Agbo v Rainbow Windscreen

ACQUAH JA. This is an appeal against the judgment of an Accra High Court dated 20 October 1992. I will refer to the parties in the manner they appeared at the court below. The plaintiff is manufacturer of windscreens and other related items, the defendant is a businessman who runs cargo transport to and from the Tema harbour and had on diverse occasions conveyed plaintiff’s glassware and other items in containers from the Tema harbour to the plaintiff’s warehouse at the South Industrial Area, Accra.

In March 1990, the plaintiff took delivery of a container of glassware at Tema Harbour. The plaintiff, as usual, called on the defendant to convey the consignment from the Harbour to its warehouse in Accra for a fee of ¢65,000. The defendant’s vehicle, which was to convey the consignment, was an Albion flat body articulator No GX 3396, then driven by one Narh Bruce who testified as DW1. The vehicle collected the container at Shed 11 and drove to the harbour security checkpoint near the exit of the harbour. At the checkpoint, the container fell off the vehicle onto the road. The glasses broke into pieces. The plaintiff thereupon called on the defendant to pay for the broken glasses, but the defendant refused. Hence the instant action was instituted claiming from the defendant:

“(a) The sum of ten million three hundred and five thousand three hundred and sixty three cedis (¢10,305,363) being the purchase price, cost of freight and profit thereof on one container load of double glassware material for the manufacture of double windscreen negligently damaged at the Tema harbour on 22 March, 1990.

(b) Interest at the prevailing bank rate from 22 March, 1990, till date of final judgment.”

In its statement of claim, the plaintiff pleaded that the falling down of the container resulting in the damage to the glasses, was due to the negligent control of the vehicle and proceeded to particularise the negligence of the defendant. Later the statement of claim was amended by describing the defendant as a common carrier. The allegation and particulars of negligence were deleted, and the plaintiff provided particulars of the loss and damage arising from the damage of the glassware.

The defendant, while admitting that he was engaged by the plaintiff to convey its container of glassware from the harbour to the plaintiff’s warehouse in Accra, and further admitting that the said container came off his vehicle around the security check point