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M.C. NAGEON DE LESTANG, AG. F.C.J. (Presided)
SIR HENLEY COUSSEY, AG. F.J. (Read the Judgment of the Court)
ROBERT YORKE HEDGES, AG. F.J.
JONATHAN AGONSI (Trading as Jonathan Agonsi & Co.)
NNA WOGU & 20 OTHERS
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
APPEAL -Assessment of damages by appellate court- Valid when not done by the trial court.
CONTRACT- Valid agreement in existence – Failure of attempt to renegotiate – Whether contract rescinded.
DAMAGES – Special damage – Proof of.
G.N.A. Okafor -for Appellants.
Respondent not Represented.
COUSSEY, AG. FJ. (Delivering the Judgment of the Court):
The Court on the 3rd March, 1958, allowed this appeal, set aside the judgment entered for the respondents in the High Court, Port Harcourt Judicial Division on the 7th February, 1957, and entered judgment for the appellant Jonathan Agonsi for £75 general damages and costs. Reasons for allowing the appeal are now given.
The appellant proved satisfactorily in the Court below that the respondents entered into a written agreement dated the 7th August, 1954, for the erection of a school building at Umukroshe, at a price of £2,300. By their defence the respondents pleaded that their signatures and thumb prints to the said agreement, where they occur, were obtained for a different purpose, but no evidence whatever was given to support this serious allegation which involved fraud on the part of the appellant.
The learned trial Judge held, erroneously, that this agreement upon which the appellant sued had been set aside by mutual consent of the contracting parties. That was denied by the appellant.
Rescission was not, however, pleaded by the defence. The defence was that there was, in fact, no agreement and that an attempt by Archdeacon Spill to get the parties to arrive at an agreement at a meeting held on 15th September 1954, had proved abortive.
At the hearing, the respondents declined to give evidence and, therefore, this contention was not established and the appellant’s case was unanswered.
From the appellant’s evidence on the point, which should have been accepted, it is clear that there were negotiations for a new agreement, but those negotiations fell through owing to no fault on the appellant’s part. In those circumstances the original agreement was binding upon the parties. When the respondents refused further to discuss a new agreement the appellant was entitled to have recourse to that original agreement and to regard the respondents’ conduct as a breach of the contract, as it in fact was, and to sue for damages.
The respondents did not attend and were not represented by Counsel on the appeal.
The appellant failed entirely to prove the special damage laid. The so called account book which was produced in support of this claim was obviously of no evidential value and, indeed, should not have been admitted in evidence. No evidence was given to corroborate the appellant as to the expenditure which he alleged he had incurred under the contract and it follows that no award could be made under the head of special damage.
The Court was of the opinion that the appellant, did, however, incur some expenditure on account of the contract and damage consequent on its breach.
With the consent of Mr. Okafor, Counsel for the appellant, that damages should be assessed by this Court instead of remitting the suit to the Court below for enquiry as to damages, the Court awarded the appellant £75 as general damages. The appellant’s costs were allowed at £50 and it was ordered that the appellant’s costs in the Court below be taxed and paid by the respondents.
DE LESTANG, Ag. F.C.J.: I concur.
HEDGES, Ag. F.J.: I concur.