SOCIÈTÈ DE PROMOTION DE LA PACHE vs. THE OWNER & PARTIES INTERESTED IN THE SHIP OR VESSEL M/V HILDA A [1999-2000] 2 GLR 79

CASES REFERRED TO

(1) SkibsaKtieselkapet Thor v Tyrer (1929) 35 LI LR 163.

(2) Perbi v Attorney-General [1974] 2 GLR 167.

(3) Addo v Nartey [1972] 2 GLR 318, CA.

(4) Buama v Oppong [1992] 2 GLR 213.

[p.82] of [1999-2000] 2 GLR 79

(5) G B Ollivant v Arab (1955) 15 WACA 9.

(6) Sunbolf v Alford (1883) 3 M & W 248; 150 ER 1135.

(7) Fraser v Telegraph Construction Co (1872) LR 7 QB 566; 41 LJQB 249; 27 LT 373.

APPEAL by the plaintiff-company from the judgment of the High Court wherein the court held that the respondent-company, the owner of a shipping vessel, was justified in its failure to discharge fish delivered to the vessel to the plaintiff-company, the consignees indicated in the bills of lading. The facts are sufficiently stated in the judgment of Benin J A.

Amateifio for the appellant.

Dr Seth Twum for the respondent.

Lamptey JA. On 18 June 1993, Societè de Promotion de la Pache (hereinafter referred to as the plaintiff company) sued the owners and parties interested in the ship or vessel M/V Hilda A (hereinafter referred to as the defendant company) and claimed the reliefs stated in the writ of summons. A statement of claim running into six paragraphs was annexed to the writ of summons. In addition to the statement of claim, three bills of lading in the original were annexed to the writ of summons. On the date of sealing the writ of summons, lawyers acting for the plaintiff company filed a motion on notice for the arrest of the vessel, M/V Hilda A. The defendant company entered appearance on 25 June 1993 and its lawyer filed an affidavit opposing the application for the arrest of the vessel, Hilda A which was at that date berthed at Tema. The defendant company acting by its lawyers filed a statement of defence on 23 July 1993. This statement of defence ran into 21 paragraphs. The defendant company did not counterclaim for any relief.

The record of appeal shows that it was the defendant company that set down additional issues for trial in the summons for directions filed on 11 October 1993. I did not find the summons for directions filed on behalf of the plaintiff company in the record of appeal. Be that as it may, the reliefs sought by the plaintiff company were formulated and clearly itemised in its amended statement of claim. After a hearing on the merits, the trial judge dismissed the whole of the plaintiff company’s claim and awarded costs against it. The plaintiff company was dissatisfied and aggrie-

[p.83] of [1999-2000] 2 GLR 79 ved by the judgment and appealed to this court on a number of grounds of appeal.

In order to appreciate and understand the issues of law raised and argued in this appeal, I am of the view that the reliefs sought by the plaintiff company must be reproduced in full, especially since the defendant company did not counterclaim for any relief. The plaintiff claimed the reliefs following:

“(1) A declaration that the discharge in Tema of fish consigned by the plaintiff to parties in Abidjan and Lagos is wrongful.

(2) An order upon the defendant to deliver the fish consigned to parties in Abidjan and Lagos.

(3) In the alternative, an order upon the defendant to release the said fish to the plaintiff subject to the cost of freight to the respective destinations of Abidjan and Lagos.

(4) Damages for wrongful conversion.

(5) Perpetual injunction restraining the defendant from discharging 1782.30 tonnes of fish at Tema.

(6) Quia timet injunction.

(7) An order upon the defendant to pay all the plaintiff’s total and other expenses incidental to defendants’ wrongful, appropriation of the plaintiff’s fish . . .”

The case of the plaintiff company briefly and simply stated is that the defendant company entered into an agreement, evidenced by three separate bills of lading, with the plaintiff company under and by which the defendant’s vessel, Hilda A was to accept for carriage by sea 1782.32 tonnes of fish consigned as per the said way bills to Abidjan, Tema and Lagos. The defendant company’s vessel, Hilda A duly and regularly accepted the 1782.32 tonnes of fish on board in Mauritania. Contrary to the terms and conditions in the three bills of lading, the captain of the Hilda A discharged and off-loaded all the 1782.30 tonnes of fish at Tema, acting on the instructions of the managing director of the defendant company. The case of the defendant was stated at great length, at paragraphs (16) and (17) of the statement of defence as follows:

“(16) The defendant says that its vessel do not ply for hire but carry its own cargo, consequently when it went for 1782,30 tonnes of fish it did not require any bills of lading. The defendant will contend that a bill of lading [p.84] of [1999-2000] 2 GLR 79 is only prima facie evidence of a contract between the ship owner and a shipper not the contract itself and that at no time did the defendant agree to carry the defend the defendant agree to carry the plaintiffs fish for a fee or otherwise.

