chief justice at the training workshop for judicial officers orga

JUDICIAL APPROACH TO THE DETERMINATION OF CONTRACT CASESA PAPER DELIVERED BYHON. JUSTICE EMMANUEL AKOMAYE AGIM (ORG)CHIEF JUSTICEAT THE TRAINING WORKSHOP FOR JUDICIAL OFFICERSORGANISED BY THE CONTINUING JUDICIAL EDUCATIONINSTITUTE AT PARADISE SUITES HOTEL, SENEGAMBIAON 28 TH – 30 TH JULY 20111

SUBJECTPAGECONTENTS1. Definition And Classification12. Importance of studying Judicial Approach1-23. Objectives of Contract Law2-34. The Rationale and requirements of effective contract enforcement3-75. Approach of Gambian courts in determining issues through the cases6. Contract –8(a) Meaning – explained7(b) When it can be formed and(c) When it can be binding(d) Five conditions for the existence of a valid contract7. Assessment and award of damages9(a) Underlying Notion9-10(b) What the Court should do where substantial loss exist but the exactquantum 10-12of loss is uncertain?(c) How the Court should assess damages for loss of use or opportunity touse? 12-15(d) How Courts have approached award of damages for breach of warranty asto the 15-162

quality of goods?(e) How the Courts have treated a term in the contract avoiding liability fordamages 16-17for breach of contract.(f) Are Damages and recission mutually exclusive17(g) Measure of damages for failure to complete construction contract17(h) Measure of damages for Breach of Contract of employment like wrongful17-20dismissal – how determined(i) General guide to award of damages for breach of contract20-21(j) General damages – basis for award22(k) Nominal damages – what it is and when it should be awarded22-23(l) Employment Contract – measure of damages for unlawful dismissal or23-28termination8. Agreements are Binding28(a) The Courts strictly treat agreements as binding and therebystrictly uphold the 28sanctity of contracts at all time(b) Bindingness of Standard form contracts299. Application of Warsaw Convention 1929 to international carriage29of goods by air contracts(a) The Courts treat it as applicable in The Gambia.29(b) Scope of application:293

(c) The quantum of liability is limited to US$100429-3010. Form of Contract30(a) Nature of Document containing Contract30(b) ). The application of Equity to uphold as valid, contracts that inlaw are 30invalid by virture of their form11. Interpretation of Contracts31-3212. Contracts that are Illegal or Contrary to Public Interest notenforceable 33-3513. Variation of Contracts35(a)Variation of Contract – How done and when it exists –35-36(b)Difference between a new and a varied or altered contract36-3714. The right of a party to be discharged from a contract due to thebreach of it by 37-38the other party15. When a Decree of Specific Performance can be made38-3916. Equity cannot redeem a contract that has become impossible toperform 3917. Reimbursement in Quasi Contract situations39-4118. The right to repudiate a sale of goods contract for breach of warranties– 42-44When exercisable –19. Agency44(a) Agents fiduciary duty of disclosure to principal under a contract ofagency 44-45

(b) The existence and nature of a contract of agency45-46(c) Liability of principal for the acts of his or her agent – basis4620. Bailment46(a) The existence and nature of a contract of gratuitous bailment46(b) Basis of Liability for gratuitous bailment46(c)Burden of proof on the plaintiff and the defendant – who has duty toprove 46-47presence or absence of negligence(d) Gratuitous bailment can be treated as a quasi-contract47-50(e) Money had and received as a quasi-contract5021. Contract arising by words of conduct50-5122. Entire or divisible contract51-5223. Repudiation of a contract for actual or anticipatory breach52(a) What kind of conduct can justify repudiation52(b) How to determine such conduct53-54(c) Repudiation by wrongful termination or recission of a contract5524. Application of statutes of limitation in contract actions against Public55-59Corporation like GPA25. “Force majeure” clause in contracts59-605

26. Agreement as to time for the performance of a contract60-61(a) how such agreement is applied27. Refund of mobilisation fees for execution of construction contract6128. Order of Specific performance -61-62(a) when preferred to damages –29. Principal contract and subcontract62-63(a) Relationship between the two(b) Relationship of sub-contract to principal contract30. Waiver of right in contract63(a) Waiver explained63(b) Need to plead waiver of contractual right63-64(c) Waiver – meaning and effect64-6531. Recission of Contract65(a) General principles65-67(b) How a contract can be rescinded67(c) When recission takes effect68(d) Effect of recission68(e) Court ordered recission – how enforced69-7032. Award of Interest on Judgment sums in Contract Cases70-716

