GHANA PORTS & HARBOURS AUTHORITY CAPTAIN ZEIM vs. NOVA COMPLEX LTD [2006]DLSC2421

Date	2006-11-15
Suit No.	CIVIL APPEAL NO. J4/1/2006
Citation No.	[2006]DLSC2421

MRS. WOOD J.S.C. (PRESIDING)

BROBBEY J.S.C

ANSAH J.S.C

ANINAKWAH J.S.C

MRS. ADINYIRA J.S.C.

[2006]DLSC2421
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													<main id="main" class="content" style="min-height: 60rem" >GHANA PORTS &amp; HARBOURS AUTHORITY CAPTAIN ZEIM<o:p></o:p>vs.<o:p></o:p>NOVA COMPLEX LTD<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/1/2006<o:p></o:p>DATE:
15TH NOVEMBER 2006.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS.
WOOD, J.S.C. (PRESIDING), BROBBEY, J.S.C., ANSAH, J.S.C., ANINAKWAH, J.S.C.,
MRS. ADINYIRA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;MRS.&nbsp;
WOOD, J.S.C.: This is an appeal against the unanimous decision of the
Court of Appeal.&nbsp; The&nbsp; first appellant, Ghana Ports and Harbours
Authority, is the statutory body charged under the laws of Ghana with the management
and control of all harbours and ports facilities in this country; while Captain
Zeim, the&nbsp; second appellant, is the
Master in charge of the Tema Main Port and Fishing Harbour.&nbsp; Nova Complex Ltd, the respondents, are the
registered owners of the M V Nova VII and the M V Nova VIII, the subject-matter
of these proceedings.&nbsp; At the date of the
events which triggered this action, the vessels were berthed at different
locations. The M V Nova VII was berthed at the Tema Fishing Harbour, while the
sister ship, the MV Nova VIII, was berthed at the Shipyard and&nbsp; Dry-dock of the Tema Port.<o:p></o:p>On
18 May 2001, the respondents (hereinafter called the plaintiffs) sued the
appellants (hereinafter called the defendants) for compensation arising out of
the alleged negligent or unlawful beaching of the M V Nova VIII.&nbsp; The defence in the main was an outright
rejection of the charge of negligence or unlawfulness, coupled with a
counter-charge of negligence against the plaintiffs.&nbsp; The defendants maintained that the beaching
was lawfully carried out in line with their statutory duty to maintain ports
and harbour safety.&nbsp; They pleaded that
this was the only option open to them, when the vessel was found to be listing
so heavily at the entrance of the docks that, it stood in danger of sinking and
becoming an obstruction, thus posing a real danger to maritime safety.&nbsp; <o:p></o:p>&nbsp;The trial High Court found as a fact that M V
Nova VIII did not list; and further that it was beached in error.&nbsp; On appeal, the Court of Appeal affirmed the
finding of liability, though for slightly different reasons, but varied the
award of damages by reducing the quantum.&nbsp;
Dissatisfied, both parties have appealed to this court for a reversal of
the findings and orders with which they are aggrieved. While the defendants
are&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; requesting a complete
overturn of the liability finding, the plaintiffs are asking for a restoration
of the damages originally awarded by the trial court as compensation and an
enhancement of the costs awarded.<o:p></o:p>&nbsp;The grounds of appeal by the defendants<o:p></o:p>&nbsp;The defendants' original grounds of appeal
were as follows:<o:p></o:p>&nbsp;"(i) the Court of Appeal erred in holding
that the alleged admission of negligence by the second defendant without
authority was binding on the defendants;<o:p></o:p>&nbsp;(ii)&nbsp;
the Court of Appeal erred in holding that the alleged admission of
negligence by the said Capt Zeim, the second defendant, rebutted the
presumption that the removal of the vessel from the port by the defendants was
done regularly in the course of official and statutory duty;<o:p></o:p>(iii) the Court of Appeal erred in
awarding damages when the self-same court had found that the plaintiffs had not
proved the&nbsp; damages suffered; and<o:p></o:p>(iv)&nbsp;
the Court of Appeal erred in affirming the trial court's decision for
loss of&nbsp;&nbsp;&nbsp; use."<o:p></o:p>&nbsp;The defendants filed the following additional
grounds of appeal:<o:p></o:p>&nbsp;"(1) The Court of Appeal erred in law in
holding that the plaintiffs-respondents had rebutted the presumption that the
defendants-appellants had removed the vessel...<o:p></o:p>&nbsp;(2) The holding that the second defendant
admitted that he beached the vessel MV Nova VIII by mistake was against the
weight of evidence.<o:p></o:p>(3) The decision of the Court of
Appeal that the alleged admission by the second appellant [second defendant]
was binding on the first appellant [first defendant] is unsupportable in law...<o:p></o:p>&nbsp;(4) The holding by the Court of Appeal that
the second defendant's alleged admission constituted res gestae is
unsupportable in law and fact... <o:p></o:p>&nbsp;<o:p></o:p>(5) The awards of US$600,000 and
¢400,649,992.25 as the market value of the MV Nova VIII&nbsp; are neither supported by the evidence&nbsp; nor decided authority...<o:p></o:p>&nbsp;(6) The Court of Appeal erred in accepting the
insured value of the MV Nova VIII&nbsp; as the
market value although the plaintiffs never proffered the insured value as the
market value.<o:p></o:p>&nbsp;(7) The holding that the repairs were
undisputed is erroneous in law...<o:p></o:p>