(17) The defendant says that the plaintiff not being the owner of the vessel or a charterer had no right to issue the bill of lading and the same were irregular and void”

I must add that the statement of defence brought into focus the transactions between the defendant company and other companies.

The first ground of appeal argued by counsel for the plaintiff company was that the judgment was against the weight of evidence. Counsel submitted that the plaintiff company discharged the burden it assumed under sections 10(1) and 11(1) of the Evidence Decree 1975 (NRCD 323). He contended that there was undisputed evidence that the defendant company breached the contract of carriage of the fish when it accepted to discharge and off-load as per the bills of lading in evidence. He pointed to passages in the judgment by which the trial judge made a finding that the defendant company breached the terms of the contract of carriage. He argued that the trial judge erred in law when he went further and held that another company called International Processing Company Ltd, registered in Nigeria (hereinafter called IPCO), acted as a common agent between the plaintiff company and the defendant company. The trial judge erred when he held that the seizure of the fish was lawful. He submitted that the trial judge misdirected himself when he considered extraneous matters, such as the existence of a barter agreement between the parties. He submitted that on the evidence before the court the judgment cannot be supported in law.

In reply, counsel for the defendant company submitted that the evidence before the court established that the plaintiff company failed to prove its claim. He made copious references to the evidence of the second defendant witness, Capt Acquah, which showed that he, the second defendant witness, acted on the express instructions of the owners of the vessel, Hilda A. He contended that Capt Acquah did not enter into any agreement with the plaintiff company. He submitted further that there was no contract of carriage of fish between the defendant company and the plaintiff company. He contended that there was a barter agreement

[p.85] of [1999-2000] 2 GLR 79 between the defendant company and the plaintiff company and this is what the trial judge believed and accepted. He concluded his statement thus:

“In his lordship’s view the bill of lading did not evidence any new agreement independent of the barter agreement and for this reason he stated further that the basis of the plaintiff’s claim was therefore completely eroded.”

I must observe that the plaintiff company did not sue for breach of a barter carriage by sea agreement between it and the defendant company. The plaintiff company sued for breach of contract but the defendant company pleaded at paragraph (4) of the statement of defence that it (defendant company) had an existing agreement with a Namibian company called Erongo Sea Products Ltd. The defendant company also pleaded at paragraph (6) of the statement of defence another agreement with IPCO. I fail to see the reason behind these pleadings as these companies are not parties to the action before the court. Again at paragraph (9) of the statement of defence the defendant company pleaded as follows:

“(9) It was further agreed that the defendant’s vessel known as Hilda “A” should together carry a further 790 tonnes of gas oil to the plaintiffs . . .

To pause here for a moment, the defendant company had not identified the plaintiff company as a party to this “further agreement.” Again the obligation undertaken by the plaintiff under and by virtue of this further agreement was not spelt out. When it is pointed out that this further agreement was entered into with IPCO, it becomes clear that the plaintiff company, not being a party, is not bound by this “further agreement.” Indeed the terms pursuant to which the gas oil was supplied to the plaintiff company enjoined IPCO, and not the plaintiff company, to pay for the gas oil. This was pleaded at paragraph (10) of the statement of defence thus: “10.IPCO further arranged with the plaintiff to pay the defendant the gas oil supplied to it with fish and undertook to pay the defendant if the plaintiff defaulted . . .” I do not read into paragraph (10) of the statement of defence any right, power or authority given to the defendant company by the plaintiff company to fraudulently and wrongful discharge and off-load fish, undisputedly bona fide property of the plaintiff company and not the property of IPCO, at Tema.

[p.86] of [1999-2000] 2 GLR 79

In my opinion, it was fraudulent and mischievous on the part of the defendant company to plead at paragraph (14) thus:

“(14) The defendant says that the purported redesignation to consignees other than the defendant was in breach of the accord reached between the plaintiff and the defendant acting through IPCO.”

There was on the pleadings no such accord between the plaintiff company and the defendant company. The accord was between IPCO and defendant company. The plaintiff company on the pleadings took a benefit under the accord but the plaintiff company was in law not liable to the defendant company. The accord did not give defendant company a lien on the fish belonging to the plaintiff company. In my view, if the plaintiff company failed to supply the defendant company with fish, the right and power given to the defendant company pursuant to the accord was a right to demand payment from IPCO for services rendered in the first place and not a right to claim property of the plaintiff company.

