GHANA PORTS & HARBOURS AUTHORITY vs. ETS KABORE ISSOUFOU [1993]DLSC4236

Date	1993-12-07
Suit No.
Citation No.	[1993]DLSC4236

ARCHER CJ

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

AMPIAH JSC

E D KOM (WITH HIM YAO OHENE-OBENG) FOR THE PLAINTIFF.

NANA AKUFO-ADDO FOR THE DEFENDANT.

[1993]DLSC4236
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													<main id="main" class="content" style="min-height: 60rem" >GHANA PORTS &amp;
HARBOURS AUTHORITY<o:p></o:p>vs.<o:p></o:p>ETS KABORE ISSOUFOU<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1993 - 4] 1 GBR 24 – 56&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 7 DECEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E
D KOM (WITH HIM YAO OHENE-OBENG) FOR THE PLAINTIFF.<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">

NANA
AKUFO-ADDO FOR THE DEFENDANT.<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 1.0pt 0in">

ARCHER
CJ, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC , BAMFORD-ADDO JSC, HAYFRON-BENJAMIN
JSC, AMPIAH JSC<o:p></o:p>

</div>ARCHER
CJ. I have read beforehand the opinion prepared by my brother Aikins JSC and I
agree with his reasoning and his conclusion that the respondent is entitled to
the remedies he seeks. My brother Hayfron-Benjamin JSC has also placed at my
disposal his contribution with which I agree and I have nothing to add.<o:p></o:p>AMUA-SEKYI
JSC. I agree that the appeal of the defendants be dismissed and the application
of the plaintiff for a variation of the judgment be allowed.<o:p></o:p>AIKINS
JSC. This appeal is from the concurrent judgments of the High Court and the
Court of Appeal upholding the claim of the plaintiff, as against the
defendants, for the value of 1412 bags of rice at $36.54 per bag
short-delivered plus interest of 16%. It is significant to observe, however,
that almost all the arguments urged before this court were canvassed in the
Court of Appeal, thereby raising a number of legal issues for determination by
this court, namely (1) the capacity of the plaintiff to sue, (2) the liability
of the defendants for loss of the goods short-delivered, (3) whether there was
a subsisting contract between the parties within the meaning of s 7 of PNDCL
160 and (4) whether or not the goods were in transit to attract the application
of the Customs Regulations 1979 (LI 1060).<o:p></o:p>The
facts of the suit are straightforward. In April 1980 the plaintiff, a citizen
of Burkina Faso, imported a quantity of rice from Pakistan. The rice was
shipped per “M.V. Gulf Heron”, and on arrival at the port of Tema it was
discharged by the Ghana Cargo Handling Co Ltd into the transit shed stocking
area of the Ghana Ports Authority, Tema. The rice was short-delivered by 1412
bags, and as both the Ghana Cargo Handling Co Ltd and the Ghana Ports Authority
denied liability the plaintiff issued a writ against them for recovery of the
rice short-delivered. Both defendants put the blame for short delivery on each
other.<o:p></o:p>After
an exhaustive examination of the facts and the law involved in this case, the
learned trial High Court judge gave judgment for the plaintiff for the value of
the 1412 bags of rice in US dollars plus interest of 16% from the date of the original
writ, i.e. 27th March 1981 to date of judgment, but declined to grant the claim
for customs duty and handling charges on the rice short-delivered together with
20% interest on the amount claimed. Aggrieved by this judgment, the defendants
appealed to the Court of Appeal, and the plaintiff also asked for a variation
of the decision of the High Court for the value of the 1412 bags of rice from
27th March 1981, the date of the issue of the writ instead of 1st June 1980
when the cause of action arose, plus 16% interest as bank charges, and for
judgment in respect of port charges, etc. for the undelivered 1412 bags of rice
together with 20% interest from June 1980 to date of judgment.<o:p></o:p>The
Court of Appeal, however, merely dismissed the appeal, thereby upholding the
judgment of the High Court without considering the variation asked for by the
plaintiff-respondent.<o:p></o:p>It
is from this decision of the Court of Appeal that the
defendants-appellants-appellants have come before this court, and the
plaintiff-respondent-respondent has also asked for the following variations:<o:p></o:p>(1)
that judgment be entered for the plaintiff-respondent for the value of 1412
bags of rice together with the 16% interest per annum from the 1st of July 1980
to the date of judgment.<o:p></o:p>(2)
the claim by plaintiff-respondent in respect of port charges etc. for the
undelivered 1412 bags be allowed with interest at the current bank rate per
annum from July 1980 to date of judgment.<o:p></o:p>The
first ground argued by the learned counsel for the defendants-appellants was
the alleged lack of capacity of the plaintiff-respondent to sue. He submitted
that the amendment which sought to clothe the plaintiff-respondent with
capacity to sue and maintain the action was improperly applied for, and granted
by the Court of Appeal. Learned counsel contended that the application for
amendment ought to have been formally made and processes in that regard duly
filed, and that the oral application was procedurally wrong and ought not to
have been entertained.<o:p></o:p><o:p>&nbsp;</o:p>It
may be noted that the issue of capacity in this case first came up when learned
counsel for the defendants addressed the trial High Court, but the trial judge
failed to consider the issue, and learned counsel repeated it in his arguments
before the Court of Appeal. At this stage the Court of Appeal gave it the
attention it deserved and granted the application of counsel for the
plaintiff-respondent to amend the title to the suit, and duly amended it to
read: Kabore Issoufou, doing business under the name and style of ETS Kabore
Issoufou v Ghana Ports and Harbours Authority, applying the case of Mussey v
Darko [1977] 1 GLR 147, and distinguishing GIHOC v Vincenta Publications [1971]
2 GLR 24, CA, on which counsel for the defendants-appellants heavily relied.<o:p></o:p>I
must say that the argument of learned counsel for the defendants-appellants
that the amendment was improperly applied for and granted by the Court of
Appeal does not impress me as sound in law. In my view the courts have a duty
to ensure that justice is done in cases before them, and should not let this
duty be circumvented by mere technicalities. Since the power to make such
amendments rests in the inherent jurisdiction of the courts, the courts can,
when the issue is raised either in the trial court any time after judgment is
delivered or in the appellate court on the application of a party to the suit
(orally or otherwise), grant such amendments as are necessary to meet the
justice of the case; see Mercer Alloys Corporation v Rolls-Royce Ltd [1972] 1
All ER 211, CA, at p 214 per Davis LJ; see also Hodo v Gbogbolulu [1941] 7 WACA
164 where the court stated at p 165 as follows:<o:p></o:p>