JUDICIAL APPROACH TO THE DETERMINATION OF CONTRACT CASESDEFINITION AND CLASSIFICATIONJudicial approach here, mean the methods, processes and principles bywhich Courts resolve disputes in cases before them.Judicial approach differ with the class of cases. Generally cases are classifiedinto two major groups, civil and Criminal. Judicial approach to the treatment ofcivil cases fundamentally differ from that in criminal cases. The mostfundamental difference is in the requirement of burden and standard of proof.The burden of proof of a civil case is on the plaintiff and the standard of proofis on a balance of probabilities or preponderance of evidence. In a Criminalcase the burden of proof is on the prosecution and the standard of proof isbeyond reasonable doubt.Within each of these two main groups, cases are further differentiatedaccording to subject areas. This is particularly so in respect of Civil cases.The subject areas here include torts, property, contract, commercial,company, finance, family, constitutional admiralty, etc. The difference inJudicial approach to cases in each of these subject areas is caused by thedifference between them in terms of their underlying principles, objectives andthe kind of relationships they regulate.With respect to Criminal cases, there is only one subject area, criminal law.The cases merely differ interms of type of offence. The offences include,theft, assault, defilement, rape, murder, treason, manslaughter, genocide,torture, terrorism, crimes against humanity, forgery, fraud, perjury, etc. Thereis therefore a uniform judicial approach to the determination of these casesbecause the objective of criminal law and the principles underlying all criminaltrials are the same irrespective of the type of offence.7

IMPORTANCE OF STUDYING JUDICIAL APPROACHThe importance of studying judicial approaches to the determination of caseslay in the fact that judicial approach is the means by which the objective of lawin a particular case is realised. It enables law to produce substantial justiceby giving effect to the principles underlying a particular subject area of law.The application of a particular subject area of law will yield substantial justicein each case if the judicial approach is appropriate or right. Such an approachcan be appropriate or right only if it upholds the body of principlesunderpinning that subject area and pursues the objective of that subject areaof law. It is therefore important that we concern ourselves with understandingproperly the minimum requirements of the appropriate judicial approach ineach case. In this discourse, I will deal with the judicial approach to thedetermination of contract cases.This discourse will consider how a court should approach the determination ofan action arising out of contract and how the Gambian Courts haveapproached the determination of the issues that have arisen in the contractcases that have come before them. I will preface this discourse with briefstatements on the objective of contract law and the rationale andrequirements for an effective enforcement of contracts.Objectives of Contract LawEvery law has underlying objectives whose pursuit is guided by underlyingprinciples. At any time that a Court is called upon to apply a law it must firstfind out the underlying objectives and principles of that law. To proceed toenforce or apply a law without first finding out or reminding oneself of itsunderlying objectives will amount to a blind enforcement. That is anenforcement that is not guided by the purpose of that law. Very often Courtsdo this. The danger in this approach is that it creates a very high risk of thejudicial process defeating the purpose of that law and resulting in seriousmiscarriage of justice. An example of a case where the judicial approach ofthe Court was guided by an underlying principle of contract law that delay inthe performance of contractual obligations, can defeat the expectation of theparties under a contract is the case of Alhaji Momodou Jobe v Alhaji8

Abdoulie Dandeh Njie. 1 Where the Supreme Court upheld the recission of acontract for failure to pay the balance of the purchase price after a long periodof 14 years. The Court said “substantial justice of the case clearly weigh infavour of the respondent who lost the profitable use of the unpaid part of thepurchase price for 14 years….. It is clear therefore that the appellant’s failureto pay the remaining part of the purchase price for 14 years defeated thereasonable expectation of the respondent under the contract to sell hisproperty at the right value and not at a loss or undervalue.”Law must yield justice to be effective as law. It is the attainment of justice thatgives law its meaning. Law can only result in justice through the attainment ofits purpose. It can only attain its purpose through an enforcement processthat is guided by that purpose and the principles for achieving it.reminding judicial officers what matters to bear in mind as they discharge theirduty, in a paper I presented to magistrates and again to Judges, titled,“Principles Guiding Judicial Work,” 3 I had said “in all we do and before we act,we must reflect on the following key principles –a. What objectives should be kept in mind?b. What principles ought to guide the legal process?c. What ethical and professional issues are involved?”It is against this background that I have decided to remind you of theobjectives underlying contract law. These are –a) To regulate contractual relationshipsb) To provide for the requirements and processes for the making andexistence of contracts.c) To protect the interest and expectations of the parties to the contract.d) To provide the means and guidelines for resolving contractual disputes.e) To guarantee social security and a safe investment environment.f) To preserve order, peace and security of property and interests.2In1 Unreported decision of Supreme Court in SC Civ. Appeal No.2/2009 delivered on 26 th May20112 Agim, Emmanuel Akomaye, Overview of Administration of Criminal Law in The Gambia,2004, paper delivered at a Conference to Judges and prosecutors, Banjul.3 Presented a monthly lectures for Judges organised by Judiciary & LCBP in 2010.9

