The Proprietor; Mok Beer Bar v. Gada [1979] GLR 35, Holding1 @ 40-41, H.C..

MOK BEER BAR v. GADA [1979] GLR 35-44 HIGH COURT, ACCRA AGYEPONG J.
JUDGMENT OF AGYEPONG J
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Agyepong J. The appellant is the proprietor of a beer bar, called Mok, at Zongo Lane, Accra.

The case of the respondent in the court below was that on 18 December 1974, he went to the appellant's beer bar and purchased two bottles of locally made whisky from the appellant.  According to the respondent, he bought the whisky in the presence of the appellant's wife.  The respondent paid for the whisky.  He appealed to the appellant to reserve the two bottles of whisky for him until he came for them.  When the respondent went to collect the bottles of whisky, the appellant told him that he had sold them to another customer and collected the proceeds thereof in addition to the purchase price already paid by the respondent for the two bottles of whisky.

The respondent took action against the appellant in the court below the outcome whereof was that the appellant paid ¢11.00 the cost of the bottles of whisky and ¢2.00 court fee to the respondent: but no costs.  The action which provoked the appeal was subsequently brought in the same court by the respondent to claim ¢1,000.00 damages for breach of contract of sale.

The basis of the respondent's claim for damages was that "the drinks were ordered through me for a very good friend of mine called Kofi Braku." As the respondent could not fulfil his promise of supplying the drinks to his said friend, following the breach of contract, Kofi Braku said he would not trust the respondent, consequently the respondent had become dishonest in the eyes of that friend, and had been disgraced before that friend. It appeared from cross-examination of the respondent, however, that he bought the drinks on 11 December 1974, and came to collect them from the appellant on 23 December 1974.

In support of the respondent's claim for damages, he, as plaintiff called Kofi Braku as his first witness.  Braku, a poultry farmer at Gomoa Ekwamkrom, said by failing to supply him with the drinks, the respondent had disappointed him during Christmas 1974, for a party which he Braku wanted to hold for people on his farm could not come on because of the absence of the drinks.  Braku therefore refused to see the respondent.

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At the close of the respondent's case, learned counsel for the appellant in the district court, Mr. Amofa, made a submission that there was no case for the appellant to answer. The contention of Mr. Amofa was that the agreement of the appellant to keep the drink for the respondent was not part of the contract of sale of the drinks; consequently there could be no breach of that contract of sale. The district court, presided over by his worship Mr. S. A. Brobbey, overruled the submission of Mr. Amofa, holding that the agreement of the appellant to keep the two bottles of whisky for the respondent was part of the contract of sale and therefore the appellant, in failing to deliver them when the respondent called for them, was in breach of that contract of sale.
The learned magistrate then proceeded to deliver judgment in favour of the respondent, awarding ¢300.00 damages and ¢40.00 costs against the appellant, on the ground that as a result of the appellant's breach of contract, the respondent's reputation had been lowered in the estimation of Braku.

This judgment was, on the application for review by Mr. Amofa, set aside. In the affidavit supporting the application, the appellant swore that he was advised and verily believed that his counsel, Mr. Amofa, should have been put to his election by the court, that is to say, the court ought to have asked Mr. Amofa to indicate to the court whether or not Mr. Amofa intended to put the appellant in the witness-box in the event of the failure of the submission; and it was only when Mr. Amofa elected not to call evidence if the submission was overruled that the court could proceed to give judgment after the failure of the submission without hearing evidence from the appellant.

When the judgment was set aside on the application of the appellant, the appellant went into the witness-box and gave evidence. In his evidence, the appellant said after the respondent had purchased the drinks and paid the purchase price, the respondent appealed to him to keep the drinks until the respondent came for them. Unfortunately the appellant's wife, in the absence of the appellant, sold them to another customer. So when the respondent came to collect the drinks, the appellant told him of this and offered to pay the value of the drinks to the respondent, but the respondent refused, and took action against the appellant in the district court; and the appellant paid the value of the drinks to the respondent.

This piece of evidence, like the rest of the evidence of the appellant, was not challenged in cross-examination, because there was none. The respondent was not even in court and did not give evidence even though the judgment he obtained against the appellant was set aside.

The district court nevertheless gave judgment against the appellant holding that the agreement of the appellant to keep the drinks till the respondent collected them was part of the contract, and that in failing to deliver the whisky to the respondent, the appellant was in breach of the contract. Apart from holding that the reputation of the respondent had been lowered in the estimation of Kofi Braku, a businessman, the court increased the damages to ¢350.00 and the costs to ¢75.00, because the respondent had also filed a motion for a review of the earlier judgment

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asking for increased damages and costs. This motion of the respondent was never heard by the district court. Nor could it be heard since the judgment the respondent was seeking to have reviewed itself had ceased to exist following the court's setting aside of that judgment on the application for a review by the appellant.

