HASNEM ENTERPRISES LTD vs. SWISS AFRICAN TRADING CO [1999-2000] 1 GLR 1

CASES REFERRED TO

(1) Dam v Addo [1962] 2 GLR 200, SC.

[p.3] of [1999-2000] 1 GLR 1

(2) Lartey v Bannerman [1976] 2 GLR 461, CA.

(3) Nkyi XI v Kumah [1959] GLR 281, CA.

(4) Dove v Wuta-Ofei [1966] GLR 299, SC.

(5) Akyerefie v Breman-Esiam Stool (1951) 13 WACA 331.

(6) Ababio IV v Quartey (1916) PC ‘74-’28, 40.

(7) Mamudu Wangara v Gyato Wangara [1982-83] GLR 639, CA.

(8) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; [1956] 2 WLR 81; [1955] 3 All ER 864, HL.

(9) Fischer & Co v Thompson (1904) 1 Ren 302.

(10) Akua Oye v Baddu (1924) DCt ‘21 –’25, 116.

(11) Oloto v Williams (1944) 10 WACA 23.

(12) Ackumey v Kumah [1989-90] 2 GLR 283, CA.

NATURE OF PROCEEDING

APPEAL by the appellant company to the Court of Appeal from the judgment of the appellate High Court dismissing its appeal from the decision of the trial district court awarding damages against the appellant in an action brought by the respondent company for specific performance of a contract by the appellant to sell four swivel chairs to the respondent. The facts are sufficiently set out in the judgments of Lamptey and Wood JA.

COUNSEL

Essien for the appellant company.

Barton Oduro for the respondent company.

JUDGMENT OF LAMPTEY JA.

The facts that led to the mounting of the action in the instant appeal are fairly simple and straightforward. These are that the manager of Hasnem Company, the plaintiff-respondent (hereinafter referred to as the respondent) entered the premises of Swiss African Trading Co. the defendant-appellant (hereinafter referred to as the appellant) in Sekondi, bought and paid for six chairs on 16 August 1979. He took immediate delivery of two chairs and was advised by the storekeeper of the appellant to send a vehicle at his expense to collect the four remaining “executive swivel secretarial chairs” the following day. Accordingly, a vehicle was sent to the appellant the next day to collect and take delivery of the four special chairs. The driver was sent back without the four chairs. After several fruitless and disappointing journeys, needless to add time consuming and expensive journeys, when it became obvious

[p.4] of [1999-2000] 1 GLR 1 that the appellant was in no position to honour and perform its obligation under the agreement, the respondent sued the appellant on 16 June 1989, that is, after a period of ten years had elapsed. It claimed an order of specific performance directed at the appellant as claimed and stated in its writ of summons. The case was heard on the merits. The trial magistrate entered judgment for the respondent. In place of an order for specific performance, which was the relief sought by the summons, he ordered the appellant to pay damages in the sum of ¢1.5 million to the respondent together with costs. The appellant was dissatisfied and aggrieved by the judgment. It appealed to the High Court, Cape Coast. The appeal was heard on the merits. The appellate court dismissed the appeal and affirmed the judgment of the district court. It is against the judgment of the High Court Cape Coast that the appellant appealed further to this court on eight grounds of appeal and one additional ground of appeal.

Before I deal with the appeal on the merits, I must consider an issue of law raised, in limine, by counsel for the respondent. The issue was formulated as follows:

“ In response to paragraph (2) it is submitted that to the extent that no leave of the court was sought and granted to argue additional grounds of appeal filed on 30 October 1998, the court should ignore all the arguments purported to be advanced in support of the said additional grounds of appeal.”

In reply, counsel for the appellant stated that by consent of lawyers for the parties herein, the Court of Appeal had ruled that the additional grounds filed without leave of the court be admitted to form part of the record of appeal. He did not exhibit a certified true copy of the said ruling of this court in support of his submission. Be that as it may, since counsel for the appellant is an officer of the court, I have no doubt that he stated the true position as he was in duty bound to do and act. In any case, the objection was raised in open court when the appeal was called for hearing. I take the view that the objection was abandoned by counsel for the respondent. I therefore overrule the objection and hold that the additional grounds filed without leave of the Court of Appeal are properly before this court. I admit the additional grounds of appeal as part of the record of appeal.

