The KWETEY v. BOTCHWAY AND ANOTHER case explains the principle of “you cannot give what you do not have” which has its Latin as “Nemo dat quod non habet”. In this case, the bank, wanted to sell a boat that rightfully belonged to Kwetey and this was established by the court to be against the principle stated supra. The facts in Kwetey v Botchway are that the plaintiff had mortgaged his house to the Agricultural Development Bank (ADB) to secure a loan to replace a broken marine engine in a 40-footer fishing boat that he had acquired through a hire-purchase agreement.
As part of a general exercise, the ADB rehabilitated all broken down engines of all fishing vessels belonging to its customers and gave the customers the first option of paying whatever balance was outstanding or have the boat sold to someone else who was ready to pay for it. ADB wrote to Kwetey (the plaintiff) demanding payment of ¢149,775.01 outstanding on the boat. Kwetey had until 28 February 1978 to make payment. However, ADB’s letter never got to the Kwetey. In the meantime ADB had approved an application to sell one of the rehabilitated boats to the Botchway and so Kewtey’s boat was allocated to Botchway. ADB received full payment of outstanding debt from Kwetey but sometime after the Kwetey had settled her debt with ADB, ADB accepted payment from Botchway, to sell Kwetey’s boat to him and instructed that the boat be released to him. When Kwetey got to know that ADB had received payment from Botchway for the sale of his boat to Botchway, he instituted an action for a declaration of title and to nullify the sale to Botchway.
Botchway counterclaimed for declaration of title to the boat, recovery of possession, perpetual injunction against Kwetey; and sought specific performance and damages for loss of use of the fishing vessel. The court ordered that the boat be released to Kwetey. Kwetey discontinued her action against the defendants but Botchway continued with her counterclaim despite the fact that she did not meet the ADB payment deadline given her and all monies she paid had been paid back to her account by ADB.
The court held that the ADB had no right over the boat and that the relationship that existed between Kwetey and ADB was that of creditor-debtor relationship. Furthermore Kwetey had mortgaged his house to secure the loan for the repairs of the engine, and the recovery of the loan was to be governed by the Mortgages Decree, 1972 (N.R.C.D. 96, s. 15. as decided in Sasu v. Nyadualah
Secondly, since ADB accepted payment from Botchway, ADB was obliged to deliver; non-delivery constituted a breach of contract. Acceptance of payment after the deadline constituted a waiver of rights to insist on payment within the timeline as was decided in Besseler Waechter Glover & Co. v. South Derwent Coal Co. Ltd.
Botchway was therefore unsuccessful in his action for specific performance to take possession of the boat because ADB had no boat to deliver, they had no title. Thus Botchway was entitled to remedies under section 53. Assessment of damages was per sections 54 (1) and 56.
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.