JAPAN MOTORS TRADING CO. LTD. vs. WILLIAMS [1986]DLCA929

Date	1986-12-04
Suit No.
Citation No.	[1986]DLCA929

ABBAN JA

OSEI-HWERE JA

AMUA-SEKYI J.A.

C. E. K. KUMADO FOR THE APPELLANTS.

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT.

[1986]DLCA929
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JAPAN MOTORS TRADING CO.
LTD. <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 634<o:p></o:p>

DATE:
4 DECEMBER 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. E. K. KUMADO FOR THE APPELLANTS. <o:p></o:p>

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABBAN, OSEI-HWERE AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.A.<o:p></o:p>On the
admitted facts, the plaintiff bought the motor vehicle in question, a Nissan
diesel bus, from the Trans Africa Engineering &amp; Motor Co. Ltd. For reasons
that have not been disclosed, when the vehicle broke down, the plaintiff did
not go to the dealers for spares, but rather to the defendants through one of
whose directors, Jalal Kalmoni, he placed an order for the spares from Japan.
It is agreed that at that time the vehicle was standing idle and the
defendants, through their director, were aware of this.<o:p></o:p><o:p>&nbsp;</o:p>The order
was placed with the Toyoshima Special Steel Co. Ltd. which by telex gave a
quotation which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“We quote
for Japan as follows: Line Part No Unit Price Delivery: three months after
receipt of your L/C Terms: I.R. confirmed L/C at sight Packing: Wooden cases
Validity: 50 days.”<o:p></o:p><o:p>&nbsp;</o:p>The
suppliers evidently thought that the defendants required a large number of the
spares. When they realised that they were required for the repair of one
vehicle only they sent another message, “Actually we do not want this business.
This customer is important for you?” The defendants replied, “Yes customer very
important.” By then, of course, the plaintiff had got his bankers to transfer
to a Canadian account the cost of the spares and the defendants had in turn
paid the amount to the suppliers. When the spares were not forthcoming the
plaintiff sued the defendants in the High Court, Accra for the return of his
money, interest and damages. Before the hearing was concluded the plaintiff
received the spares and abandoned the claims for the purchase price and
interest. However, the claim for damages was upheld on the ground that the
defendants had failed to deliver the spares to the plaintiff within three
months and the trial judge awarded him substantial damages.<o:p></o:p><o:p>&nbsp;</o:p>It seems
that the import of the words “for Japan” appearing at the head of the telex
message was lost on the plaintiff and the court below. Those two words showed
as clearly as may be that the time for delivery was the time for delivery in
Japan. The contract was of the type known in commercial circles as a FOB
contract, meaning free on board. It is a type of contract which our Sale of
Goods Act, 1962 (Act 137) recognises and enforces and is to be distinguished
from a CF or CIF contract, meaning cost insurance freight, under which the
seller assumes the responsibility for shipping the goods to the buyer. The
rules governing FOB contracts will be found set out in section 62 of the Act
and provide, among other things, that unless a contrary intention appears the
buyer is to nominate a ship to carry the goods and the duty of the seller is to
have the goods loaded on the ship at his own expense. The seller assumes no
responsibility for the insurance or freight nor does he give any guarantees as
to the time of arrival of the ship at its destination. After all, why should he
when the ship was nominated by the buyer? The only representation therefore,
which the suppliers made was that they were ready, willing and able to deliver
the goods within three months at any port in Japan nominated by the defendants
and load them at their own expense on the ship designated by them.<o:p></o:p><o:p>&nbsp;</o:p>There is
another ground on which, I think, this appeal ought to be allowed. It is that
as between the plaintiff and the defendants the agreement was one of agency and
not of sale of goods. The distinction and its implications have been explained
in Benjamin’s Sale of Goods (2nd ed.), para. 47 at p 34-35:<o:p></o:p>