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In his statement of case on behalf of the appellant counsel submitted that:

“(6) The district magistrate awarded damages to the plaintiff. The authority for the exercise of this power was founded on the case of Lartey v Bannerman [1976] 2 GLR 461, CA even though there was no alternative relief for damages as was the case in the circumstances of the case of Lartey v Bannerman.”

He next argued in paragraph (7) that the trial court wrongly applied the law as stated in Dam v Addo [1962] 2 GLR 200 at 203-206, SC. He concluded that the trial magistrate erred in law when he failed to dismiss the claim of the respondent. Based on the above, he submitted that the appellate court fell into error when it affirmed the judgment of the trial court. He argued that the appellate court erred in law when it affirmed the award of damages to the respondent since it did not seek that relief by its writ of summons. In reply, counsel for the respondent submitted that the appellate High Court did not err in law when it affirmed the award of damages. He based himself on the principle of restitutio in integrum. He stated that the case of Dam v Addo (supra) could be distinguished from the instant case.

I find the submission that the trial magistrate erred when he applied the statement of the law in Lartey v Bannerman [1976] 2 GLR 461, CA in determining the case before him as plainly misconceived. A careful and critical reading of the Lartey case (supra) will show that a court minded to do justice and, in particular, to avoid multiplicity of actions must, suo motu, order or make such amendments as would resolve and determine the real issue in dispute between the feuding parties before it. At 467 of the report of the Lartey case (supra), Amissah JA stated the legal position thus:

“We in this court have power, under rule 31 of the Court of Appeal Rules, 1962 (L.I. 128), where we think that the interests of justice demand it, to amend the record in the case so as to determine the real question in controversy. In my view this is a case in which our powers should be exercised. It is a procedural matter. The substance of the case is not changed in any way. I would accordingly amend the writ and pleadings by

[p.6] of [1999-2000] 1 GLR 1 substituting the name of Joseph Blankson Lartey for Patience Larley Lartey as plaintiff.”

Sowah JA (as he then was) expressed the same opinion at 467 when he stated: “I am in agreement with the order of the court substituting Blankson Lartey for the plaintiff.” Jiagge JA agreed with the order made by the court. The issue of law raised in the Lartey case (supra) was whether or not the court had power, suo motu, to amend the writ and the pleadings in the appropriate case. The answer is that rule 31 of LI 218 and of the Court of Appeal Rules, 1997 (CI 19) empowers the Court of Appeal to exercise that power.

It is trite learning that the court would and should exercise this power in the appropriate case. I start with a consideration of some only of the early cases. In Nkyi XI v Kumah [1959] GLR 281 CA the Court of Appeal amended the writ of summons by adding a declaration of title, a relief that the plaintiff had not specifically claimed. In the case of Dove v Wuta-Ofei [1966) GLR 299, SC the former Supreme Court, of its own motion, amended the title of the suit by adding the words “for himself and on behalf of his wife Mrs Ofei.” At 317 of the report Apaloo JSC (as he then was) said:

“That [amendment] would put an end to that objection and will obviate any necessity of the plaintiff’s wife bringing an action of her own to seek protection in respect of that part of the building that lies on her plot.”

Apaloo JSC (as he then was) applied the decision of the West African Court of Appeal in Akyireie v Paramount Stool of Breman-Esiam (1951) 13 WACA 331. See also the case of Ababio IV v Quartey (1916) PC ‘74-’28, 40.

I must point out that the power granted to the Court of Appeal by rule 31 of LI 218 was restored to this court by rule 31 of CI 19. In the case of Mamudu Wangara v Gyato Wangara [1982-83] GLR 639, CA the Court of Appeal held as stated in the headnote at holdings (1) and (4) as follows:

“(1) An appeal was by way of rehearing and that meant having a look at and taking into consideration all the relevant evidence on record. The appellate court was virtually in the same position as if the rehearing were the original hearing and

[p.7] of [1999-2000] 1 GLR 1 might review the whole case and not merely the points as to which the appeal was brought …

(4) Where there was a legal right which could be asserted either at law or in equity, a court of equity had jurisdiction to grant an injunction in protection of that right…. The plaintiff’s right of occupation should therefore be protected by injunction.”

