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:-
“The governing principle of awarding damages, in respect of breach of contract is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss there can be no room for claims which are merely speculative or sentimental, unless these are specifically provided for by the terms of the contract. See Hadley v. Baxendale (1854) 9 Exch. 341 at 354. Mr. Onekutu, learned counsel for the appellant, is correct in his reference to the case of Onaga v. Micho (supra) that in a breach of a building contract, an aggrieved contractor is entitled to claim balance of payment for work done and loss of profit on the work he has been prevented from doing. It is a fact that builders work for profit and apart from his entitlement to the price, the damage to a builder caused by any breach of contract by the employer will be assessed in the light of its impact upon his profit. See also Ukoha v. Okoronkwo (1973) 5 SC 260.
The parties in the case in hand had agreed that the respondent shall build the bungalow at the contract sum of N51,666.66 After the respondent had completed some work on the building he was paid N24,541.00, leaving a balance of N27, 125.66. In the Writ of Summons the respondent, as plaintiff, at the lower court, claimed N27,525.66 as special damage and N22,474.00 general damages for breach of contract. Can the respondent, under the common law, claim both under special damages and general damages in the same suit and in respect of the same injury Courts have always avoided allowing such awards because it would amount to double compensation. It is not a hard and fast rule, but several authorities warn against the award for the plaintiff under general damages after the court had earlier compensated him with awards under special damages. See Ezeani v. Ejidike (1964) 1 All NLR 402. Even the loss of expected profit must be claimed under the head of special damages. Elias, C.J.N in the case of N.R.C. v. Odemuyiwa (1974) 1 SC 13 had the following to say:
‘We think that the respondent’s case lies on contract and that without pronouncing ourselves on whether or not general damages may never be awarded pari pasu with special damages in the same suit, we consider that the damages awarded (other than general damages) under the other heads of claim in the plaintiff/respondent’s statement of claim are adequate as a fair estimate of the loss arising out of his wrong suspension by the defendant/appellant.
The appeal in the case, reported above in respect of the award on general damages was allowed because the learned trial Judge made an award of general damages over and above the award he made as special damages. The Supreme Court only sustained the award in special damages.”
It is against the setting aside of the award of general damages that the plaintiff has now appealed to this Court upon three grounds of appeal. Briefs of argument were filed and exchanged and in the appellant’s Brief the following questions are set down as calling for determination in this appeal:
“1. Whether the Court of Appeal was correct in holding that the award of N10,000.00 as general damages in addition to the proved special damages of N25,125.66 amounted to double compensation having regard to the pleadings, evidence and findings of the Court of first instance
- Whether it could be said, having regard to all the peculiar facts and circumstances of this appeal that the appellant has been adequately compensated by the sustained award of N25,125.66.
- Whether it is forbidden in law to award general damages upon special damages in disputes involving a breach of contact
- What is the scope and extent of the award of general damages in civil matters relating to breach of contract”
In the respondent’s Brief however, only one question to wit:
“1. Whether or not, on the pleadings and evidence in this case the Court of Appeal was right in holding that the award of the sum of N10,000.00 general damages by the trial court was based on wrong principles of law and amount to double compensation to the appellant who had been awarded the sum of N25, 125.66 damages.”
is set down as calling for determination. This question is in line with Question 1 in the appellant’s Brief and in my respectful view represents the only question calling for determination in this appeal. Questions 2-4 as set out in the appellant’s Brief are issues to be considered in determining Question 1. Questions (3) and (4) were, however, withdrawn at the hearing of the appeal and were accordingly struck out by us.
The facts are rather simple and straight forward. The defendant was awarded a contract by the Ministry of Defence to build a number of units of bungalows for the use of the Nigeria Army Engineers. On the 5th of July, 1982, the defendant entered into a sub-contract agreement with the plaintiff to build one of the units awarded to it by the Ministry of Defence. The sub-contract was to be executed at the Nigeria Army School of Infantry Jaji at an agreed contract sum or N51,666.66 with three months as the conclusion period. The plaintiff commenced work at the site and constructed the building to lintel level when, according to the contract, he was paid N24,541.00 by the defendant. The plaintiff continued with work on the site notwithstanding the failure of the defendant to pay him instalments due at various stages of the work. It would appear however, that the other sub-contractors abandoned work when the defendant could not make payment to them. Subsequently the Ministry of Defence terminated the main contract for non-performance by the defendant. At the time of the termination of the main contract the plaintiff had virtually completed his own unit of bungalow leaving only painting to be done.
