NATIONAL SAVINGS AND CREDIT BANK vs. MENSAH [1989]DLCA648

Date	1989-02-23
Suit No.
Citation No.	[1989]DLCA648

OSEI-HWERE JA

LAMPTEY JA

ESSIEM J.A.

AMOH (WITH HIM OKWABI) FOR THE DEFENDANTS-APPELLANTS.

SAM OKUDZETO FOR THE PLAINTIFF-RESPONDENT.

KWAMI TETTEH (WITH HIM ANATSUI AND OPPONG) FOR THE THIRD PARTY.

[1989]DLCA648
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													<main id="main" class="content" style="min-height: 60rem" >NATIONAL SAVINGS AND CREDIT BANK <o:p></o:p>vs. <o:p></o:p>MENSAH<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 610<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
23
FEBRUARY 1989<o:p></o:p>

</div>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">

AMOH (WITH HIM OKWABI) FOR THE
DEFENDANTS-APPELLANTS.<o:p></o:p>

SAM OKUDZETO FOR THE PLAINTIFF-RESPONDENT.<o:p></o:p>

KWAMI TETTEH (WITH HIM ANATSUI AND OPPONG) FOR THE
THIRD PARTY.<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;
padding:0in 0in 0in 0in">

OSEI-HWERE, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>On or
about 1 April 1978 the defendants accepted the plaintiff’s goods comprising
eighteen cartons metallic ribbons and 1661⁄2 sets of grinding machines which
they housed for the plaintiff for reward. The total value of these goods, when
they were first delivered to the defendants, was fixed at ¢1,988,320. The
defendants took out an insurance policy against the risk of destruction by fire
of goods kept in their warehouse (including the plaintiff’s goods) with the
declared value of over ¢5 million. The plaintiff was charged with the cost of
the service which comprised the interest and insurance for the said goods as
well as the rent for warehousing the goods. The only reward to the defendants
was, accordingly, derived from the rent.<o:p></o:p><o:p>&nbsp;</o:p>There was
a fire outbreak in the defendants’ warehouse on 5 June 1979, a day after the
military uprising, which consumed most of the goods stored there. Only 100 of
the plaintiff’s set of grinding machines were salvaged from the fire. By reason
of the insurance policy covering the goods destroyed, the defendants were
granted leave to issue a third party notice on the State Insurance Corporation
whereby the defendants claimed against the said State Insurance Corporation
indemnity against the plaintiff’s claim and costs. The defendants filed their
ex parte motion for leave to issue the third party notice on 26 June 1981. The
third party disclaimed liability to indemnify the defendants and pitted their
defence on the contention that the goods got lost as a result of looting
started by soldiers engaged in military uprising and also that by their tardy
notice for indemnity the defendants were barred under the policy. Paragraphs 3
and 7 amplified the stand of the third party as follows:<o:p></o:p>“3 The
third party avers further that the premises was forced open by soldiers on 5
June 1979 after the soldiers had beaten and driven away the Securicor guardsmen
watching the warehouse and thereafter the soldiers commenced looting the
warehouse and were joined by all manner of persons. The premises caught fire
many hours after the looting and by this the third party says the incident was
part of the military and popular uprising of 4 June 1979 ... 7 In answer to the
defendants’ paragraph 4 the third party says its position on the claim as
contained in its paragraphs 2, 3 and 4 above had been made known to the
defendants as far back as 8 June 1979 by a letter reference number FD/F9855/CA/
80 and reiterated by their survey report sent to the defendants on 29 June 1979
and conclusively closed as a case of ‘military uprising’ on 27 February 1980 by
a letter number FD/F9853/TRO/VA and therefore the third party will contend that
in view of this disclosure the defendants are barred under the policy to raise
a dispute over this case after the expiry of twelve months of the happening of
the loss or damage.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge rejected the exemption clause of “mutiny, riot, military,
or popular uprising, e.t.c.” under which the third party sought refuge and
found that the goods were destroyed by fire. He, however, found the defendants
liable in negligence and he entered judgment for the plaintiff against the
defendants for damages. He awarded the total damages of ¢112,573,176.60 with
¢80,000 costs. In arriving at the total damages the learned trial judge
reasoned as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
evidence is that 100 of the sets of grinding machines were recovered and handed
over to the plaintiff who sold it for ¢20,000. There is sufficient evidence
that the defendants were aware that these goods had been brought in with
foreign currency. The plaintiff must be awarded such damages as would enable
him replace the goods. I award the plaintiff the value of the eighteen cartons
metallic ribbons and 1661⁄2 sets of grinding machines in its dollar value as
converted in the present. The total value of the goods at the time they were
deposited was ¢1,988,320. This was a conversion of the dollar equivalent. At
the time the cedi equivalent of the dollar was ¢2.75. Now the cedi equivalent
of the dollar is ¢157. To enable the plaintiff be put in the position he would
have been, I would award him ¢1,988,320 x 157 + 2.75 less ¢20,000. Having
awarded the plaintiff the full value of the goods as at the date of judgment, I
do not think he would be entitled to any further loss of profit or interest on
the money as damages. However for the detention of the goods, i.e. the
defendants’ inability to surrender the goods at the time of demand, I award the
plaintiff ¢20,000, damages. The plaintiff thus succeeds on his claim and is
awarded a total of ¢112,513,178.60 with costs of ¢80,000.”<o:p></o:p>