The Rationale and requirements of effective contract enforcementThe ability to enforce contracts is key to the proper functioning of markets.Good enforcement processes enhance predictability in commercialrelationships and reduce uncertainty by assuring investors that theircontractual rights will be upheld promptly and economically by Courts.Contract enforcement is one of the pillars of the rule of law. As stated itencourages voluntary social co-operation, leads to social improvement andmakes possible the existence of a peaceful, stable and elaborate socialorganisation.The exclusive task of a Court in contract cases is to discover what the partieshave agreed and give effect to it except in cases of mistake, duress orillegality. Every contract derives its effect from the intention of the parties. Itis that intention, as expressed, or implied that must be the ground for everydecision on the contract. When, persons, voluntarily and with a clear eye totheir own interests, enter into a contract they make a piece of private law,binding on each other and beneficial alike to themselves and the communityat large. The freedom and the sanctity of contract are necessary instrumentsof economic development and good governance. It is the function of theCourts to foster and uphold them.4 It is a requirement of public policy that menof full age and competent understanding shall have the utmost liberty ofcontracting and that their contracts when entered into freely and voluntarilyshall be held sacred and shall be enforced by Courts of Justice.JUDICIAL PRACTICE IN THE TREATMENT OF ALL CASES(a) Carefully read and properly understand the facts of the case ascontained in the pleading and the evidence.(b) Find out and properly understand the nature, content and purpose ofthe particular contract which form the basis of the action.(c) Since a contract is consensual in nature, you should first find out thebasis of the dispute and encourage a consensual resolution of same.You do this by sensitising the parties on the need to consensuallyresolve the dispute instead of proceeding with the pending litigation.4 Cheshire, Fifoot & Firmston’s law of Contract, 11 ed, Butterworths, P.1810

Do not compel them to do so. Do not order them to do so as thatwould smack of compulsion. Upon drawing their attention to the needfor such consensual resolution, their opinion must be sought. Bothparties must consent to such a process before it can take place. If oneparty is opposed to it, then the litigation must proceed. If they consentto such a consensual resolution, you can give time to settle or you canwith their consent refer them to the Alternative Dispute ResolutionSecretariat. The result of either of these process is referred back to theCourt. if the parties have settled, then judgment is entered on thesettled terms. If they fail to agree, then the case proceeds.(d) Contract cases must be expeditiously and economically treated so asnot to frustrate or defeat the expectation of the parties under thecontract. Time and cost saving processes must be explored and used.There are elaborate provisions in our rules of Court for this purpose. Inthe Rules of the High Court there is Order II Rules 7 and 9 providing fortruncated proceedings to recover a debt or liquidated money demandon the undefended list. There is also the Rules of the High Court(Amendment) Rules 2010 which provides for expeditious and economicdisposal of cases to avoid delays and gives the Court greater control ofthe proceedings to avoid frivolous claims, vexatious processes,encourage amicable settlement and ensured improved casemanagement. A strict enforcement of these rules is thereforenecessary in all civil cases particularly contract cases. The emergingjudicial practice in the High Court is to strictly enforce these rules incommercial cases. This accounts for the high turnover of judgments incommercial cases (about 400 a month) in the High Court and the totalabsence of backlog of such cases commenced from October 2009.The same trend exists in the Magistrates Court with the strictenforcement of the subordinate court Civil Proceedings Rules.Let me remind you of the growing tendency of many contractingparties, unable to perform their contract obligations, to use the Courtprocesses to protect such breach of contract. It is the responsibility ofthe Courts to discourage such tendency by the intolerance of frivolousclaims and issue, unwarranted adjournments, the strict application of11

ules of court and the mechanism of award of heavy costs and the levyof interests on judgment sums.(e) In the High Court, quite early in the case preferably at the pre-trialconference, find out if the statement of claim discloses a cause ofaction in contract by stating facts which show the existence and termsof the contract and in what respect any of the terms of the contract hasbeen breached. If the Court finds out that the statement of claimdiscloses a cause of action, it should find out if there is triable defenceto the action or the issues raised by the defence. Doing this at suchearly stage saves time and expense by an early detection of the factthat a trial is unnecessary if there is no basis for an action or if thedefence has not raised any triable defence.(f) In the event where there is a full and concluded trial on the pleadings, adetermination of whether the plaintiff has proved his claim must startwith a careful perusal of the pleadings to find out how the parties standon the pleadings. This is because the evidence led must be based onthe pleadings. Any evidence that is not supported by the pleadings goto no issue.(g) In the Magistrates Court or Courts where trial is not by pleadings, it isthe evidence the Court must look at to find out the existence, contentand purpose of the contract.(h) Having identified all the issues of contract law thrown up by the facts ofthe case, carry out extensive and indept research on all such issues byreading authoritative text books, case law and any relevant statutes.Remember that the main sources of Gambia Contract law are theEnglish Common Law and principles of equity which are contained inEnglish case law and text books on contract law. There is no writtencompendium of the rules of English common law and equity applicablein The Gambia. So they cannot be easily accessed and ascertained.By virtue of the provisions of Ss.2, 3 and 5 of the Law of England(Applicable) Act the following types of received English law apply in theGambia –1. Common Law2. The principles of equity12

