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LAW, J .A.
[1] This appeal arises out of a suit tried in the High Court of Kenya (Mosdell
J.), The plaintiffs, who are the respondents in this appeal, are merchants
carrying on business in Singapore. They claimed damages, for breach of an
alleged contract to deliver six tons of cloves, from the defendants, who are
merchants trading in Mombasa. The learned judge found that there had been a
breach of contract on the part of the defendants, and awarded damages
against them which he assessed at Shs 80,197/40, together with interest and
costs. From this judgment the defendants have appealed and I shall refer to
them henceforth as the appellants.
[2] The memorandum of appeal fell into two main parts. First, it challenged
the finding that there ever was a concluded contract between the parties and
secondly, it disputed the quantum of damages awarded.
[3] When the appeal opened before us, Mr. A.A. Lakha for the appellants
began by informing us that he no longer contended that the judge had erred
judge had erred in finding that a binding contract had been concluded
between the parties. This was conceded, and the appeal was confined to the
measure of damages awarded.
[4] The contract price for the cloves was agreed at £875 per ton, to include
carriage, insurance and freight (C.I.F.). The cloves were to have been
shipped on the M.V "Madras Maru", which according to the plaint was due to
sail on 8th February, 1969. On the 22nd February, 1969, the appellants wrote
to the respondents repudiating the contract. This letter would in the normal
course of events have reached the respondents by the 1st March, 1969.
[5] The respondents refused to accept this repudiation, and insisted, by
letter dated 1st March, 1969, that the cloves be shipped by the 15th March.
They also extended their relevant letter of credit to the 31st March, 1969,
in order, as they said, to give the appellants a further opportunity of
fulfilling their contract. By a letter dated 10th March, 1969, the
appellants made it clear that they adhered to their view that there was no
binding contract, and that they had no intention of shipping the cloves. On
the 1st April, 1969, in order to fulfill contracts entered into by them for
the resale of the undelivered cloves, the respondents had to buy, in
Singapore, 6 tons of cloves at £1660-10-7 a ton. The learned judge awarded
them damages on the basis of the difference between £1660-10-7 and the
contract price of £875 per ton.
[6] The relevant statutory provision regulating the measure of damages for
non-delivery of goods under a contract is to be found in section 51 of the
Sale of Goods Act, Cap 31, which reads:¬
"51
Where the seller wrongfully neglects or refuses to deliver the goods to the
buyer, the buyer may maintain an action against the seller for damages for
non-delivery.
The measure of damages is the estimated loss directly and nltural1y
resulting, in the ordinary course of events, from the seller's breach of
contract.
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
contract price and the current or market price of goods at the time or times
when they ought to have been delivered, or, if no time was fixed, then at
the time of the refusal to deliver."
[7] Mr. Lakha, relying on sub-section (3) above, which appears to apply to
this case, submitted that the material "time or times" when the goods ought
to have been delivered was the 8th February, 1969, the date confirmed by the
appellants as being the sailing date of the m.v. "Madras Maru", the named
vessel on which the cloves were to he shipped in accordance with the
contract.
[8] In support of this proposition, Mr. Lakha cited the case of Melachrino
v. Nickoll and Knight (1920) I.K.B. 693, in which it was held that, where
the time for delivery is fixed by reference to the happening of an event, it
is " fixed" within the meaning of section 51(3) of the Sale of Goods Act,
1893, which is identical with section 51(3) of the corresponding Kenya Act.
The event, in Mr. Lakha's submission; was the sailing of the M.V "Madras
Maru”.
[9] Alternatively, relying on C. Sharpe and Co.Ltd. v Nosawa and Co. (1971)
2 KB 815, Mr. Lakha submitted that the material date was the date on which
the shipping documents relative to the cloves could reasonably have been
expected to have reached the respondents, say the 15th February 1969, had
the cloves been shipped on the M.V "Madras Maru".
