CHARITY AGYEIWAH vs. E.M.S., P&T CORPORATION [2008]DLSC2452

Date	2008-07-25
Suit No.	CIVIL APPEAL NO. J4/33/2004
Citation No.	[2008]DLSC2452

MRS. WOOD C.J. (PRESIDING)

BROBBEY J.S.C.

ANINAKWA J.S.C.

MRS. ADINYIRA J.S.C.

ASIAMAH J.S.C.

STEPHEN AGYEMAN FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

D.K. BREFO FOR THE DEFENDANT/APPELLANT/RESPONDENT.

[2008]DLSC2452
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													<main id="main" class="content" style="min-height: 60rem" >CHARITY AGYEIWAH<o:p></o:p>vs.<o:p></o:p>E.M.S., P&amp;T CORPORATION<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/33/2004<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: 25TH JULY, 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>STEPHEN
AGYEMAN FOR THE PLAINTIFF/RESPONDENT/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">

D.K.
BREFO FOR THE DEFENDANT/APPELLANT/RESPONDENT.<o:p></o:p>

</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;
padding:0in 0in 1.0pt 0in">

MRS.
WOOD C.J. (PRESIDING), BROBBEY J.S.C., ANINAKWA J.S.C., MRS. ADINYIRA J.S.C.,
ASIAMAH &nbsp;J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>RULING<o:p></o:p>MRS. WOOD, C.J.<o:p></o:p>By
this appeal, the plaintiff respondent appellant (appellant) questions the
unanimous decision of the Court of Appeal on four main grounds.&nbsp; Aside from the well- known and oft- used
general ground: “The judgement is against the weight of evidence”, the two
other grounds of appeal, which in any event are all embodied in the omnibus
ground are the following:<o:p></o:p>“The Court of Appeal misdirected
itself by failing to consider the evidence of the defendant’s own witness
(Maggie DW1) which evidence supported fully the plaintiff’s case.”<o:p></o:p>The
Court of Appeal erred when it held, in the teeth of all the evidence adduced at
the trial that the appellant did not post any travellers cheques by EMS but
rather posted a document as DW1 wrote “document” on the green tag which was put
on the EMS envelope.” <o:p></o:p>It
is the fourth ground of appeal however, which raises important legal issues. It
reads:<o:p></o:p>“The Court of Appeal misdirected
itself in law in coming to the conclusion that the trial court had no
jurisdiction to declare section 43 (1) of the Post and Telecommunication
Decree, 1975 (NRCD 311) void as being inconsistent with the provisions of
article 18 (2) of the 1992 Constitution.”<o:p></o:p>The
facts culminating in this instant appeal are not complex. The parties entered
into a contract of carriage of a postal parcel. By it, the respondent
corporation, agreed to deliver the appellant’s parcel allegedly containing
travellers’ cheques to the value of ten thousand pounds (₤10,000) to her
principals in the United Kingdom. Although the parcel got to respondents agent
in the UK, it was never delivered as agreed under the terms of that simple
contract, for it eventually got lost. The appellants successfully sued to
recover of the full value of the lost cheques, when the respondents failed to
make good the loss. The decision was overturned on appeal on the principal
grounds that firstly, by interpreting article 18(2) of the 1992 Constitution,
the trial judge exceeded his jurisdiction by straying into the domain of the
Supreme Court, and secondly that in any event the principal finding that she
did purchase travellers cheques and further that indeed she had those cheques in
the parcel was against the weight of evidence.<o:p></o:p>The
well established rule of law is that an appeal is by way of rehearing, and an
appellate court is therefore entitled to look at the entire evidence and come
to the proper conclusions on both the facts and the law. Consequently, I will
like to deal with the issue arising from the factual findings first, which
issue in any event present the least difficulties. The importance of correcting
errors, if any, on the issue of whether or not the appellant posted ₤10,000
worth of travellers’ cheques cannot be underestimated. It forms the plank on
which the appellant’s case is founded and a finding against her on this
critical issue therefore must, without more, resolve the entire action in the
respondent’s favour.<o:p></o:p>On
this issue, the appellate court unequivocally concluded as follows: “Infact
from the cross examination above stated it is quite clear that the respondent
did not buy any travellers cheques and she did not post any travellers cheques
by EMS but rather posted a document as DWI wrote on the green tag which was put
on the EMS envelope.” <o:p></o:p>With
the greatest respect, these findings, which are plainly central to the defence
that the appellant did not purchase any travellers cheques is clearly not borne
out by the evidence. Contrarily, as plainly evident from the record, the
reverse represents the correct finding. The evidence of the appellant’s
principal witness, PW1, which was not discredited under cross examination, is
as follows:<o:p></o:p>&nbsp;<o:p></o:p>“At the EMS, Sister Maggie welcomed me
and asked me to wait as she was serving two persons. When the two persons left,
I went in and handed over the postal packet to her. She opened the envelope and
took the paper on which the serial nos. of the TC’s have been written. She told
me the parcel was very heavy and that she was contemplating splitting it into
two. After weighing the parcel she said it was not heavy after all but that it
was not properly arranged that was why it looked bulky. What she meant was that
the travellers’ cheques had not been properly arranged. She took out the
travellers cheques from the original envelope and put it in an EMS envelope.
She wrapped the Travellers Cheques with the paper in which were written the
serial nos. of the travellers’ cheques. She finally wrapped it with carbon
paper. She sealed the envelope with glue and put the parcel in a bigger
envelope and sealed it with clips.” <o:p></o:p>In
view of the respondents emphatic suggestion to the PW1 that “no such travellers
cheques were taken to Maggie”, the evidence of Maggie, who gave evidence at the
trial as DW1, is crucial. Her evidence is the decider, so to speak, to this
strange tale of two clearly divergent claims. Given her clear and unambiguous
evidence in chief on the issue in favour of the appellants, it becomes
extremely difficult to understand what led the appellate court to find against
her. She deposed as follows:<o:p></o:p>“In the course of serving customers it
came to the turn of </main>