NASSIRU ABDULAI BANDA vs. COLONEL AYISI [2014]DLSC5478

Date	2014-05-07
Suit No.	CIVIL APPEAL NO.J4/1/2013
Citation No.	[2014]DLSC5478

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]DLSC5478
																																						<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>(PLAINTIFF/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>COLONEL
AYISI<o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<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;7TH
MAY 2014<o:p></o:p>

</div>COUNSEL:<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">

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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><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="MsoNoSpacing" 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>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 company in Accra that 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><o:p>&nbsp;</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 origin has 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 of Ghana 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 that course of procedure on the facts was not open to him
as the case of the plaintiff was thereby changed. In this respect, we observe
straightaway that the 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 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>