BUSI & STEPHENSON (GHANA) LTD. vs. OPOKU [1962]DLHC1403

Date	1962-10-08
Suit No.
Citation No.	[1962]DLHC1403

DJABANOR J.

G. DAVEY FOR THE PLAINTIFFS.

J. OWUSU-YAW FOR THE DEFENDANT.

[1962]DLHC1403
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BUSI &amp; STEPHENSON (GHANA) LTD. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">OPOKU <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 2 GLR 96<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 8TH OCTOBER, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

G.
DAVEY FOR THE PLAINTIFFS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
DJABANOR J.<o:p></o:p>In this case the plaintiffs’ claim against the defendant is for
the sum of £G5,483 6s. being the value of cocoa received by the defendant as a
clerk of the plaintiffs for which he is liable to account, and for which he is
unable to account.<o:p></o:p><o:p>&nbsp;</o:p>The facts are quite simple. During the 1960–61 main crop season
the defendant received from various sources a total of 76,468 bags of cocoa on
behalf of the plaintiffs which he stacked in sheds of which he held the keys.
Out of the said cocoa received by the defendant, 75,759 bags were railed by him
to the Cocoa Marketing Board, also on behalf of the plaintiffs, leaving a
balance of 709 bags which should have been in the shed. But they were nowhere
to be found. The plaintiffs therefore are claiming the value of the unaccounted
for cocoa which is £G54,483 6s.<o:p></o:p><o:p>&nbsp;</o:p>In his defence the defendant denied that any contract existed
between him and the plaintiffs whereby he was accountable for any losses or
shortages of cocoa, and said that since he was only a servant, short of
conversion or embezzlement by him directly, any losses suffered by the
plaintiffs must be borne by them.<o:p></o:p><o:p>&nbsp;</o:p>I regret that neither party assisted me with regard to any
authorities on the points they raised. There is no doubt that the defendant was
a servant of the plaintiffs. The moment he bought any cocoa for them as their
factor, ownership vested in them and he became a bailee of it. What was his
duty as a paid bailee? As I understand the authorities, his duty was not that
of an absolute insurer, but was to use, towards the preservation of the goods
entrusted to him, that degree of care which might reasonably be expected from a
reasonable man in respect of his own goods. It cannot be permitted to the
bailee, though he has done no act to dispossess himself of the goods, to defend
himself on the ground that for some reason unknown to him he no longer is in a
position to restore them to the bailor. In my opinion the bailee must show that
the goods were lost without default on his part. In Bullen v. Swan Electric
Engraving Co.1(1) the Court of Appeal in England, affirming Walton, J., held
that while it was not necessary for the bailee to show exactly how the loss
happened, it was necessary for him to show that he had used as much care as a
reasonable man would use in protecting his own chattels.<o:p></o:p><o:p>&nbsp;</o:p>In Travers (Joseph) &amp; Sons v. Cooper2(2) a bailee of goods had
them in a barge. His lighterman left the barge unattended, and in his absence
the barge was either held in the mud or underpinned, and in either case was
flooded by the rising tide. It was extremely doubtful what actually happened,
and whether if the lighterman had been on board, he could have prevented the
loss. Pickford, J. held that the burden of proof was on the bailor to show that
the loss was caused by negligence; and that as he left the matter in doubt he
failed. (This is exactly the argument of the defendant in this case). All the
members of the Court of Appeal thought this was wrong. They took the view that
it was incumbent upon the defendant, the bailee, when these goods were lost, to
prove that be had taken reasonable care to keep and preserve them. In this case
the defendant has led evidence to show that it is possible that the cocoa could
have been stolen from the open yard, for as he stated, whenever the sheds were
full, he had to stack the overflow in the open yard. That it was in this way
that the cocoa was stolen is much too nebulous a possibility in my view. It
seems to me rather strange that this possibility did not become a reality
during all the 28 or more years that the defendant was responsible for the
plaintiffs’ cocoa, and that it became a reality only at the end of the
plaintiffs’ last year of business as buying agents for the Cocoa Marketing
Board. Apart from this suggestion that the 709 bags of cocoa could have been
stolen there is no other evidence of how they could have got missing. I do not
find the defendant’s explanation to the police satisfactory. I do not think
that the defendant has discharg</main>