[10] Whichever of these dates applied, there was no evidence as to the
market price of cloves on these dates in Singapore, although he had
specifically cross-examined the respondents’ witness on this point. In these
circumstances, Mr. Lakha submitted that although the respondents might have
satisfied the court that the appellants' breach of contract had caused them
a loss, the amount of that loss had not been proved, and only nominal
damages should be awarded.
He relied in this respect on MAYNE AND MCGREGOR ON DAMAGES, 12th Ed, page
202, paragraph 203, where the following appears:-¬
"Nominal damages may also be awarded where the fact of a loss is shown but
the necessary evidence as to its amount is not given.”
[11] Mr. Mansur Satchu for the respondents supported the learned judge's
choice of the 1st April, 1969, as the material date for the assessment of
damages, and he pointed to paragraph 9 of the defence, in which the
appellants had pleaded, as an alternative ground of defence based on
impossibility of performance, that the shipment date of the contract goods
had been extended to 31st March, 1969. This ground of defence, which was
specifically withdrawn at the outset of the proceedings in the court below,
was based on the respondents' unilateral act in extending the relevant
letter of credit to the 31st March. This unilat¬eral act would clearly not,
in my view, have had the effect of extending a contract of which the
appellants were already in breach, without the concurrence of the
appellants, which was neither sought nor obtained.
[12] As regards the alternative material dates propounded by Mr. Lakha, Mr.
Satchu complained with some justification that this aspect of the case was
not properly canvassed at the trial, which was mainly concerned with the
issue as to whether a binding contract had ever been concluded.
[13] I have some sympathy for Mr. Satchu in this appeal.
[14] The main ground of appeal, relating to the finding that a contract had
been concluded,was dropped at the last minute, and the appeal was confined
to the issue of damages which played a relatively minor part at the trial,
and the grounds argued by Mr. Lakha on appeal were stated in very general
terms in the memorandum of appeal; Mr. Satchu was clearly taken by surprise
at the turn of events on the hearing of the appeal.
[15] The view I have formed as a result of the arguments addressed us is
that there is merit in Mr. Lakha’s submissions. In a case such as to this,
where a seller in Kenya contracts, on the basis of an exchange of cables, to
sell goods C.I.F. to a buyer in a foreign country, the goods to be shipped
on a named ship, the material date for the assess¬ment of damages for
non-delivery should, in my opinion, be related to the probable date of
constructive delivery by tender of the shipping documents after shipment
under the contract.
[16] I accept as the material date for this purpose the date suggested by
Mr. Lakha, that is to say the 15th February, 1969.
[17] The learned judge found that the date of the breach of contract was the
date of the appellants' letter of repudiation, the 22nd February, 1969. Even
if that was the correct material date, which I doubt, there was no evidence
as to the market price of cloves on that date. In any event, with respect, I
do not think the learned judge was right in taking the market price in force
on the 1st April, 1969 as the basis for his assessment of damages, as on any
view the appellants were already in breach of the contract on some date in
February. The question now arises, to what damages are the respondents
entitled on the basis of a breach of contract by the appellants for
non-delivery on 15th February, 1969.Mr. Lakha submitted that there was no
evidence at all as to the current or market price of cloves on that date,
and the burden of proof being on the respondents as plaintiffs, they were
entitled to nominal damages only.
[18] With respect, I consider this argument to be an over-simplification of
the position.
[19] There was evidence by the respondents' witness that, relying on the
contract, they re-sold the cloves in Singapore on 27th January, 1969, at
£961-19-3 a ton. The same witness deposed that in order to meet this
commitment, the respondents were forced to buy cloves in the open market in
Singapore on 1st April, 1969, at £1660-10-7. It is true that this witness
also deposed that during this period the price of cloves fluctuated, but in
view of the sharp rise in price it seems to me to be safe, on a balance of
probabilities, to assume that any fluctuations downw3.rds must h::1ve been
minimum, and that the general trend of fluctuations must necessarily have
been upwards. On the 3rd March, 1969, the State Trading Corporation in
Zanzibar were quoting £1643 per ton C.I.F. Singapore, and on the 8th March
another Mombasa merchant quoted £2000 per ton. Bearing in mind that it was
for the respondents to prove their loss, and their complete failure to
adduce evidence as to the actual market price of cloves on 15thFebruary,
1969, I am nevertheless satisfied that on that date the price cannot have
been less than £96l-19-3 a ton, and I would assess the damages to which the
respondents are entitled on that basis.
