MR. PHILIP GYASI APPIAH v. SURF PUBLICATION GH. LTD.
2013
COURT OF APPEAL
GHANA
CORAM
- OWUSU M., J.A. (PRESIDING)
- ADUAMA OSEI, J.A.
- DZAMEFE, J.A
Areas of Law
- Contract Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The High Court ruled in favor of the defendant regarding the contract altering certain terms and rejecting the plaintiff's claim of defectiveness and untimely delivery. Upon appeal, the Court of Appeal agreed, finding that the plaintiff had waived the right to reject the goods by accepting delivery despite known defects, and that time was not of the essence in the contract. Consequently, the plaintiff's appeal was dismissed.
JUDGMENT
MARIAMA OWUSU, J.A:
On 27-5-2009, the High Court (Commercial Division) Accra dismissed the plaintiff’s case. Defendant’s counterclaim was upheld in part when the Court held as follows:
“In the current situation where plaintiff waived the right not to have the calculators delivered in different consignments. By accepting the first consignment, the contract is one that may be delivered in two consignments and there stands no legal reason why he should not be compelled to receive the second consignment. Secondly, the calculators are specifically embossed with the plaintiff’s name and defendant cannot sell them to anyone. I order that the plaintiff take delivery of the final part of the contract being 4,100 SPC 2003 calculators and pay the defendant the outstanding sum of $10,068.00 with interest thereon from 30th August, 2007 on acceptance of delivery. Of course, this judgment makes no finding of fact on whether or not the 4,100 calculators are defective and if they happen to be defective when examined at the time of delivery. The plaintiff has all his rights under law. Section 52 of Act 137 provides that:
(2) “The acceptance of a part of the goods does not deprive the buyer of any right to reject any other part unless the contract is not severable.”
But that is a bridge the parties are yet to react. The court’s order only relate to the enforcement of the terms of the contract, being the delivery of 4,100 SPC 2003 calculators and their payment of the balance of 30% on acceptance of delivery.
The court dismisses the counterclaim for damages owing to the late delivery of the calculators both for the 8 digits calculators, and the consignment delivered and refused on 30th August, 2007.
Costs of GH¢1,000.00”
Dissatisfied with the decision of the High Court, the plaintiff appealed to the Court of Appeal on the following grounds:
1. The judgment is manifestly against the overwhelming weight of evidence adduced at the trial.
2. The learned Judge erred in holding that time was not of the essence in the contract.
3. The learned Judge having found that some of the items were defective, erred in ordering the appellant to collect remaining goods which have been rejected for breach of contract.
4. Further grounds of appeal will be filed upon receipt of a certified copy of the court’s judgment and the record of proceedings.
At this stage, let us put it on record that no such additional ground(s) were filed.
RELIEF SOUGHT FROM THE COURT OF APPEAL: