J F W ENT. CO. LIMITED AND OTHERS VRS. AYUBA (E2/56/2019) [2023] GHAHC 599 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ – HELD IN TEMA IN THE GREATER ACCRA REGION – BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON THURSDAY THE 7TH OF DECEMBER 2023. SUIT NO. E2/56/2019 ________________________________________________________________ 1. J F W ENT. CO. LIMITED MARKET CIRCLE TAKORADI 2. P-BOC COMPANY LIMITED PLAINTIFFS CENTRAL MARKET BEPOSO 3. JESSE AKUFFO HOUSE NO. ZU/30 ZENU CONTAINER, KPONE KATAMANSO VRS SALIFU AYUBA DEFENDANT H/NO. ECG ZU/ZU/31499 ZENU KPONE KATAMANSO ________________________________________________________________ JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 1 3RD PLAINTIFF PRESENT, REPRESENTING THE 1ST AND 2ND PLAINTIFFS DEFENDANT PRESENT ________________________________________________________________ JUDGMENT I. FACTS OF THE PLAINTIFFS’ CASE [1] The 1st and 2nd Plaintiffs described themselves as companies who engage in the retail business of selling food commodities to their customers; and the 3rd Plaintiff was said to be a warehouse keeper for a company in Ghana known as Olam Ghana Ltd. [2] According to the Plaintiffs in their statement of claim and which was subsequently amended, some time in 2017, the 3rd Plaintiff acted as an agent for the 1st and 2nd Plaintiffs to effect a delivery agreement between the 1st and 2nd Plaintiffs and the Defendant for the transportation of goods that the 1st and 2nd Plaintiffs had purchased from Olam Ghana Limited, because the Defendant was said to be a transporter who owned a fleet of trucks. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 2 [3] Therefore, on or about the 11th November 2017, the 1st and 2nd Plaintiffs were said to have ordered consignments of goods from Olam Ghana in Tema, to be transported to their respective businesses in Takoradi and Beposo. The following were the goods said to have been ordered by the 1st Plaintiff: ▪ 200 50kg-bags of rice ▪ 230 25kg-bags of rice and ▪ 300 5kg-bags of rice totalling GH¢98,190.00. The 2nd Plaintiff made the following orders: ▪ 250 50kg-bags of rice, ▪ 168 25kg-bags of rice and ▪ 200 5kg-bags of rice also totalling GH¢85,324.00. [4] It was thus that the Defendant was engaged to transport the above consignment of goods belonging to the 1st and 2nd Plaintiffs to their shops in Takoradi and Beposo. By an oral agreement made on the 13th November 2017, therefore, the Defendant was said to have agreed to transport the 1st and 2nd Plaintiffs’ goods for a fee GH¢3.00 per each bag of rice and Olam Ghana prepared way bills for the Defendant to transport the said goods from Olam’s warehouse in Tema. The Defendant was said to have brought a Scania trailer truck with registration JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 3 no. GN 8227 Y and driven by one Richard, on the same 13th November 2017, to pick up the goods for the first two Plaintiffs from Tema to Takoradi and Beposo. [5] The Plaintiff continued to state that the goods were supposed to reach the 1st and 2nd Plaintiffs in Takoradi and Beposo respectively on the 14th November 2017 per the standard procedures in the transport business. Nonetheless, the Defendant failed to deliver the goods to the 1st and 2nd Plaintiffs but was instead said to have called the 3rd Plaintiff to inform him that the goods had been stolen whilst they were being transported. Till date, the Defendant has failed to deliver the goods to the 1st and 2nd Plaintiffs, in clear breach of the terms of engagement. The Defendant has further failed and/or refused to refund the value of the 1st and 2nd Plaintiffs’ goods to them and he has also failed to comply with any of the recommendations and suggestions made to him by the 3rd Plaintiff to assist in repaying the value of the goods. [6] The Defendant also clearly failed to insure the goods he carried in the normal course of his transportation business and as a result of the loss of their consignment, the Plaintiffs contended that the 1st and 2nd Plaintiffs have suffered serious financial distress and harm to their respective businesses. II. RELIEFS SOUGHT BY THE PLAINTIFFS [7] The Plaintiffs thus prayed the Court for the following reliefs and sought the recovery of: a. The total sum amount of one hundred thousand and eighty-three thousand five hundred and fourteen Ghana cedis (Gh¢183,514.00). JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 4 b. Interest on the Gh¢183,514.00 sum at the predominant commercial rate from 18th November 2018 to the date final payment. c. Damages in the sum amount of eighteen thousand three hundred and fifty-one Ghana cedis (Gh¢18,351) (10% of the claim amount), being the legal fees, expended by the Plaintiffs on legal professional services to enforce their claims against the Defendant. d. Costs. III. STATEMENT OF DEFENCE [8] The Defendant in this case, apart from admitting that he was contracted to transport some goods from Olam Ghana in Tema to some customers of Olam, denied each and every averment in the Plaintiffs’ pleadings. In a terse seven- paragraph defence, the Defendant contended: 1. Save as hereinafter expressly admitted, the Defendant denies each and every allegation contained in the Statement of Claim as if the same had been set out in extensor and traversed seriatim. 