3. Statutes of general application in force in England on the first day ofNovember 1888.4. English statutes declared to apply to the Gambia and in force herebefore 18 th February 1965 and those currently in force in England. 5There are provisions in our rules making the practice and procedure for thetime being in force in the Courts in England applicable in the Gambia wherethere is no provision in the local Rules on the matter.The English Common Law of Contract and Equity are made part of the laws ofthe Gambia by S.7(d) of the 1997 Constitution of the Republic of The Gambia.A considerable body of Gambia case law has developed on the application ofthese rules to contract cases in The Gambia. So where there is a local caselaw on a point, you must first rely on it before referring to decisions of Courtsof other jurisdictions in support. The Gambia Court of Appeal in SinghamInvestment Ltd v N.H. Farage & Anor 6 held that – “… our law of contract asat today is the common Law and principles of equity received from Englandsubject to Gambian statutes. These have remained applicable in The Gambiaas part of the laws of The Gambia by virtue of S.7(d) of the constitution of theRepublic of The Gambia 1997. For this reason the decisions of the Englishnational courts on a relevant point will be heavily relied on, especially in theabsence of a local decision on the issue.”The importance of an extensive and in-depth research lay in the universallyhallowed and fundamental principle that a Judicial Officer with no knowledgeor with inadequate knowledge of a subject area of law will lack judicialindependence and integrity and will hardly do justice in the case before him orher as there is no possibility for a self-appraisal and a resulting sound legalreasoning which is the starting point for judicial decisional accountability.APPROACH OF GAMBIAN COURTS IN DETERMINING ISSUESTHROUGH THE CASES5 Agim, Emmanuel Akomaye, Gambia Legal System, 2010, P.56-576 (2002 – 2008) 1 GLR13

I will now consider how the Gambian Courts have approached thedetermination of issues arising in contract cases before them.1. CONTRACT –(a) Meaning – explained(b) When it can be formed and(c) When it can be binding(d) Five conditions for the existence of a valid contract –The position concerning these issues was stated by the Gambia Court ofAppeal in Mamadi Jabbai v Gambia Red Cross Society“A contract is an agreement between two or more parties which createsreciprocal legal obligations to do or not to do a particular thing, and for avalid contract to be formed, there must be mutuality of purpose andintention. The meeting of minds of the contracting parties is the mostcrucial and overriding factor or determinant in the law of contract. Anagreement will not be binding on the parties unless it can be said that theparties are ad idem upon matters which are cardinal to the specie oragreement in question and also upon matters that are part of the particularbargain. See Chief Okubile & Anor v Oyagbola & Ors (1990) 4 NWLR (Pt147) 723. There are five ingredients that must be present in a validcontract, namely; offer, acceptance, consideration, intention to create legalrelationship and capacity to contract. For a contract to exist in law, all thefive ingredients must be present. See Orient Bank (Nig) PLC v BilanteInternational Ltd (1997) 8 NWLR (Pt 515) 37. In the instant case, it is clearfrom the Record that all five ingredients were present in the relationshipbetween the Respondent and the Appellant when the Appellant wasemployed by the Respondent on 1 st October 1995. It is of no legalconsequence that the offer of employment as shown in Exhibit “A” isdescribed as one of temporary employment. The obligations, incidents andconsequences are the same in law. And for a valid contract to come intoexistence, there must be agreement on the fundamental terms. In thesphere of master and servant relationship, it cannot be disputed that thesalary of the servant constitutes a fundamental term of the contract. It is in7thus –7 2002-200814

