Division: IN THE COURT OF APPEAL
Date: 26TH FEBRUARY, 1959.
Before: KORSAH C.J., VAN LARE J.A. AND OLLENNU J.
Master and servant—Characteristics of that relationship—Time of vesting in master of servant’s purchases—Common law protection of bailee ousted by agreement.
JUDGMENT OF VAN LARE J.A.
This is an appeal from the judgment of Bossman J. dismissing the appellant’s counter-claim to an action by the respondents for an amount of £2,555 3s. 9d., being balance of account alleged to be due and owing to them from the appellant, whom the respondents had employed as their Produce Factor at Agona-Swedru.
(His lordship stated the facts, and proceeded):-
The learned trial-Judge, in my view, came to a correct decision in decreeing that the appellant was not entitled to be credited with the value of the 383 bags of cocoa, and also not entitled to any commission on such produce. However, with due respect, the learned trial-Judge erred on the law upon which he grounded his decision. He did not concede that the moment the appellant bought any cocoa in the course of his employment as factor for the respondents, the respondents became vested with the ownership of it. It is my opinion that, having regard to the management and control which the respondents had over the appellant in the discharge of his duties, there existed between the parties the relationship of master and servant.
Assuming therefore, as the learned trial-Judge did, that the appellant did buy the 383 bags of cocoa and stored them in the respondents’ shed at Winneba, in my view the ownership became vested in the respondents. It is not the case (as the Judge found) that the general as well as the special property was in the appellant prior to delivery on board for shipment. Nor is it the case that loss, such as would arise from a burglary, would fall on the appellant.
By clause 5 of the agreement (Exhibit “F”) it is covenanted that the appellant shall buy produce for and on behalf of the respondents. Clause 6 makes the appellant liable for any loss which the respondents might suffer by reason of such produce not conforming to the standard of purity and quality, etc. If upon purchase the ownership of the produce purchased by the appellant did not vest in the respondents there would be no necessity for clause 6 of the agreement.
Although the appellant, a servant, upon the purchase became a bailee of the goods, and the loss, if any, might at common law fall on the owners of the goods, that is to say the respondents, nevertheless as there was an agreement between the parties as to liability, the respondents would not be liable until the appellant proved to their reasonable satisfaction that the loss was beyond his control.
If the appellant in fact had bought the 383 bags of cocoa, and stored them as he alleged, then he ought to have had the stock in hand. As such stock was not available at stocktaking, there was a deficiency of 383 bags of the respondents’ cocoa. On the evidence the respondents could not have been reasonably satisfied that the loss was due to a genuine burglary. The trial-Judge found as a fact, rather – and there is evidence to support such a finding – that the alleged burglary of the appellant’s warehouse at Winneba was “staged,” and that there was no genuine burglary or removal of 383 bags of cocoa from the appellant’s warehouse as alleged.
(His lordship then read Clause 11 of the agreement, as in the Headnote, and proceeded):-
Under and by virtue of this clause there was no onus upon the respondents to establish that there was no burglary, as Mr. Benjamin for the appellant contended. It is my view that the onus was, rather, on the appellant to show that there was a genuine burglary by reason of which 383 bags of cocoa were stolen, and that such burglary was beyond his control. This he failed to do to the satisfaction of the respondents, who were therefore justified in not crediting the appellant’s account with the value of such goods and the commission. I have already indicated that payment of a commission is for a “faithful discharge” of the covenants of the service agreement by the appellant, whereas the evidence shows anything but a “faithful discharge” on the appellant’s part. He therefore cannot succeed on the counter-claim.
DECISION
I would dismiss the appeal.
