ALHAJI AMIN ISSAKA vs. AGYA KWABENA OWUSU and FIVE OTHERS [2011]DLHC8160

Date	2011-01-17
Suit No.	SUIT NO. C2/8/10
Citation No.	[2011]DLHC8160

HIS LORDSHIP JUSTICE JACOB B. BOON

JAMES M. BELIEB FOR THE PLAINTIFF

WILLIAM KUSI FOR 1ST & 2ND DEFENDANTS

MOHAMMED ATTA FOR 3RD DEFENDANT

WIREDU-PEPRAH ODURO & CO FOR 4TH 5TH & 6TH DEFENDANTS.

[2011]DLHC8160
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI AMIN
ISSAKA<o:p></o:p>vs.<o:p></o:p>AGYA KWABENA
OWUSU and FIVE OTHERS<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C2/8/10&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; &nbsp; &nbsp;DATE: 17TH JANUARY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES
M. BELIEB FOR THE PLAINTIFF<o:p></o:p>WILLIAM
KUSI FOR 1ST &amp; 2ND DEFENDANTS<o:p></o:p>MOHAMMED
ATTA FOR 3RD DEFENDANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

WIREDU-PEPRAH
ODURO &amp; CO FOR 4TH, 5TH &amp; 6TH DEFENDANTS.&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>By his writ of summons, the plaintiff, a transport owner,
operating under the name and style of Zimbabwe Transport, based at Berekum in
the Brong Ahafo Region, claims from the defendants, jointly and severally,
eight hundred bags of “Big Joe” and a hundred bags of “Texas” rice which he
contracted with the defendants to convey from the CCTC (Ghana) Ltd. in Accra to
his customer, Khwaji Brothers, in Kumasi but which were not delivered.
Alternatively, he seeks the recovery of the current price of the rice from the
defendants. The first defendant, a resident of Kwadaso, Kumasi, owns the
Mercedez benz articulator truck with registration number AS 1237D. It was into
this vehicle that the rice was loaded at the CCTC warehouse on the Spintex
Road, Accra, but were not delivered to the owners in Kumasi as expected.<o:p></o:p><o:p>&nbsp;</o:p>The second defendant was a driver’s mate on the
articulator truck, whilst the third defendant claims to be a businessman based
at Tema Community Two. The fourth, fifth and sixth defendants are employees of
the plaintiff and were stationed at the CCT (Ghana) Ltd. Warehouse at the
Spintex Road to ensured orders of rice by customers of the plaintiff were
carried out by loading them into the vehicles of plaintiff or other appropriate
alternative means of transport.<o:p></o:p><o:p>&nbsp;</o:p>The facts of the case are that the plaintiff was
contracted by Khwaji Brothers, who are rice dealers, to transport the total of
nine hundred bags of rice it ordered from CCTC from Spintex Road in Accra to
Kumasi. As none of plaintiff’s vehicles was available at that moment, he
instructed the fourth, fifth and sixth defendants to find an appropriate means
of transport to do so. On 24/08/07, the attorney of the plaintiff was informed
by the fourth, fifth and sixth defendants that they had secured the services of
an articulator truck with registration number GR 1291 C to convey the rice to
Kumasi. It was not disputed that the said vehicle loaded the rice, left the
CCTC premises, but never arrived at its destination in Kumasi.<o:p></o:p><o:p>&nbsp;</o:p>The attorney of the plaintiff who testified on behalf of
the plaintiff, led evidence that in June, 2008, about eleven months after the
truck departed the CCTC Yard with the rice, he was returning to Kumasi from
Sunyani when he spotted it at Kwadaso near Kumasi, but to his surprise it bore
a registration number, AS 1237 D, different from the one that was on it at the
time it loaded the rice. He said on seeing the vehicle, he made an official
report to the police, and that led to the arrest of the second defendant. The
second defendant, upon his arrest, gave two statements to the police. Those
statements were tendered in evidence by the Registrar of Tema Circuit Court
Two, where the second defendant and others were arraigned in respect of the
missing rice. They were marked as exhibit ‘E’, and ‘E1’. The exhibits revealed
the circumstances leading to the disappearance of the rice and also provided
vital clues that aided the police to arrest some of the defendants. Second
defendant indicated in the statements that the driver to the articulator truck,
one Akwasi Adjei, deceased, was a friend, and he invited&nbsp; him to join his truck as a mate which he
accepted. According to him, he and his friend loaded a quantity of teak to Tema
from Kumasi and after off-loading the teak they were approached by the third
defendant to convey the rice to Kumasi. He said after Akwasi Adjei and third
defendant agreed on terms, the third defendant further informed them that he
used a private vehicle registration number to prepare the invoice covering the
rice. He therefore requested that the number plate of the articulator truck be
replaced with that private registration number which was done by Akwasi Adjei.
The truck then carried the new number GR1291 C at the time the rice was loaded
into it. It was also stated in the exhibits that third defendant’s personal
driver, one Abdellah, on the insistence of the third defendant, drove the truck
into the CCTC Yard, and when it was loaded he again drove it out, and parked
about a mile away where Akwasi Adjei then took charge and drove towards Kumasi,
whilst third defendant and Abdellah drove ahead in the private saloon car of
third defendant. According to the exhibits, close to Nkawkaw town, the truck
developed a fault; that the 3rd defendant collected the documents
covering the rice and went into Nkawkaw town. He returned to the spot of the
break-down of the truck with three KIA trucks. All the nine hundred bags of
rice were off-loaded into these trucks and driven away. The second defendant
asserted in the exhibits that later Akwasi Adjei returned to the articulator
truck and told him he had collected the</main>