The decided cases all go to show that the appellate court in order to avoid multiplicity of actions could amend any writ of summons where it was appropriate to do so, and in cases where it would not cause an injustice to the other party. The principles of law stated in these cases may be applied in the instant case. On the undisputed facts pleaded and the evidence on record it is plain and clear beyond any argument that this was a simple case of breach of contract. The remedies open to an aggrieved party under the Sale of Goods Act, 1962 (Act 137) included a claim for damages for breach of the contract. Solicitors acting for the respondent failed or omitted to seek leave to amend the writ to make this claim or do both, namely damages for breach of contract up to the hearing of the plaint at the district court. At the appellate High Court, counsel for the respondent did not advert to Act 137 and seek to amend the endorsement in the writ of summons with leave of that court in order to claim damages in the alternative; to avoid multiplicity of actions. This court must exercise its powers under rule 31 of CI 19. On the record, the undisputed evidence satisfied me that the appellant breached the contract to supply and deliver to the respondent four executive swivel secretarial chairs and ought to be condemned to pay damages for the breach. See on this, sections 15 (1) and 16(4) of Act 137. See further, sections 53 and 54 of Act 137. I will amend the writ to include in the alternative under head (b) a claim for damages for breach of contract.

The law governing breach of contract is stated at section 15 of Act 157 thus: “15. (1) Unless otherwise agreed the seller must be ready and willing to deliver the goods in exchange for the price.” In the instant case, the goods were sold by description and the respondent promptly paid the whole of the purchase price, which payment the appellant accepted. The appellant was enjoined to make immediate delivery of all the six chairs to the respondent on the same

[p.8] of [1999-2000] 1 GLR 1 date, place and time. In the present case this was not done and had not been done at the date the writ was issued. The law was breached by the appellant. It also failed to satisfy section 16 (4) of Act 137 which provides:

“(4) Where the buyer agrees to accept delivery from the seller at a date later than that stipulated in the contract without substituting another date therefor the seller must deliver the goods within a reasonable time, having regard in particular to the reasons for which delivery was postponed, and the buyer may, on reasonable notice to the seller, notify him of the latest date on which delivery will be accepted.”

The statutory obligation of the seller is clear and does not admit of any problem in its application. In the instant case, it cannot be disputed that the appellant breached the duty to supply and deliver the four remaining swivel chairs within a reasonable time. I must point out that the parties cannot in law contract outside the express provisions of Act 137. On the evidence before the district court the appellant breached section 16(a) of Act 137. The respondent in these circumstances could resort to the remedies spelt out at section 49 of Act 137 or in the alternative, refer to and rely on the personal right of a buyer spelt out in Act 137, ss 53 and 54. I must point out that the above rights of the buyer are legal rights.

The quantum of damages for breach of contract are stated at section 54(1) of Act 137 as: “…the loss which could reasonably have been foreseen by the seller at the time when the contract was made as likely to result from his breach of contract.” The indices for assessing the quantum of damages are provided at section 54 (2) of Act 137 as follows:

“(2) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the market or current price and the contract price— (a) if a time has been fixed for delivery, or if the seller repudiates the contract before the time of performance, and the buyer does not accept the repudiation, at the time or times when the goods ought to have been delivered;

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(b) in any other case at the time or times of the refusal to deliver the goods.”

In my opinion these legal rights guaranteed to a purchaser cannot be compromised and are enforceable. I believe that the solicitor for the respondent should have pursued in the special circumstances the legal rights under Act 137 and not relied on the equitable reliefs and remedies available to the respondent.

