ROBIN HOOD MILLS LTD. AND ANOTHER v. FARAH

JUDGMENT OF OLLENNU J.S.C.

This is an appeal from a judgment of Charles J. delivered in the High Court, Sekondi, in favour of the plaintiff on his claim for a sum of money as damages for breach of contract for the sale of 2,000 bags of Robin Hood flour to him, and in the alternative for money paid for a consideration which has wholly failed. Four grounds of appeal were filed originally and eight more were added with the leave of the court; some of these twelve grounds of appeal will be referred to presently.

The suit arose out of a c.i.f. contract whereby the first defendant company sold and shipped 2,000 bags of Robin Hood flour to the plaintiff ex S.S. Kindat due to sail from Canada on or about the 9th May, 1961. In due course, the relevant c.i.f. documents, namely, a bill of lading, invoices, insurance certificate and a bank draft were delivered to the plaintiff. The ship arrived at Takoradi on or about the 4th June, 1961; on the 9th June, 1961, the plaintiff paid the bill and started to remove the 2,000 bags of flour from the harbour to his warehouse, he completed this work on the 12th June, 1961; 339 of the bags of flour were found caked, and the shipping authorities issued the plaintiff with a certificate to cover those for purposes of an insurance claim.

On the 10th June, 1961, while the transfer of the flour from the harbour to the plaintiff's warehouse was still in progress the plaintiff sent ten of the bags of flour to his bakery for examination; when opened at the bakery [p.153] each of those ten bags was found to be infested with weevil. Thereupon the plaintiff applied in writing to the Lloyds' agent for a survey; the survey was carried out on the 13th June, 1961, by one Mr. Smith, the first witness for the defence. In the course of his evidence this witness said, "I found from external examination that they were sound bags but on opening them I found a fairly heavy weevil infestation and the flour slightly discoloured." At a later stage he said, "I did not think that the flour was all that bad so I suggested sifting it." And in answer to the court he further said,

"The plaintiff told me that the flour was not fit for human consumption and as I did not agree I suggested that the Port Health Officer should examine the goods to decide whether they were fit for human consumption or not."

Prior to the survey by the Lloyds' agent, but on the same day, Mr. Millington, chief representative in Ghana of the first defendant company, then on a rout