Indeed, the evidence led by the defendant company through the second witness, Capt Acquah, was in conflict with the defence put forward in the pleadings. The second defendant witness testified that he was under strict orders from the owners of Hilda A to take instruction from one Abass who was resident in Mauritania as to what goods he accepts for carriage on board Hilda A. He stated further that Abass would instruct him as to the destination of the goods he, second defendant witness, accepts on board the Hilda A. It was not the evidence of the second defendant witness that he was sent by his managing director to Mauritania to load fish belonging to the shipowner of Hilda A and to bring the fish straight back to Tema. On the evidence before the court, I have no doubt that the second defendant witness, Capt Acquah, received and took on board the quantity of fish which were to be discharged and off-loaded according to the express and clear provisions and terms on the three bills of lading. The second defendant witness, as a captain of a ship, knew or ought to know the efficacy and purpose of a bill of lading. Indeed, the second defendant witness, Capt Acquah, knew and was aware that he, the second defendant witness, was not the owner of the fish on board his vessel. Again the second defendant witness knew he was not the owner of the vessel. On this issue, he testified as follow:

[p.87] of [1999-2000] 2 GLR 79

“Q In exhibit you agreed to by the instruction from SPP?

A As I said earlier, I am only the master of the ship and not the shipowner”

It is helpful and desirable to reproduce the relevant contents of exhibit B as follows:

“Nonadhibon 31 May 1993 (1) The undersigned Francis K Acquah, Captain of the vessel Hilda “A” and representing my company Kiku Co Ltd hereby attest that:. . .

(a) That I have received 1,782.30 metric tons of fish from the company SPP/IES in Nonadhibon.

(b) I accept to transport the said cargo to its destination, viz: Abidjan (Impromer)—1,0005.27 MT

Tema (Tiku Co Ltd—406.17 M/T Lagos (IPCO—370.86 M/T.

(4) I confirm that my company Kiku Co Ltd is transporting the cargo at the rate of US$70 per metric ton up to its port of destination.”

In my view, exhibit B in plain and clear language spelt out the conditions and terms of the contract of carriage between the plaintiff company and the defendant company. By the terms of exhibit B and the contents of the bills of lading, the respective obligations and duties in law of the contracting parties enjoined the second defendant witness, Capt Acquah, to perform the obligation and duty he undertook to discharge and perform as the duly authorised and empowered representative of Kiku Co Ltd. It was not in law open to the second defendant witness, Capt Acquah, to unilaterally change, alter or amend the terms of the documents exhibit B, exhibit Al, exhibit A2 and exhibit A3. He had in law no right or power as a captain of the ship to breach these obligations and duties. In law, failure on the part of the second defendant witness, Capt Acquah, to strictly and religiously carry out and discharge the conditions and terms in these documents, amounted to a breach of the contract of carriage. The evidence on record showed that the second defendant witness, Capt Acquah, prior to setting sail for Mauritania was instructed to contact and to meet with Abass in Mauritania and to take any and all instructions from Abass. In his evidence he stated thus: “When he had received on board his vessel a total of 1782 tonnes of fish,

[p.88] of [1999-2000] 2 GLR 79 he went to the office of Abass for the necessary documents, particularly the clearance to enable sail from Mauritania.”

In the present appeal, the necessary documents which enabled Capt Acquah, the second defendant witness, to sail out of Mauritania were the three bills of lading exhibits Al, A2 and A3. On the evidence on record, part only of fish was as, per the bills of lading, consigned to Tema. The shipowner, the defendant company, was not on the evidence before the court the true and lawful owner of the fish on board its vessel, Hilda A, then under the command of Capt Acquah, the second defendant witness. The law on this issue is clear and plain and is as stated in his statement of case by counsel for SPP thus:

“According to Carver’s Carriage of Goods by Sea (13th ed) Vol 2, chapter 16, pp 1110-1112: ‘Delivery under Contract The Shipowner must generally see that the goods are delivered to the person to whom he has contracted to deliver them. That is to say, as a rule to the person named as consignee in the bill of lading or to the assignee of the person who is empowered by the bill of lading to make an order or assignment of it . . .”’

