SOCIETE DE PROMOTION DE LA PACHE vs. THE OWNERS & PARTIES INTERESTED IN THE SHIP OR VESSEL M/V HILDA ‘A’ [2000]DLCA6977

SOCIETE DE PROMOTION DE LA PACHE vs. THE OWNERS & PARTIES INTERESTED IN THE SHIP... [2000]DLCA6977

Date	2000-05-04
Suit No.	CIVIL APPEAL NO. 13/98
Citation No.	[2000]DLCA6977

LAMPTEY J.A. (PRESIDING)

BENIN J.A.

TWUMASI J.A.

AMATEIFIO FOR APPELLANT

DR. TWUM FOR RESPONDENT

[2000]DLCA6977
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													<main id="main" class="content" style="min-height: 60rem" >SOCIETE DE PROMOTION DE LA PACHE<o:p></o:p>vs.<o:p></o:p>THE OWNERS &amp; PARTIES INTERESTED IN THE SHIP OR VESSEL M/V
HILDA ‘A’<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. 13/98.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 4TH MAY 2000<o:p></o:p>

AMATEIFIO FOR APPELLANT <o:p></o:p>

</div>CORAM:<o:p></o:p>&nbsp;LAMPTEY J.A. (PRESIDING), BENIN J.A., TWUMASI
J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>LAMPTEY,
JA:<o:p></o:p>&nbsp;On the 18 June 1993, Society De Promotion De
La Pache (hereinafter referred to as the “plaintiff co”.) sued the Owners and
parties interested in the Ship or Vessel M/V Hilda “A” (hereinafter referred to
as ‘defendant co’.) and claimed the reliefs stated in the writ of summons. A
statement of claim running into six paragraphs was annexed to the writ of
summons, in addition to the statement of claim three bills of lading in the
original were annexed to the writ of summons. On the date of sealing the writ of
summons, lawyers acting for plaintiff co. filed a motion on notice for the
arrest of the vessel, Hilda 'A'. Defendant co entered appearance on 25 June
1993 and its lawyer filed an affidavit opposing the application for the arrest
of the vessel, Hilda 'A' which was at that date berthed at Tema. The defendant
co. acting by its lawyers filed a statement of defense on 23 July 1993. This
statement of defense ran into 21 paragraphs. The defendant co. did not
counter-claim for any relief. The record of appeal shows that it was the
defendant co. that set down additional issues for trial in the summons for
directions filed on 11 October 1993. I did not find the summons for directions
filed on behalf of the plaintiff co. in the record of appeal. Be that as it
may, the reliefs sought by plaintiff co. were formulated and clearly itemised
in its amended statement of claim. After hearing on the merits the trial judge
dismissed the whole of the plaintiff co.'s claim and awarded costs against it.
The plaintiff co. was dissatisfied and aggrieved by the judgment and appealed
to this court on a number of grounds of appeal.<o:p></o:p>&nbsp;In order to appreciate and understand the
issues of law raised and argued in this appeal, I am of the view that the
reliefs sought by plaintiff co. must be reproduced in full, especially since
defendant co. did not counter-claim for any relief. The plaintiff Co. claimed
the reliefs following: —<o:p></o:p>&nbsp;"(1) A declaration that the discharge in
Tema of fish consigned by the plaintiffs to parties in Abidjan and Lagos is
wrongful.<o:p></o:p>&nbsp;(2) An order upon the defendants to deliver
the fish consigned to parties in Abidjan and Lagos.<o:p></o:p>&nbsp;(3) In the alternative an order upon the
defendants to release the said fish to the plaintiffs subject to the cost of
freight to the respective destinations of Abidjan and Lagos.<o:p></o:p>&nbsp;(4) Damages for wrongful conversion <o:p></o:p>(5) Perpetual injunction restraining the
defendants from discharging 1782.30 tonnes of fish at Tema<o:p></o:p>&nbsp;(6) Quia timet injunction. <o:p></o:p>(7) An order upon the defendants to
pay all plaintiffs total and other expenses incidental to defendant's wrongful,
appropriation of the plaintiff's fish .......” <o:p></o:p>The
case of the plaintiff co briefly and simply stated is that defendant co.
entered into an agreement, evidenced by three separate bills of lading with
plaintiff co. under and by which defendant co.’s vessel, Hilda 'A' was to
accept for carriage by sea 1782.32 tonnes of fish consigned as per the said way
bills to Abidjan, Tema and Lagos. The defendant co.’s vessel, Hilda 'A' dully
and regularly accepted 1782.32 tonnes of fish on board in Mauritania. Contrary
to the terms and conditions in the three bills of lading, the captain of the
Hilda 'A' discharged and off — loaded all the 1782.30 tonnes of fish at Tema,
acting on the instructions of the Managing Director of defendant co. The case
of the defendant was stated at great length at paragraph 16 &amp; 17 of the statement
of defence as follows:—<o:p></o:p>&nbsp;“16 The defendant says that its vessel do not
apply for hire but carry its own cargo consequently when it went for 1782,30
tonnes of fish it did not require any bills of lading. The defendant will
contend that a bill of lading is only prima facie evidence of a contract
between the ship owner and a shipper not the contract itself and that at no
time did the defendant agree to carry the plaintiffs fish for a fee or
otherwise.<o:p></o:p>&nbsp;17 The defendant says that the plaintiff not
being the owner of the vessel or a charter had no right to issue the bill of
lading and the same were irregular and void" I must add that the statement
of defense brought into focus transactions between defendant co and other
companies.”<o:p></o:p>&nbsp;The first ground of appeal argued by counsel
for plaintiff co. was that the judgment was against the weight of evidence.
Counsel submitted that plaintiff co, discharged the burden if S.10(1) a</main>