He assessed the cost of painting that was not done by him at N300.00. He made several demands for payment of the money due to him from the defendant but to no success. Eventually he instituted the action leading to this appeal claiming as hereinbefore stated.
The learned trial Judge after a review of the evidence on both sides and appraised of same found that the defendant was liable to pay to the plaintiff the contract sum less the amount already paid and less also the sum of N2,000.00 which the learned trial Judge held was the cost of painting not carried out by the plaintiff. He made a total award of N25,125.66 as special damages. He also awarded the plaintiff N10,000.00 general damages. On appeal by the defendant to the Court of Appeal (Kaduna Division) the award of general damages was set aside but the award of special damages was confirmed. It is against that part of the judgment of the Court of Appeal setting aside that award of general damages that the plaintiff has now appealed to this Court. The Court of Appeal had held that the award of general damages amounted to double compensation.
In appellant’s brief learned counsel, Mr. Daudu relying on the dictum of Alderson B. in Hadley v. Baxendale 1843-1860 All E.R. Rep. 461,465, submits that upon the critical analysis of the facts the award of general damages made by the trial court is properly within the safe confines of the rule in that case. Learned counsel seek to distinguish the case on hand from the cases of Onaga v. Micho & Co (1961) 2 SCNLR 101; (1961) All NLR 328 and Ukoha v. Okoronkwo (1972) 5 SC. 260 where this Court had held that in a building contract, an aggrieved contractor could only claim for balance of payment for work done and loss of profit on the work he had been prevented from doing. Learned counsel argues that in the present case unlike in the two cases cited by him above where the contracts were unlawfully terminated, there was no termination rightly or wrongly. Learned counsel states that the evidence is clear that the plaintiff fulfilled all the terms of the contract to the letter and it was the defendant that breached the contract by its refusal to pay the appellant sums due to him by withholding same. He further submits that the plaintiff’s claim from the commencement of the suit manifested a case warranting general damages for breach of contract. He referred to the evidence of the plaintiff where he testified that he suffered financial losses. In learned counsel’s submission, taking the facts of the case as a whole into consideration such as the length of time from the date of breach to date of redress the plaintiff was entitled to an award of general damages. Mr. Daudu in justifying the quantum of the award of general damages submits that the use by the learned trial Judge of 7% as a yardstick for awarding general damages was merely to show that the sum of N10,000.00 awarded was not excessive and to demonstrate that the defendant had unduly punished plaintiff by depriving him of funds due to him and by this act of deprivation the defendant was damnable in general damages. He relies on the dictum of Oputa, J.S.C. in Overseas Construction Ltd v. Creek Ent. Ltd. (1985) 3 NWLR (Pt.13) 407, 421. Learned counsel relies on Aerial Advertising Company v. Batchelors Peas Ltd. (Manchester) (1938) 2 All E.R. 788, 795 which decision was approved by this Court in Sodipo & Co. v. Dairy Times of Nigeria Ltd. (1972) 1 All NLR (Pt.2) 406 at p. 409.
Learned counsel also argues that the case of NRC v. Odemuyiwa (1974) 1 All NLR (Pt.1) 429 at p. 430 relied upon by the Court of Appeal does not support the conclusion reached by that Court and he refers in this respect to the dictum of Elias CJN at page 435 of the report. Finally, learned counsel urges this Court to allow the appeal, set aside the judgment of the Court of Appeal and restore the award of general damages made by the trial court. At the oral hearing of this appeal, Mr. Daudu further relies on Warner & Warner International v. Federal Housing Authority (1993) 6 NWLR (Pt.298) 148, 176 D-H.
In the respondent’s Brief learned counsel for the defendant restates the principle on the award of damages laid down in Hadley v. Baxendale (supra) as that arising naturally from such breach of the contract itself of such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as a probable result of the breach of it. Learned counsel cites a number of decisions of this Court where that principle has been applied. He submits that in the case on hand, it has not been shown that the general damages claimed by the plaintiff arose naturally from the breach of the contract or that it was in the contemplation of the parties at the time they entered into the contract as a probable result of the breach. He submits that the award of general damages amount to double compensation and that the Court below was right in setting it aside. Relying on a number of decided cases learned counsel submits that where a litigant had been adequately compensated under one head of damages he should not be awarded damages under another head and that therefore, the plaintiff having been fully compensated under the award of special damages, it would amount to double compensation to award him damages under the head of general damages. At the oral hearing, Mrs. Adekoya learned counsel for the defendant opined that Warner & Warner International v. Federal Housing Authority (supra) made no difference to the defendant’s case. She urges the Court to dismiss the appeal.