A ground of appeal, argued by counsel for the appellant was that the judgment was against the weight of the evidence on the record. He did not advert to the evidence on the record to demonstrate and support this ground of appeal. I note that before the appellate High Court this ground of appeal was not raised and consequently was not dealt with by that court. I note further that under ground (d) on the notice of appeal an indication was given to the effect that “the judgment cannot be supported having regard to the law, statute and nature of the evidence adduced at the trial”. I am amazed at the clear breach of rules 5 and 6 of CI 19 by counsel for the appellant. No purpose would be served by reproducing these simple and well-known rules. I would nonetheless deal with the submission made on this ground of appeal. The short answer to this ground is that the complaint was not open to him to make in the light of evidence from his own witness, the first defendant witness, Mr Edwin Asamoah Aidoo. He told the court in his evidence-in-chief:

“I am the general manager of GB Ollivant I have heard of SAT Co. It ceased to exist in 1988. From the records, I got to know that the plaintiff placed an order for four executive swivel Secretarial chairs in 1979 which have since not been supplied. SAT was producing the chairs by itself but production was closed in 1986.”

This evidence corroborated the case of the respondent against the appellant; that is to say that the appellant breached its contract to deliver to the respondent four special executive swivel chairs within a reasonable time. I find that this ground of appeal fails.

I note that counsel for the respondent made reference to the Limitation Decree, 1972 (NRCD 54) and sought to establish that the claim of the respondent was not statute barred, he wrote as follows:

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“there is evidence to show that up to 1987 the plaintiff was pursuing his claim and therefore cannot be said to have gone to sleep. Again since between 1983 and 1987 the defendants accepted their liability to supply the chairs, the matter cannot be said to be statute barred.”

I do not wish to deal with the issue raised on limitation since it was not a ground of appeal stated in the notice of appeal. Further, this ground of appeal was not argued in the written statement of case filed on behalf of the appellant. No useful purpose will be served by considering the observation made by counsel for the respondent since this issue was not raised by the appellant in this appeal.

In the result, I find the appeal fails. I dismiss it. I will amend the writ of summons by adding under head (b) on the writ of summons of a claim in the alternative for damages for breach of contract. I enter judgment for the respondent damages for breach of contract against the appellant. I make the following orders:

(1) The appellant to return the sum of money paid, that is ¢3,400 to the respondent;

(2) The appellant to pay damages of ¢196,600 calculated from 1983 to date; and

(3) The appellant to pay for cost of hiring truck at ¢8,500 x 6 being in total ¢51,000.

JUDGMENT OF WOOD JA

About 15 August 1979 the plaintiff-respondent (hereinafter referred to as the respondent) bought from, and made full payment to the Swiss African Trading Co (Beam), a division of the United African Co Ghana Ltd, (hereinafter referred as the appellant) for six executive chairs made up of two executive and four secretarial chairs at the cost of ¢3,400. When after repeated demands the company failed to deliver the four secretarial chairs, the respondent took out a writ of summons against the appellant for an order of specific performance for the supply of the four swivel chairs. The court of first instance, which was the district court, found as a fact (and) as was pleaded by the respondents that:

(1) The parties entered into a valid contract for the supply of the chairs.

(2) The respondents performed their obligation under the contract by providing the necessary consideration in full.

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(3) The appellant, then substituted by UAC Ghana Ltd, was in breach; by its failure to deliver the goods in accordance with the terms of the contract. The court however, for stated reasons, declined to order specific performance, choosing rather to award a monetary compensation by way of general damages for the said breach.

Being clearly dissatisfied with the said decision, the appellant appealed to the High Court on the main ground that the trial court erred in awarding the alternate remedy when the respondent had not claimed that relief. The appellate High Court judge agreed in principle that the order was clearly erroneous. But, concluding that the respondent used the word specific performance “semantically” she held that: “The substance of its claim is that the appellant be made to buy similar chairs at the current price.” She therefore made the following order:

“That the appellant is either to pay to the respondent the current cost of the four chairs on or before 15 August 1996 or is to go and buy these four chairs at the current price or cost of similar make and deliver same to the respondent on or before 15 August 1996.”

It is against this order that the appellant has further appealed to this court on eight grounds. The relief it sought in this court was a total setting aside of the orders of the two courts and a dismissal of the respondent’s action in its entirety.

