Ghana Legal Information Institute - Marine species and fisheries https://old.ghalii.org/tags/marine-species-and-fisheries en ESSMC Shipping Co. Ltd. Vrs. Customs Excise & Preventive Service (CA 99/2002) [2002] GHACA 2 (23 April 2002); https://old.ghalii.org/gh/judgment/court-appeal/2002/2 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/el" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">EL</a></div><div class="field-item odd"><a href="/tags/attribution-costs" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Attribution of Costs</a></div><div class="field-item even"><a href="/tags/remediation" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Remediation</a></div><div class="field-item odd"><a href="/tags/wildlife-fauna" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Wildlife (fauna)</a></div><div class="field-item even"><a href="/tags/marine-species-and-fisheries" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Marine species and fisheries</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an  appeal against the decision of the High Court, in which the trial judge accepted the appellant’s case that the conduct of the respondent in ordering the seizure of her fish, and subsequently dealing with it in a manner inconsistent with the rights of the owner, was unlawful and consequently made an award in her favour for damages, but directed that the appellant pays the appropriate custom duties on the fish. </p> <p>The issues facing the trial court was whether or not the seizure was lawful, whether the quantum of damages awarded in favour of the appellant was correct and whether the trial court was right to order that the respondent-cross-appellant pay custom duties. </p> <p>The court held that the appellant suffered damages equivalent not to the cost price but fair market value of the fish. Therefore, it was just for the said amount to attract interest at the prevailing exchange rate from the date of the wrong. Since the fish were wrongfully dealt with by the respondent, there was no merit in the cross appeal.</p> <p>Finally, the court dismissed the appeal of the appellant as well as the cross appeal of the respondent and affirmed the decision of the court below, however, ordered a variation, in relation to the award of damages and the payment of interest on the custom duties by the respondent.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>IN THE SUPERIOR COURT OF JUDICATURE</p> <p>IN THE APPEAL COURT</p> <p>ACCRA-GHANA</p> <p>CORAM:  GBADEGBE, JA, PRESIDING</p> <p>                PIESARE, JA.</p> <p>                QUAYE, JA.</p> <p>SUIT NO. CA 99/2002. </p> <p><strong>                                                          23RD   APRIL, 2004</strong></p> <p> </p> <p><strong>ESSMMC SHIPPING CO. LTD.  -   PLAINTIFF/RESPONDENT</strong></p> <p> </p> <p><strong>                                      VERSUS:</strong></p> <p>CUSTOMS EXCISE &amp; PREVENTIVE SERVICE - DEFENDANT/APPELLANT</p> <p>--------------------------------------------------------------------------------------------------</p> <p> <strong>GBADEGBE, JA</strong>:  read the following judgment of the Court.</p> <p> </p> <p>       In this appeal which arises from the decision of the High Court, Accra upholding the claim of the respondent the questions which the court has to decide turn on the liability of the appellant regarding the seizure and or confiscation of the respondent’s fish, the award of damages and the order that the respondent pays custom duties on the fish the subject matter of the action herein. In the court below, the learned trial judge accepted the respondent’s case that that the conduct of the appellant in ordering the seizure of the fish and subsequently dealing with it in a manner inconsistent with the rights of the owner was unlawful and consequently made an award in her favour in damages but directed that the respondent pays the appropriate custom duties on the fish. The said decision has been appealed to this court by both parties to the action, that of the respondent, however, being a cross appeal.</p> <p> </p> <p>     The issues between the appellant and the respondent are set out in their respective pleadings. By his plaint the respondent claimed special damages and interest for the wrongful seizure of 21,620 cartons of fish by the appellant. It was averred on her behalf that in October 1989 she imported into the country a large quantity of fish worth US $657,423.47.When the consignment arrived, the parties herein entered into an agreement whereby the entire quantity was warehoused after the respondent had paid the requisite deposit and entered into a bond for the payment of the appropriate duties thereon. By this arrangement, the duties were to be paid on the fish when and as it was removed from the warehouse. In the course of this dealing between the parties, the appellant seized 21,620 cartons of the fish and dealt with same without reference to the respondent. The evidence which is available from the record alleges that on the instructions of the Commissioner the entire quantity was processed into animal feed. As a result of this, the respondent mounted the action herein in the court below seeking the reliefs hereinbefore mentioned. In answer to the claim the appellant justified its conduct by relying on the exercise of statutory authority. In particular, it was asserted on its behalf in paragraph 10 of the statement of defence that the respondent had breached the terms and conditions relating to the warehousing and further that the expiry date of the fish having elapsed, there was no option left to the Commissioner than to act as he did in the matter. In our view, at the close of the pleadings the real issue to be determined by the trial court was whether or not the seizure was lawful. If it was that would put an end to the respondent’s claim, but if it was not, then the court had to consider the issues of damages and interest as indorsed on the writ of summons.  </p> <p> </p> <p>     The judgment of the court below was given on the basis of the finding by the learned trial judge that act of the Commissioner that was based on Exhibit M was derived neither from any statutory authority nor the relationship between the parties under which the appellant allowed the respondent to have her consignment of fish warehoused in an approved warehouse pending the payment of custom duties thereon. This finding, it is to be observed, had the effect of rejecting the appellant’s defence to the action. In the said exhibit which was the foundation for his subsequent letter, exhibit N, on which the wrongful act of seizure giving rise to the liability of the appellant was planked, the Commissioner contrary to the mandatory requirements of the applicable law did not to refer to the particular section of the law namely NRCD 114, the Customs and Excise Decree, 1972, under which the seizure was effected. That a seizure under the applicable law could only be in relation to an act in the nature of an offence arising under section 49 of the said law to justify the invocation of section 84 is a matter which apart from statute appears clearly on the face of exhibit M, the document initiating the seizure which is a statutory form described as Customs and Excise Form number 6: see- Comptroller of Customs and Excise v Coker [1975]2 GLR 418. We would like to say that having regard to the effective date that the acts on which this case turns were committed the relevant law is NRCD 114 and not PNDC Law 330, the latter legislation having come into force in 1993 long after the events which have provoked the instant action. Therefore, we reject the attempt by learned counsel for the appellant in his submissions in these proceedings to justify the acts which have resulted in this action by resort to   PNDC Law 330.