BOATENG ASANTE vs. SCANSHIP GHANA LIMITED [2014]DLSC6394

Date	2014-01-15
Suit No.	CIVIL APPEAL NO.J4/15/2013
Citation No.	[2014]DLSC6394

ADINYIRA (MRS) JSC PRESIDING

YEBOAH JSC

GBADEGBE JSC

BAMFO (MRS) JSC

AKAMBA JSC

FRIMPONG-BOADU FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

OSAFO BUABENG FOR THE DEFENDANT/APPELLANT/RESPONDENT.

[2014]DLSC6394
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													<main id="main" class="content" style="min-height: 60rem" >BOATENG ASANTE<o:p></o:p>vs.<o:p></o:p>SCANSHIP GHANA LIMITED<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.J4/15/2013&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; DATE: 15TH JANUARY
2014<o:p></o:p>

OSAFO
BUABENG FOR THE DEFENDANT/APPELLANT/RESPONDENT.<o:p></o:p>

<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>ANIN YEBOAH JSC <o:p></o:p>On
the 15th of January, 2014, we dismissed the appeal from the judgment of the
Court of Appeal and reserved our reasons. We now proceed to offer our reasons
for the dismissal of the appeal. The appellant herein has appealed against the
unanimous judgment of the Court of Appeal, Accra, which set aside the judgment
of the trial High Court, Accra.&nbsp; The
facts of this appeal appear to be devoid of any serious controversy.&nbsp; The appellant herein commenced an action at
the High Court, Accra (Financial Division). <o:p></o:p>He
is a Ghanaian citizen who had lived in Germany for about twenty-eight
years.&nbsp; When he decided to come home to
stay permanently he gave instructions to his wife who was in Germany to ship
his personal belongings to him in Ghana.&nbsp;
In compliance with his wishes the goods were entrusted to Messrs Schenger
and Company, Tubengen, Stuggar who were forwarding agents for the shipment to
the plaintiff in Ghana. <o:p></o:p>According
to the appellant he waited for several months and did not receive the goods and
therefore wrote to his solicitor in Germany to instruct them to take action on
the matter.&nbsp; His solicitors in reply
informed the appellant that the goods had indeed arrived in Ghana on or about
the 11th of November 1990. <o:p></o:p>The
appellant thereupon contacted the respondent and he was informed that it had
long ago posted Arrival Notice to the appellant herein to inform him of the
arrival of goods and as the respondent failed to clear the goods, sent the
goods to the State’s warehouse to be auctioned as unclaimed goods as required
by&nbsp; the laws of Ghana.&nbsp; <o:p></o:p>The
appellant at the State Warehouse saw the containers in which his goods were
shipped but bore his corny name and postal address as Boateng Asante P.O. Box
5926, Accra.&nbsp; According to the appellant
upon his demand to be shown the Arrival Notice the respondent showed him an
Arrival Notice with different particulars as follows; Boateng Acanle, c/o Mr.
Agyekum P.O. Box 5296, Accra which appeared to be contrary to and inconsistent
with the other particulars above.<o:p></o:p>The
appellant resorted to legal action and pleaded breach of contract, negligence
and/or carelessness against the respondent herein.&nbsp; The learned trial High Court judge after
hearing, entered judgment for the appellant and granted the appellant the
reliefs sought.&nbsp; The respondent lodged an
appeal at the Court of Appeal, Accra, which reversed the judgment of the trial
High Court on several grounds.&nbsp; This
appeal is before this court from the unanimous decision of the Court of Appeal,
Accra. <o:p></o:p>The
appeal has been argued on three main grounds, namely: <o:p></o:p>a.
The Court of Appeal erred in holding that the defendant/appellant/respondent
was not negligent nor did contribute to the negligence in handling the
appellant’s cargo and therefore not liable to the respondent. <o:p></o:p>b.
The Court of Appeal erred in holding that the defendant/appellant/respondent
cannot be held for the negligence of its principal, a foreign company with no
address in Ghana. <o:p></o:p>c.
The Court of Appeal erred in refusing to consider the damages aspect of the respondent’s
appeal. <o:p></o:p>The
first ground of appeal was seriously argued in detail by learned counsel for
the appellant.&nbsp; According to counsel, the
evidence on record on negligence and which was accepted by the learned trial
judge was erroneously set aside by the Court of Appeal.&nbsp; He sought to crticise[sic] the judgment of
the Court of Appeal that it had no right to reject the findings of fact made by
the learned trial judge and supported his submissions with the cases of BENMAX
v AUSTIN MOTOR CO. LTD [1952] 2 WLR 418, MORRIS v WEST HARTLEPOOL STEAM
NAVIGATION CO LTD [1956] 1 WLR 177 and TONAZZI v BRUNNET [1953] 14 WACA 403. <o:p></o:p>The
principle deducible from the above cases is that an appellate court ought not
to disturb the findings of facts made by the trial court unless those findings
are not supported by the evidence on record.&nbsp;
In this appeal it would appear that the evidence on record was not based
on demeanour.&nbsp; It was also not the case
that there were any serious conflicts in the evidence of both parties before
the trial court.&nbsp; The evidence was
clearly devoid of controversy.&nbsp; According
to the evidence of the appellant the respondent did not correctly spell his
name and also did not give the right address of the appellant for the
correspondence to reach him on time when the goods arrived at the Tema
Port.&nbsp; He had on the pleadings charged
the respondent of negligence and carelessness and pleaded the particulars of
negligence in his amended statement of claim as follows: <o:p></o:p>PARTICULARS OF NEGLIGENCE
AND/OR CARELESSNESS<o:p></o:p>a.&nbsp; Writing wrongly the name B</main>