In the instant case, the second plaintiff witness, Capt Acquah, did not give evidence that in respect of the fish consigned respectively to Abidjan and Lagos, he had the consent and authority in writing of the persons named as consignees in the bills of lading for Abidjan and Lagos to discharge and off-load the fish consigned to Abidjan and Lagos at Tema and to the defendant. The conduct and action of the second defendant witness, Capt Acquah, in law amounted to a conversion of the fish intended for the consignees in Abidjan and Lagos. Capt Acquah’s conduct and action amounted to a breach of the contract of carriage of the fish to Abidjan and Lagos. In the English case of Skibsaktieselkapet Thor v Tyrer (1929) 35 LI LR 163 at 170, cited by counsel for the plaintiff company, Wright J noted as follows:

“It is perfectly clear law that a shipowner who delivers goods without production of the bill of lading does so at his peril . . . Delivery to a person not entitled to the goods without production of the bill of lading is prima facie guilty of conversion of the goods.”

[p.89] of [1999-2000] 2 GLR 79

(The emphasis is mine. In the instant appeal, the second defendant witness, Capt Acquah, did not produce the authority and consent of SPP to discharge and off-load the whole consignment of fish at Tema. I have not found a shred of evidence that ownership of the total consignment of fish was in the defendant company. The consignment of fish intended to be discharged and off-loaded at Tema must and ought at all material times to be dealt with and treated separately and distinctly from the consignment of fish to Abidjan and Lagos.

On this issue I reproduce the passage following from Carver’s book (supra):

“As between the owner and shipper of the goods and the captain the bill of lading fixes and determines the duty of the latter (the captain) as to the person to whom it is (at the time of the delivery of the goods) the pleasure of the owner of the good should be delivered . . . The owner of the goods may change his purpose at any rate before the delivery of the goods themselves, or of the, bill of lading to the party named in it and may order the delivery to be to some other person to B instead of to A.”

It is clear from the statement of the law that the power to make changes in relation to the ultimate consignee of goods on board a ship covered by a bill of a lading vested solely and only in the owner of the goods, and most certainly not in the owner of the ship. In the instant case, the managing director of Kiku Co did not have a legal right to order changes in respect of and touching upon the consignment of fish intended and destined for Abidjan and Lagos. The evidence on record was that it was he who ordered the second plaintiff witness, Capt Acquah, to wilfully and contemptuously breach the contract of carriage of the fish intended and destined for Abidjan and Lagos, respectively. In my opinion, the defendant company breached the contract of carriage only in respect of the consignment of fish intended for Abidjan and Lagos. The finding and conclusion of the trial judge on this crucial issue cannot be supported in law.

The trial judge regrettably failed to appreciate the real issue in dispute between the plaintiff company and the defendant company. Thus, in formulating what he perceived and understood as the real issue in dispute between plaintiff company and the defendant company, he expressed himself thus:

[p.90] of [1999-2000] 2 GLR 79

“The existence of the contractual relationship which in real terms is between the plaintiffs and the defendants places the defendants in a position in which they can deal directly with the plaintiffs and pursue any claim arising out of the contractual relationship which has been brought into being by the activities of IPCO who acted as common agents of both parties.”

With respect to the trial judge, the case before him was simply the claim by the plaintiff company that the defendant company breached a contract of carriage by sea of fish belonging to the plaintiff company by defendant company. The plain duty of the trial judge was to determine whether or not on the evidence before him the defendant company breached the contract of carriage of the fish. In my view, whether or not the defendant company could counterclaim for non-payment of the auto gas supplied to the plaintiff company was not an issue raised on the pleadings in the case before him. Indeed the trial judge did recognise that the defendant company had “a claim to pursue against the plaintiff company and also against IPCO.”

In the present case, the defendant company had not pursued “that claim” against the plaintiff. The trial judge suo moto, put up that counterclaim. He erred in law in putting up a counterclaim for the defendant company. This was how the trial judge expressed himself:

“In any case, I do not think that this attempt by the plaintiffs to treat the carriage of fish to the three destinations as a separate transaction between the plaintiff and defendant would serve any purpose . . . Therefore an attempt to separate the previous transaction of supply of AGO and fish from the transport of fish which is the subject matter of this litigation would not be appropriate . . .”

From the trial judge’s appreciation and understanding of the case before him, there were plainly and clearly three separate and unrelated transactions. These are: (1) The contract to supply auto gas oil (AGO); (2) the contract to supply fish and (3) the contract to transport fish. In law the three separate contracts gave rise to three separate causes of action. There was only one contract before the trial court, and the trial court was called upon to determine and pronounce on the reliefs claimed in the writ of

[p.91] of [1999-2000] 2 GLR 79 summons. The trial judge erred in the opinion expressed as follows:

“The opinion of the court is that the three bills of lading do not evidence any new agreement independent of the barter agreement existing between them. It would not do if we restrict ourselves to the three bills of lading although by the nature of the plaintiff’s claim the court is called upon to do just that and limit itself to the three bills of lading.”

