Birch vs. Asempa and another essay example
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Birch vs. Asempa and another

In BIRCH v. ASEMPA AND ANOTHER, the plaintiff sued the defendants for the recovery of 4,360 cement blocks or their current value, together with damages. Because the remedies sought are set out in sections 48-58 of  the Act, which included damages for non-delivery and a recovery of the purchase price. The facts of the case were that seven thousand (7000) cement blocks was bought, paid for and the blocks were delivered to the buyer at the premises of the seller by the application of section 19(2) of the Act . Quantity 2,640 blocks were collected by the Plaintiff, leaving 4,360 at the residence of the seller to be collected on a later date. The Plaintiff returned after three years to collect the remaining 4,360 blocks after the death of the seller but the blocks were missing. The plaintiff demanded the return of the blocks from the Defendant’s but they refused.

However, the receipt the plaintiff had confirmed the sale transaction with the plaintiff’s brother but not with the plaintiff .Under section 8(2) of the Act, the seller is under obligation to deliver to the purchaser once they were paid for, but the purchaser was also obliged under section 21 of the Act to accept delivery of the goods.By the application of section 27 of the Act, the risk in the goods passes to the buyer upon delivery and the seller becomes an involuntary bailee, therefore, he could not be held liable for the safety and security of the remaining blocks left on his premises.In the case of NANOR v. AUTO PARTS LTD, Nanor (plaintiff) entered into a contract with Auto Parts Ltd to buy a Nissan Homer. He paid ¢19,000.00 to Auto Parts for the price of the vehicle and Auto Parts promised to get the vehicle ready for collection by 29 December 1977 which the failed to deliver.

On 11 January 1978, Nanor paid a further ¢1000.00 to Auto Parts at the request of Auto Parts claiming that the price of the vehicle has changed and that the vehicle was being shipped to them. Auto Parts refused to give the vehicle to Nanor when the vehicles arrived.

Claiming they were meant for other customers. Nanor then brought an action seeking specific performance of the contract or in the alternative damages for breach of contract. Auto Parts contended Nanor’s claims. The court found that the ¢19,000 initially paid by Nanor was on account; and that the agreed date for delivery was 29 December 1977.Since Nanor did not insist on the delivery of the vehicle on 29 December and was willing to make extra payment without a fixed date for the delivery of the vehicle, then by the application of section 16(4) of Act 137, Auto Parts was to deliver the vehicle to Nanor within a reasonable time in which, in this instance, on the arrival of the next consignment.In the instance case, the order for specific performance failed because such an order as stated under s. 58 of Act 137 will only be successful in respect of ascertained or specific goods.

In this instance no one specific Nissan Homer was in reference, hence the action for specific performance failed.However, the Plaintiff’s action for damages for breach of contract was successful by the application of s. 57(1) and (2) of Act 137. He was, therefore, entitled to receive the monies he paid to the Auto Parts as well as general damages for the breach and loss of use.In conclusion, the Act makes provision for different categories of remedies through which an injured party may seek redress. But these reliefs will have to fall under the relevant sections and meet the requirement therein stated to be granted. Any aggrieved person seeking a remedy under the Act must do so pointing out clearly the breach and the equivalent remedy sought.

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This has been demonstrated in the case of Nanor v. Auto Parts where an action was commenced for an order for specific performance but it failed because such an action would only be successful if the goods were specific or ascertained goods. However, the Plaintiff’s action for damages for breach of contract was successful. Further on, in the case of Birch v Asempa, an action for the recovery of blocks failed because per the Act, once there has been delivery of goods, the buyer leaves it in the care of the seller at his own peril since the risk in the goods passes to the buyer upon delivery and so the seller could not be held responsible for the safety and security the said goods.Moreover, in the case of Rockson v Armah the action was for repudiation of the contract but the action failed because the car was fit for the purpose for which it was purchased and so a subsequent defect did not form a good basis for a repudiation of the contract.Finally in the cases of Kwetey v Botchway, an action for specific performance failed because the mortgagee had no title to give; and in Tawiah v Ghana Civil Aviation Authority and Others, the action for damages for breach of contract was successful.

In the Nanor case, the grant of specific performance was not possible because the demand made by the plaintiff did not satisfy requirements of s.58 of the Act.

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