Although eight grounds of appeal were filed, only six were argued. In other words, two were abandoned. These are the original ground (b), which raised specifically the question of statute bar and (c), which dealt with the issue of the excessiveness and harshness of the costs. The appeal was therefore fought on original ground (a) and additional grounds (1), (2), (3) and (4). With respect to the original ground (a) and additional grounds (2), (3) and (4) which were argued together, it was submitted that once the appellate High Court judge found that the subject matter was not of intrinsic value and consequently that the trial magistrate was right in declining the prayer for the order of specific performance, she ought altogether to have dismissed the respondent’s claim. It was contended that by failing to do so and proceeding to make the findings and drawing

[p.12] of [1999-2000] 1 GLR 1 those conclusions I have referred to, she proprio motu substituted a case different from and inconsistent with the reliefs claimed by the respondent. The argument therefore is that the orders she made are clearly erroneous and ought not to be allowed to stand.

Very much the same arguments were advanced in support of the additional ground (1) and original ground (d). Again, it was submitted that the appellate judge erred in her conclusion that respondent used the words “specific performance semantically.” It was urged that the substance of the claim was that the appellant be ordered to purchase from the open market and deliver to the respondent similar chairs or be made to pay the current cost of the chairs. The contention again was that by so doing the learned judge was by the grant of a relief the respondent never asked for, proprio motu substituting a case different from that which was set up.

Now, at the hearing of the appeal, the learned High Court judge held as follows:

“I agree with learned counsel for the appellant that the trial magistrate erred in awarding damages to the respondents after he dismissed their only relief for specific performance. As was stated in Dam v Addo [1962] 2 GLR 200 at 203-206, SC it is wrong for a court on its own motion to substitute a claim or relief for a party which claim was not asked for.”

She then proceeded to outline the court’s duty at the rehearing as follows:

“In this instant appeal, the court has to determine whether an award of general damages will adequately compensate the respondents? If not, then should the trial magistrate have decreed specific performance of the contract between the parties?”

Her answers to these questions were that:

“In view of the fact that similar chairs can be obtained at the open market, albeit at exorbitant and rising cost, these chairs cannot be said to be of intrinsic value. Similarly an award of damages will not adequately compensate the respondent. It is the considered view of the court that the respondent used the word ‘specific performance’ semantically. The substance

[p.13] of [1999-2000] 1 GLR 1 of its claim is that the appellant is made to go and buy similar chairs at the current price for the respondent or it may be made to pay the current cost of the chairs to the respondent. In effect it is the principle of restitituo in integrum that its claim hinges on.”

It is these findings and conclusions that have provoked this instant appeal. In my view, the following two basic findings by the learned High Court judge are without any legal basis:

(1) That an award of damages will not adequately compensate the respondents.

(2) The words ‘specific performance’ as endorsed on the writ was used semantically.

Indeed, it is her views on the semantic use of “specific performance” and that the substance of the respondent’s claim is as she has outlined, that ought properly to attract the criticism that a claim inconsistent with or different from that which was formulated was being substituted. It is plain from both the endorsement and the statement of claim that the respondent were seeking an order for specific performance, pure and simple—an order directed at the appellant that it should deliver these four secretarial swivel chairs which under the contract of sale it agreed to supply or deliver. In our jurisdiction, it is a decree the respondent as a buyer of goods is entitled to claim. Indeed, this right of the buyer to invoke the jurisdiction of the court and apply for this decree that the contract be specifically performed, has been statutorily provided for under section 58 of the Sale of Goods Act, 1962 (Act 137) which states:

“58. In any action for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, by its judgment direct that the contract should be specifically performed without giving the seller the option of retaining the goods on payment of damages. The judgment may be unconditional or upon such terms as to damages, costs and otherwise as the court may think fit.”

True, it lies entirely within the discretion of the court whether to grant or refuse the decree, but the right to apply for it is open to a buyer of ascertained or specific goods. In my view then, the finding on the substance of the claim is erroneous and the same ought

[p.14] of [1999-2000] 1 GLR 1 together with the orders flowing therefrom, namely that the “appellant be made to purchase similar chairs from the open market” for delivery to the respondent ought to be set aside.

