GHANA PORTS AND HARBOURS AUTHORITY vs. ARMAH [1999-2000] 2 GLR 845

CASES REFERRED TO

(1) Dam v Addo [1962] 2 GLR 200, SC.

(2) Bassil v Kabbara [1966] GLR 102, SC.

(3) Bissi v Tabiri alias Asare [1984-86] 2 GLR 283, CA.

(4) Ackumey v Kumah [1989-90] 2 GLR 282, CA.

(5) Atkinson v Tyne-Tees Steam Shipping Co (1956) 1 Lloyds Rep 244.

(6) Breen v Amalgamated Engineering Union [1971] 2 QB 175; [1975] 2 WLR 472, 115 SJ 203. (7) Lochgelly Iron & Coal Co Ltd v M ’Mullan [1934] AC 1; 149 LT 526; 49 TLR 566, HL. (8) Caswell v Powell Duffryn Associated Collieries, Ltd [1940] AC 152; 49 TLR 566, HL. (9) East Suffolk Rivers Catchment Board v Kent [1941] AC 74; [1940] 4 All ER 527; 165 LT 65, HL. (10) Gblevie Family v Amanie (Practice Note) [1961] GLR 1.

(11) Barko v Mustapha [1964] GLR 78, SC.

(12) Kofi v Kumansah [1984-86] 1 GLR 116, CA.

(13) Amane v Kwabla [1975] 1 GLR 417.

(14) Ababio II v Akro & Co [1963] 1 GLR 195, SC.

(15) Geddis v Bann Reservoir Proprietors (1878) 3 App Cas 430, HL.

[p.850] of [1999-2000] 2 GLR 845 (16) Dygden, The (1841) 1 Not of Cas 115.

(17) Alenquer, The; The Rene [1956] 1 WLR 263; [1955] 1 Lloyds Rep 101; 99 SJ 186. (18) Bruce v Attorney-General [1967] GLR 170, CA.

(19) R v Minister of Health; Ex parte Hack [1937] 3 All ER 176; 81 SJ 461.

(20) Liversidge v Anderson [1942] AC 206; [1941] 3 All ER 338; 110 LJKB 724, HL. (21) Ashbridge Investments, Ltd v Minister of Housing and Local Government [1965] 3 All ER 371;

[1965] 1 WLR 1320; 109 SJ 595, CA.

(22) Barclays Bank Ghana Ltd v Sakari [1997-98] 1 GLR 746, SC; [1996-97] SC GLR 639. (23) Ababio v Bekoe II [1996-97] SC GLR 392.

(24) Omane v Poku [1972] 1 GLR 295.

(25) Bonaparte v Walakataka (Practice Note) [1972] 2 GLR 83, CA.

(26) Keteku v Dzogbenuku (1956) 1 WALR 134.

APPEAL from the judgment of the High Court, Tema which, inter alia, found the appellant port authority in breach of its statutory duty to salvage the respondent’s vessel which had sunk across the entrance to the main fishing harbour at Tema. The facts are sufficiently stated in the judgment of Brobbey JA. Asare Darku for the appellant.

Osei Aidoo (with him Charity Asamoah) for the respondent.

Wood JA. The respondent’s vessel developed a leakage while at sea. The fishermen, however, succeeded, according to them, in bringing it to and securing it at the breakwaters. They then sought assistance from the harbour master, Captain Ziem, who is an employee of the appellant authority. The respondent, contending however that on the following day the harbour master unlawfully removed the said vessel and dumped it, sued his masters for the current value of the vessel, the four trawling nets and the two heavy duty batteries in it. Also claimed was lost earnings from June1992 to the date of judgment. The picture presented by the respondent of a near-perfect vessel moored to the breakwaters, but which was, without any lawful justification, removed and thrown away, was denied by the appellants who are statutorily charged

[p.851] of [1999-2000] 2 GLR 845 with the control and management of ports and harbours in Tema, and Takoradi. In their defence, they first deny that the vessel was secured at the breakwaters. They contended that the vessel sank some 50 metres to the main entrance to the fishing harbour. Consequently, they justify their action in law on the grounds that in the course of salvage operations, the sunken wooden vessel disintegrated into such several pieces, they had no option but to abandon the operation and beach her in accordance with the Merchant Shipping Act, 1963 (Act 183) and the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160). The purpose, it was maintained, was twofold. First, to remove the wreck which had become an obstruction or was likely to impede navigation; and secondly to render our shipping lanes and approaches to the harbour safe. Additionally, they accused the respondent of being negligent, in that he allowed his boat to sink in the shipping lane and approaches to the fishing harbour. They therefore counterclaimed for general and specific damages of ¢800,000 being the cost involved in removing the vessel, which they maintain was a wreck.

After hearing evidence on both sides, the appellants’ counterclaim was dismissed and the respondent was awarded the sum of ¢30,182,750 as damages. It is against this decision that the appellants have appealed on as many as seven grounds, the first of which is that:

“The learned High Court judge erred in law when he held that by virtue of section 233(1) of the Merchant Shipping Act, 1963 (Act 183), the defendants were under a mandatory duty to salvage the plaintiffs sunken vessel at the port.”

Two principal arguments were advanced in support of this ground. First, it was urged that the authority is not a “receiver” within the meaning of section 233(1) of Act 183 and consequently, the section is wholly in applicable to it. Arguing that it is only a receiver of wrecks who, if any, has a duty to salvage wrecks, counsel contended further that the appellant authority, being an independent statutory body with clearly defined statutory functions, cannot be said to be under a duty to salvage the respondent’s vessel. Secondly, it was urged that even if the trial judge were right in concluding that on that occasion the harbour master acted with respect to the respondent’s vessel as a receiver, as provided for under section 236 of Act 183, the appellant authority cannot in law be held

[p.852] of [1999-2000] 2 GLR 845 liable for his acts and omissions. The argument was that since he would, in that capacity, be acting under the control and superintendence of the minister, his liabilities would fall on the government and not the appellants.

While the respondent’s counsel conceded that the appellants are not receivers as defined under section 233(1) of Act 183, they nevertheless contend that they had a duty under section 236 of Act 183 to: (1) act as a receiver; and (2) salvage the vessel in the manner as set out in section 233 of Act 183. My understanding of their argument then is that this makes the section applicable to this instant case. It was submitted further that under such circumstances, the appellant authority would be vicariously liable for his acts and omissions.

The important question raised by these arguments is this: were the appellant authority by virtue of section 233(1),or indeed 236 of Act 183, under a mandatory duty to salvage the respondent’s vessel? My view is this: Quite plainly, it was the learned trial judge who introduced the question of whether or not the appellants owed the respondent a mandatory duty to salvage his vessel into this context. The respondent himself never sued for the breach of either a mandatory or statutory duty under Act 183. In both his pleadings and evidence, the case presented simply is that the harbour master unlawfully removed his vessel which was properly and effectively secured to the breakwater and dumped it on the open seas. His complaint therefore was of an unlawful destruction of his vessel. So certain was he in his mind of his stated position that even when the appellants by their defence justified their action under both Act 183 as well as PNDCL 160, he stoutly denied the applicability of these laws to his case. I think it is necessary to reproduce the pleadings on both side of this divide:

“(6) The plaintiff says he was informed about the accident and arrived from home to Tema at 7 am on 10 June 1992.

(7) The plaintiff says in his presence and without a word from him, the dock master who was traced to the Valco berth jumped into the lunch, collected the vessel and dumped the boat together with four trawling nets and two heavy duty batteries and the engine.

(8) The plaintiff says that the steps taken by the dock master to dump the said vessel were unlawful.”

The appellant’s reaction was as follows:

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“(6) In further answer to paragraph (4) of the plaintiff’s statement of claim, the defendants aver that the wooden boat sank about fifty metres from the main entrance of the Tema Fishing Harbour.

(7) The defendants deny paragraph (5) of the statement of claim and further say that an attempt was made to salvage the sunken boat but during the course of the salvaging it was realised she was in a poor state of condition and before the sling could be removed she disintegrated into several pieces. The defendants had no alternative than to beach her in accordance with provisions of the Merchant shipping (Act 1963) and the Ghana Ports and Harbour Authority Law 1986 (PNDCL 160).

(11) The defendants deny paragraph (9) of the plaintiff’s statement of claim and further say that the act of the harbour master was lawful to safeguard navigation to the port in line with the relevant provisions of the Ghana Ports and Harbour Authority Law, 1986 (PNDCL 160) and the Merchant shipping Act, 1963 (Act 183).”

The respondent’s reply was that:

“(3) Paragraph (7) of the statement of defence is denied and plaintiff says no attempt was made by the defendants to salvage the boat. The plaintiff therefore contends that Act 183 and PNDCL 160 did not apply.

(4) The plaintiff denies paragraphs(9), (10) and (11) of the statement of defence and says that the vessel posed no danger or obstruction to navigation as the boat was firmly secured and a vessel freely passed after the accident.”

In spite of the state of the pleadings, the learned trial judge reasoned as follows:

“Looking at the rest of the evidence that the defendants, in order to avoid the legal consequences and put themselves in a position to perform their duty to rescue the plaintiff’s vessel which was in distress, sought vainly and frenziedly to bury their shortcoming under an avalanche of technical terms to bring this case exclusively under the ambit of section 243 of the Merchant Shipping Act, 1963 (Act 183) and label it removal of a wreck. I would therefore agree with counsel for the plaintiff that this is not a case to which only section 243

[p.854] of [1999-2000] 2 GLR 845 applies but also applicable to the circumstances and facts of this case is section 233(1), which provides that:

‘233. (1) Where any vessel is wrecked, stranded or in distress at any place on or near the coasts of Ghana, the receiver of wreck for the district in which that place is situated shall, upon being made acquainted with the circumstance, forthwith proceed there, and upon his arrival shall take command of all persons present, and shall assign shall take command of all persons present and shall assign such duties and give such directions to each person as he thinks fit for the preservation of the vessel, and the lives of persons belonging to the vessel . . . and of the cargo and apparel of the vessel.’”

Given the state of the pleadings and the issues raised thereby, my opinion is that the learned trial judge made a fundamental error when he held that section 233(1) of Act 183 was applicable to this instant case. I think on this occasion, he acted contrary to the well-known principle in Dam v Addo [1962] 2 GLR 200, SC which forbids a court from substituting a case different from, contrary to, or in consistent with that which the party himself or herself has set up.