</p> <p> </p> <p>     This being the position, the court next turns its attention to the specific requirement endorsed on the statutory form which demands of the seizing authority to “state the reason   for the seizure and the relative section of the Customs and Excise Decree 1972, (NRCD114).” Since there was a non-compliance with the enabling law by the authority purporting to effect the seizure there can be no argument that from that moment whatever was done pursuant thereto lacked statutory authority and consequently the finding of the court below that the said act was wrong and unlawful is one which is unassailable. The court has also taken note of exhibit N of the 22nd of May 2000 which purported to cancel the seizure notice contained in exhibit M and instead ordered a re-exportation of the fish on which this action turns by the 31st of May and wish to say that like exhibit M before it, there is no statutory authority in support of the said conduct that we consider rash. It would appear to us that some time after the notice contained in exhibit M was issued, the Commissioner must have observed that the same was ineffectual as far as the requirements of the applicable law were concerned, a situation which must have compelled him to as it were deal with the matter plainly without a pretence to legality; for clearly there was none on which he could have based his action. If we may observe of the alleged direction to re-export the fish, we think that the condition precedent to the exercise of any such power as provided for in section 144 of the Customs and Excise Decree, NRCD 114 was never satisfied namely the revocation of the appointment of the private warehouse and note further that even in such a case the period that the law provides for the exportation is three months and not the fourteen days ordered by the Commissioner in exhibit L.  In the circumstances, unless the Commissioner’s conduct is justified on any right derived from the agreement relating to the warehousing, we think that there is no doubt that in dealing with the fish in the manner which has unfolded from the evidence the Commissioner acted unlawfully in the matter for which the appellant cannot escape liability. Flowing from these, it is observed of the arguments submitted to us by the appellants regarding the seizure that in so far as they seek to impeach the decision of the trial court they are without any merit and the grounds touching same are hereby dismissed.</p> <p> </p> <p>    The court wishes also to  say  regarding the above point that on the face of exhibit M , the reason clearly stated theruender namely  “Commissioner’s memo of 19/4/90” which  must have been written after cancelling out the statutory requirement regarding the specification of the relevant section of the enabling law that might have been contravened  to justify the seizure  plainly shows that in ordering the seizure  the Commissioner was acting without legal authority and puts beyond doubt any pretence that  was subsequently claimed both in the court below and before us on his behalf as to the legitimacy of his conduct. It is plain without argument that a careful and dispassionate reading of the said memo which was admitted in evidence as exhibit L does not satisfy the requirements of the Customs and Excise Decree, 1972, NRCD 114 that for a seizure made under section 84 to be lawful it must be in relation to an offence committed under section 49 of the decree. As said earlier on in the course of this delivery, basing the seizure and or confiscation on exhibit N is also just as bad as that before it and affords the appellant no answer to the claim contained in the respondent’s plaint as far as its liability for the seizure goes. Therefore, the only point of substance arising from the appellant’s onslaught on the judgment the subject-matter of this appeal which the court has to consider is that relating to the award of damages. Accordingly, the court does not desire to examine the other reasons canvassed in this appeal for the seizure; for in its opinion the appellant’s conduct in relying on the memo of the Commissioner in exhibit M creates estoppel by conduct against it with the result that by the provisions of section 26 of the Evidence Decree, NRCD 323 this court is precluded from finding that the reason for the action which has provoked the action herein is one other than that specified in the body of exhibit M.</p> <p> </p> <p>     This then leads us to the other aspect of these proceedings namely the award of damages and the direction to the respondent-cross-appellant to pay the relevant custom duties in respect of the fish wrongfully seized. These raise two separate considerations namely whether the quantum of damages awarded in favour of the appellant was right and lastly whether the court below was right in making an order that the respondent-cross-appellant pays the custom duties in respect of the fish wrongfully seized with interest? Commencing from the award in damages, we are of the view that the effect of the unchallenged evidence  contained in exhibit M is that the quantity of fish seized and subsequently dealt with by the appellant  was 21,620 cartons. In the face of this unchallenged evidence the next question to determine is whether the court below used the correct multiplier in coming to the quantum of damages? In its delivery, which is on appeal in these proceedings the learned trial judge used the unit of $11.99 for each carton. True it is from the claim that there were two species of fish that were warehoused-mackerel and herrings with each having a different value the former being  $12.52 and the latte r$11.99. In his computation, the learned trial judge at page 94 of the record of proceedings used the lower figure in arriving at his decision. Our view of the matter as far as the multiplier goes is that in the absence of strict proof as to the exact species of fish which was seized the use of the lower figure was right and in accord with common sense and the justice of the matter. We, however, think that by rounding up the total figure the court below came to a value which exceeds the actual total when the multiplier of the unit cost per carton is used. By a simple arithmetical calculation the cost comes to 11.99 x 21,620 which is $259,223.80.</p> <p> </p> <p>    We think that whiles this represents the cost price, the damages which the appellant suffered as a result of the unlawful act of the respondent is not the purchase price of the fish but the fair market value of the fish which but for the wrongful act of the appellant she would have earned there being no dispute from the available evidence that the fish was imported for commercial purposes. Also lost to her would be the opportunity of utilising the amount which would have been realised from the sale over the years from 1990 to date. In the circumstances, the court thinks that it is just to make an order that the said amount attracts interest at the prevailing bank rate in the United States from the date of the wrong on which this action has turned. A careful and anxious consideration of the evidence contained in the record of proceedings compels us to reckon the effective date of the seizure as the 1st of June 1990.In our view the jurisdiction to award interest which is derived both from equity and statute namely LI 1129, serves the purpose of adequately compensating the party who has been wronged for the loss which she must have been put to by being deprived of the use of her money for a considerable period. On this point we may refer to the case of Wellensteiner v Moir Number 2 [1975] 1 All ER 849 at 856 wherein Denning, MR observed as follows:</p> <p>       ‘’In addition, in equity interest is awarded whenever a wrongdoer deprives a company of money which it needs for use in its business. It is plain that the company should be compensated for the loss thereby occasioned to it. Mere replacement of the money years later- is by no means adequate compensation especially in days of inflation.”