KAGUIN ENTERPRISE (GHANA) LIMITED vs. UMARCO (GHANA) LIMITED [2000]DLSC2350

Date	2000-07-12
Suit No.	CIVIL APPEAL NO. 10/99
Citation No.	[2000]DLSC2350

Ampiah J.S.C.

Adjabeng J.S.C.

Acquah J.S.C.

Atuguba J.S.C

Ms. Akuffo J.S.C.

DR. EKOW DANIELS FOR THE APPELLANT.

T. A. TAGOE (WITH HIM E. K. MENSAH) FOR THE RESPONDENT.

[2000]DLSC2350
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													<main id="main" class="content" style="min-height: 60rem" >KAGUIN ENTERPRISE (GHANA) LIMITED<o:p></o:p>vs.<o:p></o:p>UMARCO (GHANA) LIMITED<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL APPEAL
NO. 10/99<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:
12TH&nbsp;JULY 2000.<o:p></o:p>

</div>COUNSEL<o:p></o:p>DR. EKOW DANIELS FOR THE APPELLANT.<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">

</div>CORAM:&nbsp;&nbsp; <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" style="mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
text-align:justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Ampiah J.S.C. (Presiding), Adjabeng J.S.C., Acquah J.S.C., Atuguba
J.S.C., Ms. Akuffo,
J.S.C.<o:p></o:p>

</div>JUDGMENT<o:p></o:p>AMPIAH, J.S.C.:&nbsp;&nbsp; <o:p></o:p>It is unfortunate that I have to disagree with my
esteemed brothers and sister on their conclusion in this appeal. However, I
feel it is extremely desirable that there should be no doubt in the mercantile
world with regard to legal principles that have long been recognised.<o:p></o:p>The facts in this case briefly are that the
Plaintiffs as IMPORTERS [a fact which the trial Court found], imported into
this country a quantity of rice for sale, from Cargill International S.A.&nbsp;
The consignment which was carried in the ship MV OCEAN VOICE was covered by an
Invoice dated June 15th 1989 [this was tendered as Exhibit "B"]. The
goods arrived at the Tema Harbour around August, 1989.&nbsp; The Plaintiffs
having been given the relevant documents, including a BILL OF LADING [in a set of
six], which was endorsed to them, took step to take delivery of the
goods.&nbsp; They engaged the services of the Ghana Ports and Harbour Authority
for stevedoring and shore handling for which payment they could not settle in
full until action was taken against them. They also paid the Defendants [Umarco
(Ghana) Limited] for their clearing and warehousing services. However, when the
Plaintiffs went later for the release of the goods to them the Defendants
released only a portion of the goods and refused to release the rest saying
that they had instructions from Cargill International (the Shippers of the
goods) not to release the rest to them. Despite repeated demands, the
Defendants refused to release the rest of the goods. The Plaintiffs therefore
took action against the Defendants claiming ownership of the goods, the release
of the goods to them, accounts and damages for conversion.<o:p></o:p>The trial Court gave judgment in favour of the
Plaintiffs and granted them the reliefs they sought. Not satisfied, the
Defendants appealed to the Court of Appeal which allowed the appeal and set
aside the judgment of the Court below.&nbsp; It is against this decision that
the Plaintiffs have appealed to this Court.<o:p></o:p>In its judgment, the Court of Appeal relied
religiously on the BILL OF LADING [Exhibit "A"] and the content
thereof. Particular reference was made to the words “SHIPPER"
"CONSIGNEE” and "NOTIFY ADDRESS”. In the columns where these words
have been inserted there was no problem with the columns 'SHIPPER' and 'NOTIFY
ADDRESS' as the Court found clearly that CARGILL INTERNATIONAL were the
Shippers and KAGUIN ENTERPRISES GHANA LIMITED the persons to be notified. In
the “CONSIGNEE” column however was the words "TO ORDER".&nbsp; The
Plaintiffs had claimed that although their names had not been inserted at the
column as the consignees, on the evidence and the law, they were consignees of
the goods. The trial Court acceded to this claim but the Court of Appeal held
otherwise: It said Kaguin [the Plaintiffs] were only to be notified and that the
goods were to the order of Cargill International. In other words the goods were
to go to whomever Cargill International would direct. Consequently, since the
Plaintiffs had not been described as the consignees, they could not claim any
right to the goods [the rice].<o:p></o:p>It should be noted that the Bill of Lading [Exhibit
“A”] was an agreement between the Shipper and the owner of the ship, though
reference was made of other persons in the document.&nbsp; In Chapter 1 of Paul
Todd's book on "CASES AND MATERIALS ON BILL OF LADING", the author
states:—