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GBADEGBE, J.A.
The question which
arises for determination in the instant appeal in my
view is within a narrow compass; namely whether the
award of damages by the learned trial judge was right in
the circumstances of the case? In his delivery, the
subject matter of these proceedings, the trial judge
awarded ¢20,000,000.00 being general and special damages
inclusive of ¢7,127,000.00 which he categorised as
special damages. In particular, at page 120 of the
record of proceedings, the trial judge as regards the
damages due to the plaintiff from June - December 1988
arrived at ¢7,200,000.00 out of which he deducted
¢73,000.00 being the salary for the operator over the
period and was thus left with ¢7,127,000.00. In my view,
the award under this head covering the period in respect
of which it was computed cannot be faulted since having
regard to the contract of hire between the parties,
there was a pre-determined liability of the hirer until
the equipment which it had hired from the plaintiff was
returned. Such a head of claim in my view sounded more
in liquidated damages which refers to what the liability
of a party to a contract is in the event of a default or
upon the occurrence of an event such as the effluxion of
time. In those cases, clearly at the date of the
concluded contract, the parties would have provided a
genuine pre-estimate of the loss which is to be paid and
by a mere reference to the agreement the court is
enabled to arrive at the figure taking into account the
number of days as was the case in the instant appeal in
respect of the liability of the hirer to the owner under
the contract of hire. Relating this to the facts which
provoked the action, herein, I think that the finding of
the trial judge that the cost of hire was ¢40,000.00 a
day which is contained in Exhibit ‘B’, the agreement of
hire is an instance of the agreement of the parties on
what the liability of the hirer should be and in such a
situation, the owner’s entitlement is one in the nature
of liquidated damages of Halsbury's Laws of England, 4th
Edition Vol.12 para.1116 @ 419.
I proceed further to
say that it is important to bear in mind that in Exhibit
‘B’, the parties had provided that until the equipment
was returned, the same was under the agreement of hire.
In particular, in the closing paragraph of Exhibit ‘B’
appearing immediately above the signature of the parties
to the agreement it is provided thus:
“The date of
commencement shall be construed as the date the plant
leaves its existing location for delivery to the hirer.
The date of termination shall be the date it is returned
to the owner’s department or an equivalent location as
determined by the owner.”
The above provision
though not under the specific heading “Termination of
Agreement” overrides that which appears under the
heading “Termination of Agreement” on the ground that
the specific provisions on termination refer only to
acts, the default of which by the hirer may have the
effect of bringing the contractual relationship between
them to an end and does not cater for the events
specifically provided in the paragraph referred to which
is contained in Exhibit ‘B’, the agreement which governs
the relationship between the parties. In my view, the
said events are one of fact which upon their occurrence
are decisive of either the commencement of the hire
agreement or its termination namely the delivery of the
equipment to the hirer’s site and the subsequent
delivery of the same to the owner. To place the meaning
contended by learned counsel for the appellant as to
what constitutes termination is in my view one which
would deny the owner of the protection to which it is
entitled under such agreements mainly the obligation of
the hirer to surrender possession to the owner upon the
termination of the agreement of hire. I am of the
thinking further that until the plant was returned, the
contract of hire was deemed not to be at an end and on
this ground, the hirer is liable to the owner at the
rate provided for in Exhibit ‘B’. I therefore hold that
the finding of the learned trial judge and his
consequential computation of the damages from June -
December 1988 were rightly done and cannot be impeached
in these proceedings.
It being so, I next
turn to consider the portion of the award which is in
excess of the ¢7,127,000.00. I commence with the
statement that since the hirer, the Respondent, had the
equipment under a contract evidenced by Exhibit ‘B’
which made provision for the cost of hire which the
learned trial judge accepted as ¢40,000.00 per day, the
hirer was obliged by his solemn contractual undertaking
borne out by its signature to pay the said amount for
each day that the equipment was in its possession. This
sort of liability as earlier on said is in the nature of
liquidated damages which falls under what is described
as special damages. I am of the view that since there
was an agreement at the date of the contract by way of
an estimate in the nature of the cost of hire per day,
after the passage of each day, the owner’s entitlement
was in the nature of actual loss of earnings suffered
once the hirer - the Respondent, did not pay up the
agreed cost of hire to it. Therefore, over a period such
as was the case which resulted in the writ of summons
herein being issued, the owner's damages was in the
nature of past-earnings, lost and or suffered and not
one which fell to it in the nature of general damages.