Therefore, equally erroneous is his view that arising from section 233(1) of Act 183 the appellants were under a duty to do the following: provide underwater light facilities purposely to enable them carry out their mandatory duty of salvaging the respondent’s vessel, cargo and apparel. Evidently, it is precisely because the plaint was not founded on a breach of statutory duty to provide underwater light facilities, and or a breach of mandatory duty to salvage the vessel or even a failure on the appellants part to act timeously (as was found again by the judge), that indeed none of these issues of fact were investigated by the court below. So for example, the question of why the Tema port does not have underwater light facilities was not gone into. This does not come as a surprise. The respondent’s grievance with the appellant’s is that the harbour master acted contrary to the law of the land, in that he took his vessel which was in no way a danger or threat and dumped it. The rule in Dam v Addo (supra) which I find was violated by the learned trial judge in that he substituted (on his own motion) a case different from that which the respondent himself has set up has been followed in a number of leading bases

[p.855] of [1999-2000] 2 GLR 845 including: Bassil v Kabbara [1966] GLR 102 at 105, SC; Bisi v Tabiri [1984-86] 2 GLR 282, CA and Ackumey v Kumah [1989-90] 2 GLR 283, CA. More particularly, Bassil v Kabbara (supra) decided that it was not open to a judge to invoke the provisions of a statute which has not been expressly pleaded by a party when examining the case set up by that party. I should think then that a fortiori, it is also not open to a judge to invoke the provisions of a statute in aid of a party who either expressly or by necessary implication states that his claim or defence is not based on that particular statute. On that basis, my humble view is that the judge erred in holding that section 233 imposes a duty on the appellant to salvage the respondent’s vessel.

Assuming I am in error and he was right in invoking the provisions of Act 183, the pertinent question nevertheless is, does it impose a mandatory duty on the authority to salvage the vessel in question? Section 233(1) of Act 183, by itself, does not impose any such duty on the appellant authority. The reason is simple. There is no evidence on the record that the authority or the harbour master has been appointed a” receiver” (within the meaning of the statute) by the minister. Admittedly, under section 236 of Act 183, in the event that the appointed receiver is not present, a habour master is at liberty (hence the use of the word “may”) to act as receiver. The section reads: “236. Where a receiver is not present, any harbour master or deputy harbour master may do anything by this Part of this Act authorised to be done by the receiver.”

But, I think it is plain that section 236 of Act 183 does not impose any duty on him to act as a receiver and so salvage distressed vessels. In my respectful view, it is totally wrong to maintain that under section 236 of Act 183, in the absence of a receiver, a harbour master or his deputy is under a legal obligation to salvage distressed vessels. I do not think that represents the state of the law. The law simply allows him, if he so chooses, to act as a receiver. Since section 236 of Act 183 permits him to act as a receiver in the interim period that the government appointed receiver is absent, would we be right in stating that when he does set out to act such receiver, he comes under a mandatory duty to salvage the distressed vessels? Indeed since by acting as a receiver he would be doing something “by this part of this Act authorised to be done by the receiver,” the question appropriately arises: would section 233(1) of Act 183 (under which he will be doing the

[p.856] of [1999-2000] 2 GLR 845 authorised act) impose a mandatory duty on the harbour master to salvage the sunken vessel? Speaking for myself, I do not think section 233(1) of Act 183 does impose a mandatory duty on receivers, that is either those appointed by the minister or harbour master who acts under section 236 of Act 183, to salvage distressed vessels.

In his attempt to interpret section 233(1) of Act 183, the learned trial judge dwelt exclusively on the word “shall” to conclude that the law imposes a mandatory duty on the harbour master. It is a well-settled rule of law however that in order to discover the true legal effect of any statutory provision, it must be read as a whole. If we adopted the construction placed on section 233(1) of Act 183 by the learned trial judge, then what we would be saying in effect is that the receiver or harbour master is obliged under pain of death to salvage distressed vessels. In other words, a receiver or harbour master must salvage distressed vessels at all costs, whether or not it was feasible to do so and at the risk of his life or the lives of those involved in the salvage operation. I do not think the legislature intended to place receivers and harbour masters who act in their stead under such bondage. Not surprisingly therefore, the law binds him (hence the use of the word “shall”), and understandably imposes a mandatory duty on receivers to do only the following: (1) proceed forthwith to the place where a vessel is stranded, wrecked or distressed (of course when the same is brought to his notice), and (2) not shirk his responsibilities but assign duties and give the necessary directions. But even so, he is to give only such directions as are necessary for the preservation of the vessel, cargo apparel etc and as he thinks fit. Thus, in any given situation, where the salvage is impossible or impracticable, as for example that it would endanger lives, the receiver is under no legal obligation to undertake the operation. In my opinion then, no mandatory duty falls on receivers to salvage distressed vessels. The learned trial judge was therefore in error when he held that the harbour master or appellant authority was under a statutory or mandatory duty to salvage the respondent’s vessel.

But again, apart from concluding that the appellants were in breach of a mandatory or statutory duty, the court also found them liable in negligence. The learned trial judge opined: “But as has been shown in the earlier portions of this judgment, the loss suffered by the plaintiff was occasioned solely by the negligence or omission of the defendants and they cannot therefore avail

[p.857] of [1999-2000] 2 GLR 845 themselves of section 227(1) of Act 183. It is this finding which led to the ground (E) of the grounds of appeal which states as follows:

“The learned High Court judge erred in law when he found the defendants liable in negligence when the plaintiff neither pleaded negligence nor led any evidence on negligence.”

I agree entirely with the appellants’ counsel that the judge erred in coming to this conclusion. The elementary rule of law is that a party who seeks to rely on negligence must (a) plead it and (b) give particulars of same. But perhaps no blame attaches to the respondent. His claim was not founded on negligence and he never complained at the hearing that the appellants were negligent in the discharge or performance of their duties. It was the court which substituted this finding of negligence which in any case was not proven, in place of his straightforward case of an unlawful dumping or destruction of his vessel. In this regard, my view again is that the learned judge erred in that he violated the principle in Dam v Addo (supra).

In the case that the learned trial judge was met with, my view is that the critical question he ought to have determined was whether the authority’s act in dumping the vessel was justified in law. The respondent asserted that the act as unlawful. Black’s Law Dictionary (6th ed) defines “unlawful” at p 1536 as: “That which is contrary to, prohibited or unauthorized by law. That which is not lawful. The acting contrary to, or in defiance of the law; disobeying or disregarding the law.” Of course, the determination of this broader question is premised on the resolution of other important issues of fact, namely: (1) Whether or not the boat sunk; (2) where it did sink; and (3) whether or not it posed danger or was likely to pose danger to other users of the harbour. Therefore the next logical ground of appeal I would consider is the omnibus ground (G), namely that the judgment is against the weight of evidence. I propose to consider it together with the ground (C) which states that:

“The learned High Court judge erred in law when in the light of the fact that the plaintiffs vessel got stranded and/or sunk at the port and in the opinion of the defendant was likely to pose danger/obstruction to navigation he held that the defendant was not entitled to resort to its wreck-removal powers under section 243 of Act 183.”

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On the issue of whether or not the boat did sink, I would answer in the affirmative. Although the respondent was loath to admit this fact, the evidence clearly shows that even on the first day of the accident, it at least got half sunk. Certainly, by the next day the entire vessel has sunk. More importantly, the evidence does show that it sank at the entrance of the harbour.

Initially, the respondents denied these essential facts both in his pleadings, evidence-in-chief and under cross-examination. However, pressed further under cross-examination, he did not only admit them, but volunteered information from which we can justifiably infer that the boat did sink even on the first day. I think it is expedient to reproduce that portion of his evidence:

“Q On 9 June 1992 the boat actually sank?

A It is not true.

Q In your evidence-in-chief you said some divers went to inspect the boat?

A Yes, I did.

Q I put it to you that it was because it sank that the divers went under it.

A No, it had not sank then, but it did the following day. The vessel sank in the middle of the entrance to the main harbour.”

The evidence of the first defendant witness on the position of the boat on the first day is as follows: “I went with my men in a boat called Mandela to the scene. At the scene, I dived into the sea to find the vessel. The vessel was at the middle of the entrance of the Tema fishing harbour. I observed that there was a hole about four feet inch under the vessel at the place where the engine room was built could do nothing about it so put a floater to mark the place where the vessel had sunk and I came to inform the harbour master.”

I am of the view that if the vessel had not sunk even on the first day, no diver would have undertaken that obviously harzadous task of diving into the sea to find it. Also, if it had not sunk and was moored to the wharf, as the respondent would have us believe, and so was clearly visible to all and sundry, I do not think there would have been any need to use a floater or buoy to mark its location. At any rate, this question put by the respondent’s counsel himself to the first defendant witness would suggest that

[p.859] of [1999-2000] 2 GLR 845 at least the vessel was half sunk on the first day: “Q I am putting it to you that when you arrived the (mast?) was completely above the water and half the boat itself was also above the water.”

The importance of these findings of fact cannot be over emphasised. The position of the appellant authority is that as a result of the state of the vessel, attempts at salvage completely failed and it posed or became a danger to other seagoing vessels. The learned trial judge however dismissed the appellants’ claim that the sunken vessel at the entrance of the harbour was a threat to navigational safety. He held: “There is also no truth in the defendants’ assertion that the plaintiff vessel posed a danger to navigation. There is evidence that while it remained in that position two vessels sailed into the harbour. The defendants attempted to explain this by saying that those two vessels were small vessels and not bigger vessels. I do not consider this convincing.”

Again, when he came to consider in some greater detail the issue of whether or not the boat posed danger or was likely to became an obstruction, he reiterated that: “The evidence led in support of this was contradictory, unsatisfactory on the point and therefore unacceptable.”

The counsel for the appellants has argued that this conclusion cannot be right in view of the evidence on the record. I am inclined to agree with him. A fair reading of the evidence of the first and second defendant witnesses on the question of whether or not a vessel passed while the sunken vessel remained at the entrance of the harbour would not reveal that kind of substantial contradiction which goes to the very root of their case and thereby making it totally unreliable. Looking at the question put to the first defendant witness, it seems to me from his answer that he was testifying to matters within his personal knowledge. From his unchallenged evidence, it was he who after inspecting ‘the vessel under water advised that because it had blocked the entrance, no vessel should be allowed to enter the harbour. The charge that he was inconsistent and self-contradictory on another relatively unimportant issue of whether or not there are rocks at the entrance of the harbour is again unsupportable. Also, the finding that the second defendant witness prevaricated on the issue of whether or not two vessels passed through the entrance uneventfully is again not borne out by the record. The truth is that he was not cross-

[p.860] of [1999-2000] 2 GLR 845 examined on this issue of all. He volunteered the information in one short sentence. Consequently, the question of him being “quick to add” something in explanation never arose. At this rehearing therefore, the question whether or not the appellants led evidence in support of the claim that the vessel posed danger or was likely to become an obstruction to navigation, ought to be answered in the affirmative.

Apart from the evidence that the sunken vessel was across the entrance of the harbour described as a sensitive area, the evidence of the first defendant witness which I have no reason to disbelieve is that it has blocked the entrance of the harbour. He testified that when they attempted to lift it, “it threatened to disintegrate altogether because of the current.” I have no evidence that he bears the respondent a grudge. I think their initial effort at salvaging the vessel negates any suggestion that his version about the state of the vessel is wholly untrue. Otherwise, would he have spent as many as three man-hours under the water, first in an attempt to salvage the distressed vessel?

