AGBO vs. RAINBOW WINDSCREEN [1995]DLCA5201

Date	1995-12-20
Suit No.	[1994 - 95] 2 G B R 859 – 875 C A
Citation No.	[1995]DLCA5201

ESSIEM JA

WOOD JA

ACQUAH JA

TSEGAH FOR THE APPELLANT.

MRS BEATRICE DUNCAN WITH AMEGATCHER FOR THE RESPONDENT.

[1995]DLCA5201
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													<main id="main" class="content" style="min-height: 60rem" >AGBO<o:p></o:p>vs.<o:p></o:p>RAINBOW WINDSCREEN<o:p></o:p>[COURT
OF APPEAL]<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">

[1994 - 95] 2 G B R 859 – 875&nbsp; C A&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: 20 DECEMBER 1995<o:p></o:p>

MRS
BEATRICE DUNCAN WITH AMEGATCHER 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;
padding:0in 0in 1.0pt 0in">

ESSIEM
JA, WOOD JA, ACQUAH JA<o:p></o:p>

</div>ACQUAH JA. <o:p></o:p>This
is an appeal against the judgment of an Accra High Court dated 20 October 1992.
I will refer to the parties in the manner they appeared at the court below. The
plaintiff is manufacturer of windscreens and other related items, the defendant
is a businessman who runs cargo transport to and from the Tema&nbsp; harbour and had on diverse occasions conveyed
plaintiff’s glassware and other items in containers from the Tema harbour to
the plaintiff’s warehouse at the South Industrial Area, Accra.<o:p></o:p>In
March 1990, the plaintiff took delivery of a container of glassware at Tema
Harbour. The plaintiff, as usual, called on the defendant to convey the
consignment from the Harbour to its warehouse in Accra for a fee of ¢65,000.
The defendant’s vehicle, which was to convey the consignment, was an Albion
flat body articulator No GX 3396, then driven by one Narh Bruce who testified
as DW1. The vehicle collected the container at Shed 11 and drove to the harbour
security checkpoint near the exit of the harbour. At the checkpoint, the
container fell off the vehicle onto the road. The glasses broke into pieces.
The plaintiff thereupon called on the defendant to pay for the broken glasses,
but the defendant refused. Hence the instant action was instituted claiming
from the defendant:<o:p></o:p>“(a) The sum of ten million three
hundred and five thousand three hundred and sixty three cedis (¢10,305,363)
being the purchase price, cost of freight and profit thereof on one container
load of double glassware material for the manufacture of double windscreen
negligently damaged at the Tema harbour on 22 March, 1990.<o:p></o:p>(b) Interest at the prevailing bank
rate from 22 March, 1990, till date of final judgment.”<o:p></o:p>In
its statement of claim, the plaintiff pleaded that the falling down of the
container resulting in the damage to the glassware, was due to the negligent
control of the vehicle and proceeded to particularise the negligence of the
defendant. Later the statement of claim was amended by describing the defendant
as a common carrier. The allegation and particulars of negligence were deleted,
and the plaintiff provided particulars of the loss and damage arising from the
damage of the glassware.<o:p></o:p>The
defendant, while admitting that he was engaged by the plaintiff to convey its
container of glassware from the harbour to the plaintiff’s warehouse in Accra,
and further admitting that the said container came off his vehicle around the
security check point resulting in the damage to the glass-wares, nevertheless
denied being liable to the claim of the plaintiff. For according to him, his
driver was not negligent and that the accident happened because of the awkward
location of the security check point within the harbour. The defendant further
contended that he had agreed with the plaintiff that the latter’s insurers
would be responsible for any damage to the container while being loaded and
conveyed to the plaintiff’s warehouse in Accra. He maintained also that not all
the glasses were broken and that the plaintiff used the unbroken ones in
manufacturing windscreens. They therefore alleged that the plaintiff had
inflated its claim.<o:p></o:p>At
the trial, the plaintiff called two witnesses in support of its claim, while
the defendant testified and called as his only witness, his driver who was at
the material time, in charge of the vehicle. In his judgment the trial judge
took the view that the fundamental issue is whether the defendant was a common
carrier or a private one. After reviewing the relevant authorities he came to
the conclusion that the defendant was a common carrier and that he cannot
escape liability until he is able to establish that he contracted out of the
strict liability of common carriers. He held that the defendant's bare
uncorroborated assertion of the restrictive condition is not sufficient. He
therefore entered judgment against the defendant for the sum of ¢8,244,291
being the value of the goods together with interest, and cost of ¢200,000. It
is this judgment that the defendant disputes in this appeal on the following
grounds:<o:p></o:p>“(1) The trial learned judge erred in
law in stating in his judgment that defendant was a common carrier of the
plaintiff’s goods and was bound by the common law doctrine of strict liability
of carriage of goods.<o:p></o:p>(2) The trial judge erred in law in
ignoring the contract of carriage entered into between plaintiff and defendant
with special exemptions inconsistent with the relation of common carrier and
customer.<o:p></o:p>(3) The trial judge erred in law in
his interpretation of the case of Majolagbe v Larbi [1959] GLR 190 in relation
to the burden of proof and evidence of a single witness touching and concerning
the case of defendant.<o:p></o:p>(4) The trial learned judge erred in
law in rejecting the testimony of defendant that damage to the goods carried
for plaintiff by defendant would be paid for by the insurers of plaintiff.<o:p></o:p>(5) The evidence of PW2 Musa Baba that
the plaintiff’s goods were insured against damage in transit corroborating the
evidence of the defendant was erroneously ignored by the trial judge.<o:p></o:p>(6) The trial judge failed to
appreciate the legal significance of plaintiff’s inability to prove negligence
against the defendant or his agents.<o:p></o:p>(7) The trial judge erred in law in
failing to appreciate the fact that the accident occurred in the harbour when
defendant’s driver was </main>