And now to the critical question raised in this appeal. And it is this: Since both the trial magistrate as well as the appellate High Court judge found that the decree of specific performance is not the appropriate remedy, must the respondent’s action not be dismissed? Stated differently, will it lie in the power of this court to grant the alternate remedy of damages for non-delivery, a relief which was never prayed for by the innocent party? Interestingly, the respondent’s counsel seems to have lost interest in damages and has urged at this rehearing that we do grant the order of specific performance as the circumstances do justify it. I am afraid I do not think so. He cannot in my view be entitled to an order-of specific performance.

Under section 58 of Act 137, specific performance may be decreed only in respect of “ascertained” or “specific goods.” The statutory definition of ascertained or specific goods is provided for under the interpretation section, section 81 (1) of Act 137 thus: ascertained goods” means goods identified and agreed upon after a contract of sale is made, whilst “specific goods” means “goods identified and agreed upon at the time a contract of sale is made.”

Unfortunately, I do not think the evidence can sustain or justify the finding made by the trial magistrate that the chairs were either “ascertained” or “specific” goods within the meaning of Act 137. There is no evidence that either at the time of, or after the contract of sale, the parties identified and agreed upon any four particular or specific secretarial swivel chairs that they were the very chairs (and no other) which were to be supplied. On the contrary, it does appear from the evidence that the contract was for the supply of any four ordinary secretarial swivel chairs, presumably from the lot which the appellant manufactures for sale to the general public. Such items would not, in my respectful view, qualify as ascertained or specific goods and in respect of which under 57 of Act 137 specific performance may be decreed. I also notice that the trial magistrate did conclude that these four swivel chairs are unique and so fall into these class of goods (perhaps under common law, but certainly not under the statute) in respect of which the order may be granted. I do not agree with this finding for there is no evidence to support it. The

[p.15] of [1999-2000] 1 GLR 1 position then, with respect to these goods is that both at common law and under the statute, that is Act 137, specific performance cannot be decreed.

I will therefore deal with the most critical issue raised in this appeal. And it is this: Having come to the conclusion that the remedy sought was inappropriate, does it lie in the power of the court to award damages as the proper judicial relief, when the evidence clearly shows that that relief was never claimed? I think the trial magistrate was right in not simply dismissing the respondent’s case but awarding damages in the alternative. Indeed, in my view, the grant of that relief does not in any way amount to a breach of the rule in Dam v Addo (supra). We may for a moment look briefly at that case the facts of which led to the formulation of this well-known and often used principle of law. The appellant in that case sued the respondents for accounts and also for the sum of 588,185 as due and owing him and arising from a transaction involving guns and ammunitions. Each party, as happens in most civil actions set up a rival claim resulting in the setting down for consideration of a number of serious factual issues. The trial court examined their respective claims and opted for the appellant’s version. For some strange reason however, judgment was not given for the appellant in whose favour the critical issues were resolved, but for the respondent and based purely on facts which were never pleaded at the trial, and so naturally did not form part of his case, and in respect of which no evidence was led. It is against that background that the supreme court speaking with one voice through Adumuah Bossman JSC stated the position thus at 203: “The process of consideration and weighing up of the respective cases of the parties by which the learned judge arrived at the conclusion at which he did arrive, would appear to have involved the substitution by him proprio motu of a case substantially different from, and inconsistent with, the case put forward by the respondents and the ultimate acceptance by him of that substituted case which was not the respondents’ case at all. This acceptance in favour of a party of a case different from and inconsistent with that which he himself has put forward in and by his pleadings, has been consistently held to be unjustifiable and fundamentally wrong

[p.16] of [1999-2000] 1 GLR 1 both by the English superior courts and our local superior courts.”

Of course his lordships took the opportunity to review both the English and local cases, one of which dates as far back as 1904. They are: (1) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238-239; (2) Fischer and Co v J O Thomson (1904) 1 Ren 302; (3) Nana Akua Oye v Baddu (1924)

DCt ‘21-’25, 116; and Oloto v Williams (1944) 10 WACA 23 at 24-25.