We also have the following important evidence from the second defendant witness:

“Upon investigation I found that the vessel had sunk, leaving just the upper works. Being in a sensitive position I asked the hydrographic team to mark the position and remove the wreck as soon as possible to the beach. This was done with a marker buoy. The vessel itself, or its contents or both, were likely to drift and pose serious danger to navigation and maybe cause the main harbour to be closed. Whilst attempts were being made to lift up the vessel, it was found to be creaking. Some of its wooden boards were breaking up and same fell into the water. The net was hanging loose and there were some petty items which were falling out and the net if allowed to come out would drift between the beach and end of the main breakwater and thus pose a hazard to surface navigation. A passing ship would pick up the net in the propeller and that would cause it to cease.”

What then is the evidence led on the other side on this issue whether or not it posed danger or was likely to become an obstruction. ? The respondent had in his reply denied (1) that the boat sank and (2) that it was a threat to navigational safety. He had on the contrary asserted that a vessel (s) passed freely after the

[p.861] of [1999-2000] 2 GLR 845 accident. I have already found as untrue his assertion that the boat was firmly secured, that “it was in shed 2 right in front of the harbour, that is the wharf.” The evidence conclusively shows the vessel sank. Indeed, the respondent’s own confession in his evidence-in-chief that on that fateful day, “the water kept filling the boat,” lends credence to the appellants’ story that there was a big hole under the boat. It confirms the assertion that indeed the boat was not firmly secured in front of the wharf, as the respondent would have us believe; but that indeed it sank. Would the evidence on hand therefore justify a finding that the vessel posed danger or was likely to obstruct navigation? My answer would be in the affirmative.

Obviously, I think a sunken vessel at or near the entrance of any harbour without more, does pose a real threat to maritime safety. The dock master, I think, deserves commendation for identifying this real threat and taking prompt action to avert accidents. To follow the line of thinking of Streakfield J in Atkinson v Tyne-Tees Steam Shipping Co (1956) Lloyd’s Rep 244, the harbour master was right in foreseeing danger and not waiting for an accident or accidents before concluding that the sunken vessel made the entrance or approaches to the harbour totally unsafe for navigation. Sad though the respondent’s loss may be, I do not think we can or ought to compromise our hard worn reputation that our harbours are, by all international standards, safe.

In this regard, I think it is unfortunate that on such a serious issue as maritime safety, which in itself is a delicate and specialised subject, the court rejected outright the appellant authority’s detailed evidence on what makes the vessel and its contents a real threat to safe navigation and when, more importantly, the respondent had led no evidence in rebuttal or disproof of these facts; save of course his assertion that two vessels passed uneventfully. In truth, I do not find the second defendant witness’ claim that other vessels would have difficulty using the entrance preposterous. Shall we take this homely example. Certainly, the mere fact that when an accident occurs involving two or more vehicles, saloon cars succeed in maneuvering past the wreckage does not mean articulated trucks would have no difficulty doing the same, does it? It does not also mean that the wreckage is not an obstruction or poses no danger to even the saloon cars themselves or even bicycles, bicycles tricycles, carts or the like and to safe driving generally and consequently that the wreckage could be left in situ,

[p.862] of [1999-2000] 2 GLR 845 that is either standing in the middle of the road or by the road side. Surely, we ought to encourage our people to move away from all forms of mediocrity to professionalism. The harbour master described the vessel as an “impending danger.” The learned trial judge’s treatment of his evidence with disdain, if not with scorn, dismissing it as rather “technical verbose” and the “rattling of technical terms in the most technical manner,” is unfortunate. I do not finding his evidence a mere verbiage.

Consequently, the next important issue for consideration is whether the section 243 of Act 183 does empower him to remove and dump the sunken vessel. The law stipulates:

“243. Where any vessel is sunk, stranded or abandoned in any port under the control of a port authority or in or near any approach thereto in such a manner as in the opinion of the authority is, likely to become, an obstruction or danger to navigation, that authority may, (a) take possession of, and raise, remove, or destroy the whole or any part of the vessel.”

By this law, the appellant authority is empowered, among other things, to raise, remove or destroy the whole or any part of a sunken, stranded or abandoned vessel found in any port or in or near any approach thereto and which in their opinion is or is likely to become an obstruction or a danger to navigation. The appellant authority has been given very wide discretionary powers undo 243 of Act 183 as to what to do with a wreck. A number of disposal options are open to them. If in their opinion it constitutes a real threat to navigational safety, they may raise it, remove it, or destroy the whole or part of it. I think, unless it can be shown that in any given situation, in exercising any of these three main modes of wreck removal, they acted plainly unreasonably, their action cannot be described as unlawful.

Again, one of the important statutory duties of the Appellant authority as spelt out under section 25(1)(e) of PNDCL 160 is to remove obstructions and keep our shipping lanes safe for navigation. Section 25(1)(e) of PNDCL 160 stipulates:

25. (1) The Authority shall have at each of its ports a Ports Operations officer who may give directions for all or any of the following purposes:

[p.863] of [1999-2000] 2 GLR 845

“(e) removing unserviceable ships, and other obstructions from a port and keeping the port clear for navigation.”

In their evidence, the appellant spelt out the various options open to them with this sunken vessel which, plainly speaking, was clearly a looming danger. The first defendant witness, evidence is that attempts at raising it proved a fiasco and consequently they “abandoned the idea and put it back,” ostensibly into the sea. He was emphatic that the vessel could not have been towed to the dry-dock as alleged by the respondent. His explanation was that if he had attempted to, the whole vessel would have disintegrated and blocked the entrance to the harbour. Answers he gave to questions put to him under cross-examination does buttress appellants’ claim that it was imprudent, if not impossible, to raise the vessel and send it to the dry-dock, as originally planned, and demanded by the respondent:

“Q What were you supposed to do that following morning ?

A To lift the vessel and clear it away from the entrance.

Q Were you given any specific instructions as to what to do?

A No we were to remove the vessel and bring it to the dry-dock.

Q So you lifted the vessel this morning ?

A Yes.

Q The things you had seen earlier were they still in the vessel.?

A No, I told the harbour master that if we continued to lift it, it would disintegrate so we should leave it there. The engine too was still in the vessel and the net was spread out in the vessel.”

Again, we have the evidence of the harbour master on how they resolved this crisis and why they choose this disposal option (of dumping the vessel.) He said:

“Faced with this impending danger, I asked that the vessel be removed and placed at position X on exhibit 1. Sending the vessel to the dry-dock instead of beaching would entail passing through the harbour entrance and if the net was to fall out, it would cause the closure of the port unless the net was removed by divers.”

[p.864] of [1999-2000] 2 GLR 845

By his reply and defence to the counterclaim, the respondent denied flatly that the appellants acted under the PNDCL 160 and Act 183 to keep the shipping lanes and approaches to the harbour free of obstructions, clear of danger and safe for navigation. Their case, as I have already pointed out, is that his vessel which was moored to the breakwater was removed and thrown away. So that, had the parties stuck to their pleadings and the appellants version that (1) the vessel was sunk, (2) that it does or was likely to impede navigation and (3) they led evidence as they have done that they had acted in the exercise of the statutory powers confered on them by these two legislation, I am of the view that the matter should have ended in their favour. The question of whether or not the appellants acted reasonably in the circumstances of the case would not have arisen at all. However, the respondent at the hearing departed from his pleadings and raised questions like the bad faith of the second defendant witness, and the unreason-bleness of the particular option exercised under section 243 of Act 183. He led evidence which was not objected to on these crucial matters and was cross-examined on them. As a result, I am constrained to examine this case not exclusively in the light of the pleadings but on these other issues which were also raised by the evidence.

True, the appellants have been given wide discretionary powers to exercise in wreck removal. But the well-settled rule is that the discretion must be exercised fairly and reasonably, not Capriously. So for example, the person exercising it must not be motivated by personal bias: see Breen v Amalgamated Engineering Union [1971] 2 QB 175; nor must he demonstrate vindictivenees in the exercise of his powers. The discretion 76: “It must also be exercised for proper purposes which are consistent with the conferring statute. So I now examine the respondent’s evidence. Does it prove the discretion was improperly exercised? In contrast to the evidence, the respondent portrayed the harbour master as on overly malicious official who exercised his discretion unreasonably because he demanded and was refused a bribe (of course he denied this allegation). His account is that:

“in the morning we went with the crane boat to the scene and lifted it up by crane boat to leave it at the dry-dock. Immediately they lifted it up, they said Captain Ziem gave them instructions on motorola to dump it on the High Seas. I

[p.865] of [1999-2000] 2 GLR 845 told them to allow me to remove the engine and the net but they said if they allowed me to remove them they would be sacked. After the boat had been taken out of the waters it would have been simply taken to the drydock and it was no big deal.”

Unlike the second defendant witness, however, the respondent merely asserted that the boat could have been taken to the dry-dock without demonstrating or detailing how that could be conveniently done without any further threat to maritime safety. The point of the matter is that section 243 of Act 183 on the face of it, empowers the appellant authority to destroy a vessel found to be an obstruction or a threat to safe navigation, if the circumstances does justify that step. So that, where the contention is that the exercise of this option was in the circumstances clearly unreasonable and so unjustified in law, the burden rests on the person asserting to lead .sufficient evidence in proof of it, ie the charges of unreasonableness and unfairness. In my view, because the court is being called upon to deal with a subject which on the face of it is technical and which therefore is sufficiently beyond common experience, it was not enough for the respondent merely to mount the witness box and make assertions without supplying these necessary or details which would lend credence to the assertion. Given the state of the pleadings, particularly on this issue (of what in the circumstances of this case was the most reasonable option Captain Ziem could have exercised), the finding (by the trial judge) that the respondent’s evidence was “very simple and unsophisticated”, as opposed to the appellants’ which he described as “rather technical and verbose” is not to his credit. In my view, it rather impacted negatively on his case.

Under these circumstances, I cannot dismiss the dock masters detailed explanations as mere effusions, particularly with the respondent’s own principal witness, the first plaintiff witness’ admission under cross-examination that in the circumstances in which the sunken vessel was raised from the waters, it was impossible for them to retrieve anything form the vessel, reproduce the questions and answers:

“Q When the sunken boat was going to be removed the divers tied it with wires?

A Yes.

[p.866] of [1999-2000] 2 GLR 845

Q And by means of the use of directs it brought up the vessel hanging in the air?

A Yes.

Q How were you to remove the engine as it hangs in the air as described?

A That is why we told them to take it to the dry-dock so that we could remove our things.

Q So if they had not sent it to the quay or dry-dock it would be impossible to remove anything from the vessel.

A That is correct.”

