Essak v High Commissioner for Transport (Civil Case No. 3 of 1941) [1942] EACA 1 (1 January 1942)

### ORIGÍNAL CIVIL

#### BEFORE THACKER, J.

### HAJI KHAMISHA JUMA ESSAK. Plaintiff

## HIGH COMMISSIONER FOR TRANSPORT, Defendant

# Civil Case No. 3 of 1941

Clearing clerks—Whether agents or independent contractors—Custom—Harbours Regulation Ordinance, 1928, Sections 17, 27 (2) and 47—Endorsement of Bill of Lading—Definition of "Terminal and other charges" in Section 17(4)— Right to exercise lien in respect of penalty.

In June 1940 the Port Manager of Mombasa claimed from the Plaintiff the sum of Sh. 2,210/88 alleging that Sh. 588/36 were due for underpaid wharfage charges and that Sh. 1.622/52 were due in respect of a penalty of double all charges under Section 27 of the Harbours Regulation Ordinance, 1928. The Plaintiff denied any liability. In July 1940 the Port Manager, acting under Section 17. Harbours Regulation Ordinance, 1928, on behalf of the Defendant detained 12 bales of printed Khangas belonging to the Plaintiff and refused to deliver them to the Plaintiff unless the sum of Sh. 2.210/88 was paid before the removal of the 12 bales. On 15th July, 1940, in order to obtain release of the said bales and without admitting liability, the Plaintiff paid to the Port Manager the sum of. Sh. 2.210/88 plus Sh. 21 being storage charges for late removal and intimated his intention of filing an action to recover the total amount. Notice of intention to commence action, as required by Section 47, Harbours Regulation Ordinance, 1928, was given to the Defendant. In the course of the subsequent suit it was submitted on behalf of the Plaintiff first that the two persons, who were working on his behalf as clearing clerks were not in law acting as agents for the Plaintiff but as independent contractors, because they did this kind of work for others, and secondly that the Defendant was not entitled to exercise a lien in respect of any penalty.

*Held* $(10-6-41)$ .—(1) That the business of a clearing agent may well be a business by itself but it is a business in which the person who does the clearing acts for the person who employs him and is his agent and not an independent contractor.

(2) That by the definition of "Terminal and other charges" in section 17 of the Harbours Regulation Ordinance, 1928, the defendant had a right to exercise a lien to<br>secure a penalty which was in respect of wharfage charges but also to secure wharfage and handling charges otherwise due to the defendant.

$A.$ $B.$ Patel for Plaintiff.

#### Hawes, Solicitor to the High Commissioner for Transport, for Defendant.

JUDGMENT.—It is submitted in this case first: that the two persons Peera and Ismail were not in law acting as agents for the Plaintiff but as independent contractors.

The Plaintiff stated in his evidence that they were working on his behalf as clearing clerks and seemed to suggest that as they did this kind of work for others, they were not his agents. I cannot follow that argument. The two persons Peera and Ismail were working on the Plaintiff's behalf; they were put in funds by the Plaintiff to pay the wharfage charges; they were not the owners of the goods; they were under a duty for which remuneration was payable to clear the Plaintiff's goods and hand them over to the Plaintiff and I can see nothing in their capacity

$\mathbf{v}$

which resembles that of an independent contractor but everything which resembles that of an agent. They are further, although that does not in law of course make them agents, described throughout these proceedings as forwarding and clearing agents. Moreover there is the evidence of Mr. Mooney as to the custom or practice here to regard Peera and Ismail and other persons doing this kind of work as agents and not independent contractors. He had never heard them regarded as independent contractors. As I say all the facts which I have heard go to show that Peera and Ismail were acting as agents, on behalf of the Plaintiff; and with his . authority. The business of a clearing agent may well be a business by itself but it is a business in which the person who does the clearing acts as agent for the person who employs him. The plaintiff states that not only did Peera negligently under-value and under-state the goods in question but criminally defrauded both the High Commissioner and himself. It is clear therefore that Peera and Ismail negligently under-valued the goods to put it no higher by which wrongful act loss was caused to the Defendant for which the Defendant was in turn entitled to enforce the penalty laid down in Section 27 (2) of the Harbours Regulation Ordinance, 1928. I find therefore that Peera and Ismail were acting on behalf of the Plaintiff, their principal, with the authority and within the authority given to them and the principal is liable for the wrongful acts of his agents. Although the Plaintiff himself describes it as a criminal act I am dealing only with Section 27 (2) which does not embrace a criminal offence and deals only with a negligent or wrongful act-a civil wrong. It was suggested at one stage at least but not very seriously that the Plaintiff by endorsing over the Bills of Lading to Peera and Ismail thereby transferred the property in the goods. I cannot accept that suggestion. The Plaintiff himself stated that the property was in him all the time and that by endorsement over he did not intend to transfer ownership. Without this intention there can, of course, be no transfer of the property in the goods. All that the endorsement meant to effect was that the agents were to be given possession of the goods on behalf of the Plaintiff. In interpreting Section 27 (2) of the Harbours Regulation Ordinance, 1928, I am not taking notice of the fact that the Plaintiff has been, as he says, convicted of a customs offence under another Ordinance in connexion with the same goods as are concerned in this action. As Peera and Ismail were acting within the scope of their authority in clearing these goods for the Plaintiff, the Plaintiff is clearly liable for the wrongful act or omission of his agents. It matters not that the correct wharfage charges were handed over by the Plaintiff to his agents. That fact, if it were a fact, and I am not deciding that it was or was not does not absolve the Plaintiff from liability for his agents' wrongful act to the Defendant and it is immaterial.

A second point was raised by the Plaintiff that the Defendant was not entitled to exercise a lien in respect of the penalty. My reading of the definition of "Terminal and other charges" in Section 17 is that the Defendant had the right to exercise a lien in respect of the penalty. Moreover he exercised it not only in respect of the penalty which incidentally was in respect of wharfage charges but also in respect of wharfage and handling charges still due to the Defendant. I am unable to follow the argument that the penalty in respect of the under-payments or improper declarations is something altogether distinct from and alien to the charges themselves and is not covered by the lien section.

The Plaintiff has equally failed to prove that the capacity of Peera and Ismail was that of independent contractors and on the facts it is quite clear they were agents. It was the Plaintiff's intention that they should be his agents and the surrounding facts prove that they were agents. I can further see no real substance in the other submissions raised and in general the Plaintiff has failed to prove that any money was wrongfully claimed from the Plaintiff by the Defendant.

There will therefore be judgment for the Defendant with costs.