ROBIN HOOD MILLS LTD. AND ANOTHER v. FARAH [1963] 2 GLR 149

DIVISION: IN THE SUPREME COURT

DATE: 25TH JUNE, 1963

BEFORE: VAN LARE, SARKODEE-ADDO AND OLLENNU JJ.S.C.

 

CASES REFERRED TO

(1) Hardy & Co. v. Hillerns & Fowler [1923] 2 K.B. 490; 39 T.L.R. 547, C.A.

(2) Beer v. Walker (1877) 46 L.J.Q.B. 677; 37 L.T. 278

(3) Walker v. Langdale’s Chemical Manure Co. (1873) 11 Macph. (Ct. of Sess.) 906

(4) Dickson v. Zizinia (1851) 10 C.B. 602; 138 E.R. 238

(5) Bull v. Robinson (1854) 10 Exch. 342; 156 E.R. 47

(6) Powles v. Innes (1843) 11 M. & W. 10; 152 E.R. 695; 12 L.J. Ex. 163

(7) Manbre Saccharine Co., Ltd. v. Corn Products, Ltd. [1919] 1 K.B. 198; [1918-19] All E.R. Rep. 980; 120 L.T. 113; 35 T.L.R. 94

(8) Biddel Brothers v. E. Clemens Horst Co. [1911] 1 K.B 214; reversed [1911] 1 K.B. 934; 80 L.J.K.B. 584;104 L.T. 577; 27 T.L.R. 331, C.A.

[p.152] of [1963 ] 2 GLR 149

(9) Comptoir D’Achat et de Vente du Boerenbond Belge S/A v. Luis de Ridder Limitada (The Julia) [1949] A.C. 293; [1949] L.J.R. 513; 65 T.L.R. 126; 93 S.J. 101; [1949] 1 All E.R. 269, H.L.

(10) Zakour v. Pillsbury Mills Inc. [1961] G.L.R. 401, S.C.

(11) Groom v. Barber [1915] 1 K.B. 316; 84 L.J.K.B. 318; 112 L.T. 301; 31 T.L.R. 66

(12) Heilbutt v. Hickson (1872) L.R. 7 C.P. 438; 41 L.J.C.P. 228; 27 L.T. 336

(13) Perkins v. Bell [1893] 1 Q.B. 193; 62 L.J.Q.B. 91; 67 L.T. 792, C.A.

(14) Re Weis & Co., Ltd. and Credit Colonial et Commercial, (Antwerp) [1916] 1 K.B. 346

(15) St. Paul Fire and Marine Insurance Co. v. Morice (1906) 22 T.L.R. 449

(16) Dodwell & Co. Ltd. v. British Dominion General Insurance Co. Ltd., Lloyds List and Shipping Gazette, April 9, 1918

(17) Berk & Co. v. Style [1956] 1 Q.B. 180; [1955] 3 W.L.R 935; [1955] 3 All E.R. 625

NATURE OF PROCEEDINGS

APPEAL from a judgment of Charles J. (reported in [1962] 1 G.L.R. 377) delivered in the High Court, Sekondi, in favour of the plaintiff in an action for the recovery of money paid for goods under a c.i.f. contract on the ground that the goods did not conform to the contract of sale.

COUNSEL de Graft-Johnson, led by Ofori-Atta, for the appellants. da Rocha, with him Adumua-Bossman, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

This is an appeal from a judgment of Charles J. delivered in the High Court, Sekondi, in favour of the plaintiff on his claim for a sum of money as damages for breach of contract for the sale of 2,000 bags of Robin Hood flour to him, and in the alternative for money paid for a consideration which has wholly failed. Four grounds of appeal were filed originally and eight more were added with the leave of the court; some of these twelve grounds of appeal will be referred to presently.