On this point, I wish to refer to the statement of Bowen
LJ. in Radcliffe vrs: Evans (1892) 2 QB 524 @ 528 as
follows:
“……….Lest we should be
led astray in such a matter by mere words, it is
desirable to recollect that the term “special damages”
which is found for centuries in the books is not
always used with reference to similar subject matter nor
in the same context. At times, (both in the law of tort
and of contract) it is employed to denote that damage,
arising out of the special circumstances of the case
which if properly pleaded may be superadded to the
general damage which the law presumes in every breach of
contract and every infringement of an absolute
right…..In all such cases, the law presumes that some
damage will flow from the ordinary course of things from
the mere invasion of the plaintiff's right, and calls it
general damage. Special damage in this context means the
particular damage (beyond the general damage) which
results from the particular circumstances of the case,
and of the plaintiff's claim to be compensated for which
he ought to give warning in his pleadings in order that
there may be no surprise at the trial. But where no
actual positive right (apart from the damage none) has
been disturbed, it is the damage done that is the wrong;
and the expression “special damage” when used of this
damage denotes the actual and temporal loss which has in
fact occurred. Such damage is called variously in old
authorities “express loss”, “particular
damage”…..”damage in fact”, “special or particular cause
of loss” See also Halsbury's Laws of England 4th Edition
Vol.12 para..1113 @ 416.
Applying the above
statement which I accept as a correct exposition of the
law, I am of the opinion that the period commencing from
1/2/88 to 30/5/88 also was one in the nature of
liquidated damage, a damage which having regard to the
facts of this case, falls under the clarification
“special damage”. Therefore, the Respondent's
entitlement is reached by multiplying the cost of hire
by the number of days. By a simple arithmetical
calculation the total number of days comes to 131 which
is made up as follows:
(1) 21/1/88 -
31/1/38 - 10 days
(2) 1/2/88 -
29/2/88 - 29 “
(3) 1/3/88 -
31/3/88 - 31 “
(4) 1/4/88 -
30/4/88 - 30 “
(5) 1/5/88 -
30/5/88 - 30 “
The said period in
terms of weeks comes to eighteen weeks and five days
which means that Sundays be deducted from the period
they representing non-working days. Making allowance for
the said eighteen days, one is left with 113 days out of
which I make allowance for imponderables which I allow
at five days leaving me with 108 days. Multiplying this
¢40,000.00 the owner’s entitlement comes to
¢4,320,000.00 for the said period. The plaintiff
respondent total award for the cost of hire thus comes
to:
¢4,320.000.00. and
7,127,000.00
¢11,457,000.00
I wish to observe that
beyond this actual loss which was proved there is no
evidence which might justify the award of general
damages. I also wish to say that the learned trial judge
did not in his judgment, the subject matter of this
appeal refer to any other act in the nature of a wrong
on which he based the award described as general
damages. It being so, I proceed to set aside the award
of ¢20 million described as general and special damages
and in place thereof substitute damages in the nature of
cost of hire and or special damages in the sum of
¢11,457.000.00 representing the Plaintiff-Respondent’s
entitlement under the agreement of hire—Exhibit ‘B’.
Since the said amount was wrongfully withheld from the
owner—the plaintiff respondent, I think that the same
should attract interest. See (1) Denning MR. in
Harbutt’s Plastiscine vrs: Wayne Tank Ltd. (1970) 1 All
ER 225 @ 236. (2) Jeffard vrs: Gee (1970) 1 All ER 1202
@ 1205. In the last of these cases Denning MR observed
approving Herschell LJ in London Chatham & Dover Rly.
Co. vrs: South Eastern Rly Co. (1893) AC 429 @ 439 as
follows:
“....I think that when
money is owing from one party to another and the other
is driven to have recourse to legal proceedings in order
to recover the amount due to him, the party who is
wrongfully withholding the money from the other ought
not in justice to benefit by having that money in his
possession and enjoying the use of it, when the money
ought to be in the possession of the other party who is
entitled to its use. Therefore if I could see my way to
do so, I should certainly be disposed to give the
appellant or anybody in a similar position interest upon
the amount withheld from the time of action brought at
all events.” See also LI 1295—Court's (Award of
Interest) Instrument 1984 which makes the award
discretionary to the judge.
The said award
accordingly is to attract interest at the bank rate as
the trial judge rightly said in his delivery.
In the result the
defendant/appellant appeal succeeds on the award of
damages only; the appeal against the dismissal of the
counterclaim which in my view appears to have been
abandoned is in particular dismissed.
N. S. GBADEGBE
JUSTICE OF APPEAL
BADDOO, J.A.
I agree
S.G. BADDOO
JUSTICE OF APPEAL
ANSAH, J.A
I also agree.
JUSTICE OF APPEAL
J. ANSAH |