The modern law on the measure of damages in contract cases was laid down by Alderson B. in Hadley v. Baxendale (Supra) wherein the noble and learned Baron said;
“Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
If special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under the special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them.”
The above rule, laid down by Alderson B., has been followed ever since both by the English Courts and our Courts in Nigeria. As a follow up to this principle, the rule of assessment of damages flowing from a breach by an employer in a building contract is well set out in HUDSON’S Building and Engineering Contracts 10th Edn. at page 585 in the following words:
“The measure of damages as a legal problem gives little difficulty in the cases of breaches of contract by the employer. It is obvious that builders work for a profit and apart from his entitlement to the price, the damage to a builder caused by any breach of contract by the employer will be assessed in the light of its impact upon his profit.”
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“In the case of prevention, that is to say, where the employer has wrongfully terminated the contract, or has committed a fundamental breach justifying the builder in treating the contract as at an end, and the latter accordingly ceases work, the measure of damages will be the loss of profit which he would otherwise have earned. In the more usual case where the work is partly carried out at the time when the contract entitled to the value of the work done assessed at the contract is repudiated, the builder will normally be rates, plus his profit on the remaining work.”
This principle was adopted by this Court in Ukoha & ors. v. Okoronkwo (supra). It is not in doubt that the contract the subject matter of the action leading to this appeal is a building contract. If the rules above stated are applied, the Plaintiff would only be entitled to the value of the work actually done by him plus the loss of profit on the work he was deprived of doing by the defendant’s breach of their contract. In this appeal the liability of the defendant for breach of contract is not in dispute. What is in dispute is the quantum of damages the plaintiff is entitled to. It would appear from the award made by the learned trial Judge that the plaintiff was adequately compensated for the work he did. What he was not awarded- and which he did not claim for – is the loss of profit on the painting of the house which he was as a result of the breach of the contract deprived of carrying out. Not only had he not claimed for that, he led no evidence whatsoever on it. In any event having regard to the award made in his favour under the head of special damages, that loss of profit would have been minimal. The Court below, rightly in my view, upheld the award of special damages.
What is in dispute in this Court is the award of general damages made by learned trial Judge and set aside by the learned Justices of the Court below on the ground that it amounted to double compensation. It is the contention of the plaintiff that the Court below was wrong in this conclusion. The plaintiff based its contention on the premise that he suffered inconvenience etc. by the failure of the defendant to pay him for work done at the required time. True enough, he pleaded in his statement of claim as hereunder;
“19. The plaintiff avers that the non payment of his balance of N252,252.66 (Twenty-seven Thousand five hundred and Twenty-five Naira sixty-six Kobo) by the defendant has caused him hardship and inconvenience and inability to liquidate several debts he incurred in the course of executing this contract some of which are; Builders balance N4,000.00, Electricians balance N1,500.00 Plumbing balance N2,500.00 and Alhaji Shehu Kwasau N3,000.00”
In the concluding paragraph of his pleadings he averred as follows:
“Wherefore the plaintiff claims from the defendant special damages arising from the withholding of the balance of the sum of N27,525.66 due to him.
It is patent from the above that the inconvenience and hardship plaintiff alleged in paragraph 19 was considered along in his claim for special damages. This apart, there is no evidence to show that the hardship and inconvenience complained about was in the contemplation of the parties at the time they made their contract, as a probable result of any breach of the contract between them nor of any pecuniary loss occasioned thereby as to ground an award of damages under that head being made in plaintiff’s favour. There is no evidence that the defendant who was the contract breaker had knowledge upon which it could be presumed that the hardship and inconvenience was in the contemplation of the parties at the time they entered into their contract.
As this Court, per G.B.A. Coker J.S.C. it in Shell BP Petroleum Development Company v. Jammal Engineering (Nigeria) Ltd. (1974) 4SC. 33, 87-88:
“The measure of damages appropriately is the loss flowing from the contract and unless the element of speculation was in the contemplation of the parties at the time of the contract, whatever else could have accrued to a party as a result of that speculation on the contract is not relevant. That was in effect the decision of the House of Lords in the case of Bain v. Fothergill (supra). In Wright v. Dean (supra). Wynn-Parry J., as he then was, explained and applied the principle expounded in Hadley v. Baxendale (supra). We are in agreement with his explanation and application of that principle. Hollington Bros v. Rhodes (supra) is a classic example of an assessment of damages based on actual expenses incurred by the plaintiffs as a necessary result of the breach by the defendants of their contract in that case.
