November 15, 2006
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana reviewed a dispute between Ghana Ports and Harbours Authority (GPHA) and its Harbour Master, Captain Zeim, on one side, and Nova Complex Ltd, owner of the trawlers M V Nova VII and M V Nova VIII, on the other. Nova Complex alleged GPHA unlawfully and negligently beached M V Nova VIII near Tema’s dry dock; GPHA countered that the vessel was listing dangerously and had to be removed for maritime safety. The Court held that the presumption of regular official action under the Evidence Act was rebuttable and, on the record, rebutted by plaintiffs’ evidence that the vessel was seaworthy and not in imminent danger. Zeim’s next-day admission was admissible as res gestae. The Court affirmed liability, set aside speculative indemnity damages, fixed replacement value at US$600,000 plus proven dry-dock repair costs, reduced loss-of-use to US$900,000, awarded interest on replacement value, and increased costs to ¢50,000,000, dismissing the appeal subject to these variations.
J U D G M E N T
MRS. WOOD, J.S.C.: This is an appeal against the unanimous decision of the Court of Appeal. The first appellant, Ghana Ports and Harbours Authority, is the statutory body charged under the laws of Ghana with the management and control of all harbours and ports facilities in this country; while Captain Zeim, the second appellant, is the Master in charge of the Tema Main Port and Fishing Harbour. Nova Complex Ltd, the respondents, are the registered owners of the M V Nova VII and the M V Nova VIII, the subject-matter of these proceedings. At the date of the events which triggered this action, the vessels were berthed at different locations. The M V Nova VII was berthed at the Tema Fishing Harbour, while the sister ship, the MV Nova VIII, was berthed at the Shipyard and Dry-dock of the Tema Port.
On 18 May 2001, the respondents (hereinafter called the plaintiffs) sued the appellants (hereinafter called the defendants) for compensation arising out of the alleged negligent or unlawful beaching of the M V Nova VIII. The defence in the main was an outright rejection of the charge of negligence or unlawfulness, coupled with a counter-charge of negligence against the plaintiffs. The defendants maintained that the beaching was lawfully carried out in line with their statutory duty to maintain ports and harbour safety. They pleaded that this was the only option open to them, when the vessel was found to be listing so heavily at the entrance of the docks that, it stood in danger of sinking and becoming an obstruction, thus posing a real danger to maritime safety.
The trial High Court found as a fact that M V Nova VIII did not list; and further that it was beached in error. On appeal, the Court of Appeal affirmed the finding of liability, though for slightly different reasons, but varied the award of damages by reducing the quantum. Dissatisfied, both parties have appealed to this court for a reversal of the findings and orders with which they are aggrieved. While the defendants are requesting a complete overturn of the liability finding, the plaintiffs are asking for a restoration of the damages originally awarded by the trial court as compensation and an enhancement of the costs awarded.
The grounds of appeal by the defendants
The defendants' original grounds of appeal were as follows:
"(i) the Court of Appeal erred in holding that the alleged admission of negligence by the second defendant without authority was binding on the defendants;
the C