the nature of that relationship that the servant must be told how much hissalary will be.”2. ASSESSMENT AND AWARD OF DAMAGES(a) Underlying NotionThe approach of The Gambian Courts in the assessment and award ofdamages for breach of contract is based on the notion that –(i) Contract liability is self imposed.(ii) Damages for breach of contract is calculated on the loss sustained bythe party injured by the breach.(iii) The loss sustained as a result of the breach is either one in thecontemplation of the contract or is an unavoidable consequence of thebreach.(iv) Whether a loss is a contemplated result or natural result will depend onthe peculiar facts of each case.(v) The purpose for the award of damages for breach of contract is torestore the plaintiff so far as money can do so to the situation he wouldhave been if there had been no breach.This approach adopted by The Gambia Court of Appeal in the leading casesof Singham Investment Co. Ltd v N.H. Farage Co. Ltd 8 and MansongPhotos ltd v WAEC 9 follow the rule laid down in the leading English case ofHadley v Baxendale 10 and other English cases. In stating the principleunderlying the award of damages in contract cases the Gambia Court ofAppeal in Ali Savage v Carrol stated that the law on this question ofdamages is clearly stated by Alderson B in the often-cited case of Hadley vBaxendale (1854)9 Exch 341 at p 354: “Where two parties have made acontract which one of them has broken, the damages which the other partyought to receive in respect of such breach of the contract should be such asmay fairly and reasonable be considered either arising naturally, i.e.,8 Supra at Pp.99-1079 (1997-2001) GR 978-98610 (1854)9 Exch. 34115

according to the usual course of things, from such breach of contract itself, ofsuch as may reasonably be supposed to have been in contemplation of bothparties, at the time they made the contract, as the probable result of thebreach of it.” 11(b) What the Court should do where substantial loss exist but the exactquantum of loss is uncertain?The Gambia Court of Appeal in Ali Jocobs Co. Ltd v S.S CeesayConstruction Co. Ltd12stated what the Court should do in the followingwords – “At this juncture, it may be appropriate to discuss briefly, the award ofdamages by the Courts, and the circumstances under which some of thedamages awarded, may be nominal or substantial. In McGregor on Damages(15 th ed.), para 343, it is thus stated: “A plaintiff claiming damages must provehis case. To justify an award of substantial damages he must satisfy the courtboth as to the fact of damage and as to its amount. If he satisfied the court onneither, his action will fail or at the most he will be awarded nominal damageswhere a right has been infringed. If the fact of damage is shown but noevidence is given as to its amount so that it is virtually impossible to assessdamages this will generally permit an award of nominal damages; thissituation is illustrated by Dixon v Beveridge…(1825)2 C & P 109…”In Dixon v Beveridge just cited, there was evidence that an amount was duefrom the defendant. The plaintiff, however, could not give any evidence as tohow much was due. The court therefore gave the plaintiff nominal damages.This question of uncertainty resulting in an award of mere nominal damages isalmost like what the plaintiff was heading for in this appeal. On the otherhand, where no clear and specific damage can be shown, but it is clear thatsome substantial loss has been incurred by the plaintiff, the fact that thisuncertainty exists, will not be a reason in law for awarding no damages ormere nominal damages. In this regard, I agree with Vaughan Williams LJwhen he said in Chaplin v Hicks (1911)2 KB 786 that: “the fact that damages11 (1995/96)GR 7 at 1512 (1995/96)GR 116

cannot be assessed with certainty does not relieve the wrong doer of thenecessity of paying damages.” I also agree with Lord Devlin when he saidthat when the damages cannot be calculated precisely, rather than relieve thewrong doer of the necessity of paying damages “the court must do the best itcan.” See Biggin v Pemanite (1951)1 KB 432 at 438. It would appeartherefore that what the courts use to determine whether damages should benominal or substantial, are usually reasonableness and the circumstances ofeach case.”The Court of Appeal constituted by a different panel, in different wordsfollowed the same approach in Singham Investment co. Ltd v N.H. FarageLtd 13 thus - “The loss arising in the usual course of things as a natural,probable or unavoidable consequence of a breach of contract falls under thefirst arm of the rule in Hadley v Baxendale. Such loss is incapable of strictproof with arithmetical exactitude. In fact fit need not be proved. It arises byinference of law. It is presumed from the fact of the breach of the contract.The damages awardable for this kind of loss is a form of general damages. Inmany cases the damages for this kind of loss and damages for the loss underthe second arm of the rule in Hadley v Baxendale have been contrasted andkept separated by the use of the expressions general and special damages.Although this classification have been deprecated in the many cases as inaptin contract matters, I consider it helpful as a better elucidation of the nature ofthe damages flowing from breach of contract. It also helps to resolve theproblem in contract law of which losses can be considered as a contemplatedresult or a natural result. There is no doubt this will be determined by thepeculiar facts of the case. The plaintiff has the choice to classify the damagesclaimed as general or special. In practice, what appears to be a majordeterminant of how the plaintiffs classify the damages claimed is the ability toplead and prove the particulars of the losses with arithmetical exactitude. If itis obvious that a contemplated loss did occur but it is incapable of strict proof,the plaintiff can claim for general damages for such loss. It will be unfair tothe plaintiff and unjust to suggest that he should remain without remedy13 Supra at 10117

