MENSAH vs. NATIONAL SAVINGS AND CREDIT BANK [1990]DLSC641

Date	1990-12-04
Suit No.
Citation No.	[1990]DLSC641

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

EDWARD WIREDU JSC

AMUAH J.A.

SAM OKUDZETO FOR THE APPELLANT.

K. OKWABI (WITH HIM I. AMOH) FOR THE RESPONDENTS.

[1990]DLSC641
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>NATIONAL SAVINGS AND CREDIT
BANK<o:p></o:p>[SUPREME COURT, ACCRA] <o:p></o:p>[1989-90] 2 GLR 620<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:
4
DECEMBER 1990<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">

SAM OKUDZETO FOR THE APPELLANT.<o:p></o:p>

K. OKWABI (WITH HIM I. AMOH) FOR THE RESPONDENTS.<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">

WUAKU, AMUA-SEKYI, AIKINS, EDWARD
WIREDU&nbsp;<o:p></o:p>JJ.S.C. AND AMUAH J.A.

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.S.C.<o:p></o:p>This is
an appeal from the decision of the Court of Appeal [see sub. nom. National
Savings and Credit Bank v. Mensah [1989-90] 1 G.L.R 611 C.A. ante setting aside
a judgment of Ampiah J. (as he then was) sitting in the High Court, Accra by
which the plaintiff, Godson Mensah, a trader, was adjudged to be entitled to
recover from the defendants, the sum of ¢112,573,178.60 as the value of goods
destroyed in a fire which broke out in a warehouse owned by the defendants. At
the time of the bailment, and up to the date of their destruction, the agreed
value of the goods was ¢1,988,320. The plaintiff claimed the value of the
goods, a refund of the warehouse fee he paid to the defendants and 30 per cent
profit on the goods. The two latter claims were rejected by the High Court, but
the claim for the value of the goods was inflated to the higher figure by
converting the amount into United States dollars at the rate of exchange
prevailing at the time of the bailment and then converting it back into cedis
at the rate prevailing at the date of judgment. Further damages of ¢20,000 were
awarded, but these were cancelled out when account was given for an amount of
¢20,000 obtained from the sale of items retrieved from the fire.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants had in the warehouse goods other than those of the plaintiff. They
had insured them for a total sum of ¢5 million. The plaintiff had been called
upon, and had in fact, paid a sum proportionate to the value of his goods as
his contribution to the premium. In respect of any sums the defendants might
receive from the insurers for the destruction of the plaintiff’s goods, they
stood to him in the relationship of a trustee.<o:p></o:p><o:p>&nbsp;</o:p>From the
moment the goods were destroyed, the defendants assured the plaintiff that the
matter was well in hand and that he would be paid. What they did not tell him
was that the insurers, the State Insurance Corporation, had repudiated
liability under the terms of the policy. When the plaintiff eventually sued the
defendants, they brought in the insurers as third parties. The trial judge
found them not liable on the ground that the claim was time-barred, having been
made more than twelve months after the event. The defendants did not appeal
against that decision, nor did the plaintiff appeal against the dismissal of
his claim for a refund of the warehouse fee and for the profits he said he
would have earned from the sale of the goods. These matters are therefore not
before us. The only questions we have to consider are whether the plaintiff is
entitled to damages, and if he is, how much it comes to.<o:p></o:p><o:p>&nbsp;</o:p>On
liability, the trial judge held that the defendants had been negligent. It
seems that the basis of the finding was that the defendants should have
foreseen that electrical wires in the old premises near the sea would corrode
and that such corrosion might cause an electrical short-circuit resulting in
fire. But, as the Court of Appeal pointed out the evidence was most
unsatisfactory as none of the witnesses who spoke to this could say positively
that the fire was caused by an electrical short-circuit. The evidence was, to
say the least, speculative and ought not to have found favour with the trial
judge. Moreover it seems to me that even if it had been proved satisfactorily
that the fire was caused by an electrical short-circuit arising from corroded
wires, this would not have been sufficient unless there were evidence that the
defendant knew of the poor state of their electrical wires and took no steps to
remedy the defects.<o:p></o:p><o:p>&nbsp;</o:p>I cannot
find a better statement of the law than that contained in the following passage
of Halsbury’s Laws of England (3rd ed.), Vol. 2, para 225 at p. 116.<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
bailee is not, apart from special contract, an insurer, and, therefore, in the
absence of negligence on his part he is not liable for the loss or damage to
the chattel due to some accident, fire, the acts of third parties, or the
unauthorised acts of his servants acting outside the scope of their
employment.”<o:p></o:p>