OPPONG BANAHENE vs. SHELL GHANA LIMITED [2017]DLSC2088

Date	2017-04-06
Suit No.	CIVIL APPEAL NO. J4/34/2016
Citation No.	[2017]DLSC2088

DOTSE JSC (PRESIDING)

YEBOAH JSC

GBADEGBE JSC

BENIN JSC

PWAMANG JSC

JAMES AHENKORAH FOR THE PLAINTIFF/APPELLANT/ APPELLANT

VICTORIA BARTH (MRS) FOR THE DEFENDANT /RESPONDENT/ RESPONDENT

[2017]DLSC2088
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													<main id="main" class="content" style="min-height: 60rem" >OPPONG
BANAHENE<o:p></o:p>vs.<o:p></o:p>SHELL GHANA
LIMITED<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

CIVIL APPEAL NO. J4/34/2016&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 6TH APRIL, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>JAMES AHENKORAH FOR THE
PLAINTIFF/APPELLANT/ APPELLANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p>DOTSE
JSC (PRESIDING), YEBOAH JSC, GBADEGBE JSC, BENIN JSC AND PWAMANG JSC<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="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGEMENT<o:p></o:p>

</div>BENIN, JSC :<o:p></o:p>This is
an appeal from the unanimous decision of the Court of Appeal dated the 19th
day of January, 2012. Oppong Banahene, the Plaintiff/Appellant/Appellant is
hereinafter referred to as the Plaintiff and Shell (Ghana) Ltd. which is the
Defendant/Respondent/Respondent is hereinafter referred to as the Defendant.<o:p></o:p>THE FACTS<o:p></o:p>The
Plaintiff entered into a written haulage agreement with the Defendant on the 13th
day of May 1996. The agreement, however, was said to have commenced on the 1st
day of January, 1996 and was scheduled to terminate on 31st
December, 1996; it was for one year certain. Under the agreement, the Plaintiff
was to transport petroleum products belonging to the Defendant from Tema Oil
Refinery (TOR) to their customer called Sonitra at Yawkwei, near Konongo on the
Accra-Kumasi Road. A copy of that agreement was put in evidence as exhibit A.<o:p></o:p>The
haulage relationship between the parties continued without a formal renewal
after the one year duration. In short, the parties continued to conduct
business under the same terms and conditions as contained in exhibit A. This
business arrangement continued until late 1998. To be precise, in November,
1998 the defendant introduced a Fleet Rationalisation Scheme (FRS) whereby companies
or persons operating hauling business with the defendant with fewer than ten vehicles
were to operate under bigger companies with ten or more vehicles. The Plaintiff
had two trucks which were Mercedes Benz with registration number GT 4408 E and Man Diesel with registration number GR 7805 F. He therefore fell under persons
with fewer trucks. Consequently, if he was to continue in business with the
defendant, he was bound to place his two trucks under one of the bigger
operating companies. Pursuant to the FRS, the plaintiff’s vehicles were placed
under the control and management of Benko Limited. There was some disagreement
as to who actually placed the plaintiff’s trucks under the aegis of Benko Ltd which
was a bigger company within the terms of the new scheme. But that
misunderstanding was uncalled for because the evidence was clear that the
plaintiff did not qualify under the FRS and being desirous to continue working
with the defendant, he accepted to work under Benko Ltd. and had no problem
with that. <o:p></o:p>A
written agreement was executed between the defendant and Benko Ltd. to which
the plaintiff was not a party; that agreement took effect from January 1999 and
was renewed from time to time on the same terms and conditions. Thenceforth,
the Plaintiff operated under Benko Ltd. and therefore he received his payments
from Benko Ltd and not directly from the defendant. In effect the defendant had
no direct dealing with the plaintiff as from January, 1999. The plaintiff,
however, retained ownership of his two trucks and employed his own drivers.<o:p></o:p>On the
following dates: 1st October 2003; 6th, 19th
and 30th January 2004 respectively; 12th as well as 20th
February 2004, the Plaintiff's Mercedes Benz truck was loaded with petroleum
products but none was delivered to the designated consignee, Sonitra. Of all
the six loads only the one on 30th January, 2004 bears the signature
of the Plaintiff's driver, Emmanuel Lawerter. The defendant surcharged the
plaintiff via Benko Ltd. with the total cost of the six loads amounting to ₵621,900,180.00
(now GH₵62,190.18),
from the earnings of his plaintiff’s two trucks placed in Benko Ltd’s pool, at
a monthly deduction rate of ₵