The appellants have demonstrated that it was impossible to raise the damaged vessel and send it to the dry-dock. On the contrary, the respondent has not led sufficient evidence to show that was possible. Since the law allows the appellants (1) to remove obstructions, etc (and does not specify where they are to be taken) in order to keep shipping lanes and approaches to the harbour safe for navigation. I think the harbour master in the circumstances of this case exercised his discretion properly by beaching the vessel in the place where in his estimation was the safe place.

In coming to this conclusion, I have adverted my mind also to the fact that the respondent led no evidence in proof of the feasibility of dumping the disintegrated or damaged vessel at the New Town Beach. There was no evidence that both in terms of environmental and navigational safety (for local fishermen and women use that place also), leaving it at the beach was the most reasonable thing to do. My view is that the trial judge’s conclusion that it would have been expedient and convenient for the defendants to put the plaintiffs vessel at New Town Beach cannot be justified. Also, I am unable to defend the finding that the first defendant witness acted callously and capriciously. Given the respondent’s own testimony of the help he gave them the very first day of the accident, the fact that he even requested the dry-dock to repair the vessel, I find it difficult to hold from all the circumstances of this case that the was motivated by ill-will. On the contrary, I think he was motivated by the desire to perform his statutory duties properly and so keep our harbour safe. I think that the respondent’ claim was not proved and judgment ought not to have been given in his favour.

However, I am not satisfied on the evidence that, as pleaded, the respondent was negligent in allowing the vessel to sink at the

[p.867] of [1999-2000] 2 GLR 845 approaches and lanes of the harbour. I would therefore dismiss the counterclaim. On the other hand, I think the authority should be entitled to the sum of ¢800,000 being the cost involved in removing the wreck. The respondent has argued that since they failed under section 243(c) of the Act 183 to exercise the power of sale of the vessel or its contents and out of the proceeds reimburse itself for the expense involved, they cannot be entitled to the sum claimed. I do not think this constitutes a valid defence to for this just claim. The reason simply is this. The power of sale under section 243(c) of Act 183 is not mandatory; it is discretionary and may be exercised, if evidently, among other things, the circumstances permit. The section reads:

“243. Where any vessel is sunk, stranded or abandoned in any port under the control of a port authority or in or near any approach thereto, in such manner as in the opinion of the authority is or is likely to become, an obstruction or danger to navigation, that authority may, (c) sell, in such manner as it thinks fit, any vessel or part so raised or removed, and also any other property recovered in the exercise of its powers under this section, and out of the proceeds of the sale reimburse itself for the expenses incurred by it in relation thereto under this section, and the authority shall hold the surplus, if any, of the said proceeds in deposit for payment to the person thereafter establishing his right thereto . . .”

In this instant case, having found that after the removal of vessel from the water, conveying it (1) to the dry-dock was most impracticably; (2) that the items in the vessel could not have been removed while the vessel was hanging in the air; and (3) further that dumping it on the seas was the best thing option open to those in charge of the safety of our ports, it is contradictory to hold in the same circumstances of this case, that the authority ought to have exercised its powers of sale under section 243(c) of the Act 183. Where could they possibly have carried out this exercise?

It is plain from section 243(c) and (d) of Act 183 that it is the owner of the vessel who bears the full expenses involved in the removal of any wreck. Obviously, where the circumstances of the case justify a sale of the whole or any part of the vessel, he does not suffer a double tragedy, for the entire proceeds or part of it by

[p.868] of [1999-2000] 2 GLR 845 law, must be used to defray the expenses. But where, as in this instant case, no sale can be effected, the law enjoins him nevertheless to make good the cost involved in the exercise. Consequently, I would award the appellants the sum of ¢800,000 as claimed.

Brobbey JA. This is an appeal from the judgment of the High Court, Tema. The facts giving rise to the litigation are that the respondent’s fishing vessel set out to sea at about 1 pm on June 1992. Somewhere in the high seas it was detected that water was leaking into the vessel. The crew returned it to the Tema port area and tied it at shed 2. The state of the vessel was reported to the appellant corporation. According to the respondent, the appellants were requested to get the vessel to the dry-dock for it to be repaired. The appellant rather dumped it near Tema New Town. The vessel and all of its contents were lost. On the basis that the appellants had unlawfully sunk the vessel and its contents, the respondent then issued a writ in the High Court, Tema claiming: (a) payment to him of the current value of the vessel; (b) payment for four trawling nets and two heavy duty batteries, and (c) loss of earnings from June 1992 to the date of judgment. The appellant denied liability for the claim and counterclaimed for ¢800,000 being the cost of removing the vessel from the port area.

After the trial, judgment was given in favour of the respondent. In sum, the trial judge found that the appellants had the duty under the Merchant Shipping Act, 1963 (Act 183), ss 233(1) and 243 to salvage the vessel; and further that it did not have underwater light equipment with which to salvage it in the night and was therefore negligent. All the claims of the respondent were granted. The appellants counterclaims were dismissed. The appellants then appealed to this court. Seven grounds of appeal were filed. The first ground of appeal was that:

“The learned High Court judge erred in law when he held that by virtue of section 233(1) of Act 183, the defendants were under mandatory duty to salvage the plaintiff’s sunken vessel at the port.”

Section 233(1) of Act 183 provides that:

“233. (1) Where any vessel is wrecked, stranded or in distress at any place on or near the coasts of

Ghana, the receiver of the wreck for the district in which that place is

[p.869] of [1999-2000] 2 GLR 845 situated shall, upon being made acquainted with the circumstance, forthwith proceed there, and upon his arrival shall take command of all persons present, and shall assign such duties and give such directions to each person as he thinks fit for the preservation of the vessel, and of the lives of the persons belonging to the vessel, hereinafter referred to as shipwrecked persons, and of the cargo and apparel of the vessel.”

Counsel for the appellants argued that “receiver” referred to in this section means the minister or someone over whom the minister exercises control and general superintendence in the performance of his duties.

The appellant authority was a creature of statute established under the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160). The later has a separate legal entity with totally distinct functions and was therefore different from the receiver envisaged in Act 183, s 233(1). That argument may sound logical. However, section 236 of Act 183 provides that where a receiver is not present, any harbour master or deputy harbour master may do anything authorised to be done by the receiver.

Counsel further contended that a harbour master acting under section 236 was under the control and superintendence of the minister and therefore his liabilities are those of the government and not those of the appellants. With respect, that argument is untenable. PNDCL 160 under which the appellants operate contains provisions which empower the appellants to perform the function which the second defendant witness performed. These will be found in section 25 of PNDCL 160, particularly section 25(1)(c), (d) and (e). The only difference is that Act 183 refers to “receiver” while PNDCL 160 refers to him “Ports Operations Officer.” That argument is however, one of semantics because the relevant section which is section 243 of Act 183 gives power to the “port authority” to do what the second defendant witness did. No doubt, that port authority is the appellant authority herein. The appellant, being a corporate person, can only act through its officials like the second defendant witness. Counsel for the appellants referred to Halsbury’s Laws of England (4th ed), Vol 36), para 535 where it is stated that: “A Harbour authority is not liable for the acts of its employees when not acting as such but in another capacity . . .” The issue whether the second defendant witness acted as representative of the minister or the defendant

[p.870] of [1999-2000] 2 GLR 845 corporation was not well articulated at the trial. The issue of capacity should have been raised and settled by evidence. In fact, no evidence was led as to the precise capacity in which the second defendant witness acted. In any case, the sentence relied upon was quoted out of context. The passage from which it was quoted begins with this sentence:

“A harbour authority is liable for any damage that may arise from the acts and directions of its employees when acting within the scope of their duty, for when a vessel is within the jurisdiction of a harbour authority by law empowered to give orders, the orders must be obeyed unless it is obvious that in following them there is danger, in which case they may be disregarded.”

In the terms of this passage, the appellant authority could be held liable vicariously for the actions of its employees engaged in the exercise which resulted in the loss of the respondent’s vessel.

Ground (E) of the grounds of appeal read as follows:

“The learned High Court judge erred in law when he found the defendants liable in negligence when the plaintiff neither pleaded negligence nor led any evidence on negligence.”

The respondent did not originally sue in negligence. He did not particularize negligence as he ought to have done if negligence was the basis of his claim. The trial judge nevertheless found that the appellants’ officials were negligent. It was on that basis that he awarded judgment against the appellants. In his statement of case, counsel for the respondent supported the decision of the trial court that the appellants were liable in negligence. Counsel however provided no answer for the criticism that he failed to plead negligence or particularise it. The argument raised in this ground of appeal is therefore unassailable.

The law on negligence is now well settled. As was rightly held by Lord Wright in Lochgelly Iron & Coal Co Ltd v M’Mullan [1934] AC 1 at 25: “In strict legal analysis, negligence properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty is owing . . .” In the instant case, both counsel for the parties raised the issue of the duty owed by the appellants.

The trial judge found that sections 233(1) and 243 of Act 183 imposed statutory duties on the appellants. In his statement of case, counsel for the respondent supported him on

[p.871] of [1999-2000] 2 GLR 845 this. Counsel for the appellants argued otherwise, contending that PNDCL 160 under which the appellants operated imposed no such duty on the corporation. I am of the opinion that the trial judge and counsel for respondent were right in their view that the appellants owed some duty under those statutes. Section 233(1) of Act 183 which has already been quoted stipulates that: “Where any vessel is wrecked, stranded or in distress at any place on or near the coasts of Ghana, the receiver of wreck shall forthwith proceed there, and . . . shall take command of all persons present . . .” Section 243 of Act 183 also provides that:

“243. Where any vessel is sunk, stranded or abandoned in any port under the control of a port authority or in or near any approach thereto, in such manner as in the opinion of the authority is, or is likely to become, an obstruction or danger to navigation, that authority may,

(a) take possession of, and raise, remove or destroy the whole or any part of the vessel;

(b) light or buoy any such vessel or part until the raising, removal or destruction thereof;

(c) sell, in such manner as it thinks fit any vessel or part so raised or removed, and also any other property recovered in the exercise of its power under this section, and out of the proceeds of the sale reimburse itself for the expenses incurred by it in relation thereto under this section, and the authority shall hold the surplus, if any, of the said proceeds in deposit for payment to the person thereafter establishing his right thereto:

Provided that the deposit will lapse to Government unless such person makes his claim within three years of the sale;

(d) If the expenses connected with the removal or destruction of any vessel which is sunk, stranded or abandoned as aforesaid exceed the value of any property recovered, the excess shall be a debt due to such port authority recoverable by ordinary process of law from the person who was the owner of the vessel at the time when the vessel was sunk stranded or abandoned.”

[p.872] of [1999-2000] 2 GLR 845

Section 233(1) of Act 183 clearly creates some duty on the harbour master which in this case is the appellants authority.

