Alhaji Mustapha Aliyu Kusfa V. United Bawo Construction Co. Ltd. (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The only question calling for determination in this appeal is as to whether or not the plaintiff in an action for breach of contract is entitled to award of general damages where his claim for special damages for the contract sum nearly wholly succeeds.

The plaintiff (who is now the appellant before us) had sued the defendant (now respondent) claiming as hereunder:-

“The plaintiff’s claim as against the defendant is for the sum of N50,000.00 being special and general damages arising out of a breach of a building sub-contract.

By an agreement dated the 5th of July, 1982 between the parties, the plaintiff agreed to construct one block of COI/LT COL. Quarters on behalf of the defendant for the use of Nigerian Army Engineers Ministry of Defence Lagos at Jaji Kaduna for a consideration of N51,999.00 after due completion of the structure by the plaintiff the defendant refused to issue the plaintiff with certificate of payment and consequently withheld the balance of N27,525,66 due to him.

PARTICULARS

The plaintiff has therefore suffered financial losses and claims from the defendant as follows:

i. N27,525.66 as special damages being the balance of the contract sum due to the plaintiff.

ii. N22,474.00 being general damages for breach of contract.”

Pleadings having been ordered, filed, delivered and exchanged the action proceeded to trial at the conclusion of which the learned trial Judge found for the plaintiff and awarded him the sum of N25,125,66 as special damages and N10,000.00 as general damages. In making the award of special damages the learned trial Judge S.U.Mohammed. C.J. (as he then was) observed as follows:-

“Is the plaintiff entitled to all this sum of N27,125.66 bearing in mind that he had not painted the building. There is no doubt that the only part of the contract plaintiff had not performed was the painting. The defence has not led any evidence on what the painting cost and the only evidence I have is that of plaintiff who said it should not have cost more than N300.00. I do not however agree that only N300 would paint a widly constructed house for an officer in the Nigerian Army of the rank of Col/Lt. Col. as Exhibit 1 shows. I think something in the region of N2,000.00 is more reasonable and I assess the painting of the house at N2,000.00. When this is deducted from the unpaid balance of N27,125.66. I accordingly enter judgment for plaintiff against defendants in N25,125.66 as special damages.”

And in making the award of general damages, he also observed as follows:

“On general damages Mr. Obeya for defendants conceded that defendants are in breach. By clause 7(b) for Ex. h “1” provides mode of interim payments to plaintiff by defendants which defendants clearly breached. Indeed the defendants have not offered any excuse for taking the remaining contract from plaintiff. The plaintiff is clearly entitled to damages for thus (sic) breach but the difficult thing is the quantum. The contract was in 1982 and plaintiff clearly performed it within time. He expended his money to perform the contract and defendants have refused to pay him for about 5 years. Taking into account all relevant matters I assess general damages for breach at N10,000.00 which is a little over 7% of N25,125.66 per annum for a period of five years.”

Being dissatisfied with that judgment, the defendant appealed to the Court of Appeal which Court allowed the appeal in part. The award of special damages made by the trial Judge was affirmed but the award of general damages was set aside. U. Mohammed, J.C.A. (as he then was) in setting aside the award of N10,000.00 general damages observed:-