ecause the loss cannot be proved with arithmetic exactitude. See MansongPhotos Ltd v WAEC, at page 986.”It is important to note that the panel of the Court in this case did not have theopportunity of considering Ali Jacobs case. The views though phraseddifferently have the same effect.(c) How the Court should assess damages for loss of use or opportunityto use?In Ali Jacob’s case the Court stated thus – “The contention of the plaintiff wasthat because of the defects in the grader, it lost a chance of hiring out thegrader to others at a commercial rate. Again, the question to be asked in thecircumstances is whether the plaintiff is entitled to damages for the loss of thatopportunity. The problem of loss of a chance is that, whereas it is not difficultto imagine its occurrence, it is almost impossible or difficult to assess orcalculate with precision, the damages to be awarded to the victim of it. Ibelieve that if a person promises to order a good undamaged grader for abuyer for a particular job, and after that job the buyer intends to hire thegrader out as a commercial venture, but the grader arrives damaged and unfitfor the anticipated purpose to the hiring venture, I believe this is “a loss ofchance.” Anybody whose chance is thus messed up is entitled to an award ofdamages. Thus in the leading case of Chaplin v Hicks (supra), thedefendant, in a newspaper competition, offered engagements as actresses tothose of twelve of the contestants whom he should choose from the 50 whosecured the greatest number of votes of the readers of the newspaper. Of6,000 people who entered the contest, the plaintiff succeeded in becomingone of the 50 finalists, but the defendant failed to give her a reasonableopportunity of being interviewed in accordance with the advertised rules, andthe twelve prize winners were chosen in her absence from the other 49finalists. The Court of Appeal upheld the jury’s award of £100. VaughanWilliams LJ said:“It was said that the plaintiff’s chance of winning a prize turned on suchnumber of contingencies that fit was impossible for anyone even afterarriving at the conclusion that the plaintiff had lost her opportunity bythe breach, to say that there was an assessable value of that loss. It is18

said that in a case which involves so many contingencies it isimpossible to say what was the plaintiff’s pecuniary loss. I am unableto agree with that contention. I agree that the presence of allcontingencies upon which the gaining of the prize might depend makesthe calculation not only difficult but incapable of being carried out withcertainty and precision. The proposition is that, whenever thecontingencies upon which the result depends are numerous anddifficult to deal with, it is impossible to recover any damages for loss ofthe chance or opportunity of winning the prize… I agree… Thedamages may be so unassessable that the doctrine of averages wouldbe inapplicable because the necessary figures for working upon wouldnot be forthcoming … I only wish to deny with emphasis that, becauseprecision cannot be arrived at, the jury has no function in assessmentof damages.” (emphasis supplied)Another example of loss of opportunity may be found in Mulvaine v Joseph(1968)112 SJ 927. In that case, an American club professional while on atour of Europe, had his hand inured as a result of a taxi-driver’s negligence.He was awarded damages “for loss of opportunity of competing intournaments, the ensuing loss of experience and prestige which might haveresulted in him becoming a tournament professional in America and loss of achance of winning prize money”. Other examples of loss of opportunity haveoften occurred in cases where lawyers have given clients careless adviceresulting in future disadvantages to the clients. An example is Hall v Meyrick(1957)2 QB 455. The defendant failed to warn the plaintiff that her intendedmarriage to her fiancée would revoke a will which the fiancée had made in herfavour. The marriage took place and two years later the husband diedintestate. The plaintiff claimed damages on the ground that owing to theabsence of a warning by the defendant she failed to take steps to obtain anew will from her husband after their marriage and to replace the former onewhich the marriage had nullified, and thus lost “the chance or opportunity tosecure the benefits of such a will.” Before the opportunity could have beenfulfilled there were four possible contingencies: (i)that the plaintiff would haveremembered the warning if given to her; (ii)that her new husband would havebeen willing to execute a new will; (iii)that the new will would have been19