</p> <p> See also- Harbutt’s Plastscine v Wayne Tank and Pump Co Ltd [1970] 1 All ER 225 at 236. </p> <p> </p> <p>    We think that if indeed the fish was processed into animal feed as the appellant alleged in its evidence, there must have inured to it some income which properly speaking belongs to the respondent and that it would be unjust after it has kept the proceeds since June 1990 to simply order its refund to the respondent without interest. In order to ensure that the respondent is justly compensated by the appellant we further make an order that the computation of interest on the judgment debt subsists until the final payment of the amount: see (1) Hansem Enterprises Limited v IBM World Trade Corporation, an unreported judgment of the Supreme Court in Civil Appeal Number 2/98 dated 16th May 2000. Accordingly, in place of the damages awarded by the court below and the consequential order for payment of interest we hereby substitute an award in the sun of $259,223.80 with interest at the bank rate allowed on the US dollar from the 1st of June 1990 until the date that the amount is finally paid.  We make bold to say that it is competent for the court where the currency of the contract is one other than the cedi to make an award by way of damages in that currency as was decided by the Supreme Court in the case of GPHA v Issoufou [1993-94] 1 GLR 24, a decision which followed the court’s earlier pronouncement on such awards in the case of Royal Dutch Airlines (KLM) v Farmex Ltd. [1989-90] 2 GLR 623. This notwithstanding, it is observed of the attack made on the judgment of the court below regarding the damages being denominated in the dollar that a careful reading of the award at page 94 directed its conversion into the local currency and that in the premises the criticism of the delivery of the court below as far as this aspect of the matter is concerned is not derived from a fair reading of the record and same is dismissed.</p> <p> </p> <p>    In our view there is no point of substance in the complaint that the amount allowed was higher than what was claimed. We think  that this was an error in the proceedings which could have been corrected by the trial court under Order 28 rule 12 of the rules  as contained in LN 140A. Besides, we think that there is ample power in this court under rule 31(a) and (b)  the Court of Appeal Rules, CI 19 either on its own or upon an application in that behalf  to correct any error in the proceedings or make any such order as may enable the real matter in controversy between the parties to be determined and that looked at either way the allowance by way of the award of the higher figure does no injustice to the appellant  who contested the action knowing fully well that the claim  as well as the evidence in support  of same were in relation to the 21,620 cartons of fish which they had dealt with in an unlawful manner. We think that this complaint is purely technical and does no justice to either party and cannot lend our support to a situation in which the obvious requirements of justice are sought to be circumvented by a resort to mere technicalities: see Gbogbolulu ( Chief)  v Hodo  (Chief) (1941) 7 WACA 164 at 165.</p> <p>       </p> <p>   This leads us finally to the cross appeal of the respondent. The gist of this is that having found that the fish was wrongfully dealt with by the appellant the trial court ought not to have made an order directed at her to pay the relevant custom duties. It is to be noted of this particular head of award that although there was no specific clam made by the appellant regarding the payment of custom duties by the respondent the learned trial judge must have come to the opinion that on the facts the justice of the matter required same and we think that he was justified in so doing by virtue of the provisions of Orders 20 rule 5 and 63 rule 6 of LN 140A.  Having said this we find it convenient to say at once that there is no merit in the cross-appeal and proceed therefore to dismiss the said ground without a detailed examination of same. The contention of learned counsel for the respondent regarding the order to pay custom duties in our view stretches the matter too far and we think that on this point his learned colleague on the other side of the aisle so to say is right.</p> <p> </p> <p>       Closely linked to this is the award of interest on the amount to be paid as duties. In our opinion the payment of the appropriate custom duties should not attract  interest because it is the appellant whose unlawful conduct has resulted  in the delay in the payment of the duties  There can be no doubt from the record of proceedings that but for the act of the appellant which has provoked the action herein the respondent would have made good his  obligation  regarding the payment of custom duties on the fish  under the warehousing agreement .Since on the admitted facts no fault  can be attributed to the respondent, we think that the correct order ought to have been that the respondent pays only the appropriate duties on the 21,620 cartons of fish as at the date of the seizure. In the computation of the duties payable we think the entire quantity of fish should be deemed to be herrings in order to ensure consistency with the figure used in computing the value of the fish wrongfully dealt with by the appellant.</p> <p> </p> <p>     For the reasons stated above, we dismiss the appeal of the appellant as well as the cross appeal of the respondent and affirm the decision of the court below save as to the variations relating to the award of damages and the payment of interest on the custom duties  by the respondent.</p> <p> </p> <p>                                                                N.S. GBADEGBE</p> <p>                                                             JUSTICE OF APPEAL</p> <p>I agree.                                                   E.K. PIESARE</p> <p>                                                                        <strong>JUSTICE OF APPEAL</strong></p> <p>              </p> <p> </p> <p>I also agree.<strong>                                                       G.M. QUAYE</strong></p> <p><strong>                                                                        JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FCourt%2520of%2520Appeal%2F2002%2F2%2FCA%252099.pdf" data-src="https://old.ghalii.org/gh/judgment/Court%20of%20Appeal/2002/2/CA%2099.pdf">https://old.ghalii.org/gh/judgment/Court%20of%20Appeal/2002/2/CA%2099.pdf</iframe> </div></div></div> Sat, 24 Nov 2018 19:16:07 +0000 eric 813 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/court-appeal/2002/2#comments Narrow fishingand trading companyVrs Quansah And Others (C.A 37/2003) [2006] GHACA 8 (19 July 2006); https://old.ghalii.org/gh/judgment/court-appeal/2006/8 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/el" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">EL</a></div><div class="field-item odd"><a href="/tags/abuse-process" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Abuse of Process</a></div><div class="field-item even"><a href="/tags/marine-species-and-fisheries" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Marine species and fisheries</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The matter concerned the importation of fish, whereby letters of credit were opened at the appellant bank, by the 1st defendant on behalf of the respondent for the importation, which the respondent had sought to cancel.