Edson Makina v Tim Jackson

The plaintiff and defendant entered into a sale agreement for ten tobacco bulk curers. The first curer was delivered without difficulty. However, the plaintiff claimed that the defendant failed to deliver the remaining nine curers. The defendant contended that he had made delivery longa manu (constructive delivery) by pointing out the tobacco curers to the plaintiff at the time the contract was concluded, and the plaintiff undertook to physically collect the bulky items. The plaintiff sent people to collect the curers, but they were prevented from accessing them by a group of unruly individuals backed by a politician. The defendant's administration manager, Artwell Kariwo, sought police assistance to facilitate the plaintiff's access to the curers, and a Ministry of Lands Official confirmed the curers were not State property. The plaintiff sought delivery of the ten curers and damages of US$191,250.00 for the alleged failure to deliver.

• Whether the defendant had effected valid delivery of the tobacco curers through delivery longa manu
• Whether the plaintiff was entitled to damages for alleged non-delivery
• What evidence is required to establish a claim for damages
• Whether the defendant was responsible for third-party interference with the plaintiff's collection of the goods after constructive delivery

The plaintiff's claim was dismissed with costs.

For delivery longa manu to be valid, the transferor must point out the thing to the transferee so that the transferee alone can exercise physical control over it. Once such delivery is effected, it becomes the purchaser's responsibility to collect the goods. The seller's obligation is to place the goods in a deliverable state and allow the purchaser to take free possession. The seller is not responsible for third-party interference with the purchaser's possession after delivery, as such deprivation does not flow from any flaw in the seller's title. A plaintiff claiming damages must adduce sufficient evidence to enable the court to quantify the loss; the court will not engage in speculation or guesswork where no adequate evidence is provided.

The Court observed that when a purchaser is threatened with eviction or interference by a third party, the purchaser should not voluntarily surrender the goods unless the third party's title is clear against both the purchaser and the seller. The Court noted with approval that a purchaser facing obstruction from third parties should take legal action against those individuals rather than expect the seller to do more than what is reasonably required to effect delivery. The Court also commented that claims for damages should not be left to speculation, stating: "Dreaming of figures and throwing them in the trial will not suffice."

This case clarifies the principles of constructive delivery (delivery longa manu) in the sale of goods, particularly for bulky items where physical delivery is impractical. It establishes that once a seller has pointed out goods to enable the purchaser to exercise physical control, the seller's delivery obligation is fulfilled, and the purchaser bears responsibility for collection. The case also reinforces the evidentiary burden on plaintiffs claiming damages, requiring concrete evidence rather than speculation. Furthermore, it demonstrates that sellers are not liable for third-party interference with a purchaser's collection of goods after valid constructive delivery has occurred.