2. The Defendant admits paragraphs 2 and 4 of the statement of claim. 3. The Defendant denies paragraphs 19 and 21 to 24 of the statement of claim. 4. Save that on November 13, 2017 defendant’s truck driver was entrusted with 884 bags of rice from Olam to be transported from JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 5 Kpone to Takoradi, defendant denies paragraph 8 to 18 of Plaintiff’s statement of claim. 5. Defendant says in answer to paragraphs 19 and 21 to 24 of Plaintiff’s statement of claim that as evidenced by an extract of police report dated November 14, 2017 defendant’s driver and his driver mate later reported to defendant that highway robbers had robbed them of the truck and the rice they were transporting. 6. Defendant therefore says in answer to Plaintiff’s statement of claim that assuming without conceding that there was any contract between plaintiffs and defendant such contract has been discharged by frustration on account of the robbery. 7. WHEREFORE defendant says that the Plaintiff is not entitled to his claim or any at all. [9] The entire defence of the Defendant herein therefore leans towards the frustration of the contract between and the Plaintiffs and the Defendant, based on a report that the Defendant stated was made to him by his driver and the driver’s mate, that the truck carrying the Plaintiffs’ goods was robbed by highway men. IV. INTERVENING MATTERS [10] Even though the Plaintiffs amended their statement of claim, there is no indication on the Court’s docket that the Defendant ever amended his defence; JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 6 and neither was there any Reply filed by the Plaintiffs on the Court’s docket. It therefore appears that after the Plaintiffs amended their writ of summons and the statement of claim, pleadings came to a close. V. APPLICATION FOR DIRECTIONS [11] The Plaintiffs’ Counsel then filed Directions and the following issues were set down for the trial: (i) Whether or not in November 2017 the 1st Plaintiff ordered 200 50kg-bags of rice, 230 25kg-bags of rice and 300 5kg-bags of rice with a total monetary value of ninety-eight thousand one hundred and ninety Ghana cedis (GH¢98,190.00) from Olam Ghana Ltd. (ii) Whether or not in November 2017 the 2nd Plaintiff ordered 250 50kg-bags of rice, 168 25kg-bags of rice and 200 5kg-bags of rice with a total monetary value of eighty-five thousand three hundred and twenty-four Ghana cedis (GH¢85,324.00) from Olam Ghana Ltd. (iii) Whether or not on 11th November 2017, the Plaintiffs contracted the Defendant to transport their purchased goods, with a total monetary value of GH¢183,514.00 from Olam Ghana’s warehouse in Tema to the Plaintiffs’ shops in Takoradi and Beposo. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 7 (iv) Whether or not the Defendant failed to deliver the Plaintiffs’ goods to them as was agreed. (v) Whether or not the Defendant’s duty to deliver the Plaintiffs’ goods under the transport agreement was discharged by frustration. (vi) Whether or not the Plaintiffs are entitled to their claims. (vii) Any other issues in the pleadings. The parties were then ordered to file their respective witness statements for the trial and they did. VII. WITNESS STATEMENT OF THE PLAINTIFFS [12] The 3rd Plaintiff testified for and on behalf of all the Plaintiffs and he contended that it was he who put the 1st and 2nd Plaintiffs into contact with the Defendant; after the Defendant was said to have come to see the 3rd Plaintiff that the Defendant wanted contracts to transport goods from Olam Ghana to Olam’s customers. The 3rd Plaintiff further admitted that the quantities of rice indicated in the Plaintiffs’ pleadings were loaded onto a truck belonging to the Defendant, to be transported to Takoradi and Beposo respectively for the 1st and 2nd Plaintiffs; but the goods never got to the 1st and 2nd Plaintiffs. P3 thus tendered in evidence Exhibits A and B series, the invoices issued to the 1st and 2nd Plaintiffs on the various commodities purchased; as well as Exhibits C and D series, the JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 8 waybills and documents covering the supply of the consignment to the Plaintiffs, and which were loaded into the