The suit arose out of a c.i.f. contract whereby the first defendant company sold and shipped 2,000 bags of Robin Hood flour to the plaintiff ex S.S. Kindat due to sail from Canada on or about the 9th May, 1961. In due course, the relevant c.i.f. documents, namely, a bill of lading, invoices, insurance certificate and a bank draft were delivered to the plaintiff. The ship arrived at Takoradi on or about the 4th June, 1961; on the 9th June, 1961, the plaintiff paid the bill and started to remove the 2,000 bags of flour from the harbour to his warehouse, he completed this work on the 12th June, 1961; 339 of the bags of flour were found caked, and the shipping authorities issued the plaintiff with a certificate to cover those for purposes of an insurance claim. On the 10th June, 1961, while the transfer of the flour from the harbour to the plaintiff’s warehouse was still in progress the plaintiff sent ten of the bags of flour to his bakery for examination; when opened at the bakery

[p.153] of [1963 ] 2 GLR 149 each of those ten bags was found to be infested with weevil. Thereupon the plaintiff applied in writing to the Lloyds’ agent for a survey; the survey was carried out on the 13th June, 1961, by one Mr. Smith, the first witness for the defence. In the course of his evidence this witness said, “I found from external examination that they were sound bags but on opening them I found a fairly heavy weevil infestation and the flour slightly discoloured.” At a later stage he said, “I did not think that the flour was all that bad so I suggested sifting it.” And in answer to the court he further said, “The plaintiff told me that the flour was not fit for human consumption and as I did not agree I suggested that the Port Health Officer should examine the goods to decide whether they were fit for human consumption or not.” Prior to the survey by the Lloyds’ agent, but on the same day, Mr. Millington, chief representative in Ghana of the first defendant company, then on a routine visit to Sekondi-Takoradi, had called on the plaintiff; upon the complaint of the plaintiff he examined about twenty of the bags of flour in the plaintiff’s warehouse and having found them to be weevil infested, and learning from the plaintiff that he had applied to the Lloyds’ agent for survey, he requested the plaintiff to furnish him with the copy of the Lloyds’ agent’s report and of the other documents relating thereto; the plaintiff promised to do so. Pursuant to the advice given by Lloyds’ agent, the plaintiff contacted the Health Officer; at his request a health superintendent, one Mr. Polley, his first witness, examined the flour on the 14th June, 1961, and expressed the opinion that the flour was not fit for human consumption; the plaintiff then surrendered the 2,000 bags of flour to the Sekondi-Takoradi Municipal Council health authorities for destruction. The account of the surrender was given by this witness in answer to the court as follows:

“I exercised my powers under rule 12 of the First Schedule to the Local Government Act, 1961. I did not ask the plaintiff to surrender. When I warned the plaintiff that he would be prosecuted if he sold or used any of the flour; he said it would be of no use to him and in that case he would surrender. I did not ask the plaintiff to surrender the flour nor did I seize it.”

The evidence of this witness that his department did not seize the flour, and that the plaintiff voluntarily surrendered it to them is further borne out by a letter dated the 1st August, 1961, exhibit 8, which his department wrote to the second defendant company, and is confirmed by exhibit H, a certificate of condemnation, dated the 19th June, 1961, issued by the health department to the plaintiff at his request, and tendered in evidence by him. On the 8th July, 1961, the plaintiff wrote to the second defendant company, local agents of the first defendant company, in the following terms:

“We wish to advise that the 2,000 bags of flour were found to be completely unfit for human consumption, since the flour was mouldy, caked and

[p.154] of [1963 ] 2 GLR 149 heavily infested with weevils. You certainly appreciate how disappointed we were when we became aware of the deplorable state of the flour, which made it necessary to have the lot destroyed as per Port Health Authority’s instruction we received”; and after the subsequent exchange of other correspondence between the parties, the plaintiff instituted the action. As basis of his judgment in favour of the plaintiff, the learned trial judge made certain decisions of fact and law, he held (i) that the health superintendent seized the flour because it was weevil infested, (ii) that the plaintiff rejected the flour immediately after he had had opportunity to inspect them, and thereupon the flour revested in the defendants, (iii) that even if the plaintiff did not reject the flour as the evidence might seem to indicate, his failure to do so was due to the fact that, “the defendants deprived him of his right to reject by supplying him with flour which was unfit for human consumption and consequently had to be destroyed,”1 and (iv) that the plaintiff never dealt with the flour in any manner inconsistent with the ownership of the defendants. He held therefore that the plaintiff was entitled to claim the c.i.f. value of the flour as money paid for a consideration which had wholly failed, and was also entitled to loss of profits. It is convenient at this stage quickly to dispose of some of these findings made by the learned judge even before dealing with the grounds of appeal argued.