When the appeal came up for hearing on 17 February 1978, I called upon Mr. Tsikata, learned counsel for the respondent herein, to support the judgment. Mr. Tsikata contended that the agreement of the appellant to keep the drinks was an integral part of the contract of sale, and inasmuch as the appellant failed to deliver the drinks when the respondent called for them, the appellant was in breach of the contract and therefore liable to the respondent in damages.

Learned counsel referred to sections 15 and 16 of the Sale of Goods Act, 1962 (Act 137), and said the time for delivery was itself negotiable. He submitted that the sale was not complete until there was delivery, and that the duty to deliver was the duty of the seller. On the question of quantum learned counsel submitted that the re-sale of the whisky by the appellant's wife amounted to conversion by the appellant through his wife, and the appellant was therefore vicariously liable for the act of his wife. He again submitted that even though actual damage was not proved, substantial damages for the trespass depending on the circumstances might be awarded and cited Interoven Stove Co., Ltd. v. Hibbard and Painter [1936] 1 All E.R. 263 in support of the contention.

He defended the quantum of damages on the ground that it was Christmas time, and particular embarrassment was caused to the respondent by the absence of the whisky. The conduct of the appellant was not free from blame, for he failed to tell his wife that the whisky was for somebody. At least the wife was negligent, and this negligence must be imputed to the appellant.

Learned counsel also defended the increase of the damages to ¢350.00 and the costs to ¢75.00, arguing that when the appellant asked for a review of the judgment the respondent also asked for a review of the costs. And on hearing the respondent, the court increased the damages to ¢350.00, of which, counsel contended, ¢150.00 was the cost of prosecuting the action. Counsel said nothing about the ¢75.00 increased costs.

Mr. Quansah, learned counsel for the appellant, agreed with Mr. Tsikata that there was a breach of a condition of the contract of sale, and that the agreement of the appellant to keep the drinks until the respondent collected them was part of the contract of sale. He, however, attacked the quantum of damages, contending that the respondent had moved from contract to tort, that is, the tort of conversion. Not only that, the respondent had again moved from conversion to defamation.

When Mr. Tsikata was given leave to reply to the submission of Mr. Quansah, he referred to Atiyah's Sale of Goods (4th ed.) at p. 301, and contended that as between the parties to the contract, the action in tort had no advantage and was rarely used.

What I have to decide first having regard to the evidence and the submission of learned counsel is whether the agreement by the appellant to

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keep the whisky until the respondent collected it was a condition of the contract of sale. In my view the agreement by the appellant to keep the whisky for the respondent was not a condition of the contract of sale, it was outside it. For this was not a case where right from the start of the offer of the whisky for sale and its acceptance by the respondent, it was stipulated by the parties that the whisky was not to be delivered at once, but its delivery was to be postponed until the respondent called for it. According to the respondent himself he purchased the two bottles of locally made whisky from the appellant in the latter's beer bar. The respondent paid for them. He appealed to the appellant to keep them until he the respondent came to collect them. If it was a condition of the contract that the delivery of the whisky by the appellant was not to take place until he the respondent called for it, there would have been no need, after the respondent had paid for the whisky, to appeal to the appellant to keep it for the respondent until the respondent collected it.

Sections 15 and 16 of the Sale of Goods Act, 1962 (Act 137), relied on by learned counsel for the respondent in support of his contention that the agreement of the appellant to keep the whisky for the respondent was a condition of the contract of sale, come under Part II of the said Act, which deals with the duties of the seller, including the obligation of the seller to deliver. Section 15 (1) of the Act provides that, "Unless otherwise agreed the seller must be ready and willing to deliver the goods in exchange for the price." On the evidence the two bottles of whisky were available for collection by the respondent, but after the respondent had paid the purchase price, he appealed to the appellant to keep the two bottles of whisky until the respondent came back to collect them. The necessary inference was that the appellant was ready and willing to deliver the two bottles of whisky on the spot in exchange for the purchase price. The appellant therefore complied with section 15 (1) of the Act above quoted.

