IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
ANDOP COMPANY LTD - (Plaintiff)
VANGUARD PROPERTIES DEV. CO. LTD - (Defendant)
DATE: 21 ST FEBRUARY, 2018
SUIT NO: CM/RPC/0493/17
JUDGES: GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
SAMUEL THOPRA FOR PLAINTIFF
HAMZA ALHASSAN FOR DEFENDANT
The core issue I have been called upon to adjudicate on in this action is as to whether the Plaintiff is entitled to general damages.
On the 1st of August, 2017, the Plaintiff issued a Writ of Summons asking for the following reliefs:
1) Recovery of the sum of GH¢141,631.47 being payment for job executed under certificate No. 2
2) Interest on the sum of GH¢141,631.47 at the current bank rate from 30th October, 2015 till date of final payment.
3) General damages.
4) Special damages of USD2, 995.00 and GH¢16,500.00
5) Legal cost
6) Further or other reliefs
The Defendant was served with the Writ of Summons and Statement of Claim on the 9th August, 2017. Defendant through its Solicitor, Hamza Alhassan, entered appearance on the 11th August, 2017. On the 13th November, 2017, the Plaintiff filed an application for final and interlocutory judgment in default of defence.
The motion was served on the Defendant on the 15th November, 2017. The Defendant failed to respond to the motion for judgment. Defendant further failed to file a statement of defence despite being served with the application for judgment in default of defence. The Plaintiff accordingly moved the court on the 22nd November, 2017 for judgment. Same was granted and the matter adjourned to 7th February, 2018 for assessment of damages. The Court Ordered the Plaintiff to serve the Defendant with notice of assessment of damages and hearing notice. The Plaintiff accordingly served the Defendant with the notice of assessment of damages on the 18th December, 2017.
On the 7th February, 2018 the Plaintiff mounted the witness-box to testify on the issue of assessment of damages. The Defendant and its Counsel failed to turn-up in court to contest the assessment of damages. The testimony of the Plaintiff’s representative was to the effect that, the Defendant contracted them to execute some plumbing and fire-fighting works. It is the case of the Plaintiff that it mobilized materials and started working on the site. The contract was for a period of six months. The contract between the Plaintiff and the Defendant was tendered and marked as Exhibit ‘A’. Plaintiff further contended that in the process of executing the contract works, the project stalled due to non-payment of Plaintiff by the Defendant for works done and for which certificate had been presented for payment.
According to the Plaintiff, a visit to the site one day revealed that the Defendant had engaged another contractor to execute the works which Plaintiff had been contracted to execute. Despite writing letters to the Defendant, the later did not pay any heed to the demands of the Plaintiff. As a result, the Plaintiff contended that it filed the present suit asking for the reliefs stated above. It is noted that the Plaintiff has taken final judgment in respect of the value of works executed. Plaintiff has further taken judgment on materials and expenses incurred as a result of the breach of the Defendant.
The general rule is that wherever a Defendant is liable for a breach of contract, the Claimant is in general entitled to nominal damages although no actual damages is proved: See the case of MARZETTI v WILLIAMS (1830) 1 B & AD.415; The MEDIANA (1900) A.C 113, 116; SURREY CC v BREDERO HOMES LTD (1993) 1 W.L.R. 1361. Again in ASHBY v WHITE (1704) 2 LD, RAYM 938, it was held that the violation of a right of Common Law will usually entitle the Claimant to nominal damages without proof of special damages. The Plaintiff in the case before me has been granted its special damages and has also recovered cost of works done. It is noted that a regular use of nominal damages, however, is to establish the infringement of the Claimant’s legal right, and sometimes the award of nominal damages is “a mere peg on which to hang costs”. See BEAUMONT v GREAT HEAD (1846) 2 C.B. 498, 499.
In my view the Plaintiff should be entitled to nominal damages which I assess as GH¢15,000.00. I award to the Plaintiff costs assessed as GH¢5,000.00.