NASSIRU ABDULAI BANDA vs. COLONEL AYISI [2014]DLSC2995

Date	2014-05-07
Suit No.	CIVIL APPEAL NO. J4/1/2013
Citation No.	[2014]DLSC2995

ATUGUBA J.S.C. (PRESIDING)

ANSAH J.S.C.

BONNIE J.S.C.

GBADEGBE J.S.C.

AKOTO BAMFO (MRS) J.S.C.

JAMES MARSHALL BELIEB ESQ. FOR THE PLAINTIFF /RESPONDENT/ APPELLANT.

MICHAEL GYANG OWUSU ESQ. FOR THE DEFENDANT/APPLLANT/ RESPONDENT.

[2014]DLSC2995
																																						<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" >NASSIRU
ABDULAI BANDA<o:p></o:p>vs.<o:p></o:p>COLONEL
AYISI<o:p></o:p>[SUPREME COURT, 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. J4/1/2013&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; &nbsp; &nbsp; &nbsp;DATE: 7TH MAY, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>JAMES
MARSHALL BELIEB ESQ. 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">

MICHAEL
GYANG OWUSU ESQ.&nbsp; FOR THE
DEFENDANT/APPLLANT/ RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p>ATUGUBA J.S.C. (PRESIDING),
ANSAH J.S.C., BONNIE J.S.C., GBADEGBE J.S.C., AKOTO BAMFO (MRS) J.S.C.<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JUDGMENT<o:p></o:p>

</div>GBADEGBE
JSC:&nbsp;&nbsp;&nbsp; <o:p></o:p>On14 July 2008, an entity that goes by the name
Khawaja Brothers Co Ltd purchased, so the plaintiff alleged, purchased one
thousand bags of sugar from a companyin Accrathat was to be consigned to Kumasi.
The purchaser initially approached the plaintiff, an employee of a haulage
company to undertake the contract of carriage but as they had no vehicles
available, the plaintiff arranged a vehicle belonging to the defendants to
undertake the contract of carriage. According to the plaintiff, the terms of
the carriage were agreed upon between the driver of the vehicle and the owner
of the goods but unfortunately, the vehicle never discharged the goods at the
agreed destination and all efforts to retrieve the goods failed, hence the action
herein. The defendants strenuously contested the action by denying that there
was any capacity in the plaintiff and also averred on the merits that by the
practice prevailing in contract of carriage of goods, they were unanswerable for
the loss.<o:p></o:p>On these facts, the plaintiff obtained judgment in
the High Court, Kumasi. An appeal therefrom to the Court of Appeal by the
defendants resulted in a reversal of the decision of the trial court from which
the plaintiff lodged an appeal to us seeking a judicial correction. Although
the submissions contained in the written briefs submitted to us by the parties
are considerable, the point for our decision today is an extremely short one
and although we have had the assistance of detailed arguments ranging over
several pages, we hope we should not be thought disrespectful to those
submissions if we find it possible to express our views in comparatively few
words.<o:p></o:p>In our view, a careful consideration of the record
of appeal and the submissions filed before us by the parties discloses that the
question that we have to decide having regard to the pleadings and the evidence
adduced at the trial is whether the plaintiff had the requisite capacity to
mount an action that was based on the breach of a contract of carriage to which
he was not a party. From the processes, it is quite plain that as the plaintiff
did not claim to be either a party to the contract of carriage or had the
interest of the owner of the goods assigned to him, he did not have the
slightest interest.So stated, the principle on which this case turns, privity
of contract being of ancient originhas long been settled without any conflict
of authority and requires no reference to decided cases to sustain it.Accordingly
on the proven facts,the decision of the learned trial judge that purported on
the facts of this case to amend the title of the suit in the course of his judgment
to enable the capacity of the plaintiff to read “Nassiru Abdulai Banda (Agent)
suing on behalf of himself and Khawaja Brothers Co Ltd”was without authority
and must be avoided.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;It is
interesting to observe that although the learned trial judge agreed with the
principle enunciated by the Court of Appeal in the case ofGhana Rubber Estates Ltd v Criterion [1984-86] 2 GLR 56, which was
binding on him to the effect that no agent could maintain an action in his own
name whether the principal was named or unnamed, he thought that he could go
round the settled judicial position by the curious amendment of the title by
the court so motu, but&nbsp; that course of&nbsp; procedure on the facts was not open to him as
the case of the plaintiff&nbsp; was thereby
changed. In this respect, we observe straightaway that the&nbsp; learned justices of the Court of Appeal were
right when they came to the position that on the evidence placed before the
trial court, the plaintiff throughout the case was the agent of Zimbabwe
Transport Company Limited and never established that he was the agent of the
owners such as to have enabled the learned trial judge to purport to amend the
title for the purposes of &nbsp;enabling the
real issues in controversy between the parties to be determined.The amendment,
we hasten to say had the effect of overreaching the defendant in view of the
objection that they had taken to the capacity of the plaintiff, which point
required to be ruled upon in the judgment. What transpired in the course of the
judgment in relation to the amendment by the learned trial judge of the
plaintiff’s capacity that was under challenge judge cannot be justified either
under Order 1 rule 2 or Order 16 rule 7 of the High Court (Civil Procedure
Rules) CI 47. The learned justices of the Court of Appeal in our thinking were
on firm ground in observing at page 231 of the record of appeal in regard to
the said amendment thus:<o:p></o:p><o:p>&nbsp;</o:p>“But in so doing, the learned trial judge said that he was</main>