Section 16 (2) of the same Act provides, "Unless a contrary intention appears stipulations as to the time of delivery are conditions of a contract of sale." That also deals with the obligation of the seller to deliver. And it means if the seller stipulates to deliver the goods not at the time of the contract of sale, that is, not at the time of offer and acceptance, but at a later time, and the buyer agrees to this, then the stipulation as to the delivery is a condition of the contract of sale, and the buyer is entitled either to repudiate the contract completely if that stipulation is breached by the seller or accept damages for the breach in lieu of outright repudiation. That was not the position here.

It seems to me that the sections of the Act that are appropriate in the present circumstances are sections 21 and 23 which fall under the duties of the buyer. Section 21 of the Act provides, "The fundamental obligations of the buyer in a contract of sale are to pay the price and accept delivery of the goods." It is the duty of the buyer to accept delivery of the goods after he has paid the purchase price. Accordingly it was the respondent's duty after he had paid the purchase price of the two bottles of whisky to accept delivery of the two bottles of whisky. That duty he failed

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to perform. Rather he appealed to the appellant to keep the whisky for him until he (the respondent) came to collect them.

Section 23 of the same Act says, "Unless otherwise agreed stipulations as to the time of payment or as to the time for accepting delivery are not conditions of a contract of sale." There is no evidence that the stipulation by the respondent to postpone acceptance of delivery of the whisky was specifically made a condition of the contract of sale. The non-delivery of the two bottles of whisky at the time the respondent called for them was not therefore a breach of a condition of the contract of sale, and inasmuch as the learned magistrate held to the contrary, he erred in law. The respondent did not show a particular date on which he would collect the two bottles of locally made whisky. I would therefore hold that the delay in the delivery was the fault of the respondent.

Section 27 (3) of the Act provides:

"(3) Where delivery of the goods has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss, damage or deterioration which might not have occurred but for the delay."

(The emphasis is mine.)

I have held that the learned magistrate erred in law in holding that the stipulation as to the delay in the acceptance of delivery of the two bottles of whisky was a condition of the contract of sale of the said bottles of whisky; consequently the magistrate's award of damages against the appellant on the basis that it was a condition of the contract of sale was erroneous and cannot stand.

But the High Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 58, r. 18, (1) empowers me to give any judgment which the trial magistrate ought on the facts to have given, or make any other order that he should have made. I will therefore not dismiss the appeal simply on the ground of the error of law above-mentioned. I think on the facts the appellant became a bailee of the two bottles of the locally made whisky after agreeing to keep them for the respondent until the respondent came for them. In this respect I would agree with Mr. Tsikata, learned counsel for the respondent, that there was some negligence on the part of the appellant in not warning his wife that the two bottles of locally made whisky belonged to somebody and ought not to be sold to another customer.

Section 27 (4) of the Sale of Goods Act, 1962 (Act 137), dealing with transfer of risk in goods sold provides as follows:

"(4) Nothing in this section affects the duties or liabilities of either seller or buyer as a bailee of the goods of the other party or any destruction or loss or deterioration of or damage to the goods which is caused by the fault of either party."

What are the duties and liabilities of a bailee in connection with goods in his custody? It is the duty of a bailee to take reasonable care to keep and preserve the goods; it is his duty to exercise that degree of care which might reasonably be expected from a reasonable man in respect of his own

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goods; if he fails to exercise that degree of care he will have to pay for them when they are lost. That was the decision in Busi& Stephenson (Ghana) Ltd. v. Opoku [1962] 2 G.L.R. 96. In that case the defendant, a clerk of the plaintiffs, his employers, failed to account for some missing bags of cocoa received by him for his employers. It was held that, to discharge that duty, the defendant must prove that the cocoa was lost without any default on his part. In the absence of such proof the defendant was liable. Further it was held that whether the plaintiffs' action was based on contract or on tort, the plaintiffs' claim must succeed.

This authority was based on two English cases: The first is Bullen v. Swan Electric Engraving Co. (1907) 23 T.L.R. 258, C.A. in which the Court of Appeal, affirming Walton J. held that while it was not necessary for the bailee to show exactly how the loss happened, it was necessary for him to show that he had used as much care as a reasonable man would use in protecting his own chattels. The other English authority is Joseph Travers & Sons Ltd. v. Cooper [1915] 1 K.B. 73, C.A. where all the members of the Court of Appeal, reversing Pickford J., took the view that it was incumbent on the defendant therein, a bailee, when the goods bailed to him were lost, to prove that he had taken reasonable care to keep and preserve them.

In the present appeal, if it were not that the appellant had already paid for the two bottles of whisky, the district court could legitimately have ordered recovery of their value by the respondent from the appellant.