The trial judge gravely erred in the view he took of the case before him. The defendant company made it plain and clear in its statement of defence that the agreement to supply AGO to the vessel mentioned in evidence was not entered into by the plaintiff company either directly or indirectly. The defendant company failed or omitted or both to counterclaim any relief against the plaintiff company. Again, the defendant company failed or omitted or both to join and claim against IPCO as a party to the action. More importantly, the defendant company failed or omitted or both to put in issue for determination “the barter agreement” which agreement the trial judge, suo moto, raised as an issue for his determination. In any case, the defendant company did admit the claim of the plaintiff company at paragraph (15) of the statement of defence thus; “ (15) Save that the defendant admits that its vessel carrying the fish did not go to Abidjan paragraph (4) of the statement of claim is denied.” The evidence on record fully supported the above admission, namely that all the fish on the vessel were discharged and off-loaded at Tema. In my view, the plaintiff company was entitled to judgment on the admission in the absence of a set off by way of a counterclaim properly formulated for consideration by the trial court. This right was not exercised by the defendant company in this action.

Finally, the finding that the judgment of the trial judge cannot be supported is established and proved by the passage following from the judgment:

“In his written address counsel for the defendant company sought to demonstrate that going by the figures provided by the representative of IPCO, the first plaintiff witness in his oral evidence, the defendants would not in anyway be indebted to the plaintiffs. I do not intend to go into that aspect of the case for the simple reason that that is completely unre-

[p.92] of [1999-2000] 2 GLR 79 lated to the plaintiff’s claim which has to do with breach of contract which according to them is evidence by the three bills of lading.”

To express the real issue in dispute between the plaintiff company and defendant company, the trial judge stated his perception as, follows: “It means therefore that for our purposes we have to limit ourselves to the issue of breach of contract raised by the plaintiff’s pleadings.”

In my opinion that was the only issue for trial. The defendant company had not and did not raise any issue by way of counterclaim for determination by the trial judge. The real issue in dispute between the parties was as whether or not the defendant breached the contract of carriage of fish to Abidjan and Lagos respectively. The simple and plain case of the plaintiff that the consignment of fish intended and destined for Abidjan and Lagos never reached these two places, was admittedly proved by the evidence on record: The judgment on this issue was wrong and cannot be supported.

In the result, I find that in respect of the consignment of fish to be discharged and off-loaded at Tema, and the same was discharged and off-loaded at Tema, the defendant company was not in breach of contract and the judgment in favour of defendant company was right in law. The appeal succeeds in part. There will be judgment for the plaintiff in respect of the breaches of contract in relation to the bills of lading for Abidjan and Lagos respectively. The judgment in respect of the consignment of fish to Tema and discharged and off-loaded at Tema is hereby affirmed.

Benin JA. I agree.

Twumasi JA. This is an appeal against the judgment of the High Court, Accra, delivered on 19 January 1996 in favour of the respondent, then defendant to the law suit. The appellant, a company registered in Mauritania, brought the suit or action against the respondent, a company registered in Ghana, claiming damages for breach by the respondent of a contract under which the latter agreed for a fee, to convey specified quantities of fish to specified consignees in Abidjan, Lagos, and Tema, respectively; and for fraudulent conversion of the said fish. Further claim, all of

[p.93] of [1999-2000] 2 GLR 79 which cannot be enumerated but are on record, were made for an order against the respondent for the return to the appellant as owners of the fish or its release to the accredited consignees in the aforementioned cities. An order of injunction against the respondent was requested by the appellant to literally consummate its composite claim.

Some reasonably detailed account of the appellant’s case and that of the respondent would advance a fuller and better understanding of the crucial issues of law that predominated the trial vis-à-vis the issues of fact which were, to a large extent, not in serious contention between the parties. The respondent agreed to discharge 1782.30 metric tonnes of fish belonging to the appellant on the terms highlighted above. The carriage was accompanied by three bills of lading each of which described and named the consignee to which or whom the respondent was to deliver the fish in their respective proportions. The bills of lading were tendered at the trial as exhibits Al A2 and A3 without any objection. Also tendered and admitted without any objection was an affidavit (exhibit B) sworn to by the captain of the respondent’s vessel register-amed M/V Hilda A, by which he acknowledged receipt from the appellant of 1782.30 metric tonnes of fish and stated further, in what may we call a memorandum of understanding, the following words of commitment:

“(3) I accept to transport the said cargo to its destinations, viz:

Abidjan (Improper—1005.27 M/T Tema (Kiku Ltd)—406.17 M/T Abidjan (Improper—05.27 MIT Lagos (I PCO—370.86 M/T (4) I confirm that my company, Kiku Co Ltd, is transporting the said cargo at the rate of US$ 70 per metric ton to its ports of destination.

