Kwetey V Btchway Case Study

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
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
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