The principle of assessment established by the authorities is clear generally. It is that a party in breach of his contract is liable in damages and the aggrieved party is entitled to such damages calculated generally on the loss sustained by the aggrieved party and flowing necessarily from the breach in that either the injury suffered by the aggrieved was in the contemplation of both parties at the time of the institution of the contract or is an inevitable consequence of the breach.”
I agree with the learned counsel for the plaintiff that it is not the law that general damages could not be claimed in an action for breach of contract. This is explained by Atkinson. J in Aerial Advertising Company v. Batchelors Peas Ltd. (Manchester) (supra) in these words:
“I come, then, to the claim for general damages, and here a point of law is raised. There is only a claim for general damages in respect of pecuniary loss, and Mr. Roskill says that I cannot give general damages for pecuniary loss in respect of breach of contract, and that I can give damages only by way of special damage for a breach of contract. For that argument Mr. Roskill relies upon Groom v. Crocker (1). I fail myself to see any difference in principle between a claim for special damage and a claim for general damage. One, of course, has to be proved as completely as does the other. The only difference is that, where one is claiming special damages, the circumstances are such that one is able to put one’s finger on a particular item of loss and say, ‘I can prove that I lost so much there, so much there, and so much there, whereas a claim for general damages means this: ‘We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss.’ Once that has been proved, I cannot myself see any difference in principle between special damages and general damages. When one reads Groom v. Crocker (1), one sees that, so far from saying that there is any difficulty in recovering general damages, to my mind it says precisely the opposite. The relevant passage in the case is quite short. Groom v. Crocker (1) was decided so recently that I need not go through the facts. What Sir Wilfrid Greene, M.R. said (and this is what is relied upon) is at p.401:
‘It was said that as a result of the negligence on the part of the appellants, the respondent was subjected to mental suffering, that he was held up to public disapproval, that his reputation as a careful driver was destroyed, and that the jury were entitled to award damages in respect of these matters. It was said that the action was an action in tort, and not in contract, and that, even if it were an action in contract, such damages were recoverable. In my opinion, the cause of action is in contract, and not in tort.’
Sir Wilfrid Greene, M.R. then goes on to say what the duty was, and proceeds, at p. 402.
‘No authority was cited to us which supports the proposition that, in an action based on breach of contract, damages can be recovered in respect of the matters to which I have referred (which did not include pecuniary loss). No pecuniary loss arose from them, and no reasonable probability of pecuniary loss in the future could be shown.
Surely, if that means anything at all, it means that this is not a case of pecuniary loss, where, of course, damages could be given, but something quite different. Sir Wilfrid Greene, M.R., then says, at p.402:
‘Reliance was placed on Wilson v. United Counties Bank Ltd., (2) In that case, bankers, who had been entrusted with the supervision of a trader’s business, by their negligence caused his bankruptcy. In addition to damages for the loss occasioned to the bankrupt’s estate, the jury awarded $7,500 damages for the injury to his credit and reputation, and it was held by the House of Lords that this award was good. The decision rested upon the special terms of the contract, under which the bank agreed to take all reasonable steps to maintain the plaintiff’s credit and reputation. Lord Birkenhead, L.C., put the case in the same class as that of the case where a banker dishonours a cheque although the customer’s account is in funds. In such cases, it is the commercial credit of the customer that is injured, and the inference arises that pecuniary loss will necessarily ensue.
I repeat that I do not regard that as an authority for the proposition that general damages are not recoverable for pecuniary loss. Difficulty of proof does not dispense with necessity of proof. In considering damages on this part of the case, one has to be very careful that one is not giving damages for injury to reputation and that type of thing. One can only give general damages in respect of the pecuniary loss which has been sustained.”