Defendant’s truck with registration no. GN 8227 Y. [13] The Defendant however failed to deliver the goods as agreed upon; and reported to the police that his truck driver had reported to the Defendant that he had been robbed of the consignments. The Defendant however later stated that he had found the truck but not the goods; and he has also failed and/or refused to refund the value of the goods to the Plaintiffs. The Plaintiffs have thus suffered immense financial losses and damage and prayed the Court to compel the Defendant to repay the sums of monies endorsed on the writ of summons. The Plaintiffs closed their case after the 3rd Plaintiff had been duly cross- examined and called no other witness. VIII. WITNESS STATEMENT OF THE DEFENDANT AND HIS WITNESS [14] In his witness statement, the Defendant alleged that even though he owned the truck with registration no. GN 8227 Y, on the said November 13th 2017, it was his driver who called him to say the driver had been entrusted with some bags of rice to be transported to Takoradi. The driver thus left in the evening after the truck had been loaded. The driver however later called the Defendant to inform him that highway robbers had robbed the driver of the truck and the goods; and so the Defendant stated he went to lodge a complaint at the police station. The Defendant thus tendered in evidence copies of an extract from the police station diary and his statement to the police as Exhibits 1 and 2. It was JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 9 thus the robbery incident that disabled the driver from transporting the goods to Takoradi and the Plaintiffs’ claims personally against the Defendant were unjustified and illegitimate because the contract had been frustrated on account of the robbery that occurred. [15] The said driver was produced as DW1, and he also repeated the averments of the Defendant in his witness statement and tendered in evidence a copy of his statement to the police as Exhibit 3. The trial then came to a close. IX. INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES [16] This is a civil case and the principles of law set out to govern civil trials is as laid out at sections 12(1) to 14 of the Evidence Act, 1975, NRCD 323; and also, as held in the consolidated cases of RICKETTS AND ANOTHER v. ADDO AND OTHERS AND RICKETTS v. BORBOR AND OTHERS [1975] 2 GLR 158- 169 as follows: “…The burden of persuasion which a plaintiff has to satisfy in every civil case is no more than proof on a balance of probabilities.” Also, in OWUSU v. TABIRI AND ANOTHER [1987–88] 1 GLR 287–293, Mensah J. held that “It is a trite principle of law that he who asserts must prove …” The onus of adducing evidence thus first lay on the Plaintiffs herein to prove on a balance of probabilities that they were indeed entitled to the reliefs sought. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 10 Again, in the case of Bank of West Africa Ltd. v Ackun [1963] 1 GLR 176 – 182, Sarkodee – Addo JSC stated thus: “…The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof . . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” It is therefore incumbent upon this Court to evaluate the evidence so far adduced in conjunction with all legal principles, to establish whether or not the Plaintiffs are entitled to their claims. X. EVALUATION OF THE FACTS AND EVIDENCE ADDUCED VIS – A – VIS THE LAW [17] From the entirety of the trial, it is not in doubt that the 1st and 2nd Plaintiffs received a consignment of bags of rice from Olam Ghana Limited; and the 3rd Plaintiff, an employee of Olam testified to the fact that he engaged the Defendant herein, as a transporter, for the 1st and 2nd Plaintiffs. The Defendant was therefore to transport the goods of the 1st and 2nd Plaintiffs in his Scania cargo truck with registration no. GN 8227 Y to Takoradi and Beposo respectively. [18] The Defendant denied this assertion, contending instead at paragraph 4 of his statement of defence that it was the driver of the Defendant’s truck and not the JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 11 Defendant, who was engaged in transporting the goods of the 1st and 2nd Plaintiffs. Counsel for the Defendant further submitted in his written address that since the transaction was between the Plaintiffs and the Defendant’s driver, there was no privity of contract between the Plaintiffs and the Defendant. I however find that in his seven-paragraph statement of defence, at paragraph 2, the Defendant made the following admission: 2. The Defendant admits paragraphs 2 and 4 of the statement of claim. The said paragraphs 2 and 4 of the Plaintiffs’ statement of claim provide: 2. The 3rd plaintiff is a warehouse keeper for Olam Ghana Limited. He acted as an agent for the 1st and 2nd plaintiffs to effect a delivery agreement between the 1st and 2nd plaintiffs and the Defendant for the transportation of goods they purchased from Olam Ghana Limited. (Emphasis is mine) 4. Sometime in September 2017, the Defendant approached the 3rd Plaintiff and solicited for transportation business from Olam Ghana Ltd. He asked to be offered contracts to transport goods from Olam Ghana and its customers. [19] From the entire circumstances of this case, the parties are ad idem on the fact that there was only one transaction for the delivery of goods to Takoradi and Beposo, and that was the delivery that was never effected or performed. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 12 Therefore, there being only one transaction for delivery and there being also a clear admission on the part of the Defendant herein in his pleadings, that there was a contract for the delivery of goods between the 1st and 2nd Plaintiffs and the Defendant herein, facilitated by the 3rd Plaintiff, I find that the Defendant was simply being untruthful when he subsequently sought to state, in his witness statement, that it was not him but his driver who was entrusted with the consignment of goods to be transported to Takoradi. In the case of NDK Financial Services v Ahaman Enterprise Limited &2 Ors. [2021] 172 GMJ 962, the Court held: “… We are of the opinion that where the admission is contained in a process filed by a party which is part of the evidence placed before a court in a matter, the court on its own may, in so far as the said admission is clear and free from any objection, act on it for the purpose of reaching its decision in the matter. In so proceeding, we are not without authority as our courts have acted on admissions in the course of judgments without any application in that behalf by a party to the proceedings.” Further in Kwadjo v Speedline Stevedoring Co. Ltd [2016] 92 GMJ @ 82, the Court held: The law is that where a party has admitted a fact advantageous to the case of the other party, that other party does not need to call further evidence of that fact, he can take advantage of that admission and rely on it. See Re Anane Stool [2005-2006] SCGLR 637. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 13 Also, in Kojo Baah v Ghana Water Company Ltd & Anor [2022] 177 at 163, the Court held: “The position of the law is that an adversary need not adduce any further evidence to prove the same fact that has been admitted by his opponent.” [20] From the Defendant’s own express admission therefore, I hold that the transaction for the delivery of the consignment of goods from Olam to the 1st and 2nd Plaintiffs’ respective businesses in Takoradi and Beposo was between the Plaintiffs and the Defendant herein, and the Defendant’s truck, being driven by DW1, was engaged in a transaction in the normal course of the Defendant’s business, the Defendant being the transporter. The Defendant therefore cannot now seek to purport that he is not aware of the contract of delivery and that there is no privity of contract between himself and the Plaintiffs simply because he was not the driver of the vehicle or that the 3rd Plaintiff admitted that the Defendant was not at the scene at all at the time of loading. It is trite that once the Defendant had contracted to transport the goods, the use of an independent driver or an employee does not discharge the Defendant from any liability that may arise in the performance of that contract; and neither does it shift the liability solely onto the said driver or employee. The Defendant can be held vicariously liable for the acts of his employee and there is a plethora of cases to that effect. [21] Having established the above, I proceed to deal with the issues set down for the trial as follows: JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 14 XI. LEGAL ISSUES (a) ISSUES ONE (1) & TWO (2) - Whether or not in November 2017 the 1st Plaintiff ordered 200 50kg-bags of rice, 230 25kg-bags of rice and 300 5kg-bags of rice with a total monetary value of ninety-eight thousand one hundred and ninety Ghana cedis (GH¢98,190.00) from Olam Ghana Ltd. - Whether or not in November 2017 the 2nd Plaintiff ordered 250 50kg-bags of rice, 168 25kg-bags of rice and 200 5kg-bags of rice with a total monetary value of eighty-five thousand three hundred and twenty-four Ghana cedis (GH¢85,324.00) from Olam Ghana Ltd. [22] These first two issues ought not to have been set down as legal issues at all because I find that they are not in doubt. The Plaintiffs further tendered in evidence invoices and waybills without any objection from the defence, to establish that they had received the above quantities of goods made up mainly of bags of rice, to be ferried to the Western Region. DW1, under cross- examination, sought to state that he had carried 884 bags of rice and not the quantity as indicated on the waybills tendered in evidence, and yet DW1 did not adduce any evidence or tender in evidence any document in support of his case. The waybills, Exhibit C series had the name and signature of DW1 thereon; and so it is more probable than not, that the quantities of the bags of rice indicated on the waybills tendered in evidence are what were loaded on the truck and nothing else. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 15 Consequently, and in agreement with the Defendant’s Counsel in his written submission, I will not waste much time on the above issues as I find that they are not in contention; and further that the Defendant never disputed the quantities of bags of rice to be transported in his truck. (b) ISSUE THREE (3) - Whether or not on 11th November 2017, the Plaintiffs contracted the Defendant to transport their purchased goods, with a total monetary value of GH¢183,514.00 from Olam Ghana’s warehouse in Tema to the Plaintiffs’ shops in Takoradi and Beposo. [23] This Court has previously made the finding that the Defendant herein expressly admitted at paragraph 2 of his defence that he was engaged by the 3rd Plaintiff (an agent of the 1st and 2nd Plaintiffs) to transport the Plaintiffs’ goods to the Western Region. Further under cross-examination, the Defendant also gave the following answers: Q: You state in your witness statement as well as your defence that Richard Kobbina Arkoh is your driver; is that not so? A: That is correct. Q: Were you aware that on the 13th of November 2017, your driver was picking up load from Olam to its customers? A: Yes, my Lord. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 16 Q So am I right to be saying that your driver picking up a load from Olam was acting in his employment? A: That is correct. [24] As submitted by the Plaintiff’s Counsel, the above answers by the Defendant, I find, is proof that there was a contract for the transportation of goods not between the driver of the truck and the Plaintiffs but between the Defendant and the Plaintiffs, because it is clear that the Defendant was aware of the delivery and gave his consent. Indeed, in the Defendant’s own exhibit, in his written complaint to the police, he stated that he sent money to the driver to purchase fuel for the trip, and so once again, I hold that it does not lie in the mouth of the Defendant and his Counsel to state that there was no privity of contract between the Plaintiffs and the Defendant. [25] The Defendant further adduced no evidence whatsoever to discredit the assertions of the 3rd Plaintiff, that it was the 3rd Plaintiff who engaged the Defendant for the 1st and 2nd Plaintiffs. On a balance of probabilities therefore, I find that there is sufficient evidence to establish that the contract for the delivery of the goods was between the Plaintiffs and the Defendant herein, and not between the Plaintiffs and the driver of the Defendant, as the Defendant and his Counsel sought to state. In the light of the evidence adduced by the Plaintiffs, the vague and bare denial of the Defendant to the contrary without more, unfortunately, is not proof that there was no privity of contract between JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 17 the Plaintiffs and the Defendant, and also upon a careful evaluation of the evidence before the Court. [26] Having found that there was a contract for the delivery of goods to the 1st and 2nd Plaintiffs, specifically between the Defendant herein and the 1st and 2nd Plaintiffs, the presumption is that the driver of the truck was acting as the servant of the Defendant herein. In the case of Ansah vrs Busanga [1976] 2 GLR 488-500, the Court of Appeal held that in such cases, “… the rebuttable presumption arises that the driver was: (1) the servant or agent of the owner, and (2) that he was acting in the course of his employment or agency at the time of the accident…” It thus behoved the Defendant herein to rebut that presumption by adducing evidence to establish that the said driver was acting on his own, without the express instructions of the Defendant herein, but I find that the Defendant failed to adduce any evidence in his favour. From the totality of the evidence so far adduced before this Court therefore, I find that the contract of the delivery of goods was specifically between the Defendants and the 1st and 2nd Plaintiffs; and not between the driver of the Defendant and the 1st and 2nd Plaintiffs. I proceed to deal with the following set of issues: (c) ISSUES FOUR (4) & FIVE (5) - Whether or not the Defendant failed to deliver the Plaintiffs’ goods to them as was agreed. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 18 - Whether or not the Defendant’s duty to deliver the Plaintiffs’ goods under the transport agreement was discharged by frustration. [27] There is no doubt that the Defendant failed to deliver the Plaintiffs’ consignment of goods and that is why the parties are before this Court. I am therefore baffled as to why this factual situation was set down as a legal issue for the trial. The Defendant himself admits that the goods were not delivered; but he contends that the contract for the delivery of goods, even if there was any between the parties, could not be performed because the contract had been frustrated. In the case of BARCLAYS BANK (GHANA) LTD v SAKARI [1997- 98] 1 GLR 746 – 767, cited by both Counsel, the Supreme Court held, and I also reproduce a portion of the judgment rightly cited by the Plaintiffs’ Counsel as follows: The doctrine of frustration is one of the simplest concepts in the law of contract. But like any simple concept, its application is not as simple as it is understood. In Ghana the doctrine involves a mixture of common law rules and statute (ie the Contracts Act, 1960 (Act 25)). The common law rules determine when frustration can be said to have occurred, while Part One of Act 25 deals with the consequences of frustration. Briefly, frustration occurs where an external event of some kind, which is not the responsibility of either party, renders further performance of a contract impossible: see Taylor v Caldwell (1863) 122 ER 309, or radically different from what had been contracted for see: Davis Contractors v Fareham UDC [1956] 2 All ER 145, HL. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 19 The Apex Court further held: Now, whether in any particular situation frustration has occurred or not, is a question for the court to determine. And since the event in question must render impossible or radically different, the performance of the contract, there can be no valid finding of frustration in any situation without construing the contract to determine the nature of the obligation created on the parties. (Emphasis is mine) [28] In the instant case, the obligation placed on the Defendant was for him to ensure that the goods loaded onto his truck were safely delivered to the 1st and 2nd Plaintiffs herein. Once there is transportation and the movement of goods involved, from one Region to the other, it behoved on the Defendant/transporter to reasonably foresee that any eventually could occur, including theft, vehicular accident, some damage to the goods, such that the Defendant ought to insure his truck and the cargo to be transported; but as rightly pleaded by the Plaintiffs herein, the Defendant clearly had no insurance covering the cargo being transported. This robbery, alleged by the Defendant and DW1 to have occurred, cost the 1st and 2nd Plaintiffs the total value of goods they had commercially purchased for sale. Thus, in West African Examinations Council v State Insurance Corporation [1977] 2 GLR 467-487, it was held: A loss was, in its nature, total to him who had no means of recovering his goods, whether the inability arose from their annihilation or from any other insuperable difficulty. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 20 In the case of such a loss, it was held that the party who incurred the loss was entitled to the total cost of replacement. Instead of the contract being frustrated, I find that the non-delivery of the goods is prima facie proof of negligence on the part of the Defendant because save the report said to have been made to the Police, and the entry of the report in the Diary of action, there was no evidence to establish that any such theft or robbery took place on the day in question. DW1 himself, said to be the driver and who was said to have suffered the robbery had this to say in his witness statement, and I reproduce the witness statement below: 1. 2. 3. My name is KOBBINA ARKOH. I live at Adjei-Kojo, Ashaiman I am a driver by profession and I used to drive Defendant’s Scania Truck with registration numbered GN 8227 – Y. 4. I know Plaintiffs. 5. On November 13, 2017, I was entrusted with 884 bags of rice from Olam to be transported from Kpone to Takoradi. 6. I called Defendant to inform him about the cargo I had to cart and he gave me GH¢1,000.00 to buy fuel and for other expenses. We finished loading the cargo at about 6:30pm and I set off with my driver mate. 7. On our way I stopped on the motorway and we were robbed of the car and the cargo. Defendant thought I had connived with the robbers to steal his truck and the cargo and hence made a complaint of stealing against me to the Ashaiman Police on November 14, 2017. 