What precisely was the duty which the appellant authority was enjoined to perform? The answer to this question will bring into focus the relevant statute applicable in the instant case. The entire case has been argued on the basis of these two sections in Act 183. The first is section 243 of Act 183 which has already been quoted. That section grants power to the appellant authority as a statutory body to “raise, remove or destroy” a vessel causing obstruction or danger to navigation in the port area. The other is section 233(1) of Act 183 which has similarly been quoted already. The respondent and counsel have argued that section 233(1) of Act 183 impose the duty on the appellant authority as a public body or public corporation. The trial judge took the view that both sections are applicable to the instant case. In respect of section 233(1) of Act 183, he found as a fact that the vessel was in distress. The appellant was consequently enjoined to take steps to preserve the vessel and its contents. The settled principle of law is that where a public body is enjoined by statute to perform some duty, it has to perform it with reasonable care and without negligence. The standard of care which will constitute reasonable care varies according to the circumstances of each case. see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152.

In deciding on negligence in the present case, the trial judge took the view that at the relevant time when the appellant was required to preserve the vessel, it did not have underwater light facility with which it could have performed the service. To him, that amounted to breach of their statutory duty which resulted in the vessel being left in the waters overnight until the following morning when the vessel had taken in so much water that “attempts at a rescue or removal proved too little too late and consequently futile.” The question is whether the mere unavailability of the underwater light facility should make the appellants negligent. That unavailability should not be taken in isolation. Before one can properly apportion blame, that unavailability should be considered in the light of the condition of the vessel and the time when it was sailed to the port as explained above. The pertinent question was this: Was the vessel itself seaworthy at the time it was sent to sea? It seems to me that the vessel was not seaworthy. There are a number of reasons for this view. As a

[p.873] of [1999-2000] 2 GLR 845 general rule, there is a presumption that a ship is deemed to be seaworthy.

However, “the fact that the ship becomes leaky or goes to the bottom shortly after putting to sea, without there being any storm or other external factor to account for her condition or loss, is prima facie evidence or unseaworthiness, and shifts to the shipowner the burden of proving that she was in fact seaworthy at the time or her departure.”: see Halsbury’ s Laws of England, (4th ed), Vol 43, para 604. In the instant case, the ship was put to sea at 1 pm and within two- and- a-half-hours, it had to be rushed back to the port area at 3.30 pm for the reason that water was leaking into it. Surely, it could not be said that the vessel was seaworthy. The respondent was challenged about the sea worthiness of the vessel. He was even told that the vessel had no insurance. He produced no insurance policy or seaworthiness certificate and he could of course not discharge that onus by merely asserting orally in his evidence that he had a seaworthy certificate or insurance certificate. His failure to produce any of these confirmed that the vessel was not seaworthy. Quite clearly, the respondent was himself negligent in putting to sea a vessel which was not seaworthy.

The second fact is the time when the vessel was put to sea. The appellant authority was enjoined to take steps to preserve the vessel; but what was required of it was to have acted reasonably and honestly and with due care. When the situation of the vessel was reported to the appellant, it took immediate steps to examine its situation and advised on urgent action to be taken. According to the first and second plaintiff witnesses, their desire was to have sent the vessel to the dry-dock. The crew could not do that because, as the put it, the dry-dock was some distance away. They could not cover the distance to get to the desired destination because water was leaking into the vessel. That state of affairs was created by the respondent who put an unseaworthy vessel to sea. It was not created by the appellants. The fact that the vessel arrived late in the afternoon and not long thereafter work on it had to be stopped when night fell was also not the making of the appellants. That too was caused by the respondent or his crew who decided to set sail in the afternoon instead of the morning. To my mind, these were the causa causans of the situation that led to the eventual loss of the vessel.

The case of the respondent is rather speculative in that it was based on the assumption that if the underwater light facility were

[p.874] of [1999-2000] 2 GLR 845 available, the vessel could have been saved. It was possible that if the underwater light facility were available, the vessel could have been lost all the same. The proper evaluation of the issue of liability should not have been limited almost exclusively to the availability or otherwise of the facility, but rather to the examination of the question whether the action taken by the appellants’ officials were reasonable, considering all the circumstances of the case, including the condition of the vessel and the time it was sent to the port. Having regard to the fact that the appellant took almost immediate steps to attend to the vessel as soon as the report was made to it and did whatever could have been done in the circumstances, the appellant could not have been said to have been negligent under section 233(1) of Act 183 when the incident was first reported to it.

A public corporation like the appellant authority entrusted with the responsibility to perform some public duty, should be expected to perform the services within the constraints of the facilities available to it and no more. If the arguments of the trial judge and counsel for the respondent were upheld, they may rather set a potentially dangerous principle and should therefore be carefully handled. One instance will illustrate the danger: Suppose a vehicle has a sudden breakdown and has to be abandoned in the middle of the roadway in such a way that only a crane or towing truck can clear it from the road; the police have a duty to clear roads of obstructions. Unfortunately, the district police in charge of the area where the vehicle is located has neither a crane nor a towing truck. In the night, sparks from a nearby bush fire jump onto the vehicle and in the ensuing fire the vehicle is totally destroyed: Can the vehicle owner bring action against the police for failing to acquire the right equipment to have removed the vehicle to safety? The answer will obviously be in the negative. In the same way, why should the port authority be held liable merely because it does not possess the equipment with which it could have worked on the vessel to save it?

Even if section 233(1) of Act 183 were to be applicable to the instant case, the trial judge could not be right in his finding that the unavailability of underwater light facility was sufficient basis for holding the appellant negligent. A critical examination and consideration of the connotations of section 233(1) of Act 183 would seem to suggest that the duty of care required of the port authority in the instant case was not intended by the legislature to

[p.875] of [1999-2000] 2 GLR 845 be as rigid as the respondent and his counsel have submitted before the trial court and this court. Section 236 of Act 183 requires that where a vessel is in distress, the receiver of wreck, or in his absence the harbour master, was to take steps to preserve the vessel and its contents. When one seriously considers the nature of the duties to be performed by the harbour master and the times when those duties may be required to be performed, it cannot properly be argued that the duties and the services could be preformed at all times and at every cost or at every expense. For the appropriate evaluation of the duties, services and standard of care required of the appellants, analogy may be drawn from the position of a catchment board charged with the responsibility of draining rivers and banks in the case of East Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527 at 539-540, HL, where Lord Thankerton gave the following opinion:

“It does appear to me that there are special circumstances in the case of statutory bodies such as the appellants which should lead to the application of a somewhat less exacting standard than ordinarily prevails. The actions of the waters, with the depredations of which they are intended to deal, are uncertain and incalculable, and the provision of staff, plant and material adequate to deal with sudden emergencies, let alone their somewhat cramped financial resources, present great difficulty, and, when one adds the importance and urgency of remedial measures, it does seem to me that much may be condoned as well- meant error of judgment which, in other circumstances, might be considered as unjustifiably risky.”

After making that conclusion on the unavailability of the underwater light facility, the trial judge proceeded to find that there was no truth in the assertion that the vessel posed danger to navigation. He assigned three reasons for his views. One was that the first defendant witness said that the vessel posed danger, while the second defendant witness would only say that “the vessel was at a sensitive position and might have drifted causing danger and thereby causing the harbour to be closed.” According to the trial judge, the two expressions were not the same but were rather contradictory. The interpretation which he put on the expressions could not be correct. To say that the vessel posed danger simply meant that the position of the vessel had the potential to create

[p.876] of [1999-2000] 2 GLR 845 danger. That was no different from what the second defendant witness said that at the position where the vessel was, it might drift and bring about danger. There was no conflict in the two positions postulated by the expressions used by the two witnesses. The trial judge therefore erred in using the alleged conflict as a ground for his finding that there was no danger.

The second reason assigned by the trial judge for his view that there was no danger was that the first defendant witness conflicted himself on his evidence on the position of the ship in relation to rocks at the port. In his judgment, he stated that the first defendant witness had said earlier that the vessel was sitting on some rocks, but pressed further he said there were no rocks. I have taken the trouble to read the evidence-in-chief and cross-examination of the witness over and over again. Strangely, no conflict whatsoever was found in his testimony. Throughout his evidence, he maintained that the vessel was sitting on the rocks. He repeated that in cross-examination too. The trial judge therefore erred in using the non existent conflict as a ground for his view that the no danger was posed.

The third reason concerned the passage of some vessels at the place where the respondent’s vessel sunk. During cross-examination, counsel for the respondent suggested to the second defendant witness that two vessels passed by while the respondent’s vessel was at the harbour and that was sufficient proof that the position of the vessel posed no danger to navigation in the area. That was explained away by the second defendant witness that the vessels were small in size and that bigger vessels could not pass by. The trial judge rejected the explanation by one sentence, to wit: “I do not consider that convincing in the least.” He gave no reasons for not finding the explanation convincing.

It is pertinent to note that the second defendant witness was an expert on maritime matters and he spoke as such, as will be seen from the very beginning of his testimony at the trial court. Indeed, “the opinions of skilled witnesses are admissible whenever the subject is one upon which competency to form an opinion can only be acquired by a course of special study or experience.”: see Phipson on Evidence (10th ed), p 478, at para 1280. That seems to be the same basis on which expert evidence is made admissible in the Evidence Decree, 1975 (NRCD 323), s 112. Where someone like the second defendant witness who was almost in the position of an expert testified on matters which were beyond common

[p.877] of [1999-2000] 2 GLR 845 knowledge and certainly beyond the knowledge of the bench, it was not enough for the trial judge to have peremptorily dismissed an opinion from that kind of witness without assigning reasons for the dismissal. Since no reason was assigned for the dismissal, it can be presumed that he had none, and if he had none, then what the second defendant witness stated was not controverted and should have been accepted by him.

The main point about the issue of danger is that the first and second defendant witnesses asserted that the position of the vessel posed danger. Their statements on these should have been evaluated in the light of the position where the vessel sunk and the fact that markers had to be positioned to warn other vessel of the presence of that vessel where it had sunk. The first defendant witness told the trial court that when he went to the scene after receiving the signal, he found that the vessel had sunk in the middle of the entrance to the Tema Fishing Harbour. He went on to say that:

“I informed the harbour master that the vessel was six metres high and the pole on it was seven metres, so it had blocked the entrance to the harbour and therefore no vessel should be permitted to enter the fishing harbor.”

The position described by the first defendant witness was confirmed by the first plaintiff witness who first sailed the vessel to the port area. When the first plaintiff witness was questioned during cross-examination, this is what transpired: “Q You said the boat was in front of shed 2. A Yes, near the entrance of the wharf at shed 2.” The position of the vessel was further confirmed by the third plaintiff witness who was also among those who first sent it to the port area. In his evidence-in-chief he too said that: “We came to the entrance of the harbour with the aim of going to the dry-dock” Even the respondent who was initially not at the port when the vessel first arrived there but went there later confirmed that position when he said: “The boat was in front of shed 2 right in front of the harbour, that is the wharf.” The position of the boat as described by these witnesses was supported by the map of the Port of Tema which was tendered as exhibit 1. On that exhibit, the exact position where the vessel was left on the first day it arrived at the port area was marked as ‘A’ and it was at the very entrance into the main fishing harbour. In that central position to the entrance of the harbour, there could have been no doubt that the

[p.878] of [1999-2000] 2 GLR 845 entrance was obstructed. The findings of the trial judge that the port was not obstructed could not therefore be correct.