wholly in her favour; and (iv)that he would not later have revoked it. It washeld at first instance and on appeal that the plaintiff was entitled to damagesfor the loss of the chance; but because of the contingencies, she will not getall the money being the difference she would have got if the will has been forher and the amount she takes under the intestacy. In this case, LordAshworth said at p.471; “The more the contingencies the lower the value ofthe chance or opportunity which the plaintiff was deprived.” 14In Singham Investment Ltd the Court followed the same approach thus –“The old common Law rule as stated in Williams v Reynolds (1865)6 B & S495 and Wallis v Smith (1882)21 chD 243 is that if the defendant’s breachconsisted of a failure to pay money, the plaintiff’s loss consisted only of thatsum. The application of this rule occasioned hardship and injustice in manysituations especially in cases where it can readily be contemplated that thedefendant’s failure to pay the money on time will prevent the plaintiff frommaking a profitable use of the money. In President of India v la Pintada CiaNavegation SA (No.2) 1985 1 AC 104 the House of Lord found the ruleunsatisfactory. The Courts have responded to this situation by deciding thatin such situations the plaintiff will be entitled to damages under the secondarm of the rule in Hadley v Baxendale. See Wadsworth v Lydall (1981)2ALL ER 401 endorsed by the House of Lords in the La Pintada case. In thiscase a purchaser of land had agreed to pay £10,000 by a fixed date, knowingthat the vendor intended to use the money to make a down payment onanother piece of land. In fact the purchaser only paid £7,200 and the vendorhad to borrow the other £2,800 to pay interest on the loan. It was held thatthe vendor could recover the interest as part of the damage under the secondbranch of the rule in Hadley v Baxendale.Loss of use of the money owing to delayed payments in breach of a contractcan also be the natural, probable or unavoidable result of the delayedpayment. As stated in Cheshire, Fifoot and Furmston’s Law of contract, 11 thEdition, Butterworths at page 596, “in a commercial context a debtor will very14 Supra at Pp 4-520

often know that if he pays late, his creditor will use this opportunity to makeprofitable use of the money.“ 15The Supreme Court in Momodou Jobe v Alhaji Dandeh Njie 16 confirmedthis approach thus – “substantial justice of the case clearly weighs in favour ofthe respondent who lost the profitable use of the unpaid part of the purchaseprice for 14 years. It is beyond argument that the said sum has over thisperiod depreciated in value. This court can presume such loss anddepreciation of value by virtue of section 155 of the Evidence Act of 1994which states that “the court may presume the existence of a fact which itthinks likely to have happened, regard being had to the common course ofnatural events, human conduct, public and private business in their relation tothe fact of the particular case.”(d) How Courts have approached award of damages for breach ofwarranty as to the quality of goods?The approach was stated by the Court of Appeal in Ali Jacobs thus –“Section 52(2) and (3) of the Sale of Goods Act, Cap 89:01 give someguidelines about the calculation of damages arising out of a breach ofwarranty generally and relating to the quality of the goods in particular. Thesesubsections provide:“52(2): The measure of damages for breach of warranty is theestimated loss directly and naturally resulting, in the ordinarycourse of events, from the breach of warranty.52(3): In the case of breach of warranty of quality such loss isprima facie the difference between the value of the goods at thetime of delivery to the buyer and the value they would have had ifthey had answered to the warranty.”It would be noted that the whole litigation of this case is about the quality of agrader which the defendant ordered for the plaintiff. When the ordered graderarrived from Britain, both parties realised that what had arrived was adamaged grader, and by far interior to what the plaintiff thought the defendant15 Supra at 99-10016 Unreported judgment of 26 th May 2011 in Sc. Civil Appeal No.2/200921

had ordered. As the plaintiff did not repudiate the contract within areasonable time, and could only be compensated for damages for breach ofwarranty for the quality of the grader, its remedy would appear to come undersection 52(3) of Sale of Goods Act specially. My understanding of section52(3) is that where the remedy is for the breach of warranty of quality ofgoods, the value of the damaged goods when deducted from the market valueof similar undamaged goods, will represent the loss of the purchaser, and sothe damages he should be awarded. I would also wish to add that section52(30 does not prescribe a statutory formula for working out damages for thebreach of warranties of quality so that anybody who does fall within it canhave any substantial damages. In my view, the courts have the free hand towork out deserving damages outside the measure of damages suggested insection 52(3).“ 17 See also Ali Jacobs Ltd v S.S. Ceesay Construction Ltd 18(e) How the Courts have treated a term in the contract avoiding liabilityfor damages for breach of contract.The term had been strictly enforced by the Courts. In Ali Jocobs v Carrol,the Court of Appeal stated this approach thus –“A person, who feels himself discharged from a contract and so resilesfrom it, still has the right to damages for the breach of it, even if thedamages are nominal. It would appear, however, that when makingthe contract of the sale of the house, both p[arties contemplated thepossibility of the defendant, particularly, breaching it; therefore aspecial clause in it forestalled the possibility of incurring damagesshould there be any violation of the contract on the part of thedefendant. This indulgence was perhaps put into the deed to benefitthe defendant, for his contribution in the development of the property,the subject-matter of the contract. The indulging part of the contractstipulated that, if the defendant breached any of the terms and so failedto purchase the house as agreed, the plaintiff should pay back all the17 Supra at P.318 (1995/96)404 at 40822

