HULLBLYTH (GH. LTD) & ORS v. ANGLOGOLD ASHANTI LTD.

J U D G M E N T

OFOE,J.A.: After initial uncertainties about the exact amount and particulars of their claim the plaintiff and co-plaintiffs/respondents finally settled and sued the defendant/appellant, Anglo gold Ashanti for:

“a. An order for the recovery of the sum of US$595,836.79 less US$88,039.12 paid by the defendant and received by the co-plaintiff for the value of the containers plus interest being the outstanding demurrage charges due and payable as at the date 15th February 1999 when the containers were declared lost by the co plaintiff in accordance with the custom in the shipping industry.

b. Interest on the amount claimed in (a) with effect from the 15th day of February 1999 at the rate of 4% per annum until the date of judgment

c. Cost”

In this appeal the parties would be referred to as appellant and respondents, which in any case they are in this court. The substance of the case before us is simply the alleged failure of the appellant to return containers that they took delivery of from the respondents. The total claim of the respondents as endorsed on their writ of summons is therefore meant to be the total value of the containers and demurrage incurred as a result of appellant’s failure to return the containers. After reading the appeal records we found paragraph 5 and 6 of the respondents’ statement of claim very critical in the determination of this appeal. Critical not only because these paragraphs provide the necessary particulars of respondents claim but also defines the boundaries of the trial, the appellant having denied the said paragraphs. The said paragraphs provide:

“5. The co-plaintiff says that between June 1995 and February 1998 the co-plaintiff delivered over twenty six (26) shipping containers to the defendant through the plaintiff as its agent in Ghana and were covered by Waybills.

6. The co-plaintiff says that the container bear numbers and are of different sizes. The marks or description of the container are as follows:

ACLU 2718280 WLNU 4140939

TEXU 2203238 TEXU 2345177

TEXU 2886944 GSTU 4368531

TEXU 3452390 TEXU 2048846

CRXU 2498930 PRSU 2009916

ALMU 1020390 ALMU 1020471

ALMU 1020569 ALMU 1020620

ALMU 1021077 ALRU 6263662

ALRU 8177835 TEXU 2056630

TEXU 2307269 TEXU 2882503

TEXU 3051674 TEXU 3313040

TPHU 6647480 GCEU 4306910

WLNU 4550050 TOLU 4566575

As earlier stated the appellant’s statement of defence denies these claims of the respondent and by that they put the respondents to proving not only