The finding that the health authorities of the Sekondi- Takoradi Municipal Council seized the flour violently contradicts the clear and unambiguous evidence, both oral and documentary, referred to earlier, that the flour was surrendered by the plaintiff to the health authorities for destruction, and that the health authorities did not seize it in the exercise of the powers in them vested by section 47 (2), and rule 12 of Part 1 of Schedule 1 to the Local Government Act, 1961,2 as they would have been entitled to do in the proper circumstances. It is significant that on exhibit H, the printed condemnation certificate, where the two words “on seizure/surrender” are printed the word “seizure” is crossed out leaving the words “on surrender.” It is therefore a glaring error on the part of the learned judge to hold that the flour was seized by the municipal health authorities. The only finding warranted by the evidence is, that the plaintiff upon his own initiative, surrendered the flour to, and had the same destroyed by, the municipal authorities. Such surrender and destruction are powers or rights exercisable only by an owner, the person in whom is vested title, possession and control of the goods. It follows logically that the surrender of the flour to the municipal authorities by the plaintiff and the destruction thereof upon his request, must be acts inconsistent with the ownership of the flour by the defendants. It goes without saying therefore, that the [p.155] of [1963 ] 2 GLR 149 learned judge was wrong in his fourth finding that the plaintiff never dealt with the flour in any manner inconsistent with their ownership by the defendants. It follows that even if the learned judge had been right in holding that the plaintiff rejected the flour, he still should have found against the plaintiff since by his said acts, he is deemed in law to have accepted the flour and is not entitled to refund of the purchase price, Hardy & Co. v. Hillerns & Fowler.3

Counsel for the plaintiff has conceded that the finding of the learned judge that the defendants prevented the plaintiff from rejecting the flour is indefensible, that being the case, nothing more need be said about that finding.

In a contract for sale of goods, where the seller agrees to deliver at his own risk at a place other than where they were when sold the buyer nevertheless takes the risk of deterioration necessarily incident to the course of transit unless otherwise agreed, while the seller bears the risk of any extraordinary or unusual deterioration during transit; see Halsbury’s Laws of England (3rd ed.), Vol. 34, p. 108, para, 164, and the cases there cited. But in the case of perishable goods the seller, in that type of contract, is deemed to warrant their arrival at their destination in good condition and so to take a risk of the goods not arriving in the ordinary circumstances of transit, Halsbury’s Laws of England (3rd ed.), Vol. 34, p. 108, para. 164. Thus in Beer v. Walker,4 where B, a wholesale provision dealer in London, contracted to send weekly from London by railway to W, a retail tradesman at Brighton, a quantity of Ostend rabbits, the cost of railway carriage as well as the price of rabbits being paid by W, and in pursuance of that contract sent two casks or cases of Ostend rabbits in good merchantable condition but on arrival at their final destination the contents of one cask had become unfit for human consumption, it was held, “that there was an implied warranty by B., that the rabbits should be fit for human food, not only when delivered at the railway station in London, but when in the ordinary course of transit they should reach W. at Brighton, and until he should have had there a reasonable opportunity of dealing with them in the usual course of business.”

Again in Walker v. Langdale’s Chemical Manure Co.,5 where a person sold a number of carcasses of whales in Shetland at a price per ton, to be delivered at the buyers’ wharf at Newscastle, and the carcasses became putrefied and unfit for use on the voyage, and were destroyed, the Local Board of Health of Newscastle having prevented them from being landed due to their condition, it was held: that the risk was with the seller as (1) neither the quantity sold nor the price could be ascertained till delivery; and (2) the seller had undertaken to deliver at the buyers’ wharf.

[p.156] of [1963 ] 2 GLR 149

On the other hand, in Dickinson v. Zizinia,6 where Indian corn was shipped by the defendants at Orfeno on board the Ottoman at a price including freight and insurance to Cork, Liverpool, or London upon a particular warranty, and the corn was shipped in good and merchantable condition, but upon the ship calling at Malta, it was discovered that the corn had become heated, and emitted considerable stench, and so the captain was obliged to sell it at a reduced price, it was held that since the quantity and price of the corn were ascertained at shipment and the deterioration was unusual or extraordinary the risk thereof fell on the buyer. On this point see also Bull v. Robinson,7 there it was held that, “Where a manufacturer contracts to deliver a manufactured article at a distant place, and the article, when delivered to the carrier for the purpose of being conveyed, is of a merchantable quality, the purchaser is bound to accept it, if only deteriorated to the extent that it is necessary subject to in its course of transit from the one place to the other.”