</p> <p>The court considered the relationships between the parties and found that the opening of the letters of credit created a relationship between the bank, and the respondent, and also imposed on the appellant an obligation to ensure the rights of the respondent were protected. The court found that the appellant failed to do so and resultantly could not escape liability. </p> <p>The court held that where a duty exists, it must be faithfully observed, since breach thereof would result in damages. The duty owed to the respondent was established with the opening of the letters of credit. This created an obligation on the part of the appellant to keep to the clear terms, under which the letters of credit were to operate. Accordingly, the court found that it was the appellant’s duty to ensure that the terms thereunder were kept. </p> <p>The court held that where, in a commercial transaction or a contractual relationship, a party signs a disclaimer, then that party by virtue of the disclaimer avoids liability for breach. The court found that the appellant bank, by implication, withdrew their earlier instructions, through their acceptance of the explanations given by the correspondent bank ,and that fact amounted in effect, to not giving any instructions at all. </p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE COUR OF APPEAL  -  ACCRA</strong></p> <p> </p> <p><strong>CORAM  -  OWUSU ANSAH, JA [PRESIDING]</strong></p> <p><strong>                                                   OSEI, JA</strong></p> <p><strong>                                                   QUAYE, JA</strong></p> <p> </p> <p><strong>CIVIL APPEAL NUMBER</strong></p> <p><strong>C.A 37/2003</strong></p> <p><strong>19TH JULY, 2006</strong></p> <p> </p> <p> </p> <p><strong>NARROW  FISHING &amp; TRADING COMPANY  …   PLAINTIFF/RESPONDENT</strong></p> <p> </p> <p><strong>                     V   E    R    S    U    S</strong></p> <p> </p> <p><strong>(1)  JAMES RICHARD QUANSAH</strong></p> <p><strong>                                                  …   DEFENDANTS                          </strong></p> <p><strong>(2)  SAVIOUR WOODWORKS LTD.        </strong></p> <p> </p> <p><strong>(3)  NATIONAL INVESTMENT BANK LTD.  … 3RD DEFENDANT/APPELLANT     </strong></p> <p><strong>                  --------------------------------------------------------------------------</strong></p> <p><strong>                                           J  U  D  G  M  E  N  T</strong></p> <p><strong>                   -------------------------------------------------------------------------</strong></p> <p> </p> <p><strong>QUAYE, J.A. - </strong>The appeal herein is from the judgment of the High Court, Accra, delivered on 27th July 2000.  The action in the trial court was initiated by the plaintiff (now respondent in this judgment) to seek relief from the three defendants therein.  At the trial, evidence was offered by the plaintiff/respondent to support the action.</p> <p>On the side of the defendants only the 3rd defendant bank sought to resist the claim of the plaintiff.</p> <p>            The trial ended in favour of the plaintiff/respondent as the defence of the 3rd defendant did not find favour with the trial court.  The action of the plaintiff against the 1st and the 2nd defendants was dismissed.  The present appeal is therefore between the 3rd defendant (herein appellant) and the plaintiff (respondent).</p> <p>            The respondent entered into an agreement on 3rd December 1993 for the importation of (one thousand) 1,000 metric tonnes of fresh frozen fish: mackerel, from a United Kingdom based company trading under the name of World Scope Limited.  The said importation was to cost US $455,000.00 out of which the respondent was required to  deposit twenty per cent the total cost.  That worked up to ¢64,000.000.00  (sixty four million cedis) only.  The payment of the twenty per centum deposit of ¢64 million was supported with a guarantee by the 1st defendant who, as the managing director of the 2nd defendant company, undertook to be bound to due performance of the contract between the respondent and World Scope Limited.  Under the said contract, the fish was to be delivered to the respondent on or before the 30th December, 1993, and the respondent was to complete the purchase within thirty days after receipt of the said consignment of imported mackerel.  In spite of the undertaking on the part of the 1st and 2nd defendants they failed to pay the money to World Scope Limited hence the fish was not supplied by them to the respondent.   </p> <p>            After this initial failure the 1st defendant who spoke and acted as if he held a lien, and could exercise absolute control of, and determine and/or dictate how the deposit of  ¢64,000,000.00 was to be used, took the reluctant respondent to Mauritania for fish, and when that second attempt failed, he lastly decided to buy the fish from a company by the name Hyundai International Trading Corporation c.c. of the Republic of South Africa.  The 1st defendant informed the respondent that he had negotiated for the supply to the respondent the quantity of 2,000 metric tones of fresh frozen horse mackerel at the cost of US$1.110,000.  This third attempt was to be supported by the initial deposit already made by the respondent.</p> <p>            Recurrently, the respondent, after the failure of the World Scope contract, and the subsequent attempt to import fish from Mauritania, demanded the refund of the ¢64 million deposit from the 1st defendant but the latter showed no inclination to part with same.</p> <p>In respect of the Hyundai agreement, the 1st defendant prevailed upon the respondent that he would use the ¢64 million deposit to open Letters of Credit for the plaintiff, and further, that his bankers, the appellant herein, would then effectuate the importation of  the 2,000 metric tonnes of fish.  In furtherance of this assurance, the 1st defendant informed the respondent that he, the 1st defendant, had opened Letters of Credit (LC) at the appellant bank.  He therefore gave to the respondent an Import Declaration Form (IDF) which the latter executed by appending his signature.</p> <p>            It is material at this stage to state that the respondent was not a customer of the appellant bank.  Rather, it was the 2nd defendant who operated accounts thereat.  Under this situation the 1st defendant contacted his bankers, the appellants, for the opening of an LC on 30th January 1994 on behalf of the respondent in favour of the supplier/exporter Hyundai International Trading Corporation c.c. of South Africa.</p> <p>The fact that the respondent did not previously know about the Hyundai Corporation whilst the 1st defendant knew them gives credence to, and further authenticates the respondent’s averments.  It is quite obvious therefore that the 1st defendant was firmly rooted in the pilot’s seat in so far as the transaction and arrangements relating to the respondent’s importation of fish went.</p> <p>            It turned out however that misunderstandings and mistrust welled up between the respondent and the 1st defendant, and when it came to a head, the respondent attempted to jump into the driver’s seat in order to ensure that the project did not boomerang.</p> <p>            The respondent saw the LC for the first time after one Mr. Otuahene of the appellant/bank had given it to him upon the direction of the 1st defendant.  That was in February 1994.  In March the 1st defendant informed respondent that he had received a telex from Hyundai which indicated that only 90 metric tonnes of fresh frozen fish would be arriving, and not the promised or expected 2,000 metric tonnes of horse mackerel as appeared on the IDF.  This fact put the respondent on his guard to retract.  He therefore called on the 1st defendant and the appellant herein to cancel the LC and refund the deposit of US$50,000 to him.  Apparently, the 1st defendant had previously refunded US$3,500 through one Madam Odey, the financier of the respondent.  The respondent’s misgivings and protestations at this time were justified by the Ghanaian customs regulations that forbade the issuance of clearing licence for imports of fish that fell below 500 metric tones minimum.   