KAGUIN ENTERPRISE (GHANA) LTD vs. UMARCO (GHANA) LTD [2000]DLSC329

Date	2000-07-12
Suit No.
Citation No.	[2000]DLSC329

AMPIAH JSC

ADJABENG JSC

ACQUAH JSC

ATUGUBA JSC

AKUFFO JSC

DR WC EKOW DANIELS FOR THE APPELLANT.

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

[2000]DLSC329
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KAGUIN ENTERPRISE (GHANA) LTD<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">UMARCO (GHANA) LTD<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 2 GLR 682<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.0pt;
mso-border-bottom-alt:solid black .5pt;padding:31.0pt 31.0pt 1.0pt 31.0pt;
mso-border-shadow:yes">

</div>COUNSEL:DR WC EKOW
DANIELS FOR THE APPELLANT.T A TAGOE (WITH
HIM E K MENSAH) FOR THE RESPONDENT.___________________________________________________________________________________________________________________________CORAM:AMPIAH,
ADJABENG, ACQUAH, ATUGUBA, AKUFFO JJSC___________________________________________________________________________________________________________________________JUDGEMENT<o:p></o:p>Ampiah JSC. <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 SA. The consignment which
was carried in the ship MV OCEAN VOICE was covered by an invoice dated 15 June
1989 (this was tendered as exhibit B). The goods arrived at the Tema Harbour
around August 1989. The plaintiffs, having been given the relevant documents, including
a bill of lading (in a set of six) which was indorsed to them, took step to
take delivery of the goods. 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) Ltd, 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
SA (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. 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 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 SA
were the shippers and Kaguin Enterprises (Ghana) Ltd the persons to be
notified. In the “Consignee” column however, was the words “To Order.” 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 held that Kaguin Enterprises (Ghana) Ltd, the plaintiffs, were
only to be notified and that the goods were to the order of Cargill
International SA. 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.<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. In chapter 1 of Paul Todd’s book, Cases
and Materials on Bill of Lading, the author states:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“A bill of lading is a receipt issued by a carrier. Thus the
transfer of a bill lading, transfers an important right in relation to the
goods and in effect the transfer of the bill of lading is equivalent to the
transfer of the goods themselves and that its transfer, transfers constructive
possession of the good.”<o:p></o:p>In the case of Sanders Brothers v Maclean &amp; Co [1883] 11 QBD
327 (also in the Casebook on Shipping Law by E R Hardy Ivamy (4th ed), Bowen
LJ, stressing the importance and function of the bill of lading as a document
of title, states:<o:p></o:p>