GHANA PORTS AND HARBOURS AUTHORITY vs. ISSOUFOU [1991]DLCA2244

Date	1991-04-11
Suit No.
Citation No.	[1991]DLCA2244

ESSIEM JA

AMUAH JA

ADJABENG JJ.A

NANA AKUFO-ADDO (WITH HIM BROOKMAN-AMISSAH)FOR THE APPELLANTS.

ENOCH KOM (WITH HIM Y. O. OBENG AND S. KUADA) FOR THE RESPONDENT.

[1991]DLCA2244
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													<main id="main" class="content" style="min-height: 60rem" >GHANA
PORTS AND HARBOURS AUTHORITY<o:p></o:p>vs.<o:p></o:p>ISSOUFOU<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 500<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 11 APRIL 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
AKUFO-ADDO (WITH HIM BROOKMAN-AMISSAH)FOR THE APPELLANTS.<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">

ENOCH KOM
(WITH HIM Y. O. OBENG AND S. KUADA) FOR THE RESPONDENT. <o:p></o:p>

ESSIEM,
AMUAH AND ADJABENG JJ.A<o:p></o:p>

</div>JUDGMENT
OF ADJABENG J.A.<o:p></o:p>The
action giving rise to this appeal was commenced on 27 March 1981 in the name of
“ETS Kabore Issoufou” as the plaintiff. The plaintiff was described in the
amended statement of claim as “a company incorporated in Burkina Faso.”
Originally, the plaintiff, the respondent herein, sued the erstwhile Ghana
Ports Authority and Ghana Cargo Handling Co. Ltd. jointly and severally. The
claim was “for the value of 1,412 bags of rice belonging to the plaintiff which
were lost while in the custody of the defendants”. This claim was subsequently
amended on a number of occasions, and the final indorsement on the writ of
summons reads as follows:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l2 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i).&nbsp;&nbsp; “$283,507.94 being the value of 3,403
bags of rice at $36.54 per bag, i.e. ¢52,732.476 (inclusive of 16% interest). <o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l2 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(ii). Customs duty, handling charges, ports
rents and clearing agents fees together with 26% interest on 3,403 bags of rice
paid but undelivered - ¢50,731.64.”<o:p></o:p>The Ghana
Ports Authority was at the time responsible for the administration of the Port
of Tema, among others, and the Ghana Cargo Handling Co. Ltd. was responsible
for the off-loading and handling of imported goods at the said port. In June
1986, while this suit was pending, the Ghana Ports and Harbours Authority Law,
1986 (P.N.D.C.L. 160), was passed merging these two bodies and the Takoradi
Lighterage Co. Ltd. into one body corporate to be known as the Ghana Ports and
Harbours Authority. The title of the suit was therefore amended, and thus the Ghana
Ports and Harbours Authority became the sole defendant in the action.<o:p></o:p>The brief
facts of this case are that sometime in the early part of 1980, one Kabore
Issoufou, a citizen of Burkina Faso resident in Ouagadougou, imported a
quantity of rice from Pakistan through the Port of Tema. 54,323 bags of the
rice had been shipped but only 53,800 bags were landed and taken into the sheds
of the defendants at the Tema Port. The two original defendants who handled the
consignment failed to deliver to the plaintiff the said 53,800 bags of the rice
after the necessary payments had been made to them. The rice they delivered was
short by 1,412 bags. As the defendants could not offer any satisfactory
explanation as to why the rice should have been short-delivered, this action
was taken against them.<o:p></o:p>The
defendants denied liability. Firstly, they denied that the plaintiff was an
incorporated company. They also put the blame for the short delivery on each
other. Later, however they contended that P.N.D.C.L. 160 which created the
present defendants did not provide that the liabilities of the erstwhile Ghana
Ports Authority and Ghana Cargo Handling Co. Ltd., the original defendants in
this case, be taken over by the new defendants, the Ghana Ports and Harbours
Authority, as the said Law did in the case of the assets of these bodies: see
section 6 of P.N.D.C.L. 160,<o:p></o:p>The trial
judge, after considering the evidence adduced by the parties, including exhibit
1 tendered in evidence by the present defendants, gave judgment for the plaintiff
for the value of the 1,412 bags of rice short-delivered. Exhibit 1 is a
document prepared by the claims and documentation department of the erstwhile
Ghana Cargo Handling Co. Ltd., one of the original defendants in this case as
stated earlier. This document dearly shows that the plaintiff’s consignment of
rice as short-delivered by 1,412 bags. The defendants appealed to this court.<o:p></o:p>The
grounds upon which the decision of the trial court was attacked in this court
can be considered under three main heads. They are, firstly, that the decision
was not supported by the evidence; secondly, that the plaintiff lacked capacity
to institute the action</main>