BOOMTRADE COMPANY LTD v. MESSRS COTECNA & ORS.

QUAYE, JA - The respondents herein, in their role as plaintiffs in the trial court, on 9th November 1999, filed a writ of summons, indorsed with reliefs against the defendants jointly and severally, for (a) the sum of US$ 22.092.00 being the cost of one 20 foot container of canned tomato paste purchased by the plaintiff company from the 2nd defendant which was found on delivery to be unfit for consumption. (b) interest from 24th March 1998 incurred by plaintiff in respect of the letter of credit that was granted plaintiffs by their bank to purchase the tomato as above, (c) cost for clearing, transportation, warehousing, stated to be ¢11.280.000.00 as at 31st October 1999. (d) interest on the said sum as in (c) (e) damages for breach of contract and (f) costs To the said writ only the 1st defendant responded by filing the requisite statutory processes.

The 2nd defendant neither filed an appearance nor defended the action.

In consequence thereof, the action against the 2nd defendants terminated on 5th February 2001 when the trial court entered default judgment against them and made an order against them for the full satisfaction of the relief indorsed by the plaintiffs in the action.

The entry of judgment against the 2nd defendants in favour of the plaintiffs for the recovery of the entire claim in this action did not however terminate the action, nor granted relief from the action, in favour of the 1st defendant.

The case against the 1st defendant was that, they, being an international inspection agency, holding license to carry on the business of pre-shipment inspection of goods imported into this country, Ghana, did, in fact on 16th May 1998 carry out, or purported to have carried out, the physical pre shipment inspection of the consignment of canned tomato paste as to the physical content as well as the packaging and marking of the said goods which the plaintiffs were importing from the 2nd defendant.

The said action of the 1st defendant was confirmed and evidenced by the issuance by them on 20th May 1998 of a document, known and called a clean report at findings (CRF) relating to the said consignment of goods and furthermore acknowledged receipt of the sum of US$180.00 paid by the plaintiffs to the 1st defendants as consideration for the inspection.

The cause of action for the plaintiff/respondents herein arose when, according to their pleadings and indorsement of relief, the goods were found on delivery to be unfit for consumption, a fact which r