GHANA RUBBER PRODUCTS LTD vs. CRITERION CO LTD [1985]DLCA916

Date	1985-03-04
Suit No.
Citation No.	[1985]DLCA916

APALOO CJ

EDWARD WIREDU JA

OSEI-HWERE JA

NANA AKUFO-ADDO (WITH HIM THOMPSON AND TETE-DONKOR (MISS)) FOR THE APPELLANT.

S O K OTENG FOR THE RESPONDENT.

[1985]DLCA916
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GHANA RUBBER PRODUCTS LTD
<o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 56<o:p></o:p>

DATE:
4 MARCH 1985<o:p></o:p>

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

NANA AKUFO-ADDO (WITH HIM THOMPSON AND TETE-DONKOR
(MISS)) FOR THE APPELLANT. <o:p></o:p>

S O K OTENG FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APALOO CJ, EDWARD WIREDU AND OSEI-HWERE JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO CJ<o:p></o:p>By a
judgment dated 30 October 1984 the High Court entered judgment for the
respondent- company against the appellant-company for the return of 27,265 bags
of calcium carbonate or their value at ¢900 per bag and ¢15,000 damages for
unlawful detention. If our arithmetic is correct, the total pecuniary award
adds up to just over ¢241⁄2 million. That claim was founded in detinue and
although the appellant-company contended in the court below that the suit was
wrongly founded on that ancient remedy, this plea failed to persuade the judge.
They again raised this issue of law before this court and invited us to hold
that on the facts, the judge below was in error in holding that a case of
detinue entitling the respondent-company to the return of the goods or their
value and damages was established.<o:p></o:p><o:p>&nbsp;</o:p>But the
determination of the correct holding on this legal issue, depends, as most
issues of law do, on the facts found or proved; and to the facts we now turn.
The appellant-company, as its name suggests, manufactures rubber products. Its
business turnover during the period June - November 1982 suggests that it was
in business in a large way. One of the chemicals it uses in the manufacture of
its products is calcium carbonate. There is no evidence whether it ordinarily
imports this chemical itself. There is however evidence that a year before the
transaction which gave rise to this action, it bought a quantity of this
chemical from a gentleman called Dhawan at the price of ¢180 per bag.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that the appellant-company has on its board two directors. They
are Mr S Fakhry who is the managing director and another gentleman called Adnan
Fakhry. It would seem that for the actual day-to-day running of the company,
they employed an Englishman called Westray. In March 1982 both directors of the
appellant-company were out of the country. The managing director, S Fakhry, was
himself in Lebanon. Dhawan had a fairly large quantity of calcium to sell. It
is admitted on the evidence that this is not a fast moving commodity. So as
pushing tradesmen often do, he called on the appellant-company’s general
manager and offered to sell him the lot.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that Westray was himself unwilling to commit the company to the
purchase of this chemical without obtaining the sanction of the managing
director. So he got in touch with him in the Lebanon and obtained his
authorisation to go ahead with the purchase. He accordingly bought a large
stock. The records of the company show that it received a total quantity of
35,365 bags of the chemical and paid an aggregate sum of ¢10,357,500 for the
lot.<o:p></o:p><o:p>&nbsp;</o:p>Although
the carbonate belonged to Dhawan who imported and warehoused it and who in
truth entered into the contract of sale with the appellant-company, Dhawan
requested that payment for the lot should be effected on the invoices presented
by two separate and distinct companies who have no legal connection with
Dhawan. They are Criterion Co Ltd– the respondent in this appeal (hereafter
referred to as Criterion), and another company called Pyramid Lime and Paints
Industries Ltd (hereafter referred to as Pyramid).Dhawan, according to his own
account, was the managing director of Saka Manufacturing Co Ltd and Meldes
General Chemical Industries. None of the directors of Dhawan’s companies serve
on the boards of Criterion and Pyramid. In other words, there was no company
law concept of interlocking directorships. Dhawan admitted quite frankly that
the respondent-company, that is Criterion, was its agent in receiving payment
of the purchase price. Criterion was clearly not his agent in entering into the
contract. On this, there was no equivocation. Dhawan said clearly, that he
entered into the contract of sale himself.<o:p></o:p>