circumstances, I award the plaintiff nominal general damages of Gh¢20,000.00 against the defendant. [page 189 ROA].
General damages as opposed to special are not expected to be proven by evidence during trial. The distinction between special and general damages must be carefully observed. General damages such as the law will presume to be natural or probable consequence of the defendants’ act and need not be specifically pleaded. It arises by inference of law, and need not therefore be proved by evidence, and may be averred generally.
Special damage is such pecuniary loss as can be precisely quantified and in such a loss as the law will not presume to be the consequence of the defendants’ act. It must therefore always be explicitly claimed on the pleadings, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendants’ conduct.
The trial judge, with the greatest respect erred in his holding that the plaintiff failed at the trial to establish any of the reasons indicated in his relief for general damages. The plaintiff is not under any legal obligation to lead any evidence to establish general damages since it is presumed to be the natural or probable consequences of the defendants’ act. He however cured his wrong holding by rightly awarding general damages to the plaintiff based on the evidence before him. Even though his reasoning was wrong, he did the right thing by awarding general damages to the plaintiff.
We think the plaintiff deserve the award.
See Societe General de Compensation vrs. Ackerman [1972] 1 GLR 413 CA.
It is established law that before any appellate court could justifiably conclude that an award of substantial damages by a trial court was either excessive, unjustifiable and amounted to non-judicial or wrong exercise of discretion, there must be an overview of the entire evidence on record to either support the award of substantial damages or the failure of such an award. In the instant case, the defendant company, on the evidence, had been rightly and sufficiently held liable for the acts of commission or omission resulting into damages for the plaintiff company.
In awarding damages for breach of contract, a court of law must not only take into consideration the prevailing economic forces that were at play in the global economic order, but also consider the net effect of the defendant’s conduct and its negative effect on the financial fortunes of the plaintiff company – African Automobile Ltd vrs Tema Oil Refinery – Supreme Court, Civil Appeal No. J4/5/2011 dated 29/06/11.
We however are of the view that the quantum was on the high side and shall reduce same to Gh¢10,000. Save that, the ground of appeal is partially dismissed.
On the totality of evidence before this court, we are of the opinion this appeal lacks merit save ground two which partially succeeds, the appeal is dismissed.