The firm conclusion his lordship came to, as stated in the head note, is that cases should be determined purely along the lines on which they were fought, as disclosed by the pleadings and it would be manifestly wrong and unjust for a court to “. . . substitute … nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be plaintiff or the defendant.” The rationale behind this rule is not difficult to find. It has been so succinctly stated by his lordship that I can do no better than to use the very words of his lordship as indeed he did by relying on a speech of Lord Normand in the Esso Petroleum Co case (supra). And so I borrow from the holding of his lordship as stated in the headnote:

“(3) The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. Dicta of Lord Normand in Esso Petroleum Co.,

Ltd. v Southport Corporation [1956] A.C. 218 at pp.228-229, H.L. adopted and applied.”

In my view when the trial magistrate granted the alternate relief of damages, he was not proprio motu substituting a case different from, contrary to or inconsistent with the respondent’s claim or case. He was not making the same mistake as did the trial judge in Ackumey v Kumah [1989-90] 2 GLR 283, CA. In that case, the judge proprio motu invoked the provisions of the Contracts Act, 1960 (Act 25) in favour of a defendant when the only defence he had set up when sued in his capacity as a guarantor was that he signed the loan agreement not as such guarantor but merely as a witness. It was

[p.17] of [1999-2000] 1 GLR 1 held at 288, with the judgment of the court being delivered by the president of this court as presently constituted, that: “. . . since the second defendant did not expressly plead Act 25 in his statement of defence, it was fundamentally wrong for the learned judge to invoke the provisions of that Act to non-suit the plaintiff.”

What the trial magistrate did in this instant case was to exercise the power inherent in her to give to the respondent that which on the facts presented at the trial, in law, he was legally and purely entitled to even though he did not specifically apply for that in the alternative. It would have been a grave miscarriage of justice if the court had non-suited with the excuse that he did not endorse his writ for that judicial relief. In any case, if the magic lies in the endorsement on the writ, then my humble view is that to do justice to the parties this court in any case would have power to amend the endorsement to include this alternative relief in order that we determine the real matters in controversy between the parties and so do real justice. A court which acts under the circumstances the trial magistrate did, awarding damages at law, when only the equitable relief of specific performance has been prayed for, would not be acting contrary to Dam v Addo (supra). Indeed, Act 137 gives statutory recognition to the remedy open to a buyer of goods in the event of non-delivery. The section reads:

“53. Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, in accordance with the terms of the contract, or where the buyer rejects the goods delivered by the seller having the right so to do, the buyer may maintain an action against the seller for damages for non-delivery.”

In this instant case, therefore when the trial court found, as I do also find, that specific performance is a most inappropriate remedy, his duty, in the face of the overwhelming evidence that the respondent has suffered loss as a result of the non-delivery was to grant the remedy most appropriate at law, and that in my view is damages. The other order of the appellate High Court judge that “he should go to the market and buy similar chairs at the current cost” is rather unknown in law.

Both under the statute and at common law the respondent is entitled to recover damages for the losses which could reasonably

[p.18] of [1999-2000] 1 GLR 1 have been foreseen by the seller at the time when the contract was made as likely to result from his breach of the contract. He should be entitled to the contract money paid and so also interest thereon. He should also be able to recover special damages if specifically pleaded and proved. In the absence of a specific plea for special damages, nothing should stop the court from using whatever was not pleaded but nonetheless proved in evidence as evidence of special damages in assessing the general damages he is entitled to, for the rule is that in case of non-delivery he is entitled also to recover damages for consequential losses made necessary by the breach. In this connection, we have unchallenged evidence from the respondent showing trips he or his driver made to Takoradi to take delivery of the chairs. The mode of assessment is as prescribed under section 54 (2) of Act 137. The details in respect of quantum have been perfectly done by my learned brother. I would thus have nothing useful to add. In conclusion, the appeal ought to fail.

JUDGMENT OF BROBBEY JA

I am also of the view that for the reasons stated in the judgment of my brother Lamptey JA, the appeal fails and should be dismissed.

DECISION

Appeal dismissed.

SA