P – FASTGRO ENTERPRISE LTD vs. GHANA PORTS AND HARBOURS [2013]DLCA6565

Date	2013-03-28
Suit No.	CIVIL APPEAL NO. H1/48/2012
Citation No.	[2013]DLCA6565

ABBAN (MRS) JA (PRESIDING)

ADUAMA OSEI JA

DZAMEFE JA

MR. NARTEY TETTEH FOR DEFENDANTS/APPELLANTS

MR. E M NARH FOR THE PLAINTIFFS/RESPONDENTS

[2013]DLCA6565
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													<main id="main" class="content" style="min-height: 60rem" >P – FASTGRO ENTERPRISE LTD<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GHANA PORTS AND HARBOURS<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. H1/48/2012&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: 28TH MARCH, 2013<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
NARTEY TETTEH FOR DEFENDANTS/APPELLANTS <o:p></o:p>

MR.
E M NARH FOR THE PLAINTIFFS/RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p>ABBAN (MRS) JA (PRESIDING), ADUAMA OSEI JA, DZAMEFE
JA&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>ADUAMA
OSEI <o:p></o:p>The action from which this
appeal has arisen was commenced by a Writ of Summons issued in the High Court,
Accra, on the 11th of November, 2002. The Writ and its accompanying Statement
of Claim were amended on 12th April, 2006 and, by the amended Writ, the
Plaintiff/Respondent claimed against the Defendant/Appellant:<o:p></o:p>&nbsp;“(a) The sum of ¢637,362,800.00 being the
balance outstanding, due and owing to Plaintiffs in respect of electrical
house-hold goods supplied to Defendants as per the agreement of 15th February,
1999 which sum of money Defendants have failed, neglected, or refused to pay
despite persistent demands by Plaintiffs. <o:p></o:p>“(b) Interest on the said sum of
¢637,362,800.00 from 17th February, 1999 to date of final payment.<o:p></o:p>&nbsp;“(c) Damages for breach of contract and
embarrassment caused to Plaintiffs.”<o:p></o:p>&nbsp;On the 3rd of December, 2007, the High Court
entered judgment in favour of the Plaintiff/Respondent for the amount claimed
plus interest thereon at the prevailing bank rate from 15th February, 1999 to
date of final payment, and the judgment was expressed to be in respect of the
balance outstanding on goods supplied to the staff of the Defendant/Appellant on
hire purchase.<o:p></o:p>&nbsp;Not satisfied with the judgment of the High
Court, the Defendant/Appellant has appealed against the same to this Court, and
this is our judgment in the appeal. In this judgment, the Plaintiff/Respondent
is referred to as “the Plaintiff”,
and the Defendant/Appellant is referred to as “the Defendant”. The judgment appealed against is at page 150 to
page 157 of the Appeal Record, and the Notice of Appeal is at page 158 to page
160 of the Record. <o:p></o:p>On the 22nd of April, 2010
in pursuance of leave granted by this Court, the Defendant amended its Notice
of Appeal by adding four grounds to the eight grounds originally filed, and
among the new grounds is “Additional
Ground A”, which contends that “(t)he
trial judge erred in not dismissing the claim for non-compliance with the
mandatory provisions of section 1 (1) (b) of the Hire Purchase Act, 1974 (NRCD
292) and section 66 of the Sale of Goods Act, 1962 (Act 137).”<o:p></o:p>&nbsp;It is to be noted that neither NRCD 292 nor Act 137 was pleaded, and
neither was the applicability of the provisions of either statute raised for
the consideration of the trial Court. The matters pleaded and the evidence led
before the trial Court however left no doubt that the transaction in issue was
a hire purchase transaction. Indeed, as observed above, the judgment of the
trial Court was expressed to be in respect of the balance outstanding on goods
supplied to the staff of the Defendant Company on hire purchase. This would
indicate that the trial Court understood the transaction in respect of which it
was entering judgment to be a hire purchase transaction. In entering the
judgment, therefore, in my view, it was within the competence of the trial
Court to deal with any issues of enforceability that arose in the light of the
existing law on hire purchase.<o:p></o:p>&nbsp;To my mind, given the facts on record, even
though NRCD 292 and Act 137 had not
been pleaded, consideration of their provisions and their implications for the
enforceability of the transaction in issue would not have sprung any surprise
on the parties and I do not think either of them could seriously claim to have
been prejudiced if the statutes had been adverted to in the judgment of the
trial Court. But as it turned out, the statutes and their implications for the
sustainability of the Plaintiff’s action were neither raised nor considered in
the Court below and the question therefore arises whether in the circumstance,
the Defendant is permitted to raise them before this Court, as it seeks to do
under Additional Ground A.<o:p></o:p>&nbsp;I think it is now trite that a point of law
arising on the record but not raised in the trial court may be canvassed in an
appellate court if the point is substantial and its consideration will not call
for further evidence. The points raised under Additional Ground A are
substantial and go to the root of the Plaintiff’s claim and all the evidence
required for the resolution of those points is on record. I think therefore
that Additional Ground A may properly be considered in this appeal. Also, in
view of the fact that, under Additional Ground A, the Defendant is criticising
the trial court for not dismissing the Plaintiff’s action on the strength of NRCD 292 and Act 137, I find it
necessary to consider that ground first, since its success may render
consideration of the remaining grounds unnecessary. <o:p></o:p>Before I proceed, however,
I should observe that Counsel for the Plaintiff failed to file a written
submission in response to the submission filed on behalf of the Defendant. This
does not mean however that the Defendant’s appeal has automatically succeeded;
the arguments advanced on behalf of the Defendant will be considered on their
merits.<o:p></o:p>&nbsp;In the submissions made by him under
Additional Ground A, Counsel for the Defendant has contended that the
transaction in issue can only be a hire purchase or a conditional sale
transaction. He has accordingly contended that the provisions of the Hire Pu</main>