This statement of the law was cited with approval by this Court in Sodipo and Co. Ltd v. Daily Times of Nigeria Ltd. (supra). Where a plaintiff has no difficulty in quantifying his actual pecuniary loss for the breach of the contract with him he may claim special damages but where however, he has difficulty in quantifying the actual loss, he may claim in general damages. An example of this can be found in the case of Maiden Electronics Works Ltd. v. Attorney-General of the Federation (1974) 1 SC. 53 where this Court reviewed that law as regards award of damages in breach of contract cases. Fatayi-Williams J.S.C. (as he then was), delivering from the majority judgment of the Court (Ibekwe J.S.C., as he then was, dissenting) observed at pages 97-98 of the report:
“The plaintiffs/respondents claimed the sum of 10,000pounds as general damages for this breach. The learned trial Judge awarded them 400pounds. We have had cause to comment before on the confusion that can arise by the use of term ‘special’ and ‘general’ damages in cases of breach of contract (ss. Khawam v. Chanrai & Co. (1965) 1 All NLR 182; and Akinfosile v. Mobil Oil Nigeria Ltd. SC 724. 1966 delivered on 28th November, 1969). The rule governing the award of damages in contract has been clearly stated in Hadley v Baxendale (1954) 9 Exch. 341 and it is this. Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i.e according to the usual cause of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it. The rule has been refened to with approval in Victoria Laundry (Windsor) Ltd. v. Newwam Industries Ltd. (1949) 2KB 528; East Ham Corporation v. Bernard Sunley & Sons Ltd. (1966) AC 406 at pages 450-451; and Koufos v. Czarinkow Ltd. (1967) 3 W.L.R. 1491. Again in Agbaje v. National Motors (Nigeria) Ltd., S.C. 20/68 delivered on 13th March, 1970, this court observed as follows:
‘It is undesirable to refer in contract to general or special damages as normally the only damages, other than those arising naturally, flow from consequences specifically provided for by the parties which would not otherwise naturally arise from a breach of the contract.”
After referring to a passage in HUDSON’S Building Engineering Contracts which passage I have earlier quoted in this judgment, the learned Justice went on at pages 99- 100 thus.
“Nowhere in the judgment in the present case did the learned trial Judge advert to the above principle of assessment, with which we agree, or employ any of the methods of assessment. All he said was that the plaintiff/respondents gave no evidence of the damages suffered by the Ministry as a result of the breach and then went on to award them the sum of 400pounds. “Nevertheless, it is our view that all the plaintiffs/respondents are entitled to by way of damages cannot be more than the expenses which they would have had to incur in employing another contractor to complete the installation. The contract for the installation of the two links is 1,350pounds and although this amount has not been paid to the defendants/appellants, we do not think, having regard to all the circumstances, including the undue delay; that we should disturb the award of the sum of 400pounds made to the plaintiff/respondents by the learned trial Judge.”
See also: Ukoha v. Okoronkwo (supra) where the head of damage claimed under “general damages” was, infact, an estimated loss of profit in respect of work the plaintiff was prevented from doing by the breach. In both cases, the plaintiffs claimed general damages and were so awarded. But, in effect, they claimed for pecuniary loss suffered by them as a result of the defendants’ breach of their respective contracts. I only need to reiterate what Fatayi- Williams. J.S.C. said in the Maiden Electronics Works Ltd. case that, in order to avoid confusion, one should avoid the use of the term “special” and “general” damages in cases of breach of contract. The law is that in cases of breach of contract, the damages that would be awarded are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.
The law however, goes on to lay down that in an action for breach of contract a plaintiff who is well compensated under one head of damages for a particular claim cannot also be compensated in respect of the same claim under another head of damages as this will amount to double compensation. See Nigeria Railway Corporation v. Odemuyiwa (1974) 1 ANLR 388 (Reprint); Onaga & ors v. Micho & Co. (supra) where the award of general damages by the trial court was set aside by this Court on the ground that by the award of special damages the loss sustained by the plaintiff was adequately taken care of. The law frowns against double compensation whether in contract or tort. See for example: Ekpe v. Fagbemi (1978) 3SC 209. The case of Warner & Warner International v. Federal Housing Authority (supra) was cited to us by learned counsel for the plaintiff. I cannot see anything in that case which supports the contention of the plaintiff in the appeal before us. On the contrary, the case affirms the rule laid down in HUDSON’S Building and Engineering Contracts earlier set out by me in this judgment.
On the principles of law reviewed above and having regard to the facts of this appeal, I can find no legal basis whatsoever for the award of general damages made by the trial court. In my considered view the Court below is right in setting aside the award of general damages.
On the facts, the plaintiff in my respectful view has been adequately compensated by the award of special damages made by the trial Judge. Having been awarded virtually the entire contract sum, I cannot see the necessity for the award of general damages, more so that the case for this, based as it were on hardship and inconvenience occasioned by the defendant’s failure to pay the balance due to the plaintiff in time, it cannot be said to be grounded in legal basis as it has not been shown that this was in the contemplation of the parties at the time they entered into their contract as the probable result of a breach nor was it shown to result in pecuniary loss.
In conclusion therefore, I find no merit in this appeal which I hereby dismiss. I affirm the judgment of the Court below and I award N1,000.00 costs of this appeal to the defendant/respondent.
SC.180/1989
