BOOMTRADE COMPANY LTD vs. MESSRS COTECNA & ANOR [2006]DLCA6666

Date	2006-03-24
Suit No.	HI/146/05
Citation No.	[2006]DLCA6666

ARYEETEY JA [PRESIDING]

ABBAN [MRS] JA

QUAYE JA

MR. K.K. SEY FOR THE PLAINTIFF/RESPONDENT [PRESENT].

MR. DABI FOR THE 1ST DEFENDANT/APPELLANT [PRESENT].

[2006]DLCA6666
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													<main id="main" class="content" style="min-height: 60rem" >BOOMTRADE COMPANY LTD<o:p></o:p>vs.<o:p></o:p>MESSRS COTECNA &amp; ANOR.<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;
padding:0in 0in 1.0pt 0in">

HI/146/05&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH MARCH, 2006<o:p></o:p>

MR.
DABI FOR THE 1ST DEFENDANT/APPELLANT [PRESENT].<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;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>QUAYE, JA <o:p></o:p>The
respondents herein, in their role as plaintiffs in the trial court, on 9th
November 1999, filed a writ of summons, indorsed with reliefs against the
defendants jointly and severally, for <o:p></o:p>(a)
the sum of US$22.092.00 being the cost of one 20 foot container of canned
tomato paste purchased by the plaintiff company from the 2nd defendant which
was found on delivery to be unfit for consumption. <o:p></o:p>(b)&nbsp; interest from 24th March 1998 incurred by
plaintiff in respect of the letter of credit that was granted plaintiffs by
their bank to purchase the tomato as above, <o:p></o:p>(c)&nbsp; cost for clearing, transportation,
warehousing, stated to be ¢11.280.000.00 as at 31st October 1999. <o:p></o:p>(d)&nbsp; interest on the said sum as in (c) <o:p></o:p>(e)&nbsp; damages for breach of contract and <o:p></o:p>(f)&nbsp; costs <o:p></o:p>To
the said writ only the 1st defendant responded by filing the requisite
statutory processes.&nbsp; The 2nd defendant
neither filed an appearance nor defended the action.&nbsp; In consequence thereof, the action against
the 2nd defendants terminated on 5th February 2001 when the trial court entered
default judgment against them and made an order against them for the full
satisfaction of the relief indorsed by the plaintiffs in the action.&nbsp;&nbsp; The entry of judgment against the 2nd
defendants in favour of the plaintiffs for the recovery of the entire claim in
this action did not however terminate the action, nor granted relief from the
action, in favour of the 1st defendant. <o:p></o:p>The
case against the 1st defendant was that, they, being an international
inspection agency, holding license to carry on the business of pre-shipment
inspection of goods imported into this country, Ghana, did, in fact on 16th May
1998 carry out, or purported to have carried out, the physical pre-shipment
inspection of the consignment of canned tomato paste as to the physical content
as well as the packaging and marking of the said goods which the plaintiffs
were importing from the 2nd defendant.&nbsp;
The said action of the 1st defendant was confirmed and evidenced by the
issuance by them on 20th May 1998 of a document, known and called a Clean
Report at Findings (CRF) relating to the said consignment of goods and
furthermore acknowledged receipt of the sum of US$180.00 paid by the plaintiffs
to the 1st defendants as consideration for the inspection. <o:p></o:p>The
cause of action for the plaintiff/respondents herein arose when, according to
their pleadings and indorsement of relief, the goods were found on delivery to
be unfit for consumption, a fact which runs contrariwise to the statement of
the 1st&nbsp; defendant/appellant as contained
in the CRF. <o:p></o:p>The
trial court found for the plaintiff/respondents and upheld their relief in its
entirety and held the 1st dependant liable upon satisfaction on the strength of
evidence led in the trial, that the 1st defendant indeed carried out a pre-ship
inspection of the goods imported and issued a clear report of findings, on
which the plaintiffs relied to their detriment.&nbsp;
The judgment of the trial court from which the herein appeal was filed
made a few salient findings of fact on the strength of which she held the
appellants liable.&nbsp; These include the
fact that the 1st defendant/appellant issued to the plaintiffs/respondents an
Import Declaration Form (IDF) and a Health Certificate for which plaintiffs
paid US$180 to the 1st defendants, to enable plaintiffs import the goods.&nbsp; When the goods arrived at the Tema Port they
were duly cleared into a Bonded Warehouse.&nbsp;
Some of the imported tomato paste were later discovered to be
unwholesome and unfit for consumption.&nbsp;
Further to this the court found that the batch number on the cans of the
goods showed conclusively that the goods were produced, not in April or May
1998, but earlier than September 1997, a fact which confirms that the CRF
(exhibit F) did not indicate the true state of the goods to the plaintiffs. The
court therefore concluded that "………the 1st defendant should have known in
its course of business that a clean report of findings is a pre-condition for
obtaining Letter of Credit and raising funds for import; and that a clean report
of findings is for the importer and seller and not only for the Government of
Ghana to rely on.&nbsp; "I further hold
that the 1st Defendant relied on Exhibit 2 a report generated by 2nd Defendant,
and declared the consignment or goods to be wholesome whereas it was not
so.&nbsp; It is my considered opinion that if
the 1st Defendant had not issued a clean report of findings the seller would
not have been paid because no Letter of Credit would have been issued by the
plaintiff's Bankers." <o:p></o:p>The
findings above vindicated the plaintiffs' averments contained in their
statement of claim.&nbsp; The relevant
paragraphs are herein reproduced for effect. <o:p></o:p>"(7)&nbsp; in consideration of payment of the sum of
US$180.00 (One hundred and eighty UD dollars) paid by the Plaintiff to the 1st Defendant
on 16th May 1998 the 1st Defendant carried out an inspection of the said
consignment of canned tomato paste.&nbsp; This</main>