DANIEL ASHIAH vs. GEMINI MARITIME & STEVEDORING SERVICES LTD. [2013]DLCA6702

Date	2013-02-07
Suit No.	CIVIL APPEAL NO: H1/55/2012
Citation No.	[2013]DLCA6702

KANYOKE J.A. (PRESIDING)

KUSI-APPIAH J.A.

OFOE J.A.

MR. OSAFO BUABENG FOR DEFENDANT/APPELLANT

MR. ADJEI LOMOTEY FOR PLAINTIFF/RESPONDENT

[2013]DLCA6702
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >DANIEL ASHIAH<o:p></o:p>vs.<o:p></o:p>GEMINI MARITIME &amp;
STEVEDORING SERVICES LTD.<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">

CIVIL APPEAL NO: H1/55/2012&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;DATE:
7TH FEBRUARY, 2013<o:p></o:p>

MR.
ADJEI LOMOTEY FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>KANYOKE
J.A. (PRESIDING), KUSI-APPIAH J.A., OFOE J.A. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<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>KANYOKE, J.A. <o:p></o:p>In
November 2005, the plaintiff/respondent (hereinafter referred to as the
Respondent), resident in Germany shipped to Tema a 20 feet container stocked
with used vehicle spare parts and accessories.&nbsp;
The container was shipped on a vessel named Kamina.&nbsp; The vessel arrived at Tema port safely;
however, on 4th December, 2005, when the container was being offloaded from the
vessel with a Reachstacker operated by an employee of the defendant/appellant
(hereinafter referred to as the Appellant), both the Reachstacker and the
container fell into the sea.&nbsp; These were
however salvaged on the third day of the accident.&nbsp; The container was subsequently opened on the
17th January, 2006 for examination after which a Survey Report was issued.&nbsp; The Survey Report was tendered during the
trial as Exhibit 1 whilst the bill of lading or Invoice was also tendered as
Exhibit B. <o:p></o:p>On
the 23rd day of March 2006, the respondent claiming that the goods in the
container were damaged beyond economic repair or use as a direct result of sea
water seeping into the container, caused by the negligence of the appellant’s
employee caused a writ of summons to be issued at the Commercial Division of
the High Court, Accra seeking against the appellant the following reliefs: <o:p></o:p>“a. Payment of the full value of the
contents of the 20 foot container valued at Euros 51,200 or its cedi
equivalent. <o:p></o:p>b.&nbsp;
Loss of anticipated profits. <o:p></o:p>c.&nbsp;
General damages for negligence.” <o:p></o:p>In
its statement of defence, the appellant admitted that the accident occurred in
the course of the handling of the container by its employee but denied the
accident was caused by its negligence.&nbsp;
The appellant attributed the cause of the accident to a mechanical
problem leading to a cessation of the engine of the Reachstacker rendering its
hydraulic system ineffective.&nbsp; The
appellant accordingly relied on the defence of inevitable accident.&nbsp; The following issues were set down in the
summons for directions for trial and determination: <o:p></o:p>“1. Whether or not the plaintiff is
entitled to payment of the full value of the contents of the 1 x 20 foot
container valued at Euro 51,200.00. <o:p></o:p>2.&nbsp;
Whether or not the plaintiff is entitled to loss of anticipated profits.
<o:p></o:p>3.&nbsp;
Whether the plaintiff is entitled to general damages.” <o:p></o:p>At
the conclusion of the trial, the learned trial judge in his judgment dismissed
the respondent’s claims for the payment of the full value of the contents of
the 20 foot container valued at Euro 51,200 or its cedi equivalent and loss of
anticipated profits but found the appellant liable for negligence and
accordingly awarded the respondent, general damages of forty-million old cedis
(¢40,000,000.00) or Gh¢4,000.00.&nbsp;
However, even though the learned trial judge in his judgment dated 9th
May, 2007, found that the respondent was not entitled to reliefs (a) and (b) of
the endorsement because he had failed to prove them as a plaintiff,
nevertheless, listed certain selected items in Exhibit B, which he felt had to
be replaced by the appellant and suo motu and in the teeth of objection by the
appellant’s counsel ordered the Chief Transport Officer of the Judicial
Service, Accra to go round in town to ascertain the values or prices of the
said selected items and thereafter present his report to the court.&nbsp; The said order was carried out despite the
objection and protestation of the appellant’s counsel.&nbsp; Upon the submission of the Report by the said
Chief Transport Officer, the learned trial judge proceeded to award in favour
of the respondent an amount of ¢360,200,000.00 (Gh¢360.020.00) as the cost of
the said listed/selected items on the 30th day of July 2007.&nbsp; He also awarded the respondent costs of
¢10,000 (Gh¢1,000.00). <o:p></o:p>Apparently
dissatisfied with the judgment, the appellant had earlier on a Notice of Appeal
on filed the following grounds of appeal. <o:p></o:p>“a.&nbsp;
Judgment is against the weight of evidence. <o:p></o:p>b.&nbsp;
The learned trial judge erred in law by ordering the Chief Transport
Officer of the Judicial Service to ascertain the prices of goods without
knowing the type or make thereby substituting the case of plaintiff proprio
motu. <o:p></o:p>c. The learned trial judge erred in
concluding that used goods like car batteries, engines, doors, dashboards,
wiper motors, alternators, air cleaner and integrated wiring that fell in the
sea could not be put to any meaningful economic use in the absence of any
expert evidence on the issue. <o:p></o:p>