In view of, the foregoing attestation, I affix my signature and my vessel’s stamp to this document and submit same to the owners of the said merchandise as proof of my responsibility.”

The facts as I have endeavored to portray on the part of the appellant were culled from paragraph (1) to (5) of the amended statement of claim filed on 6 July 1993. The case of the respondent on the other side was that a certain amount of money which

[p.94] of [1999-2000] 2 GLR 79 was due and owing to it from a company called Erongo Sea Products Ltd was paid to another company called International Processing Co Ltd registered in Nigeria (hereinafter called IPCO) for onward transmission to the respondent but IPCO did not honour the obligation. Instead, IPCO used the money in purchasing auto gas oil (AGO) for use by vessels belonging to the appellant and part of the money was used to charter vessels for supplying some 3,300 tonnes of gas oil for the appellants’ vessels. The respondent further alleged that its two vessels, Hilda A and Sandra A carried to the appellant’s trawlers additional quantity of gas oil bringing the overall supply of gas oil to 4,090 USP metric tonnes. The oil supplied valued US$818,000. The respondent averred in paragraph(11) of its statement of defence that IPCO arranged with the appellant to pay the respondent for the gas oil supplied to it in kind, that is with fish and undertook to pay the respondent if the appellant defaulted. In due course of time, contended the respondent, the appellant dispatched 718 metric tonnes of fish at US per ton as part payment. At this juncture I would rather than paraphrasing, reproduce paragraphs (12) to (17) of the respondent’s statement of defence:

“(12) Subsequent to this delivery the defendant was informed by IPCO that the plaintiff was ready with another consignment of fish to complete the payment of the gas oil, the defendant therefore dispatched its vessel Hilda A to the plaintiff to collect the fish.

(13) The defendant says that the plaintiff loaded the defendant’s said vessel: with 1782.30 metric tonnes of fish and then issued liner bills of lading to the captain purporting to consign the fish to consignees in Abidjan and Lagos with a small quantity to the defendant without any prior notice to the defendant.

(14) The defendant says that the purported redesignation of the fish to consignees other than the defendant was a breach of the accord reached between the plaintiff and the defendant acting through IPCO and that it was calculated to delay or defeat the defendant’s right to be paid.

(15) The defendant says it was justified in ordering its captain to discharge the fish in Tema as previously agreed upon.

[p.95] of [1999-2000] 2 GLR 79 (16) The defendant says that its vessels do not ply for hire but carry its own goods. Consequently when it went for the 1782.30 tonnes of fish it did not require any bill of lading. The defendant will contend that a bill of lading is only prima facie evidence of a contract between shipowner and shipper, not the contract itself and that at no time did the defendant agree to carry the plaintiff’s fish for a fee or otherwise.

(17) Paragraph (5) of the statement of claim is denied. The defendant says that the discharge of the fish was legitimate and pursuant to a previous agreement meant to enable the plaintiff to pay to the defendant the cost of fuel supplied to it from founds belonging to the defendant.”

From a careful study of the judgment, the following findings of fact and conclusions of law drawn from them appear very transparent on the record, namely:

(a) That prior to the day the disputed consignment of fish was put on the vessel Hilda A in Mauritania and the bills of lading were prepared and executed, an agreement existed between the appellant and the respondent and this was a barter agreement whereby the parties agreed to trade in fish and gas oil on barter basis.

(b) That the said agreement had come into existence through the instrumentality of IPCO.

(c) That IPCO was the agreed common agent of the parties.

(d) That the three bills of lading could not constitute a contract between the parties whatever their execution. At page 184 of the record the learned judge put the matter beyond all peradventure thus:

“Since the court has come to a conclusion that a new agreement, independent of the earlier barter agreement was brought into being by the three bills of lading the whole basis of the plaintiff’s claim is eroded which would not allow their claim to succeed.”

(e) That the respondent had therefore acted lawfully within the perimeters of the barter agreement in taking the disputed fish.

With these positive findings and conclusions, the learned trial judge found no difficulty whatsoever in dismissing the claim of

[p.96] of [1999-2000] 2 GLR 79 the appellant. Against this decision the appellant has appealed on a number of grounds.