But in all other cases, such as c.i.f. contract, where property in the goods sold passes before arriving at their destination, unless there is provision to the contrary, and where the seller has insured the goods against the particular damage or destruction, the buyer becomes entitled to the benefit of the insurance, upon the passing of the property in the goods to him, i.e., upon, delivery of the shipping documents, and must bear the risks, Powles v. Innes.8 The proper interpretation of this form of contract is, that warranty if any is that the goods are of contract quality and shipped in merchantable condition, and will either arrive in that condition, or in a condition which would entitle the buyer to a claim for their value against the insurers. The risk of deterioration is therefore on the buyer, in this case the plaintiff. Similarly if the goods get lost through any other extraordinary or unusual risk, e.g. enemy action, the buyer will bear the risk, and the seller will be entitled to the price of the goods even though he knew of the loss of the goods before he presented the documents to the buyer, Manbre Saccharine Co., Ltd. v. Corn Products, Co., Ltd.9 The next question is, did the plaintiff in fact reject the flour, and even if he did was he entitled in law to reject the goods at the point of time when he alleged he rejected them? This issue was dealt with by both counsel in their submissions on the defendants’ additional grounds 2 and 4 which are as follows: “2. The trial judge not having found that the goods were so infested upon delivery to the carriers, he erred in giving judgment for the plaintiff; [and]

4. The learned judge erred in not considering adequately the nature and significance of the said sale c.i.f.”

For the defendants it was submitted that the learned judge failed to make any finding on the nature and import of a c.i.f. contract, and that if he had, and with such materials as the clean bill of lading and insurance

[p.157] of [1963 ] 2 GLR 149 policy in evidence, he could not have come to the conclusion that the flour shipped was not of contract quality and therefore entitled the plaintiff to reject the goods and claim return of his money. It was submitted further that upon the evidence there was no unequivocal rejection. For the plaintiff it was submitted that in view of the evidence led by a witness for the defendants that weevil is an “inherent vice,” and in view of the circumstantial evidence that the weevil infection must have developed while the goods were in transit, the place where the plaintiff could have inspected the goods shipped was his warehouse, and that the indication by the plaintiff on the 13th June, 1961, to Mr. Millington, the third witness for the defence, was sufficient rejection. These submissions raise the question of the nature and legal effect of a c.i.f. contract.

Hamilton J. in Biddell Brothers v. E. Clemens Horst Co.,10 defined c.i.f. contract as follows: “A seller under a contract of sale containing such terms has firstly to ship at the port of shipment goods of the description contained in the contract; secondly to procure a contract of affreightment, under which the goods will be delivered at the destination contemplated by the contract; thirdly to arrange for an insurance upon the terms current in the trade which will be available for the benefit of the buyer; fourthly to make out an invoice as described by Blackburn J. in Ireland v. Livingston or in some similar form; and finally to tender these documents to the buyer so that he may know what freight he has to pay and obtain delivery of the goods, if they arrive, or recover for their loss if they are lost on the voyage. Such terms constitute an agreement that the delivery of the goods, provided they are in conformity with the contract, shall be delivery on board ship at the port of shipment.”

See Comptoir D’Achat et de Vente du Boerenbond Belge S/A v. St. Luis de Ridder Limitada (The Julia)11; Manbre Saccharine Co., Ltd. v. Corn Products Co., Ltd.12 and see also Zakour v. Pillsbury Mills Inc.13 The third element in the c.i.f. contract as set out in the cases cited deserves special attention in the present appeal. Commenting on the elements of the form of contract, Atkin J. in Groom Ltd. v. Barber,14 after referring to a portion of the passage in Biddell Brothers v. E. Clemens Horst Co., cited above, said: “In my opinion the result is that the contract of the seller is performed by delivering to the buyer within a reasonable time from the agreed date of shipment the documents, ordinarily the bill of lading, the invoice, and the policy of insurance, which will entitle the buyer to obtain on arrival of the ship delivery of goods shipped in accordance with the contract, or in case of loss will entitle him to recover on the policy the value of the goods, if lost by a peril agreed in the contract to be covered, and in any case will give him any rightful claim against the ship in respect of any misdelivery or wrongful treatment of the goods.”