[20] In any event, sub-section (3) of section 51 of the Sale of Goods ACT
only provides a prima-facie, or rebuttable, method for the measurement of
damages in cases where there is an available market. It does not purport to
provide the exclusive method, and it is open to a plaintiff to rely, if he
prefers, on sub-section (2) and prove the loss which directly and naturally
resulted from the breach. In this case the respondents fully proved a loss
of profit on the re-sale of the cloves of £521-15-6, and they are in my view
clearly entitled to recover this sum, but not the sum claimed by them on the
basis of what they had to pay for cloves, six weeks after the breach of
contract.
[21] It follows that in my view this appeal succeeds. I would amend the
judgment and decree appealed from by reducing the damages awarded from
Shs.80,797/- to Shs.10,435/50, with interest at 8% from 14th July, 1969, to
19th August, 1971, together with the costs of the suit. I would give the
appellants the costs of this appeal.
DUFFUS, P.
[22] The facts have been fully set out in the judgment of Law, JA. There was
admittedly a breach of contract and the main issue on appeal was whether
there was sufficient evidence on which the court could assess the damages.
[23] Section 51 of the Sale of Goods Act, (Cap.31) applies and states;-¬
“51.
Where the seller wrongfully neglects or refuses to deliver the goods to the
buyer, the buyer may maintain an action against the seller for damages for
non-delivery.
[24] The measure of damages is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the seller's breach of
contract.
[25] 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 contract price and the market or current price of the goods at
the time or times when they ought to have been delivered, or, if no time was
fixed, then at the time of the refusal to deliver.”
[26] It is agreed that there was an available market for the goods in
question but the apellants aver
that the time at which the market price of the goods should have been fixed
has not been ascertained and
that there is no evidence of the market price of the goods at such time.
[27] The market price is fixed in accordance with sub-suction (3) of section
5l at the time when the goods ought to have been delivered, or if no time
was fixed, then at the time of the refusal to deliver.
[28] Mr. Lakha for the appellants submitted that a definite time for the
delivery had in fact been fixed but that no evidence had been given which
could enable the court to fix that time.
[29] He referred to the appellants' cable to the respondents of the 31st
January, 1969 stating If arranging ship “Madras Maru". This arrangement was
accepted by the respondents and formed part of the contract.
[30] This was a C.I.F. contract, and delivery under this contract would have
been effected after shipment of the goods on the Madras Maru by delivery of
the bill of lading and other relevant documents to the respondents.
[31] There is no evidence to show when the Madras Maru sailed and again no
evidence when these documents of title would have been delivered to the
respondents in the due course of post.
[32] The learned judge in considering damages said inter alia:-
“All that the plaintiffs are entitled to is the difference between the
contract price and the market price at the time of the defendants' re¬fusal
to deliver which would appear to be 22.2.69, vide Ex. IA5. We know the
contract price was £8 875 per ton. I think the market price may be taken as
£B 1660.10.7 per ton. The price of cloves at the material time was rising."
[33] The learned trial judge fixed the market price as at the time of the
appellants' refusal to deliver and in doing so he accepted this time as the
date of the letter written by the appellants and not as the date at which
the letter was received by the respondents.
[34] The letter was dated and apparently written by the appellants Ion 22nd
February,1969 but was not received by the respondents until the 1st March,
1969. On this question Law, J.A. agrees with Mr. Lakha's submission that the
correct date for ascertaining the market price would be the date to when the
shipping documents should have been delivered to the respondents.
[35] Mr. Lakha then further suggested that this date should be the 15th
February, 1969. With respect I can find no evidence to establish this date.
It is the date mentioned in the letter of credit dated 24th January, 1969 as
the latest date by which shipment should have been effected, but there is in
fact no evidence to show when the Madras Maru sailed and no evidence to show
when,the shipping documents would have been received by the respondents.
