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ISUFU (PAINTER)
V.
THEODORE TAYLOR
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
13TH DAY OF MAY, 1942
LEX (1942) – WACA 61 – 62
OTHER CITATION(S)
2PLR/1942/23 (WACA)
(1942) VIII WACA PP. 61 – 62
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BETWEEN:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
ISUFU (PAINTER) – Plaintiff-Appellant
AND
THEODORE TAYLOR – Defendant-Respondent
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REPRESENTATION:
J. S. Adoo for Appellant
A. M. Akiwumi for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW – CONTRACT:- Breach of contract— Agreement for repairs — Quantum meruit – When applicable
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CASE SUMMARY
ORIGINATING FACTS
The repairs (painting, e.t.c.) in premises had been completed but defendant refused a further advance under the agreement on the ground that the work was bad.
The Magistrate found the defendant guilty of a breach of contract in refusing a second advance and awarded plaintiff £5 damages for breach.
Divisional Court came to the conclusion that the plaintiff had not proved his case but did not specifically direct what judgment should be entered in the Magistrate’s Court.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:- Appeal dismissed.
That the question of whether there was a breach by one party or the other was not in issue and was not threshed out. The onus was on the plaintiff to prove his claim for payment of a balance due. He clearly failed to do so and his claim should have been dismissed.
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND DOORLY, J.
The plaintiff claimed in the Court of the District Magistrale, Accra, the sum of sixteen pounds being balance of amount due and owing by defendant for work done to defendant’s premises under an agreement.
The agreement provided for the painting, etc. of defendant’s house by plaintiff at a total cost of twenty pounds. The defendant advanced four pounds and was to make other advances as the work proceeded. The plaintiff led evidence that he completed the work, but had received no payment except the four pounds advance and so claimed the balance of sixteen pounds. The defendant led evidence that the work done by plaintiff with the four pounds advance was so bad that he refused any further advance, and the plaintiff did no more work on the house, the defendant getting the work finished by another contractor.
The trial Magistrate found that no reliance could be placed on any of the witnesses, and, as we understand his judgment, he rejected the claim of the plaintiff for payment of a balance due, but found that the defendant had been guilty of breach of contract in refusing a second advance and awarded plaintiff five pounds by way of damages for such breach. We can find nothing to suggest, as appellant’s counsel contends, that the five pounds was awarded by way of quantum meruit for the work done.
We are of opinion that in awarding damages for breach of contract, the Magistrate went outside the scope of the issues before him. The question of whether there was a breach by one party or the other was not in issue and was not threshed out. The onus was on the plaintiff to prove his claim for payment of a balance due. He clearly failed to do so and his claim should have been dismissed. The learned Judge in the Divisional Court evidently came to the same conclusion, though he did not put it quite in the same way and did not specifically direct what judgment should be entered in the Magistrate’s Court, or set aside the award of costs to plaintiff in the Magistrate’s Court, or award the defendant costs in the Magistrate’s Court.
In our opinion, he should have done all of these things. The appeal is dismissed and the following order is made in lieu of the order made in the Divisional Court. The judgment of the District Magistrate, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance of that judgment it shall be refunded. The plaintiff’s claim in the District Magistrate’s Court shall stand dismissed. The defendant is awarded his taxed costs in the Court of the District Magistrate. The award of £7 1s costs to the defendant-appellant-respondent in the Divisional Court stands good, and the defendant-appellant-respondent is awarded costs in this Court assessed at £18 16s.