Additionally, there was abundant evidence that the vessel posed danger to navigation. The first defendant witness told the trial court that he put a floater to mark the place where the vessel had sunk. The floater was obviously to warn approaching vessels of the danger posed by the sunk vessel. That was confirmed by the first plaintiff witness who represented the plaintiff on the day the vessel was sent to the port area. In cross-examination, this is what happened: “Q You indicated that between 5.30 pm and 6 pm the port, authority put on board . . . .to warn traffic of the danger that had been created. A Yes.” On the first day when the incident was reported at the port, neither the vessel owner nor the harbour master was present. The most relevant people there were the first plaintiff witness and the first defendant witness. Their testimony on the issue of danger to other vessels should be taken as almost conclusive. They both said that a sign had to be put in place to warn vessels about the danger posed by the respondent’s vessel. If the vessel posed no danger, there would have been no need to have provided the warning signs.The mere fact that, in the instant case, warning signs had to be provided where the vessel was berthed was sufficient proof that the sunken ship posed danger to navigation. From the evidence on the position of the vessel given by those who saw it on the very first day when it arrived at the port and their view of the danger posed, the trial judge could not be right in his finding that: “There is also no truth in the assertion that the plaintiffs vessel posed a danger to navigation.”

The trial judge relied on the evidence of a court clerk concerning a visit to the locus in quo to buttress his views further. That evidence was flawed in many respects. The correct procedure for obtaining evidenced of a visit to the locus in quo was set out in Gblevi Family v Amanie (Practice Note) [1961] GLR 1, CA and several other cases including Barko v Mustapha [1964] GLR 78, SC and Kofi v Kumansah [1984-86] 1 GLR 116, CA. The practice is so well settled now and was summed up in Gblevie v Amanie (supra) at 1-2 as follows:

“The court should be accompanied by the parties and any relevant witnesses to the inspection. The parties or the witnesses there point out such places and things which are material to the case, etc. If certain other persons, who may

[p.879] of [1999-2000] 2 GLR 845 assist the court in arriving at a decision in the matter are found on the land but [they] have not given evidence in court, [and they] are heard, those other persons should be asked to appear before the court when it re-assembles.

Then when the court re-assembles all the persons who were used at the view must be put into the witness box, and on oath state what part they took in the recent visit to the locus and what each did. The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are called by the court itself, and at that stage must be deemed to be witnesses called at the instance of the court.”

The trial judge in the present case did not follow the correct practice. It was not clear whether the visit was conducted by the court or by the court clerk. The report of the visit which was tendered as exhibit CE1 gave the impression that it was a visit undertaken by the court clerk. That was clearly wrong. In a similar case where the evidence of the locus in quo was recorded by the court clerk, it was held that that procedure was so irregular that it went to the root of the trial and judgment. That was the case of Amane v Kwabla [1975] 1 GLR 417. In Ababio II v Akro & Co [1963] GLR 195, SC, where members of the native court did not form their own opinion but relied on information given them by the court registrar who visited the locus in quo, it was held at 200 that:

“The duty of the court is to decide a case upon the evidence before it, not upon any extra judicial information it may receive. Again, a court has to base its judgment upon its own conviction formed from the facts proved before it; it should not be influenced by any outsider or outside information. Any judgment given based upon extra judicial information or knowledge acquired by the court outside the court is void; so is a judgment which is influenced by someone who is not a member of the court, for example, a clerk of the court.”

At some places in the report, it was not clear who was cross-examining whom, an error which no judge with the experience of the trial judge in question would commit. In the light of the present state of the law, the evidence on the alleged visit to the

[p.880] of [1999-2000] 2 GLR 845 locus in quo was inadmissible. The trial judge therefore erred in relying on it in support of his views.

The other section which the trial judge relied upon was section 243 of Act 183, In the terms of section 243 of Act 183, the port authority was empowered to remove, sell or destroy a sunk vessel which is likely to become an obstruction or a danger to navigation. As has been pointed out already, this section merely grants the appellant the power to perform certain functions. It creates no duty or obligation on the appellant to perform those functions. It is only where the function were proved to have been performed without reasonable care that appellant could be said to have been negligent. As it was stated by Lord Blackburn in Geddis v Bann Reservoir Proprietors (1878) 3 App Cas 430 at 455-56, HL: “. . . it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently.”

According to the second defendant witness, the first instructions he gave on being informed of he position of the vessel at the port were that it should be removed and berthed. In fact, the first defendant witness attempted to remove the vessel. In his evidence-in-chief he stated that:

“When I got there in the morning, I attempted to move the vessel but because of the strong current affecting the vessel, it had started to come apart. We therefore lifted it but as it threatened to disintegrate altogether because of the current, we abandoned the idea and put it back.”

He conveyed the same idea in cross-examination thus:

“Q What were you supposed to do the following morning?

A To lift the vessel and clear it away from the entrance.

Q Were you given any specific instructions as to what to do?

A No. We were to remove the vessel and bring it to the dry-dock.

Q So you lifted the vessel this morning?

A Yes Q The items you had seen earlier, were they still in the vessel?

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A No. I told the harbour master that if we continued to lift it, it would disintegrate so we should leave it there. The engine too was still in the vessel and the net was spread out in the vessel.”

By the following morning when the divers returned to the area where it had been left the previous day, this is how the first defendant witness described its position:

“Q How far had the vessel sunk?

A. The vessel was six meters high, the inest pole was seven meters, making thirteen meters in all. Only three meters was above the sea. The remainder was sunk.”

What the second defendant witness said about the net was also quite relevant. In his evidence-in-chief, he too stated that:

“Faced with this impending danger, I asked that the vessel be removed and placed at position X on exhibit I. Sending the vessel to the dry-dock instead of beaching would entail passing through the harbour entrance and if the net was to fall out, it would cause the closure of the port until the net was removed by divers.”

These passages provided appropriate answers to the questions whether or not the vessel and its contents could have been moved. Moving the vessel had to be abandoned because of the probability that it would disintegrate and the wreck block the port area. Its contents would further have obstructed the port area. Once the condition of the vessel was found to be as described by the first defendant witness, the suggestions of the respondent, the first plaintiff witness and the third plaintiff witness, which were the same as the findings made by the trial judge, that the vessel could have been removed to the dry- dock could not be implemented. Those findings by the trial judge were therefore not supported by the evidence which was adduced before him.

The trial judge took the view that the contents of the vessel could have been saved. It is easy ex post facto to condemn the port authorities for not allowing the respondent and his crew to remove the items on the vessel before it was taken away. However, one has to consider the circumstances in which the vessel was found before appropriate judgment would be passed on them. On the first day when it arrived at the port, not much could have been done because it was already late in the day. All too soon it turned

[p.882] of [1999-2000] 2 GLR 845 dark. In any case, for those who were worried about the removal of the items on the first day, it has to be said that the respondent or his crew could have removed them if they thought that was feasible. When asked in cross-examination whether the respondent asked to be given the chance to remove some parts of the vessel, the second defendant witness fittingly remarked: “I do not remember. He had all the time the previous day to do so.” On the following morning, the bulk of the vessel was already under water. When the vessel was lifted out of the water, it started to disintegrate. In the course of the exercise, the vessel was hanging. All these facts came out of the evidence of the second defendant witness who said he “personally supervised the removal because it was in a very sensitive area.” The view he gave in his evidence-in-chief was that it would not have been a safe operation for the net to be removed. If removing the net would not have been safe, removing the engine and parts of the vessel wouldequally have been unsafe. On these facts, the appellant could not be faulted for not allowing the net, the engine or other items or parts in the vessel to be removed. The finding of the trial judge that the appellant was negligent for not allowing those items to be removed was not supported by the evidence on the record.

Since removing was ruled out, the next option under section 243 which was open to the appellant was to consider whether the vessel could have been sold. That was an option which was not raised or apparently not contemplated by the appellant or the trial judge. The reasons for that stand should not be difficult to find from the facts. It has already been explained that the vessel was not seaworthy. If anyone doubted that, that doubt should be resolved from the statement of the harbour master, while being cross-examined, that: “Whether the vessel was seaworthy or not, it went to sea and sunk.” When the vessel was first sent to the port, water was already leaking into it. The witnesses said it was already sinking. By the next day, only three out of its thirteen meters of its height was above water. When attempts were made to remove it, it started to disintegrate. There was thus not much attractive about the vessel which would have lent itself to any consideration for sale. Above all these, it has to be borne in mind that the appellant was faced with as emergency situation which hardly allowed time to advertise or look for a buyer under those circumstances. The main entrance to the fishing harbour had been obstructed and posed danger to navigation. These possibly

[p.883] of [1999-2000] 2 GLR 845 explained why selling the vessel could not have been sold as an option.

The only other option left for the appellant was the last one of having to destroy the vessel. It would appear that that was what the appellant did when its officers decided to send the vessel to the beach at Tema New Town or Kpone. The question is whether or not negligence was established by the manner in which that option was exercised. The view taken by the trial judge accusing the appellant of negligence merely because it did not possess underwater light facility has already been discussed above. The trial judge further took the view that “in dumping the plaintiffs vessel, the defendants acted most capriciously and callously.” In the light of the opinion expressed above that the vessel was positioned right in the center of the entrance to the main fishing harbour area, and further that it not merely obstructed the entrance to the harbour but also posed danger to navigation, the use of those strong derogatory words to describe the services provided by the appellant could not be justified.

Having ruled out the options of removal and selling, what the appellant was required to do was to destroy the vessel. Webster’s Third New International Dictionary of the the English Language at p 615 explains the word “destroy” to mean, inter alia: “2. To bring to naught, putting out of existence . . . to cause to vanish . . . annihilate . . .” The Shorter Oxford English Dictionary (3rd ed), p 492 also defines “destroy” inter alia, as “. . . To render useless . . . to put an end to; or do away with.” Webster’s Seventh New Collegiate Dictionary (1976 ed), p 225 further defines “destroy” inter alia, as “to ruin the structure, organic existence, or condition of. . . to put out of existence . . . annihilate.” All these definitions convey the common concept that the object to be destroyed may be done away with or cease to exist or cause to be out of existence. Under section 243 of Act 183, no specific manner of destruction has been spelt out. If that section is to be given its natural dictionary meaning, the method adopted by the appellant to exercise the power granted it under that statute could not be faulted in so far that it carried the vessel from where it was obstructing navigation and posing danger, ie away from the fishing harbour, to where it was left. In the light of the finding that the vessel was causing obstruction and posing danger, the decision to remove it from the entrance was neither capricious nor callous.