From the evidence so far it becomes apparent that the 1st defendant did not merely occupy the central position in the triumvirate comprising the  respondent, the appellant and the suppliers, but that indeed, it was he who committed the unwilling respondent to the appellant and the suppliers.  The respondent did not at anytime enter into or exchange correspondence with the correspondent bank or vice versa.  As matters stand at present however, the part played by the 1st and 2nd defendants who are not parties in this appeal, appears finally determined by the trial court, and any misgivings that I might entertain on the dismissal of the action against them would have no bearing on this appeal.  We therefore have to leave the sleeping dogs to enjoy their rest.</p> <p>            The case involving the appellants started with the opening of the LC by 1st defendant on behalf of the respondent in favour of the suppliers, Hyundai International Trading Corporation c.c. and the appointment by the appellant unilaterally, of the Midland Bank as the advising or correspondent bank with regard to the LC, for the respondent in favour of Hyundai as beneficiary.</p> <p>            When the respondent gained knowledge about the tonnage of fish that Hyundai were exporting to him, he wrote to the appellant to request the cancellation of the L/C.   </p> <p>The latter replied by stating the legal position for the information of the respondent that the L/C, being irrevocable, could only be cancelled with the consent of the beneficiary.  The respondent, both before and after the expiry of the L/C on 29th April 1994 seized, on every opportunity to press home his demand that the L/C be cancelled.  Before 29th April 1994, the appellant stuck to the position that until the L/C had expired, the consent of the beneficiary was sine qua non for its cancellation. </p> <p>            After the expiry of the L/C the respondent did not relent in his demand for cancellation.  With this clearly stated intention or desire, of the respondent, what legal conditions would inform the continued refusal or inability of the appellant to cancel the L/C after its expiration.  On 10th May 1994, about eleven days after the expiration of the L/C and in response to the respondent’s repeated request that the L/C be cancelled, the appellants wrote inter alia as follows:</p> <p>                        “We refer to your letter of 4th May, 1994, requesting us to cancel</p> <p>                         the above mentioned L/C due to non-performance on the part of</p> <p>                         the supplier Messrs Hyundai International Trading Corporation</p> <p>                         of South Africa.</p> <p>                        “We have been in contact with our correspondent Bank, Midland</p> <p>                         Bank plc. and they have informed us that documents conforming</p> <p>                         to the terms and conditions of the L/C have been submitted by the</p> <p>                         Supplier and for which payment has been effected.  The said</p> <p>                         documents have been dispatched to us by courier and we shall</p> <p>                         be in touch with you for the release of these documents to enable</p> <p>                         you clear the goods concerned as soon as we receive them……”</p> <p>            After the above, the appellants again wrote on 16th May 1994 to the respondent that</p> <p>                      “…….We have received documents in respect of the above-mentioned</p> <p>                     from the advising bank with the following discrepancies……”</p> <p>affecting, or apparent, on the face of the bill of lading, and the SGS (General Superintendence company) clean report of findings.   The letter ended with a request to the respondent to commit himself on paper indicating his acceptance of the discrepancies.  As would be expected from his conduct so far, the respondent rejected the discrepancies and repeated his demand for the cancellation of the L/C by letter dated 17th May 1994.  The position was reiterated by the respondent in another correspondence dated 8th June 1994.</p> <p>            The interaction between the respondent and the appellant was not only documentary.  Officers of the appellant Bank who dealt with the respondent in their normal course of duty on behalf of the appellant included one Mr. Otuahene from whom the respondent obtained a copy of the L/C.  Mrs. Holdbrooke Smith who was head of the appellant bank’s foreign Operations Department, and in that capacity wrote and/or signed almost all the letters that were exchanged with the respondent relevant to this case; Mr. Zaglo who gave to the respondent on behalf of the appellant what purported to be official documents in the nature of bill of lading; Mr. Ofosu and the Managing Director of the appellant bank.  What purported to be bill of lading (tendered into evidence as the Exhibit R series) led the respondent on a wild goose chase.  The documents suggested that the fish consignment had been loaded on a ship, better identified as Tropic Lines.  Upon inquiry, from the agents, Delwas Shipping Lines, the respondent drew a blank.  He was told that the vessel, Tropic Lines had ceased to operate about a year, before the enquiry; that the statement by Mr. Zaglo, or his wife, of the appellants office, that the ship had already entered the territorial waters of Ghana was false; that they had been given a yellow bill of lading instead of blue, and that the documents that the appellants gave to the respondent were fake.  As if to vindicate the respondent, the suppliers on 21st June 1994 faxed the following message to the respondent.  Inter alia, it stated</p> <p>                        “…….To date we have been unable to load the small order of 90</p> <p>                          MT due to this small capacity…….</p> <p>                          ………Presently we cannot confirm the shipment dates but will</p> <p>                          do so as soon as it is confirmed.</p> <p>                          Once again, apologies for any misunderstanding but we are not to</p> <p>                          blame”</p> <p>            At the end of the trial, the learned trial judge found against the appellant on the basis that no compliant documents were presented to the Bank by the suppliers before the expiration of the L/C on 29th April 1994; that after the expiration of the L/C the respondent clearly instructed the appellant to cancel the L/C and that the payment of the US $50,000.000 to the supplier was wrong. </p> <p>            In arriving at the above conclusions the learned trial judge took time to examine the evidence under various heads including claim for US $50,000.00; the alleged discrepancies; the expiration of the L/C; and the failure of the appellant to cancel the L/C.</p> <p>            This appeal was stated to have been “lodged to prevent a situation where the National Investment Bank Limited will be made a scape-goat for the inefficiencies of the Respondent and its friends, the 1st and 2nd Defendants.</p> <p>            Counsel for the appellant discussed the law on negligence and urged upon us that the material issue upon which to determine the conduct of the parties, particularly, the appellant is the issue of careless behaviour.  The appellants maintain that their conduct in the whole transaction measured up to the standard and scope of the law.  After laying this foundation by way of introduction, counsel for the appellant cited the International Chamber of Commerce Uniform Customs and Practices for Documentary Credits 1993 Revision, ICC Publication No. 500 to be the relevant and applicable law, under the provisions of which their conduct should be tested.  On this basis learned counsel for the appellant faulted the reliance by the trial court on the decisions in the two cases <strong>EQUITABLE TRUST CO of NEW YORK VRS. DAWSON PARTNERS LIMITED</strong> {1927} 27 LLL. Rep. 49 and <strong>J.H. RAYNER AND OILS SEEDS TRADING CO.