[36] Both parties agree that there was considerable fluctuation in the price
of cloves around this time. The respondents' witness Mr. Moiz Abbasbhoy in
the course of the examination said this:¬
"We-sold the cloves on 27.1.69. On 15.2.69 I don't know what the price of
cloves was in Singapore. Nor on 1.3.69. The price of cloves in Singapore
fluctuates considerably from day to day."
[37] There was very little evidence given on this aspect of the case but we
do know that the price of cloves in the first contract between the parties
on the 22nd January! 1969,was £800 per ton.
[38] On the following day, 23rd January, 1969 the appellants sent off a
cable offering the six tons the subject of this contract at £875 per ton. A
rise of £75 in one day and then in another four days the respondents re-sold
these cloves at a price of £961 19s. 3d. and then that on the 3rd April,
1969 the respondents purchased the cloves in the local market at £1,660 10s.
7d. per ton.
There is also in evidence a cable from the State Trading Corporation
Zanzibar of the 6th March, 1969 quoting £1,643 cost and freight Singapore
and also a letter from other exporters in Mombasa, Hasanali Lakhani &
Brothers Ltd. dated 8th March, 1969 quoting £2,000 per ton c. & f Singapore.
[39] The market was said to be a rising market and the prices I have quoted
show very great variations in the prices. The amount of damages to be
calculated in accordance with the method laid down in section 51(3) (supra)
would depend on the exact date of the breach and the then market price of
cloves.
[40] There is in my opinion no definite evidence on either of these two
matters. I agree that clearly the respondents have suffered damage but with
great respect I find difficulty in agreeing with Law, J.A. on this matter.
[41] He calculates the damages by taking the figure of £961 19s. 3d. as
being the minimum market price for cloves which must have existed at the
time that the cloves should have been delivered under the contract but there
is in my opinion no evidence to support this proposition.
[42] This figure £961 19s. 3d. is the amount that the respondents re-sold
the cloves for. I do not know how this figure was arrived at, whether it
included an amount for the payment of import duty or other expenses of
landing the cloves and having them ready for sale in Singapore but
apparently it included all these expenses as the deliv'3ry was to take place
in the buyer's store in Singapore (see Ex.IV).
[43] Another criticism of this figure is that this price is the arranged
price of the cloves on the date of the ship's arrival in Singapore and not
the date of the delivery of the shipping documents. Presumably the shipping
documents would have been sent by air mail and although we have no evidence
as to the duration either by the voyage by sea or of the time that would be
taken by air mail, this Court must, I think, take judicial notice of the
fact that Singapore is a considerable distance from Mombasa and that the
arrival of the shipping documents by air mail must preceed the arrival of
the ship by several days.
[44] Two points arise here (a) that with the admitted fluctuation of prices,
the difference of even a day might have considerably affected the market
price and this might have been an increase or decrease in price and (b) in
any event the market price was that of the cloves on a C.I.F. contract and
not that of cloves already in Singapore. It would, therefore, in my view be
unsafe and wrong to the figure set out in the contract (Ex. IV) as being the
market price obtained on the day that the cloves should have been delivered.
[45] Another aspect here is that the proposition was never the respondent’s
case. The respondents did use the re-sale price, but the judge specifically
disallowed this item of damages and there has been no cross-appeal.
[46] The judge only allowed the respondents the first part of their claim
seeking damages on the basis of the difference between the market price and
that of the contract price.
[47] The respondents called no evidence at all to show the market price of
cloves at the relevant time.
[48] The appellants never had to meet a case which even suggested that the
figure of £961 19s.3d. was the market price of cloves on the 15th
February,1969 nor was it the respondents' case that this was the relevant
date.
[49] If this had been the respondents' case or even if there had been any
evidence to this effect the appellants would then have been able to call
evidence in rebuttal. The price might in fact have been considerably less,
and it would in my view be quite unfair to now condemn the appellants on
evidence that they were never given the opportunity to answer and especially
when their case always was that the respondents had never proved the date of
the breach or the market price on such date.