[p.884] of [1999-2000] 2 GLR 845

Rather, it was consistent with the power conferred on the appellant by the statute.

Some aspects of the findings of the trial judge were difficult to understand. When the second defendant witness was being cross-examined, the last but one answer he gave to a question put to him was that the vessel was left at the Tema New Town in the position marked in exhibit 1. Yet the trial judge ruled that the vessel should have been left at the New Town beach for the respondent to retrieve items from it. It is obvious that if the view that the appellant were callous was based on the fact that, to the trial judge, the vessel should have been left at a place in New Town, then there was no justification for that view. It appears that he was misled by the court clerk in his report on the locus in quo which is the only evidence in which Kpone is referred to. As stated already, the evidence on the locus in quo was inadmissible and should not have weighed on the judge.

It would seem that the trial judge lost sight of the fact thatin considering whether a salvor, like the appellant authority herein, has shown want of reasonable skill or reasonable care or is guilty of error of judgment, the court should incline to the lenient view, and will take into favourable consideration any special circumstances which tend to exonerate the salvor from blame, such as request for help, the suddenness of the emergency, or the absence of more efficient means of succour.”: see Kennedy’s Civil th Salvage (4 ed), pp 187-188. Immediately after that passage, the learned author referred to two cases which appropriately emphasized the requisites to be taken into account in deciding on such issues. One was the case of The Dygden (1841) 1 Not of Cas 115. In which the view was expressed that: “When persons offer their services to vessels in distress, and there are no other individuals on the spot capable of rendering more efficient assistance, this court must look with considerable indulgence at their efforts; because, being the only aid that can be procured and offered in a state of great exigency, every allowance must be made if they are not possessed of adequate knowledge to perform the duty they had undertaken . . .”

These considerations should a fortiori have been applicable to the appellants in the instant case in view of the admission by the respondent and the finding by the trial judge that only the [p.885] of [1999-2000] 2 GLR 845 appellants could have performed the services which the respondent required.

The other case was The Alenquer [1955] 1 Lloyd’s Rep 101 at 112 where it was also stated that: “Furthermore, it seems to me that I have to pay regard to the general principles of policy in relations to salvage cases which have been laid down over the years by this court. Those general principles of policy require that this court, in judging the conduct of salvors, should err, if anything, on the side of leniency towards salvors in so far as their behaviour is criticized. . . it would be a disaster, and quite contrary to public interest, if the result of the decisions of this court were such as to discourage salvors from taking risks and show enterprise when rendering services at sea.”

There is no doubt that this is an appeal from the decision of the trial court which heard and saw witnesses and the parties at the trial. The decision of the trial court was however not based exclusively on the demeanour of witnesses but based on assessment of facts which are on the record. It is now settled law that an appellate court should not interfere with the findings of trial courts which are based on facts. At the same time, the appellate court is not forbidden from forming its own views on deductions which cannot be justified from the evidence on the record: see Bruce v Attorney-General [1967] GLR 170, CA. In the instant case, the numerous findings and deductions which are not based on the facts and evidence before the trial judge justify interfering with those findings in the various ways explained in this opinion. On the peculiar facts of the instant case, the appellant’s action in duping the vessel at the New Town beach was lawful because it acted in conformity with the terms of sections 233(1) and 243 of Act 183. There was no negligence on its part in the manner in which it performed the functions of duties under those sections. Even if section 233(1) of Act 183 is considered as imposing some public duty on the appellant and the respondent being a member of the public successfully brought his case under it, the respondent was not entitled to the claims he made in his writ of summons because he failed to prove that the dumping of the vessel was unlawful. Those claims should therefore have been dismissed.

[p.886] of [1999-2000] 2 GLR 845

The appellant counterclaimed for ¢800,000 being the cost of salvaging the respondent’s vessel from the port. There is no denial that the vessel was removed from the entrance to the fishing harbour to some point at the New Town beach. Section 233(1) of Act 183 which the respondent and the trial judge so heavily relied upon allows the appellant to claim the cost of salvaging the vessel from the respondent. Exhibits 2 and 3 which provided the details of the expenses were tendered without objection from the respondent or his counsel. Even if there was no contract between the respondent and the appellant that the serious should be paid for, the respondent will still be liable to pay on the basis of quantum meruit for the work done on his vessel. Judgment should therefore be entered for the appellant against the respondent for the sum claimed in the counterclaim.

In spite of the view in this opinion that the respondent was to blame for allowing a vessel not seaworthy to go to sea, I do not find him negligent because he did not deliberately send the vessel to the port to block the entrance. After all, it was in evidence that the vessel was intended to be sent there for repairs. I would therefore dismiss the claim for damages by the appellants.

In the end, the appeal succeeds and should be allowed.

Twumasi JA. In this appeal the respondent shall be referred to simply as the plaintiff and the appellants as defendants. The plaintiff instituted an action in the High Court, Tema for two reliefs: (a) Payment to him of the current value of one fishing trawler, four trawling nets and two heavy duty batteries unlawfully dumped by the defendants; and (b) lost earnings from June 1992 to the date of judgment. The brief facts of the case were as follows: On the 9 June 1992 the plaintiff put his fishing boat No MF9 afloat the shores of Tema. At some stage of the journey, the boat developed a mechanical fault which threatened ominously to jeopadise the lives and properties on board as water started to enter the boat. To avert imminent catastrophy, the crew made frantic efforts aimed at and finally succeeded in berthing the boat. They then communicated their predicament to an official of the Ghana Ports and Harbours Authority, Tema, the defendants herein. This official whose designation was “harbour master” mobilised his men to the scene. They spent a time there but they ended up dumping the boat together with the four trawling nets and two heavy duty batteries in the vicinity of Kpone, a little

[p.887] of [1999-2000] 2 GLR 845 distant from Tema but very far way from the harbour where it was taken.

The defendants did not controvert these facts. They however, stated in their pleadings that the boat sank about 50 metres from the main entrance of the Tema Fishing Harbour and they made an attempt to Salvage it but they detected that the boat was in a poor condition and before the sling could be removed she disintegrated into several pieces. They averred that they had no other option than to beach the boat at Kpone. They contended that they were justified in acting the way they did under the provisions of the Merchant Shipping Act, 1963 (Act 183) and the Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160). They, however, did not quote the specific sections of the Act. They counterclaimed for an amount of ¢800,000 being the expenses incurred by them in their perceived exercise of lawful duties in respect of the boat. They based their action on the contention that the boat posed a danger and obstruction to other boats or vessels navigating the waters at the harbour. The plaintiff in his reply disputed the application of the two statutes relied upon by the defendants.

It is provided under sections 233(1) and 243 respectively of Act 183 that:

“233. (1) Where any vessel is wrecked, stranded or in distress at any place on or near the coasts of Ghana, the receiver of the wreck for the district in which that place is situated shall, upon being made acquainted with the circumstance, forthwith proceed there, and upon his arrival shall take the command of all persons present, and shall assign such duties and give such directions to each person as he thinks fit for the preservation of the vessel, and of the lives of the persons belonging to the vessel, hereinafter referred to as shipwrecked persons, and of the cargo and apparel of the vessel . . .

243. Where any vessel is sunk, stranded or abandoned in any port under the control of a port authority or in or near any approach thereto, in such manner as in the opinion of the authority is, or is likely to become, an obstruction or danger to navigation, that authority may,

(a) take possession of, and raise, remove, or destroy the whole or any part of the vessel;

[p.888] of [1999-2000] 2 GLR 845

(b) light or buoy any such vessel or part until the raising, removal or destruction thereof;

(c) sell, in such manner as it thinks fit, any vessel or part so raised or removed, and also any other property recovered in the exercise of its powers under this section, and out of the proceeds of the sale reimburse itself for the expanses incurred by it in relation thereto under this section, and the authority shall hold the surplus, if any, of the said proceeds in deposit for payment to the person establishing his right thereto:

Provided that the deposit will lapse to Government unless such person makes his claim within three years of the sale;

(d) if the expense connected with the removal or destruction of any vessel which is sunk, stranded or abandoned as aforesaid exceeds the value of any property recovered, the excess shall be a debt due to such port authority recoverable by ordinary process of law from the person who was the owner vessel at the time when the vessel was sunk, stranded or abandoned.”

The learned trial judge gave judgment for the plaintiff on the ground that the defendant had been guilty of breach of statutory duty imposed upon them under section 233 of Act 183. He was of the view that the section imposed a duty upon the defendants to salvage the plaintiff’s boat and he opined, in as much as they failed to perform that duty as a port authority when they had been informed that the boat was in distress, they breached their statutory duty. Rejecting the defendants’ contention that the boat posed a danger or obstruction to navigation, the learned trial judge dismissed the counterclaim. Against this judgment the defendants have appealed to this court on a number grounds. I propose to deal with grounds (a), (b) and (c) simultaneously. They are:

“(a) The learned High Court judge erred in law when he held that by virtue of section 233(1) of the Merchant Shipping Act, 1963 (Act 183) the defendants were under a duty to salvage the plaintiffs sunken vessel at port.

(b) The learned High Court judge erred in law when he failed to interprete and give effect to section 243 of Act

[p.889] of [1999-2000] 2 GLR 845

183, thereby adjudging that the defendants exercised its statutory powers wrongfully.

(c) The learned High Court judge erred in law when in the light of the fact that the plaintiffs vessel got stranded and/or sunk at the port and in the opinion of the defendant was likely to pose a danger/obstruction to navigation, he held that the defendant was not entitled to its wreck-removal powers under section 243 of Act 183.”

It appears indisputable that the learned trial judge directed all his attention on section 233 of Act 183 in the teeth of fierce opposition from the defendants and in the glare of the fact that the latter put forward and relied upon section 243 rather thansection 233 of Act 183 for their case. In other words, while he called upon the defendants to defend the action, the learned trial judge foisted upon them section 233 of Act 183 against their will and pleadings. This was most improper and must be discouraged as indeed the Supreme Court did in the case of Dam v Addo [1962] 2 GLR 200, SC; see the headnote, holding (2) which reads as follows: “(2) A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which,the party himself puts forward, whether he be the plaintiff or the defendant . . .” The provisions of section 233 of Act 183 did not impose any duty upon the Ghana Ports and Harbours Authority to perform the functions assigned to the receiver mentioned in the section. This receiver is a government appointee responsible to the minister. Section 236 of of Act 183 says that where the receiver is absent any harbour master or deputy harbour master may do anything authorised to be done by the receiver. This is a special assignment for the harbour master or his deputy from the legislature, not the Ghana Ports and Harbours Authority. The harbour master or his deputy becomes accountable to the minister who takes responsibility for all the consequences arising from the performance by the harbour master or his deputy of the job assigned to them. The defendants do not bear any responsibility for anything. It is therefore my view that the learned trial judge erred.