</strong> <strong>LIMITED VRS. NAMBROS BANK LIMITED</strong> {1942}A LL er 694 as being in error.   </p> <p>The above form the general introduction to learned counsel’s submission.</p> <p>            The 1st ground of appeal is that the judgment is wrong and cannot be supported having regard to the evidence led in the trial.  I will take this ground and additional grounds 1 &amp; 2 together in this judgment.  The rule is that where the whole judgment is put in issue, as suggested by these grounds of appeal, it is the appellate court’s duty to decide upon the facts and applicable law whether the trial court applied proper legal standards and whether there was reasonable support for its evaluation of factual questions.  The conclusions drawn by the trial court then become subject to broad review and will be reversed if they are found to be incorrect.  See <strong>LE CLAIR VRS TOWN OF</strong> <strong>NORWELL</strong> 430 Mass 328 at 331 (1999).</p> <p>            Counsel for the appellant took issue with the findings of the trial court with regard to discrepancies and the expiration of the L/C.  In dealing with the issue of discrepancies, counsel asserted that the appellant was satisfied that there were no discrepancies.  The respondent was also convinced that there was none, hence he accepted the documents, albeit he later returned them after the space of two weeks.  He submitted that there were no discrepancies but even if there were, the appellant cannot be held liable.   He also cited article 15 of UCP 500 in support.  Counsel furthermore submitted that the doctrine of strict compliance which formed the basis of the conclusions of the learned trial judge is inapplicable in this case because it is in direct conflict with the UCP 500.  He finally submitted on this subject that the correspondent bank is agent of the respondent, not the appellant.</p> <p>            Certainly, very interesting and far reaching legal and factual issues have been raised in the above submissions.  I therefore deem it my duty to scrutinize and analyse them to test their ability to sustain.  In the first place the learned counsel for appellant cannot deny that there is a duty relationship between them and the respondent; and also between the appellant and the advising bank.   Where a duty exists, it must be faithfully observed since breach thereof would, subject to the existence of other requirements, result in damages.  The duty owed to the respondent was established with the opening of the L/C.  This created an obligation on the part of the appellant to keep to the clear terms under which the L/C was to operate.  It was therefore their duty, which they owed to the respondent, to ensure that the terms thereunder were kept.  Being aware of the duty created which must be brought to fruition, the appellants sua sponte linked up with the Midland Bank to perform the duty that had to be discharged.  That duty, required under UCP 500, strict compliance with the terms and conditions imposed.  For a few illustrations, a look may be taken at articles 2(iii); 9(a), (b), 13(b) and (c); 14(b) just to mention a few.  Article 2 (iii) is in the following terms:       </p> <p>                        “(iii)  authourises another bank to negotiate, against stipulated</p> <p>                                 documents provided that the terms and conditions of the                                                                          </p> <p>                                 Credit are complied with</p> <p>                              Article 9(a) states “(a) An irrevocable credit constitutes a</p> <p>                              definite undertaking of the Issuing Bank, provided that the</p> <p>                              stipulated documents are presented to the Nominated Bank</p> <p>                              or to the Issuing Bank and that the terms and conditions of the Credit</p> <p>                              are complied with. (emphasis mine)</p> <p>           It is my humble submission of fact that the phrase requiring compliance is recurrent substantially throughout UCP 500.  The only difference perhaps is the omission of the word “strict.”  The absence of the adjective “strict,” however does not, in my quiet consideration, derogate from the import of the message envisaged, or for that matter, the mischief sought to be addressed.  It is therefore my respectful view that the position taken by the appellant that the doctrine of strict compliance is in direct conflict with UCO 500 cannot be supported.</p> <p>            This brings me to the question of the relationships between the parties.   The first one, as I have already pointed out is the duty created between the respondent and the appellant, the latter taking it upon themselves to process the L/C.  The other is that between the two banks.  The advising bank is agent for the issuing bank to the extent that one compliments the other to ensure that the relevant documents are passed in compliance with the conditions.  The advising bank cannot commit the money without authorization of the issuing bank.  This position is illustrated by the notification that issued from the advising bank to the issuing bank (the appellants) when they detected the discrepancies.  The issuing bank carried out its duty by notifying the respondent and waiting for his answer or reaction and then communicating same unto the correspondent bank.  The chain of command is clear.  Agency has been stated in simple terms to be the relationship which exists between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf, and the other of whom similarly consents to represent the former or so to act.  (See Bowstead on Agency page 1).  For their part, the authors of Blacks Law Dictionary Sixth Edition defined “agency” at page 62 to be “a relationship between two persons, by agreement or otherwise; where one (the agent) may act on behalf of the other (the principal) and bind the principal by words and actions.  Relation in which one person acts for or represents another by latter’s authority….”  Inferentially the appointment of the Midland Bank as the correspondent Bank by the appellant Bank created a relationship of agency between them.  Article 7 of UCP 500 when construed by the ordinary meaning of the words, seems to endorse the above reasoning.  Where the advising bank was appointed by the issuing bank without prior consent of the respondent, and where throughout the whole transaction there was no evidence of any direct communication or correspondence between the purchaser and the correspondent bank,  then to submit or conclude that the correspondent bank is agent of the purchaser and not the issuing bank, is to say the least, far fetched and legally unacceptable. If there was any doubt still lingering in minds, that issue was firmly put to rest by the illustration given on page 31 of Bowstead on Agency that “where a letter of credit is opened, the instructing bank and the confirming bank are in the positions, at any rate in some respects, of principal and agent respectively”  as held in <strong>BANK MELLI IRAN</strong> <strong>VRS. BACLAYS BANK {1951} 2 TLR 1057</strong> and also in <strong>BENJAMIN’S SALE OF</strong> <strong>GOODS {1974}</strong> paragraph 2082.  With due deference I do not think UCP 500 holds a different or conflicting position as regards the parties.  In modern practice it may be stated cursorily that once a letter of credit is properly issued, the customer has no right to modify it or revoke it; the beneficiary is entitled to the full benefits of the stipulations in the L/C and that the issuing bank would be liable in damages if it violates the terms of credit; the L/C is construed strictly and ambiguities are applied against the writer.