The Proprietor

THE PROPRIETOR; MOK BEER BAR v.
GADA [1979] GLR 35-44

FACTS: The Respondent purchased from the Appellant two bottles of locally made whisky
for 11 Cedi and afterwards asked him to keep them till he comes back to collect them on a later
date. However when the Respondent resurfaced to collect his bottles, the Appellant told him that
his wife had mistakenly sold the two bottles to another customer, prompting the Respondent to
file a suit in the District Court for the recovery of the 11 cedi he had originally paid for the
bottles, suit which ended with a judgment in his favor. The respondent then proceed to institute
another suit in the District court seeking damages for breach of contract by the Appellant, and
was awarded favorable judgment again. However due to the onerous nature of the damage
awarded by the Court, the Appellant then applied for a review of the District Court decision, with
his counsel arguing during the new trial that the request by the Respondent to have the drinks
stored for him was in no way part of a Contract of sale, therefore the Latter couldnt argue that
there was a breach of contract. The Court again found in favor of the Respondent and proceeded
to increase the amount of damages awarded in favor of the Respondent.
The Appellant then proceeded to place an Appeal at the High Court where the counsel for the
Respondent was asked to justify his argument in the previous review Decision, to which he
submitted that the Respondents request to have the drinks stored for him was an integral part of
the original contract of sale and therefore by failing to store them and selling them, the Appellant
had breached the contract. The Court also envisaged the issue at hand in the spectrum as to
whether or not the Appellant was in Bailee position in respect of the drinks purchase and stored
with him. The last contention of the Respondent was that by having failed to store the drinks, the
Appellant had lost his reputation as a honest person, therefore justifying the onerous damages
awarded against him.
PROCEDURAL HISTORY: The case was first heard at the District Court and subsequently
reviewed again in the District before being brought up on Appeal before the High Court.
ISSUES:
Whether or not the non-delivery of the two bottles constituted a breach of the Contract? Thus
should the request to collect the bottles at a later date be considered as a condition of the contract
of sale?
Whether or not by keeping the Bottles, the relationship had transitioned from a contract of sale to
one of a Bailor to Bailee relationship? And if such, what were the legal implications?
Whether the responsibility of the Appellant in the loss of the bottles entitled the Respondent to
damages?
HOLDINGS: APPEAL ALLOWED

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.
The buyer had a duty to collect the goods as soon as he purchased them, thus by agreeing
to keep them, the relationship had transitioned to that of a Bailor-Bailee relationship.
The Appellant as a Bailee therefore had a duty to take care of the goods placed in his
custody, in as much as those goods were also his own products. However since the
Appellant had already paid off the price of the two bottles to the Respondent, the Court
could not order again for a recovery of the price for the two bottles.
However the award of damages should be set aside as even though the Appellant could be
held vicariously liable for the conversion of the goods by his wife, the Respondent
couldnt prove any kind of special damages nor any extra costs aside the fact that the
bottles were simply not given to him. The argument on reputation is however too
farfetched
.
RATIO DECIDENDI:
AGYEPONG J:
The Learned on the first ground stated that the agreement to keep the Drinks on behalf of the
Respondent fell outside the contract of sale and could in no way be considered as a condition of
the contract. The Learned Judge argues that the agreement to collect the drinks afterwards by the
Respondent was in no way stipulated at the onset of the sale contract, but emerged only after
payment. 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." However AGYEPONG J in his
interpretation of the above statute, argues that the Appellant was ready to deliver the bottles on
the spot but if not for the request for the Respondent to collect them later, he would have done
so. Therefore the Appellant had dully complied with section 15(1) of the Sales of Goods Act.
Section 16 (2) of the same Act provides that :"Unless a contrary intention appears stipulations
as to the time of delivery are conditions of a contract of sale." The Learned Judge on this second
point of Law argues that the Facts of the present case could not be reflected within the meaning
of the statute as explained above, delivery would have been effected on the spot if not for the
Respondent to postpone it. AGYEPONG J in explaining his decision, relied more on the Section
21 of the Act: "The fundamental obligations of the buyer in a contract of sale are to pay the price
and accept delivery of the goods." and Section 23 of the same Act: "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. Therefore the learned Judge argues that per Section 21 the duty was on the
Respondent to have accepted the drinks after he had paid the purchase price and by asking the
Appellant to keep the bottles, the respondent had failed in his duties. Also in respect of Section
23, AGYEPONG J stated that the Respondent once again failed as his request to come and
collect the bottles at a further date was not a condition nor could it have been held as such since
he didnt even state a specific date as to when he would come to collect.
AGYEPONG J however appeared to agree with the Respondents submission that in fact by
agreeing to keep the bottles for a later collection, the Appellant had transitioned into a Bailee.
The Learned Judge the quotes Section 27(4) of the ACT 137: 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.
The Learned Judge states that as a Bailee , the Appellant had a duty to take good care of the
Respondents property and was liable to pay for the goods if they were damaged or lost,
irrespective of whether the Bailor-Bailee relationship was created out of a contractual
relationship or not. He cites the case of Busi & Stephenson (Ghana) Ltd. v. Opoku [1962] 2
G.L.R. 96.
AGYEPONG J, relying on the decision in Hollins v. Fowler (1875) further held that the
Appellants wife had been guilty of conversion by selling the respondents property to another,
irrespective of whether she knew or not that they belonged to the Respondent. Thus in this
present case, there was no argument as to the Appellant being vicariously liable for the
conversion of his wife. Thus the Learned Judges contention that the charge on the Appellant
would have been better suited as a Breach of his duties as a Bailee rather than the Original
charge of Breach of contract.
In respect of his dismissal as to quest of damages for the Respondents, the Learned AGYEPONG
J stated that the Appellant was guilty of conversion at the most thus was liable to compensate the
Respondent for the price of the two bottles, something the Appellant had already done. However
by failing to provide any evidence as to any special costs incurred I relation to the nonprovidence of the bottles of Whisky, the Respondents have provided no form of evidence. The
Learned Judge further stated that the claim that the Respondent had lost faith and confidence in
the appellant was too remote to constitute any grounds for special damages.

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THE PROPRIETOR; MOK BEER BAR v.

GADA [1979] GLR 35-44

HOLDINGS: APPEAL ALLOWED

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