NANOR vs. AUTO PARTS LTD [1992]DLHC2042

Date	1992-03-27
Suit No.
Citation No.	[1992]DLHC2042

LUTTERODT J.

KODWO E. NUNOO FOR THE PLAINTIFF.

PETER A. ADJETEY FOR THE DEFENDANT.

[1992]DLHC2042
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">NANOR<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AUTO PARTS LTD<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 273<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 27 MARCH
1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KODWO E. NUNOO FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

PETER A. ADJETEY FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT OF LUTTERODT J.<o:p></o:p>The plaintiff, who at the date of the issue of this writ described
himself as a lotto agent, has sued out this writ for an order of specific
performance of a contract of sale of a Nissan Homer bus or in the alternative
damages for breach of contract.<o:p></o:p>The plaintiff claimed in paragraphs (3), (4) and (5) of his
accompanying statement of claim that (1) a firm contract for the sale of the
vehicle was concluded between him and the defendants, a firm dealing in motor
vehicles on 29 June 1977; (2) that he paid the full purchase price of ¢19,800;
and (3) that the defendants promised to deliver the vehicle by 20 December
1977. These were all denied by the defendants. They contended on the other hand
that:<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l1 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1).
No firm contract was ever
concluded between the parties.<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.25in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l1 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2).
He did not pay the full
purchase price though they admitted he did pay the sum of ¢19,000. Their case
was that this was on account, i.e. part payment for the price.<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-top:0in;margin-right:0in;margin-bottom:
5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l1 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(3). They gave no delivery date for the vehicle.<o:p></o:p>I will therefore in the first place determine whether or not a
contract for the sale of a Nissan Homer bus was concluded between the parties.
I will have no difficulty in answering in the affirmative. Under our Sale of
Goods Act, 1962 (Act 137), s 1(1) a contract “of sale of goods is a contract
whereby the seller agrees to transfer the property in goods to the buyer for a
consideration called the price, consisting wholly or partly of money.” And
section 6(1) of Act 137 provides that the price “may be fixed by the contract
or may be left to be fixed in a manner thereby agreed, or may be determined by
the course of dealing between the parties.”<o:p></o:p>The parties are agreed that the plaintiff offered to buy and the
defendants promised to sell him a Nissan Homer 23-seater bus. The matters they
are not agreed upon are (1) the price of the vehicle; and (2) the date of
delivery.<o:p></o:p>But the mere fact that there is now a dispute over the price does
not mean no contract was formed or that even if one was formed it is negated by
the fact that no fixed price was agreed upon. Suffice it to say a price was
agreed upon; either it was that which, as alleged by the plaintiff, was fixed
at the date of contract, or as contended by the defendants, the price was to be
finally ascertained at the date of delivery. By the clear provisions of section
1(1) of Act 137, a contract of sale was entered into between the parties.<o:p></o:p>It is however crucial to determine which of these two rival claims
represents the true state of affairs, for the defendants completely deny that
(1) the plaintiff has fully paid for the vehicle and so performed all of his
obligations under the contract; and (2) consequently that they are the
defaulting party. In other words they are saying it is the plaintiff who is in
breach.<o:p></o:p>It seems to me that contrary to the plaintiff’s assertion, all
payments he made wi</main>