[p.158] of [1963 ] 2 GLR 149

Now the right of a buyer to reject goods, the subject of this form of contract of sale, is exercisable in respect of goods not in accordance with the contract quality, Heilbutt v. Hickson.15 As pointed out in C. Groom Ltd. v. Barber,16 a buyer in a c.i.f. contract has to accept the goods either as shipped in accordance with the contract or in a condition covered by the insurance policy, and to pay the price for the same. Therefore if the goods were short delivered or arrived in a damaged condition caused by the ship owners, or in a condition covered by the policy according to the particular trade, or were even lost in transit through a risk covered by the insurance policy, the buyer is bound in law to accept them and pursue his remedy either against the ship owners or against the insurers as the case may be. But if goods of a quality different from the contract quality were shipped, the buyer, upon discovering this on examination of the goods on their arrival, would be entitled to reject them even though they arrived in a perfectly sound condition.

In Heilbutt v. Hickson, the seller contracted with the purchaser to ship a quantity of army shoes according to sample with all-leather sole, to be supplied by the buyer to the French army for a winter campaign; part of the shoes arrived at their final destination in good condition; later it was discovered that a very large portion of them had paper in the sole; whereupon the buyer gave notice to the sellers that they rejected the shoes already delivered, and refused to receive more; they then brought an action against the sellers to recover the price they had paid for the shoes, and for a declaration of their entitlement to throw those already received at the hands of the sellers at their destination. It was held that the buyers were entitled to succeed. See also Perkins v. Bell,17 where barley sold by sample arrived in good condition at a brewery to whom the buyer had resold it, but was found on inspection to have been mixed with barley inferior to the same quality; the brewery rejected the whole quality, and consequently the buyer too rejected it. It was held that the buyer was entitled to reject and claim the contract price.

The law simply stated there is that in a c.i.f. contract, the seller completely satisfies his part of the contract if he (i) ships goods of the description contained in the contract, (ii) procures a contract of affreightment which is reasonable and usual in the trade, (iii) procures a bill of lading evidencing the contract of affreightment, (iv) covers the goods with a policy of insurance upon terms current in the particular trade, and (v) tenders all the relevant documents to the buyer, see Halsbury’s Laws of England (3rd ed.), Vol. 34, page 167, para. 283, see also pages 168 and 169. In other words, the seller must supply merchantable goods of contract quality, put them on board a ship or specified place or vehicle for the purpose of the transit, pay the current freight in respect thereof for their conveyance to their destination, and cover them with an insurance policy of the nature and kind used in the particular trade for the benefit of the buyer. As soon

[p.159] of [1963 ] 2 GLR 149 as he does all these the incident of risk passes to the buyer upon shipment of the goods, and thereafter the buyer will be under an obligation to pay even if the goods get lost in transit, or become damaged through any intervening circumstances, see Halsbury’s Laws of England (3rd ed.), Vol. 34, page 174, para. 296; Groom v. Barber (supra) and Re Weis & Co., Ltd. and Credit Colonial et Commercial, (Antwerp).18 Thus the buyer can only reject the goods if they do not conform to contract quality or if they were not merchantable at shipment.

As stated above, the insurance is for the benefit of the buyer, and must be upon terms current in the particular trade. If therefore the buyer requires a covering for risks other than those provided for by the usual policy for that trade, he must make a special request for the same and pay for it.

The usual terms of policy do not contain covering for damage arising out of inherent vice or nature of the subject-matter, e.g. fruits becoming rotten, flour heating or becoming weevil infested, or death of living animals attributed to natural causes. Thus in exhibit F the insurance policy in this case, we find the clause “warranted free from claim for damage caused by weevils, insects, worms, grubs, or any other inherent vice of the property.” A buyer however may have a policy taken to cover such risks, see St. Paul Fire and Marine Insurance Co. v. Morice,19 a case of cattle affected by food-and-mouth disease on board; see also Halsbury’s Laws of England (3rd ed.), Vol. 22, pages 88-89, para. 156. In such cases risks, i.e. loss or damage caused by inherent vice or the nature of the goods may be covered by express provision in the policy, see Dodwell & Co., Ltd. v. British Dominion General Insurance Co., Ltd.20 cited in F. W. Berk & Co., Ltd. v. Style.21

The plaintiffs in that case were importers of two shipments of barrels of oil carried from Hankow, including transhipment at Shanghai to England; this was in war time, in 1916, and the ship had to take a long time in arriving. There was very serious and abnormal leakage of the oil due apparently to heat on the long voyage which had caused the staves of the barrels to shrink and so loosened the hoops. One of the shipments was covered by the usual ordinary policy of the trade which provided for the usual ordinary leakage; but the other shipment was covered with further risks stated as “including risk of leakage from any cause whatsoever.” It was held that the plaintiffs could not recover against the insurance company on the first shipment covered by the ordinary policy, but were entitled to their claim in respect of all leakage however caused, proved on the second shipment in view of the special cover. It is in the light of these principles of the law that the rights of the parties to this appeal under the c.i.f. contract would be determined with relation to the facts.