8. However, I went and explained to the Police that I was robbed of the vehicle and the cargo when I stopped to urinate on the motorway. I was granted bail for Police to carry out their investigation which is still JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 21 ongoing. (Copy of my statement to the Police attached and marked “Exhibit 3”). 9. I am not aware of any consignment of rice ordered on November 17, 2017. 10. I am therefore saying the Plaintiffs’ claim against me is not legitimate. From the above, DW1’s testimony is was almost identical to the witness statement of the Defendant himself, and save the report made to the Police by the Defendant himself, it is clear that DW1 himself made no complaint of any alleged robbery to the Police. [29] There also does not appear to be any investigations to establish, even on a balance of probabilities, that any such robbery took place. I am thus inclined to rely on the case of BUAMA v OPPONG [1992] 2 GLR 213 - 226, where the Court held: The defendant was a commercial transporter who carried goods and passengers for reward, but since he was not compelled to take anybody or any goods and could refuse to hire without incurring any liability in tort, he was a private carrier rather than a common carrier. … But a private carrier was a bailee of the goods and thus expected to exhibit the skill usual and requisite in the business for which he received payment and was therefore responsible for only loss, destruction or damage caused by his own or vicarious negligence. Negligence therefore had to be proved by evidence before a private carrier could be liable for loss. Non-delivery was, however, a prima facie evidence of negligence. (Emphasis is mine) JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 22 Accordingly, in the instant case, the unexplained loss of the plaintiff's bag from the vehicle raised a presumption of negligence against the defendant as owner and driver of the vehicle in that the defendant and/or his mate, and/or the bookman did not take the degree of care required in the handling of the plaintiff's bag to its destination. Since the defendant was unable to rebut the presumption, he would be held to have been negligent. I find the same in the present case before me, that the Defendant’s failure to deliver the consignment entrusted into the care of his driver, to the 1st and 2nd Plaintiffs, is prima facie proof of negligence; and the Defendant herein cannot purport to state that there was no privity of contract between the 1st and 2nd Plaintiffs and himself. [30] The Court further held: If a person represented or permitted it to be represented that another had authority to act on his behalf, he would be bound in the same way as he would be if that other had in fact authority to act. … Accordingly, there was an agent and principal relationship between the bookman and the driver. … and any vehicle owner/driver who took his vehicle to a G. P. R. T. U. controlled station was bound by that practice and usage. The driver was thus the employee or agent of the Defendant, and the Defendant is liable for the loss of the goods entrusted into the care of his servant. I proceed with the final set of issues: JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 23 (d) ISSUES SIX (6) & SEVEN (7) - Whether or not the Plaintiffs are entitled to their claims. - Any other issues in the pleadings. [31] Having found that the Defendant is liable for the negligent loss of the goods of the 1st and 2nd Plaintiffs, and having also found that the Defendant is further liable to refund the value of the goods to the 1st and 2nd Plaintiffs; and there being no evidence to contradict the way bills attached to reflect the quantity and the value of the goods lost, and for all the foregoing reasons, I find the Plaintiffs, the 1st and 2nd are entitled to their claims. XII. CONCLUSION [32] Judgment therefore be and is hereby entered in favour of the Plaintiffs for the following reliefs: Recovery of: a. The total sum amount of one hundred and eighty-three thousand five hundred and fourteen Ghana cedis (Gh¢183,514.00). b. Interest on Gh¢183,514.00 at the predominant commercial rate from 18th November 2018 to the date final payment. JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 24 c. General damages in the sum of eighteen thousand three hundred and fifty-one Ghana cedis (Gh¢18,351) - (10%) d. And finally, I shall mulct the Defendant in nominal costs of GH¢10,000.00, considering the period for which this matter has been pending before this Court and the entire circumstances of this case. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION 7TH DECEMBER 2023. COUNSEL: JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 25 SHAHADU MOHAMMED ESQ. COUNSEL FOR THE DEFENDANT PRESENT FELIX AMANKWAH ES. COUNSEL FOR THE PLAINTIFF PRESENT JUDGMENT – JFW ENT & 2 ORS vrs SALIFU AYUBA 26