By virtue of the provisions of section 243 of Act 183, it behoved the trial judge to examine the evidence diligently with a view to satisfying himself that the defendants had discharged the burden of proving two essential facts, namely: (1) that the boat had in fact sunk, or was stranded or had been abandoned; and (2)

[p.890] of [1999-2000] 2 GLR 845 that the situation of the vessel posed a danger or obstruction to navigation. If upon a proper judicial inquiry this factual basis is not proved, then the defence based upon the statute must fail: see R v Minister of Health; Ex parte Hack [1937] 3 All ER 176; Liversidge v Anderson [1942] AC 206, HL; Ashbridge Investment Ltd v Minister of Housing and Local Government [1965] 3 All ER 371 at 375, CA, dicta by Lord Denning MR.

It is gratifying to observe that the exercise of discretionary power by public officers, judges and judicial officers is now governed by article 296 of the Constitution, 1992 which provides, inter alia, that:

“(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.”

The learned trial judge came to the conclusion that the situation of the vessel did not pose any danger or obstruction to navigation because he held that there were contradictions in the testimonies of the defendants such as made their case unreliable. Upon a careful study of the submissions of counsel on both sides, contradictions abounded in the testimonies of the witnesses on either side. The plaintiff’s counsel attacked what he considered to be conflicts in the defence case and counsel for the defendants also pinpointed similar conflicts all about the position where the vessel was before its removal. My view is that those conflicts were not the type of conflicts that could in law be a test for determining the credibility of the witnesses for the defence because they were not fundamental to the issue. The crucial issue was whether the boat was positioned at the entrance of the harbour. On this issue even the testimony of the plaintiff in cross-examination corroborated the contention of the defendants. The plaintiff is recorded to have stated in the record of proceedings, as follows:

“Q I put it to you that it was because it sank that the divers went under it.

A No. It had not sunk then, but it did the following day. The vessel sank in .the middle of the entrance to the main harbour.”

[p.891] of [1999-2000] 2 GLR 845

Then in the testimony of the first defendant witness the following question and answer occurred:

“Q You told this court that the vessel was on a rock?

A Yes on a rock at the entrance of the harbour Q This vessel M/F 9, where exactly on it?

A It was right across the entrance.

Q I am putting it to you that on that day the vessel was nearer the breakwater.

A No it was in the middle.”

(The emphasis is mine.) There was also evidence, which the learned trial judge ignored. It was on the record that when an attempt was made to raise the vessel some part of it threatened to disintegrate: see the first defendant’s witness testimony. The harbour master also had this to say:

“Whilst attempts were being made to lift up the vessel, it was found to be cracking. Some of its wooden boards were breaking up and some pieces fell into the water. The net was hanging loose and there were some petty items, which were falling out. The net if allowed to come out would drift between the beach and end of the main beach water and this pose a hazard to surface navigation. A passing ship would pick up the net in its propeller and that would cause it to cease. Faced with this impending I danger asked that the vessel be removed and placed at position X on exhibit 1. Sending the vessel to the dry-dock instead of beaching would entail passing through the harbour entrance and if the net was to fall out, it would cause the closure of the port until these net was removed by divers.”

In cross-examination, the witness still stood his ground and there was no other evidence to contradict this harbour master. This witness said further in cross-examination:

“Q At what time were you informed about the sinking of the vessel?

A On the evening of that incident I was contacted by signals at home.

Q What orders did you give upon being informed?

[p.892] of [1999-2000] 2 GLR 845

A I instructed that it should be removed—but if it was found to be breaking apart they should lift it and dump it. Later I personally went and supervised the removal because it was in a very sensitive area.

Then later this dialogue followed:

“Q Do you remember the plaintiff asked for the chance to remove some parts of the vessel?

A I do not remember. He had all the time the previous day to do so”

Another vital piece of evidence was that the first defendant witness supported the harbour master on the impracticability of sending the vessel to the dry-dock. Interestingly this testimony was corroborated by the plaintiff when he said: “They wanted to send it to the dry-dock but they couldn’t, so they went to shed 7 wharf.” I have taken pains to delve into the oral testimonies given by the witnesses from both sides with the view to demonstrating that the conclusion of the learned trial judge would have been different if he had considered the relevant and vital evidence before him. The learned trial judge’s inability to appreciate the evidence proffered by the defendants was underscored when he said in his judgment that the defendants:

“sought vainly and frenziedly to bury their short-coming under an avalanche of technical terms to bring this case exclusively under section 243 of the Merchant Shipping Act, 1963 9Act 183) and label it removal of a wreck.”

Undoubtedly, it was precisely because of this erroneous view taken by the learned trial judge about the law applicable to the issue before him that disabled him or diverted his attention from the crucial defence which the defendants put up. It is trite learning that where a trial court fails to consider vital evidence either through neglect or lack of appreciation of the questions of law or fact or mixed law and fact on an issue before him and that default occasions a substantial miscarriage of justice as it has occurred in the instant case, the Court of Appeal is in duty bound to interfere: see Barclays Bank Ghana Ltd v Sakari [1996-97] SC GLR 639, and Ababio v Bekoe II [1996-97] SC GLR 392. Again, where minor, insignificant, non-crucial and reconcilable conflicts are relied upon by a trial court while there in corroborative evidence

[p.893] of [1999-2000] 2 GLR 845 on the crucial, important and vital evidence, a judgment based on such insignificant and in material conflicts must be interfered with by the Court of Appeal: see Omane v Poku [1972] 1 GLR 295 at 313.

Another aspect of the case which calls for comment was the purported visit to the locus. I wish to add a few comments to what my brother Brobbey JA has said. There was, in my view, no need whatsoever for the inspection, if it purported to have proceeded under the provisions of section 68 of the Court Act, 1993 (Act 459), because there was sample evidence before the court which could settle the issues one way or the other. The authorities state quite clearly that in such a situation a visit to the locus is unnecessary: see Bonaparte v Walakataka, (Practice Note) [1972] 2 GLR 83, CA, per Apaloo CJ. What was worse, the procedure adopted by the trial judge flouted the rule of practice set out in decided cases in the sense that the trial judge appointed his court clerk to present the report and caused him to be cross-examined by the parties. The most ridiculous aspect of the proceedings was that the trial judge caused the court clerk to give oral evidence and was cross-examined. The proper procedure as stated in the case of Keteku v Dzogbenuku (1956) 1 WALR 134 and approved by the Court of Appeal in Bonaparte v Walakataka (supra) is that the court or trial judge must write the report of his impressions at the locus in quo and the report must come from the bench, not from a non-member of the bench such as a court clerk. Also, the report must be accompanied by a sketch of the “locus in quo” showing the points viewed by the court. An important caveat however, is that an impression gathered at the locus in quo must never be a substitute for the evidence given in court. It seems to me that the totality of the evidence leaves no scintilla of doubt that the situation of the plaintiffs vessel posed a danger or obstruction to navigation.

The undisputed fact that two vessels passed through could not by any logic be used as evidence of the safety of the area where the plaintiffs vessel had sunk. As counsel for the defendants rightly put it, relying on the celebrated English case Atkinson v Tyne SS-Tees (1956) 1 Lloyd’s Rep 244, the fact that a dangerous object has not caused an accident, should by itself not be a guarantee against future accident. Again, as the old adage goes: Prevention is better than cure. This is the policy rationale behind the enactment of section 243 of Act 183 authorising the harbour

[p.894] of [1999-2000] 2 GLR 845 authorities to clear the port of all vessels that may pose a danger or obstruction to navigation.

Counsel for the plaintiff accused the defendants of abusing their powers under the law by arguing that the defendants should have adopted an approach that could have preserved the safety of the vessel and its parts. He therefore, condemned the act of dumping the vessel with its contents at Kpone as callous and malicious. Judging from the evidence as I have endeavoured to portray in this judgment, I am unable to share the same view however charitable I may try to be in the circumstances. I personally could not find any evidence of malice against the defendants. On the contrary, the defendants tried to help but the condition of the vessel did not permit the realisation of their intention. Throughout the trial, the plaintiff offered no evidence to counteract the defendants that the wooden parts of the vessel were weak and cracking. The fact that there was leakage was sufficient corroboration. In any event it is clear to me that where a statute provides that a person should exercise a number of options as section 243 of Act 183 gives to the defendants, it cannot be said that they have acted contrary to the statute merely because the option adopted did not satisfy a particular person’s interest, proprietary pecuniary or otherwise. For the foregoing reasons, I hold that ground (g) of the grounds of appeal, namely that the judgment is against the weight of the evidence succeeds. Similarly, grounds (b) and (c) which accused the learned trial judge of erroneous application of section 243 succeed.

I now turn to ground (e) which states that the learned trial judge erred in law when he found the defendants liable in negligence when the plaintiff neither pleaded nor led any evidence on negligence. The learned judge’s finding stemmed from his misconception, right at the onset, that the defendants had a statutory duty to salvage the plaintiff’s vessel under section 233 of Act 183, even through in his pleadings the plaintiff himself rejected the application of the provisions of Act 183: see paragraph (3) of his reply to the statement of defence. There was therefore no warrant for the learned judge to found a case for the plaintiff under the statute even if it applied to the case. In the instant case, section 233 of Act 183 was inapplicable. What is more, there was no evidence of negligence. The plaintiff’s contention throughout was that the defendants’ act of dumping the vessel was unlawful. This

[p.895] of [1999-2000] 2 GLR 845 the defendants have justified under section 243 of Act 183 which they relied on throughout. This ground also succeeds.

The last ground of appeal is on the counterclaim representing the expenses for removing the vessel. In his evidence-in-chief the second defendant witness, the harbour master, stated as follows in the record: “Under normal circumstances the cost could be negotiated between the parties. In this particular case there was an emergency and the cost has still not been calculated. But I can calculate it from experience. I had never met the plaintiff before the visit to the locus . . .”

This occurred on 14 April 1997 and thereafter on 6 November 1997, seven months later, the defendants called the third defendant witness, an accountant, who tendered exhibits 2 and 3 purporting to be bills for expenses allegedly incurred by the defendants. This witness stated that he prepared the bills on the strength of a letter, which purported to have come from the office of the harbour master. In answer to a question in cross-examination, he said the defendants had not involved the plaintiff in the process and in fact no copy of the document had been served on the plaintiff. When asked whether he was aware that the harbour master had appeared before the court, he gave a negative answer. I found myself afflicted by some doubt about the authenticity of the bills and I am unable to accept them. Exhibits 2 and 3 are unquestionably self-serving documents and inadmissible, having been obviously prepared after the harbour master had stated that he had not thought of them, let alone preparing them. They were therefore prepared during the trial. It was improper. I hold that the defendants failed to prove that they incurred the expenses claimed. The counterclaim fails. It means that the appeal against the dismissal of the counterclaim is itself dismissed. Costs incurred by each party to be borne by themselves.

Appeal allowed.

SA