</p> <p>Where therefore the L/C is clear in its terms and not ambiguous, it behoves the issuing bank to interpret and apply it strictly as under UCP 500.  Where the contents of the shipping documents issued by the supplier to the correspondent bank is even slightly different from the actual words of the L/C then in that case a discrepancy arises.</p> <p>In order to determine what constitutes discrepancy the decided authority cited by the learned trial judge is relevant and it may be examined among others.</p> <p>            The case of <strong>J.A.RAYNER &amp; CO LTD. AND OILSEEDS TRADING CO,</strong> <strong>LTD. VRS. HAMBROS BANK, LTD.</strong> [1942].  All ER 694 needs being taken a second look at.  In that case the description of the imported goods was stated in the L/C.  When later the bill of lading was issued, it was found to contain a slight variation in the description of the goods from what appeared in the L/C.  As a matter of fact the bill of lading contained words of description which could easily and satisfactorily identify the consignment.  That fact notwithstanding, the bill of lading, instead of keeping strictly to the description “coromanded groundnuts in bags” added or used another name “machine shelled groundnut kernels,” a name which could generally interchange with “Coromanded groundnuts in bags.”  The court however accepted that the description was discrepant.  In the instant appeal, the letters of credit which was tendered in the trial court as exhibit 3D3 stated its conditions in clear language.  Inter alia, it required notification to be made in the names of National Investment Bank and Narrow Fishing Co. Ltd.  Furthermore, it required the freight receipt to be issued and signed by the carrier or their accredited agents.  The latest shipping date and the expiry date were stated to be 8th April 1994 and 29th April 1994 respectively.  When the bill of lading was served on the correspondent Bank, that bank detected discrepancies which they forwarded to the appellants (the issuing bank) and the latter further forwarded it to the respondent.  At this stage it was clear that all of the correspondent bank, the issuing bank and the respondent were ad idem that the documents were discrepant.  Accordingly the appellant by a letter of 30th March 1994 wrote to the respondent.  The letter exhibit 3 D 6 was appropriately headed <strong>“DISCREPANCIES IN SHIPPING DOCUMENTS PRESENTED UNDER</strong> <strong>YOUR L/C NO…….”</strong>  The letter went on to itemize seven identified discrepancies.  The discrepant document was rejected by the respondent, by letter dated 19th April 1994 exhibit 3 D 7.  By fax dated 20th April 1994 the appellant informed the correspondent bank of the respondent’s rejection of the discrepancies.  If the documents were not discrepant what must have prompted and informed the chain reaction of the two banks and the respondent.  Obviously the perception of discrepancies was not a mere cry of wolf when there was none.  A discrepancy simply means a difference between two things which ought to be identical.  Assuming there were no discrepancies, neither the appellant nor the correspondent bank is justified to fault the respondent on the issue after they, by their representations had made him to believe that they existed.  Where the documents that were held to be discrepant were neither changed nor amended, the appellant has a high mountain to climb in order to explain away their shift of position to the satisfaction of the court.  I can glean no such explanation from the evidence on record.  I would even go further to state that where the purchaser had rejected the document and thereafter what was previously thought to be discrepant was no longer found to be so, the correspondent bank was under duty not to assume powers to pass them.  Once the chain had started, the correspondent bank ought to have gone over the process and sought the mandate or clearance of the respondent through the appellant to pay the supplier.  For the fact that the appellant failed to ensure the strict compliance with the documents, the duty of care they owed the respondent was breached.  It is sad to remark that the appellants appeared to have turned themselves into a rubber stamp to endorse whatever the correspondent bank put forward without question and thereby opened themselves up to be manipulated by the correspondent bank.  Generally, the law frowns on a party who attempts to take advantage  of, or benefit from his own wrong.  It is highly deprecated as seen from the wide range of decided cases such as <strong>SCHANDORF VRS. ZEINI &amp; ANOR. [1976] 2</strong> <strong>GLR 418 CA.; DJOMOA VRS. AMARGYEI [1961] 1 GLR 170 SC.</strong>  From the foregoing, the least said about the collection of the discrepant documents by the respondent, the better.  Suffice it however to observe that the respondent, as soon as he found that the documents which he was made to sign for and collect were not in accord with the contract, he immediately returned them.  His signing and collecting of them was not a voluntary act.  When he went to the appellants he was merely asked to sign and collect them without anyone telling him the contents and effect of his action.  I do therefore reject the submission of counsel for the appellant on that issue.</p> <p>            The appellants submissions on the question of the expiry of the L/C are that even if the correspondent bank lied in saying that they received compliant documents before the expiry date, they, the appellants cannot be held liable, and further that they satisfactorily and conscientiously conducted themselves and discharged their mandate according to the level of expectation.  I should concede that the appellants duly kept up correspondence as expected, and that for their vacillation and lack of forthrightness to identify and stick to the proper level and ethics of their profession and failure to insit           on having the conditions of the L/C complied with, they would have put themselves above board.   Upon the expiration of the L/C, it ceased any longer to be extant.  I believe neither the correspondent bank nor the appellant had power to resuscitate it by themselves, the more so since the respondent had repeatedly demanded cancellation thereof, and the appellant had indicated to him that his demand could not be met while the credit had  not yet expired and the beneficiary had not given their consent for cancellation. </p> <p>The opening of the L/C in favour of the respondent created a relationship between the bank and the respondent and also imposed on the appellant an obligation to protect and ensure the rights of the respondent.  This the appellant, not merely failed to do, they instead slept on their rights or condoned the usurpation of rights by the correspondent bank to treat the credit as still alive or extend its life.  Appellant therefore, in my judgment cannot escape liability.  Where the issuing bank puts on a garment of insensitivity to the genuine plight of the applicant and fails to cancel the credit, or insist on canceling it when it was due, the consequences of their failure cannot be whittled away by the number of letters or faxes they write or send.  The several letters the appellants wrote did not achieve the purported result and when they capitulated by accepting the so-called compliant documents several days after the expiration of the L/C the correspondent bank read in between the lines, saw the weakness or non-professional conduct of the appellants and took advantage accordingly.  The appellants attempt to urge the contrary upon us fails.  The appellate court will not set aside findings of fact of the trial judge unless they are clearly erroneous.  The appeal, on these grounds of the judgment not being supported by the evidence adduced at the trial fails and is accordingly dismissed.