First, learned counsel for the appellant argued together his additional grounds (A) and (B). The cutting edge of that argument was that the learned trial judge misdirected himself on the law when he held that the three bills of lading did not constitute a binding contract between the appellant and the respondent. Counsel hurled strictures on the learned trial judge for what the termed “introducing extraneous matters into the contract of affreightment.” Counsel contended that there was contract of carriage between the appellant and the respondent evidenced by the three bills of lading and the respondent was under an obligation to comply with the said terms and conditions as to the specified consignees and consequently, the respondent was guilty of a breach of contract when it appropriated the fish to itself. By extraneous matters, I understood counsel to be making an obvious reference to the barter agreement which the learned trial judge accepted as the operative and binding contract and upon which the respondent based its defence of justification for the seizure of the disputed fish.

As counsel for the appellant pointed out, and rightly in my view, the burden of persuasion lay squarely on the respondent to establish the plea of justification which implied an admission that it committed the act complained of but no legal sanction can be attached to it. And the burden is: Was there in law any proof of a contract between the appellant and the respondent? If there was any, which one was it? I have carefully examined the record of the appeal in its entirely, particularly answers to questions in cross-examination of the witnesses, but I was unable to lay hands to the real indicator of the truth anywhere else than the following testimony of the first plaintiff witness, the managing director of IPCO, in the record, and I quote:

“I know the plaintiff company. I also know the defendant company. The plaintiff is supplier of fish from Mauritania to my company. My company works together with the defendant company in Nigeria, Lagos and Warri to import fish on his vessels Hilda A and Sandra A. My company’s arrangement with SPP is to supply us with frozen fish from Mauritania such as horse mackerel sardinella mackerel. The terms are that they supply us with fish and we pay them either by

[p.97] of [1999-2000] 2 GLR 79 transfer on LC or by cash. I do not know of any arrangement between SPP and Kiku Co Ltd. There is an arrangement between me and the plaintiff to send the plaintiff’ vessels to transport fish.”

This testimony speaks for itself. Then on the issue of supply of gas of gas oil for fish, the following questions and answers during cross-examination of respondent’s representative appears in the record:

Q Who accounts to Kiku for the AGO and for the sale of your fish?

A It is IPCO Q You keep account with IPCO?

A They keep my account.

Q Therefore if any oil or fish is due to you the people you ask to account is IPCO?

A Ordinarily yes. The same people asked me to go to Mauritania to the plaintiff’s to collect fish.

With these pieces of evidence considered along with several others of similar import and connotation, it is my holding that the view held by the learned trial judge that IPCO was the common agent to both the appellant and the respondent was unsupportable. The true colour of IPCO, as I see it, is that of a mastermind for both parties whom it exploited to its business advantage as and when the occasion became propitious. A clear example can be found from the pleadings of the respondent where it is averred that IPCO induced it to establish letters of credit in a bank upon a guarantee made by IPCO to pay the money if the appellant defaulted to pay IPCO. There was no evidence that the appellant ever became aware of this arrangement between IPCO and the respondent. It is trite law that in a true agency transaction, an agent must communicate to his principal the commitments made on his behalf for ratification within a reasonable time. The stance I have taken of the case is supported by exhibit D when carefully studied and construed in its full tenor. The contents of exhibit D are clear testimony of the fact that at some stage both the appellant and the respondent realised the extent to which IPCO had horse-ridden both of them. Throughout the trial it was the respondent, rather than the appellant, who had insisted that IPCO had been acting as common agent. The appellant had never, as far as the record went, regarded or treated IPCO as a common agent

[p.98] of [1999-2000] 2 GLR 79 to both parties. In my humble assessment of the evidence, I was unable to share the holding of the learned trial judge that a barter agreement subsisted between the appellant and the respondent. The business arrangement that existed was, as far as I could discern from the record, between IPCO and the respondent with regard to exchange of gas oil for fish.

I now proceed to consider additional grounds (C) and (D) which touched upon the legal status of the three bills of lading, exhibits Al, A2 and A3. On this legal issue, I wish to throw a searchlight on a passage of Carver’s Carriage of Goods by Sea (10th ed), Vol 2 at p 44,:

“A doubt has sometimes been raised whether the bill of lading is a conclusive statement of the contract between the shipper and shipowner; or is only one piece of evidence, helping with others to show that that contract is, and so subject to be contradicted, or varied, or added to, by verbal or other evidence, to show the agreement between the parties.

The question is important, for if the bill of lading is the statement of the contract it cannot, in the absence of fraud or mistake, be altered or added to by any evidence of preliminary or contemporaneous negotiations or agreements on the subject-matter of the contract.”

The learned author further recognises that there is conflict of authority on the subject but he prudently concludes his discussion on the issue by the following opinion at page 47 of the book: “The true view of the authorities may be that it depends on the facts of each case whether the bill of lading contains the actual contract.”

