(HIGH COURT)

 APOSTOLOU ENTREPRISES Co.Ltd. vs. MOHAMMED SALEH GIREIS

AC-Revision-172-58

Revision

Principles

·  Sale of Goods- Delivery under Sale of Goods Act, 1893, s.29 (2)-Reasonable time

On a contract for the sale of 440 sacks of flour, delivery was not offered until nearly five months after the making of the contract, the price of flour having dropped substantially in the meantime. 
Held: this was not delivery within a reasonable time.

Judgment

The facts as stated by M.I. El Nur J. were as follows: By a written contract made at Khartoum on 31stJuly 1957, Applicants sold to Respondent 440 sacks of flour (then described as “now under shipment from Port Sudan”) to be delivred at Wad

 Medani, at £S.132 upon signing the contract and undertook to pay the balance of the price upon delivery of the goods. It was not until 21st December 1957, when the prices had tremendously dropped, that Applicants offered, through Barclays Bank of Medani , the delivery of the 440 sacks to Respondent against payment of the balance of the price. Respondent refused to receive the goods, and on 29th December 1957 instituted HC-CS-714-57 against Applicants claiming recovery of :-

(a)        £S.132.ooom/ms the advance payment made on 31st July 1957.

(b)       £S.144.400m/ms damages for breach of contract.

£S.276.400m/ms Total.

Applicants while admitting the contract and receipt of the £S.132 denied liability of the amount claimed contending that Respondent committed a breach of his contract by his refusing to take delivery of the goods when offered to his contract by his refusing to take delivery of the ggods earnest-money paid by him which was equivalent to the total drop of the price of those 440 sacks at the time of the alleged breach.

9th October 1958. M.I. El Nur J. (after stating the facts his Honour continued):- The contrqact of sale having frixed no date for delivery of those goods, the important issue before the Court was whether  Respondent was entitled to reject the goods because they were not delivered to him within a reasonable time. On the evidence before him the learned District Judge found that the delivery offered by Applicants of the 4340, sacks of flour, described upon sale as “ now under shipment at Port Sudan”, after 5 months from the date of the contract was not made within a reasonable time. The

District Judge therefore came to the conclsion that Applicants were in breach of their contract and therefore passed his decree on 12th August 1958 ordering applicants to pay Respondent:

£S.132.200m/ms in earnest-money

£S.132.200m/ms damages for breach of contract based on loss of profit at P.T. 30 per sack

£S.276.400m/ms plus

£S.27.520m/ms costs

£S.291.920m/ms in all.

 On 27th August 1958 Applicants applied for the reivsion of the District Judge’s decree. On 8th September 1958 the learned Province Judge summarily dismissed the application for revision on the grouns that he was satisfied that Applicants were in breach of their contract since they fail.ed to deliver the goods within a reasonable time. Hence was this application to the Chief Justice for the revision of the Province Judge’s decision of 8th September 1958.

I can see no merit in this application whatsoever and I ami in full agreement with both the District Judge and Province Judge. Section 29 (2) of the Sale of Goods Act provides:

“Where under the contract of sale the seller is bound to send the goods to the buyer, but not time for sending them is fixed, the seller is bound to send them within a reasonbale time.”

Section 56 of the same Act provides:

“Where, by this Act, any refernce is made to a reasonable time, the question what is a reasonable time is a question of fact.”

In my opinion, on the authority of this rule of law, the District Judge was quite correct to hear evidence as to what was a reasonable time for delivery in circumstances. One of Applicants’ own witnesses testified reasonable time. Applicants say it was impossible for them to fix date for delivery owing to shipment conditions in those days. But in my opinion tis is no excuse for them. The delay of five months is certainly most unreasonable under any circumstances. In my view therefore, this application should, subject to the agreement of the Chief Justice, be summarily dismissed as hopeless.

11th October 1958. M.A. Abu Rannat C.J. :- Application is summarily dismissed.

(Application is summarily dismissed)