HIGH COURT, KUMASI
DATE: 8TH OCTOBER, 1962
BEFORE: DJABANOR, J.
CASES REFERRED TO
(1) Bullen v. Swan Electric Engraving Co. (1907) 23 T.L.R. 258, C.A.
(2) Travers (Joseph) & Sons v. Cooper [1915] 1 K.B. 73, C.A.
NATURE OF PROCEEDINGS
ACTION for recovery of the value of cocoa received by the defendant for the plaintiffs.
COUNSEL
G. Davey for the plaintiffs.
J. Owusu-Yaw for the defendant.
JUDGMENT OF DJABANOR J.
In this case the plaintiffs’ claim against the defendant is for the sum of £G5,483 6s. being the value of cocoa received by the defendant as a clerk of the plaintiffs for which he is liable to account, and for which he is unable to account.
The facts are quite simple. During the 1960–61 main crop season the defendant received from various sources a total of 76,468 bags of cocoa on behalf of the plaintiffs which he stacked in sheds of which he
[p.97] of [1962] 2 GLR 96
held the keys. Out of the said cocoa received by the defendant, 75,759 bags were railed by him to the Cocoa Marketing Board, also on behalf of the plaintiffs, leaving a balance of 709 bags which should have been in the shed. But they were nowhere to be found. The plaintiffs therefore are claiming the value of the unaccounted for cocoa which is £G54,483 6s.
In his defence the defendant denied that any contract existed between him and the plaintiffs whereby he was accountable for any losses or shortages of cocoa, and said that since he was only a servant, short of conversion or embezzlement by him directly, any losses suffered by the plaintiffs must be borne by them.
I regret that neither party assisted me with regard to any authorities on the points they raised. There is no doubt that the defendant was a servant of the plaintiffs. The moment he bought any cocoa for them as their factor, ownership vested in them and he became a bailee of it. What was his duty as a paid bailee? As I understand the authorities, his duty was not that of an absolute insurer, but was to use, towards the preservation of the goods entrusted to him, that degree of care which might reasonably be expected from a reasonable man in respect of his own goods. It cannot be permitted to the bailee, though he has done no act to dispossess himself of the goods, to defend himself on the ground that for some reason unknown to him he no longer is in a position to restore them to the bailor. In my opinion the bailee must show that the goods were lost without default on his part. In Bullen v. Swan Electric Engraving Co.1(1) the Court of Appeal in England, affirming Walton, J., held that while it was not necessary for the bailee to show exactly how the loss happened, it was necessary for him to show that he had used as much care as a reasonable man would use in protecting his own chattels.
In Travers (Joseph) & Sons v. Cooper2(2) a bailee of goods had them in a barge. His lighterman left the barge unattended, and in his absence the barge was either held in the mud or underpinned, and in either case was flooded by the rising tide. It was extremely doubtful what actually happened, and whether if the lighterman had been on board, he could have prevented the loss. Pickford, J. held that the burden of proof was on the bailor to show that the loss was caused by negligence; and that as he left the matter in doubt he failed. (This is exactly the argument of the defendant in this case). All the members of the Court of Appeal thought this was wrong. They took the view that it was incumbent upon the defendant, the bailee, when these goods were lost, to prove that be had taken reasonable care to keep and preserve them. In this case the defendant has led evidence to show that it is possible that the cocoa could have been stolen from the open yard, for as he stated, whenever the sheds were full,
he had to stack the overflow in the open yard. That it was in this way that the cocoa was stolen is much too nebulous a possibility in my view. It seems to me rather strange that this possibility did not become a reality during all the 28 or more years that the defendant was responsible for the plaintiffs’ cocoa, and that it became a reality only at the end of the plaintiffs’ last year of business as buying agents for the Cocoa Marketing Board. Apart from this suggestion that the 709 bags of cocoa could have been stolen there is no other evidence of how they could have got missing. I do not find the defendant’s explanation to the police
[p.98] of [1962] 2 GLR 96
satisfactory. I do not think that the defendant has discharged the onus on him and on that ground I think the plaintiffs are entitled to judgment on their claim.
The plaintiffs grounded their claim on an implied breach of contract. There was of course no written agreement. The plaintiffs are saying that the nature of the duties of the defendant makes him accountable for the cocoa he received on behalf of the plaintiffs, and that he discharges that duty only when he shows that he had railed the said cocoa to the Cocoa Marketing Board. I find that such a duty of accounting for the cocoa received by him existed. In fact the defendant himself admitted it in cross-examination. Having failed to account for it, it stands to reason that the defendant must pay for it.
In the result I find that whether based on contract or on tort the plaintiffs’ claim must succeed. I give judgment for plaintiffs against the defendant for £G5,483 6s. the value of the 709 bags of cocoa, and costs which I assess at 50 guineas.
DECISION
Judgment for plaintiffs.
N. Y. B. A.