All that the learned author has succeeded in doing, like all other text-writers is to throw us back to basics; that is the question of whether in a given constellation of facts a contract in law really exists. My elementary knowledge about a contract starts with the word “agreement”. The term “agreement” is often employed to signify a state of affairs where the minds of two persons or parties who are negotiating an arrangement have arrived at a definite and identical conclusion, a position which is technically described as “consensus ad idem.” An agreement of this nature which is intended by the parties to have legal consequences is best described as a contract. It always consists of or involves exchange of promises and such promises if intended to be binding are called contract:

[p.99] of [1999-2000] 2 GLR 79 see Perbi v Attorney-General [1974] 2 GLR 167 on offer and acceptance; Addo v Nartey [1972] 2 GLR 318, CA on exchange of promises, and again Perbi v Attorney-General (supra) on intention to create legal relations. I also had the opportunity of reading the case of Buama v Oppong [1992] 2 GLR 213, where Benin J (as he then was) dealt with the basic principles of contract, citing the leading English authorities and with particular reference to the liability of persons who undertake to carry goods for a fee but fail to ensure that the goods reach their destination. Above all, there was the West African Court of Appeal case of G B Ollivant Ltd v Arab (1955) 15 WACA 9 where the following headnote appears: “Carriage of goods—Independent contractor—Conversion of goods by servants committed in the course of employment.” All these cases raise a very serious indictment against any person who undertakes for a fee to convey goods belonging to another person but appropriates the goods to his own use.

The respondents, testifying before the trial court through their representative, stated that they exercised a lien on the fish. But the question that arises is: Upon what contract did the respondent purport to exercise the lien? The law is that a lien arises by contract or more usually by accepted usage or custom. A general lien which arises from contract is a right to detain goods not only for debts incurred in connection with them, but also for a general balance of account between the owner and the possessor but no lien can arise unless the goods over which the lien is claimed have come lawfully into the possession of the person who claims the lien in the ordinary course of business: see Sunbolf v Alford (1883) 3 M&W 248. In the instant case, as the IPCO representative, the first plaintiff witness, stated in his evidence and I quote: “I do not know of any arrangement between SPP and Kiku Co Ltd. There is an arrangement between me and the plaintiff (ie SPP) to send the plaintiff vessels to transport fish.”

Also, in exhibit D which can be found in the record of appeal, the respondents are recorded to have stated in a letter to appellant the following:

“However, if at the conclusion of accounting reconciliation between the defendant and IPCO regarding the total business transacted, including deliveries of AGO to your goodselves any account is due from us to IPCO, we undertake to pay the amount due to cover the cargo to you.”

[p.100] of [1999-2000] 2 GLR 79

In my humble understanding, the above statement unequivocally demonstrates or reflects the uncertain and indeterminate legal relationship that existed between the respondent and the appellant, all due to the intermeddling role of IPCO. Under such circumstances, when there was the need to go into the state of accounts between the stakeholders in the bizarre business scenario, it was in my view improper for the respondent to seize the fish under the guise of a lien.

As counsel for the appellant rightly submitted, relying on the celebrated case of Fraser v Telegraph Construction Co (1872) LR 7 QB 566 at 571 where Blackburn J said: “The bill of lading . . . must be taken to be the contract under which goods are shipped, and until I am told differently by a Court of error, I shall so hold.”

The three bills of lading tendered in this as case as exhibit Al, A2 and A3 constituted a contract between the parties. The facts of the Fraser case (supra) showed that the shipper signed the bill of lading. In the instant case, the captain of the Hilda A, the respondent’s vessel, signed an undertaking, exhibit B, swearing that he would deliver the goods to the consignees named in the bill of lading. The facts of this case, therefore, fall on all fours with the Fraser case. On the authorities, the Fraser case is good law (see detailed analysis at pages 44-48 of Carver’s Carriage of Goods by Sea (10th ed). In my judgment, the learned trial judge erred when he held that the bills of lading in the instant case did not constitute a binding contract between the appellant and the respondent. The respondent was in clear breach of contract and it had no justification whatsoever, in taking possession of the consignment of fish intended for consignees in Lagos and Abidjan.

The fact that the appellant company’s managing director reported the conduct of the respondent to the Minister of Agriculture is to me clear evidence that the appellant had not been made aware of the true nature of the business transaction in which he had got his company involved. I am sure, that the appellant has learnt his lesson. For the foregoing reasons, I would allow the appeal. The judgment of the High Court is hereby set aside. In lieu thereof, judgment is entered for the appellant.

Appeal allowed in part.

LSNA