There is evidence that the defendants procured a contract of affreightment whereunder the flour was delivered at Takoradi, the destination

[p.160] of [1963 ] 2 GLR 149 contemplated by the contract; there is evidence that they arranged for insurance upon terms current in the trade, and in addition had a special covering for “inherent vice”—the “weevil clause”—and this was available to the buyer; the bill of lading in respect of the flour was a clean bill testifying that externally the flour shipped was of merchantable quality, and the special insurance cover, the “weevil clause,” proves that internally the flour was sound and merchantable at shipment. Since both externally and internally the flour was of merchantable quality, i.e., of contract quality at shipment, it necessarily follows that unless there is evidence to the contrary, the goods the defendants shipped at the port of shipment were of the description contained in the contract; and finally there is evidence that the defendants tendered all the relevant documents, i.e., the bill of lading, invoice, and policy of insurance, and thereby completed their part of the contract, and the plaintiff became liable to pay the price of the goods. The defendants having shipped the Robin Hood flour in good condition, affreighted it, and procured the policy of insurance, the flour travelled at the risk of the plaintiff; if it got lost in transit the loss fell on the plaintiff, even if at the date of tender of the documents, the sellers, the defendants, had got to know that the goods had got lost or damaged in transit, the plaintiff would still be under an obligation to pay the price thereof, and would not be entitled to refund. If the flour were short landed or got damaged through the fault of the shipping authorities he would have his remedy against the shipping authorities and if he had the flour insured against the particular risk which caused the loss or damage, his remedy for the loss would be against the insurers, if not, the loss would lie where it fell, that is on him; he will have no remedy.

Since there is no evidence to rebut the facts disclosed by the clean bill of lading and the “weevil clause” on the insurance policy that the flour shipped was Robin Hood flour of merchantable quality, the plaintiff had no right to reject the flour, he is not entitled to a refund of the price he paid, and not entitled to damages against the defendants simply because the flour became weevil infested subsequent to shipping. Again since the plaintiff is not entitled to reject the flour because of weevil infection, the doubtful piece of evidence he slipped in when he was under cross-examination that he told Mr. Millington that he did not want the flour because it was weevil infested, even if taken seriously, cannot in law be called rejection because it was not based upon grounds which in law entitled him to reject. It is not the plaintiff’s case that the flour was not Robin Hood flour, or that if it was, it was shipped in condition unfit for human consumption. If his case is that the flour was declared by the municipal authorities to be unfit for human consumption, he would be faced with the fact that immediately upon the said declaration he, upon his own authority, had the flour destroyed, and it was not until the 8th July, 1961, full three weeks after the destruction that he informed the defendants of it by letter; in that letter he said, “You certainly appreciate how disappointed we were when we became aware of the deplorable state of the flour, which made it necessary to have the lot destroyed . . .” In those

[p.161] of [1963 ] 2 GLR 149 circumstances, if he had a right to reject at that stage, i.e., upon the condemnation, he did not so reject; he did not even give the insurance company against whom he could have relief opportunity to depreciate the flour and sell the same, or even to salvage the bags and such portion of it as had economic value and which could be applied to other uses. Of course the flour was his, and he dealt with it in the way best suited to him. The basis of the plaintiff’s claim is that the flour was weevil infested on arrival, not that it was so infested when shipped. That being so his claim is misconceived.

It is quite evident that the learned judge in the High Court failed to appreciate the nature and legal implications of a c.i.f. contract, with the result that in addition to making findings of fact which are not warranted by the evidence on the record, misdirected himself on the law, and erred at almost every stage. In the circumstances I would allow the appeal, set aside the judgment of the High Court including the order as to costs, and substitute therefor an order dismissing the plaintiff’s case, and enter judgment thereon for the defendants with costs to be taxed.

JUDGMENT OF VAN LARE J.S.C.

I agree.

JUDGMENT OF SARKODEE-ADDO J.S.C.

I also agree.

DECISION

Appeal allowed with costs.

K. T.