</p> <p>            At the pain of repetition I now revert to the question of discrepancy in order to address the complaint formulated in additional ground (2) alleging that the trial judge failed to consider the appellant’s defence.  Learned counsel’s view was that if the trial court had put the shipping documents against the claims of discrepancy, it would have been realized that there were no discrepancies at all.  I have already observed above that the conduct of the appellant vis a visa the alleged discrepancies estops them from contending otherwise.  The appellants by their letter exhibit 3 D 15 of 16th May 1994 itemised to the respondent what they, the appellants perceived to be the discrepancies.  It is a fact upon the evidence that the bill of lading, for instance, mentioned Saviour Woodwork Industry, P.O. Box 13918 Accra, Ghana, Fax No. 229013 Tel. No. 227883 as the company to be notified instead of National Investment Bank A/C Narrow Fishing company Ltd.  I do not accept, upon the evidence, that the learned trial judge merely jumped to the conclusion that there were discrepancies when in actual fact there were none.  I hereby dismiss this ground for reasons already given above.</p> <p>            Article 18 of the UCP 500 is in the following terms:</p> <p>            “18 DISCLAIMER FOR ACTS OF AN INSTRUCTED PARTY</p> <p>            (a)  banks utilizing the services of another bank or other banks for  </p> <p>                  the purpose of giving effect to the instructions of the Applicant do</p> <p>                  so for the account and at the risk of such Applicant.</p> <p>            (b)  Banks assume no liability or responsibility should the instructions</p> <p>                   they transmit not be carried out, even if they have themselves taken</p> <p>                   the initiative in the choice of such other bank(s)…..”</p> <p>            It was based on the above provision that appellant formulated ground 3 of the appeal and claimed that the learned trial judge had misdirected himself in faulting the appellant for paying the US $50,000 of the respondent’s money to Hyundai International Trading Corporation c.c.  The appellant’s contention here is that in so far as they, dutifully notified the respondent of the perceived discrepancies and they had furthermore communicated the respondent’s refusal to accept the discrepancies to the correspondent bank, the trial court’s finding against the appellant was not justified.  Where, in a commercial transaction or a contractual relationship a party enters a disclaimer, then that party by virtue of the disclaimer avoids liability for breach.  See the leading case of <strong>HEDLEY BYRNE &amp; CO. Ltd. Vrs. HELLER &amp; PARTNORS LTD. HL (964) AL 465</strong> and also <strong>SMITH VRS. ERIC BUSH; HARRIS &amp; ANOR. VRS. WYRE FOREST DISTRICT COUNCIL &amp; ANOR. (1989) 2 ALL ER 614.  </strong>For a party to take advantage of a disclaimer notice however, I am of the humble view that the disclaimer must in the first place be known by the party against whom it is intended to be applied or invoked, and that party must have accepted that condition expressly or by implication.  This view becomes prominent when it is considered along side the fact that there was no direct contact between the appellant and the respondent before the L/C was issued and that UCP 500 did not seem to have been brought to the notice of the respondent at the time that the L/C was opened upon the instructions of the 1st defendant, and in the absence of the respondent.  Secondly, banking laws and practices are common knowledge, and in the bossom of banking practitioners and not the ordinary unsuspecting member of the public.  Where there is no evidence that a contract was made with the respondent in which both parties acted and accepted the disclaimer, I shudder to think that the appellate bank can effectively unvoke the provision of disclaimer against the respondent.  Parties to a contract must know, understand and accept every term of the contract.  In the instant case, I am of the view that the appellant cannot hide under Article 18 of the UCP 500 for the further reason that they failed to issue an unequivocable instruction to the correspondent bank.  The evidence shows that after they had informed the correspondent bank of the respondent’s failure to accept the discrepancies, and had gone further to instruct the correspondent bank to cancel the credit, the appellant’s woefully vacillated.  Instead of standing firmly and committed to the decision to cancel the L/C, the appellants accepted the explanation from the correspondent bank that</p> <p>(a)  there were no discrepancies, and</p> <p>(b)  that they had received compliant documents prior to the expiration</p> <p>       of the L/C on 29th April 1994.</p> <p>            In view of the above scenario, can the appellant correctly say that they issued instructions to the correspondent bank to cancel the L/C and that the latter bank failed to comply.</p> <p>            What, it may be asked, were the instructions given by the appellant that the correspondent bank failed to honour.  The simple answer is that the appellant bank impliedly withdrew their earlier instructions, by their acceptance of the explanations given by the correspondent bank and that fact amounted in effect, to not giving any instructions at all.  Article 18 of UCP 500 will operate only where valid instructions were given and were not carried out.  The provision, with respect does not avail the appellants.</p> <p>Equally the submissions against the award of interest, based on Art 18 of UCP 500 is dismissed.</p> <p>            I will now proceed to the last ground of appeal, touching on the award of costs.</p> <p>It is common knowledge that the award of costs is at the discretion of the trial judge and his exercise of discretion will not be disturbed except where it is shown that it was exercised on improper legal considerations.  In the present appeal, counsel failed to justify this ground of appeal. He failed to show in what way the costs are seen to be excessive and also did not attempt even in the least to question the trial judge’s exercise of discretion much more to impugn it.  The essence of discretionary authority is the power to choose within a range of acceptable options, whether or not courts might reach differing or even opposite conclusions on the same record.  The failure of appellant to point out any element of indiscretion in the trial court’s award of US$7,000.00 as costs renders us virtually impotent to embark upon any exercise of review.</p> <p>            In totality, the appeal fails and it is accordingly dismissed.</p> <p> </p> <p> </p> <p> </p> <p><strong>                                                                                    G.M. QUAYE</strong></p> <p><strong>                                                                               JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p> </p> <p>I agree.<strong>                                                                  P.K. OWUSU ANSAH</strong></p> <p><strong>                                                                              JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p>I also agree.     <strong>                                                            J.A. OSEI</strong></p> <p><strong>                                                                            JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>COUNSEL  -  MR. MICHEAL AMAFU-DEI FOR THE 3RD DEFENDANT/</strong></p> <p><strong>                        APPELLANT.</strong></p> <p> </p> <p><strong>                         MR. C.B.K. ZWENNES FOR THE PLAINTIFF/RESPONDENT.</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>~eb~</strong></p> <p> </p> <p>                       </p> <p>           </p> <p> </p> <p> </p> </div></div></div> Thu, 22 Nov 2018 12:59:24 +0000 eric 764 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/court-appeal/2006/8#comments