The point was also made by Mr. Tsikata that the appellant's wife committed conversion of the two bottles of whisky by selling them to another customer. That point was also well founded, despite the apparent ignorance of the appellant's wife that the two bottles of whisky belonged to the respondent, and her apparent belief that they belonged to the appellant and she could therefore sell them to other customers of the appellant. It was held by the House of Lords in Hollins v. Fowler (1875) L.R. 7 H.L. 757 that honest but mistaken belief of the defendant that he had the right to deal with the goods is no defence. In that case B. fraudulently obtained possession of cotton from Fowler. Hollins, a cotton broker, who was ignorant of the fraud, bought it from B. and resold it to another person, receiving only broker's commission. Hollins was held liable to Fowler for conversion of the cotton. It is doubtful, however, if in the English case cited, the buyer from Hollins, and in the present case, the buyer from the appellant's wife, would have been liable for conversion having regard to statute and the common law principle of purchase in market overt. Of course, in the present case, the appellant was vicariously liable for the conversion by his wife.

In sum, the learned magistrate could have held the appellant liable for the breach of duty as a bailee of the two bottles of whisky, and so I hold here.

Mr. Tsikata defended the quantum of damages awarded by the learned magistrate. Whether the action of the respondent was based on the contract of bailment or on the tort of conversion, the principle of the

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assessment of damages is the same as long as both involved complete loss of the subject-matter of the suit.

In the case of conversion, generally the measure of damages is the value of the chattel, credit being given to the defendant for the return of the chattel or its equivalent. And on principle it seems better to select the moment of conversion as the punctum temporis for assessing damages: see Winfield on Tort (8th ed.) at p. 517.

But the value of the chattel at the date of the conversion may not be the only element of the plaintiff 's loss. See Winfied on Tort (8th ed.) at pp. 517-518:

"In addition he may recover any special damage he pleads which the law does not regard as too remote. So where a carpenter's tools were converted and he was thereby prevented from working, £10 above the value of the tools was awarded as special damage. Damages may also extend to loss suffered while the article is being repaired, and extra loss suffered by the inability of the plaintiff to deliver goods to a third party to whom he had sold the goods before the defendant made away with them."

The carpenter's case is in fact Bodely v. Reynolds (1846) 8 Q.B. 779.

In Busi & Stephenson (Ghana) Ltd. v. Opoku already cited, the plaintiffs recovered the value of the missing cocoa; but they did not get any special damages in addition because they neither pleaded nor proved any. If they had, they would have been awarded special damages as well. The same principle of assessing damages would be applicable if I were to hold that the agreement by the appellant to keep the whisky until the respondent returned to collect it was a condition of the contract of sale: see the Sale of Goods Act, 1962 (Act 137), ss. 55 and 56.

Now in the present appeal, the respondent took action in the district court grade I against the appellant and recovered the value of the two bottles of the locally made whisky, that is ¢11.00, and ¢2.00 court fee. Following the principle in Badu v. Adampa [1976] 2 G.L.R. 450, C.A. he brought another action, the present one, in the same court constituted by the same magistrate to claim general damages. The respondent did not allege, plead, or prove any special damage. There was no evidence, for instance, that he had to buy another two bottles of locally made whisky at an increased price to replace those he originally purchased from the appellant when their re-sale was made known to the respondent. All the respondent said was that because he could not supply the whisky to Kofi Braku, he had disappointed him and was regarded as dishonest by Kofi Braku. This could not be special damage. Apart from that, even if this could be regarded as special damage, the loss of reputation is too remote. That the respondent's reputation would be lowered in the estimation of his witness was not reasonably foreseeable by the appellant: see Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound) [1961] A.C. 388, P.C. fully discussed in Winfield on Tort (8th ed.) pp. 94-96. The action of the respondent which culminated in this appeal is therefore wholly without merit.

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The funny thing about the damages and costs is that, as already stated, the learned magistrate first awarded damages of ¢200.00 and ¢40.00 costs against the appellant. Before the delivery of the first judgment in which the said damages and costs were awarded, the respondent and his first witness had given evidence, but the appellant had not. This first judgment was set aside. Then the appellant gave evidence, but the respondent and his first witness did not. Yet in the second judgment, against which this appeal was brought, the learned magistrate increased the damages to ¢350.00 and the costs to ¢75.00. The less said about the learned magistrate's award of damages the better.

I will simply allow the appeal, and set aside the judgment of the district court grade 1. If the damages or costs or both awarded in favour of the respondent by the lower court have been paid, they should be refunded to the appellant.

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