[50] The onus is on the plaintiffs to establish their damage. The evidence
shows that they could have obtained the necessary evidence and could have
proved what would have been the due date of delivery and what was the market
or current price of cloves on that date. The appellants would then have had
the opportunity to meet this case.
[51] The court cannot guess at the figure to be awarded and with respect
this would be the case here. There is in fact no evidence fixing the date on
which the damages should have been ascertained, and further no evidence to
establish what was the market or current price of cloves on that day. I
would therefore only have awarded the respondents nominal damages, which I
would in this case fix at shs.100/-.
[52] I have carefully considered Mr. Lakha's submission on the question of
the costs in the trial court in the event of our reducing the damages to
nominal damages. He relied to some extent on the judgment of Devlin, J. in
the Anglo-Cyprian Trade Agencies, Ltd. v. Paphos V wine Industries Ltd.
(1951) 1 A.E.R at 873 but the facts of that case were different.
[53] Costs are in the discretion of the court although this discretion must
be exercised judicially and each case must be considered in its own
particular circumstances. In this case the respondents were fully justified
in bringing this action to enforce their legal rights.
[54] They were entitled to damages for breach of contract and the fact that
we have only awarded nominal damages is due to what was in our view a defect
in the evidence on admittedly difficult legal questions. The fact that they
obtained full damages in the trial court and that there is a difference of
opinion in our court illustrates this difficulty. I would therefore award
the respondents their costs in the High Court.
[55] In this appeal the appellants have succeeded in having the damages
reduced to nominal damages but they had also appealed on the substantive
question as to whether there was a breach of contract and only withdrew this
ground at the hearing, I would therefore only award the appellants ¾ of the
costs of this appeal.
[56] As Mustafa J.A. agrees, the order of this court is that this appeal is
allowed to the extent that the amount of the judgment is reduced to Shs.
100/-.
[57] The respondents will have the costs of the trial in the High Court and
the appellants will have of the costs in this appeal
MUSTAFA, J .A.
[58] The only question on appeal was with regard to damages. The issue was:
on what date did the breach occur and what was the market or current price
of cloves all that date. The contract provided that the cloves were to have
been shipped from Mombasa C.I.F. to Singapore on the M.V. "Madras Maru"
which was due to sail on 8.2.69 from Mombasa.
[59] The appellants had on 22.2.69 written a letter to the respondents
denying that there was any contract between them. That letter would normally
have been received by the respondents on or about 1.3.69. There was also the
letter of credit opened by the respondents which expired on 15.2.69. Or if
the material date was to be the date when the documents in respect of the
cloves could reasonably be expected to have been delivered to the
respondents, assuming the cloves were shipped on the "Madras Maru" as
contracted for the date would probably be 15.2.69.
[60] However Mr. Lakha for the appellants has submitted that the respondents
had not put the court in a position to determine the date of which he
selected 15.2.69 as the date of breach and concluded that the price of
cloves could not have been less than £961 19s. 3p. a ton on that date as
despite daily fluctuations the price of cloves at that period was generally
on the upward trend.
[61] With respect I have considerable sympathy with the point of view that a
court should, from whatever evidence there may be in a case, seek to assess
the damages suffered. It seems to me that on the evidence before the court
the date of breach was 15.2.691 the date when the documents in respect of
the cloves could reasonably be expected to have been delivered to the
respondents.
[62] I appreciate that this date, 15.2.69, was based on the submission of mr.
Lakha for the appellants and was not in fact relied on by the respondents
nevertheless I think, with some hesitation, that it is open to a court to
select this date as the date of breach. However in this case the respondents
had failed to establish what the market or current price of cloves was on
that date. This was a suit between two apparently well established firms of
merchants and I am not persuaded in this case that the court was justified
to infer, of its own motion, what the minimum market price of cloves would
be on that date.
[63] I therefore agree with the learned President that only nominal damages
should be awarded to the respondents for the breach.
[64] I concur in the order proposed by the learned President. |
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