purchase money he had received from the defendant. To my mind, byagreeing to such a term of indulgence, the plaintiff had indicatedbroadly a renunciation of the traditional damages he could claim for abreach of the contract.” 19(f) Are Damages and recission mutually exclusiveIn Ali Jocobs v Carrol the Court of Appeal held that “damages for the breachof a contract are not in any way a substitute for the remedy of recission. Thetwo remedies are not mutually exclusive. Therefore a person who feelshimself discharged from a contract and so resile from it, still has the right todamages for breach of contract even if the damages are nominal.20(G) Measure of damages for failure to complete construction contract –The High Court in Savage v Socea-Balency Sobea SA“Where the contractor repudiates the contract and fails tocomplete the works, the measure of damages normally is thedifference between the contract price and the amount it wouldactually cost the employer to complete the work substantially as itwas originally intended, and in a reasonable manner, and at theearliest reasonable opportunity: see Merteus v Home FreeholdsCo [1921] 2 KB 526. If the defendant (the employer) has spentless to complete the work than he would have had to pay theplaintiff (the contractor) under the contract then the defendantwould have suffered no loss and damages would be nominal. Inthis case there is evidence from which a fair assessment could bemade of the cost to the defendant of completing the work; butthere has been no evidence of the contract price or what it wouldhave cost the defendant if the plaintiff had fully performed thecontract.”(H) Measure of damages for Breach of Contract of employment likewrongful dismissal – how determined21held that –19 Supra at 15-1620 ibid21 (1960-1993) GR 330 at 33823

The approach was laid down by the Gambia Court of Appeal in World ViewInternational Foundation v Bah 22 thus –“On the question of damages in the case in hand, it was contended on behalfof the defendant that the plaintiff was, from the outset, aware that theemployment could be terminated upon reasonable notice or payment of salaryin lieu thereof, and since the plaintiff did not suffer any loss, he was entitled tono more than what was paid to him; that is to say, salary for the month ofSeptember 1993, one month’s salary in lieu of notice, and thirty days’ annualleave entitlement. It was further contended that the trial judge, having statedthat he did not believe that the plaintiff made any effort to get another job, itwas contradictory on the part of the judge to award damages to cover a periodof two years. On the whole, so continues the argument, the assesseddamages fail the test or reasonableness. It was also submitted that theinterest rate of 25 percent per annum charged was not justified because thisis not an ordinary debt to warrant the award of such an interest.In reply, learned counsel for the plaintiff, citing the local case of BanjulBreweries Ltd v Ceesay, Civil Appeal No.21/95. 30 July 1996; reported in{1997-2001} GR 220 argued that the trial judge, in quantifying the damageswas strictly following the practice of this court, and therefore he could not befaulted in arriving at his conclusion. On the issue of interest, the contentionwas that the award of 25 percent rate was discretionary, which discretion wasexercised judicially.“The Banjul Breweries case (supra) is, no doubt, a very useful authority oncontracts of employment where the breach is by the employer. It offersilluminating guidelines to a court faced with the measure of damages forwrongful dismissal, and it follows closely the principles enunciated in chapter27 of McGregor on Damages, (15 th ed). In it, the learned author cited thedictum of Erle J in Beckham v Drake (1849)2 HLC 579 at 607-608 to illustratethe general rule normally applied in the measure of damages where wrongfuldismissal of an employee has been established. The statement runs:“The measure of damages … is obtained by considering what isthe usual rate of wages for the employment here contracted for,22 (1997-2001)GR 512 at 515-51724

and what time would be lost before a similar employment could beobtained. The law considers that employment in any ordinarybranch of industry can be obtained by a person competent for theplace, and the usual rate of wages for such employment can beproved, and that … it is the duty of the servant to use diligence tofind another employment.”I understand this rule to mean that the contract price is crucial in theassessment or measure of damages and that is what the plaintiff ought first toestablish. The contract a price is then subject to mitigation by the plaintiffplacing his services on the market for another employment. The rule does nothalt at this stage, for the law requires that any amount that the employee hasearned as a substitute for the earnings he should have enjoyed in the formeremployment ought to be deducted from the computation. This is illustrated byCollier v Sunday Referee publishing co {1940}2 KB 647 wherein it washeld that the plaintiff was entitled to damages amounting to sums payableunder the contract less the remuneration earned in another employment afterthe breach; or where he could reasonably have obtained another suitableemployment, the earnings therefrom fall to be deducted from the contractprice.”The approach laid down by this same Court in Cates v Gambia utilitiesCorporation 23 is that –“I now turn to the question of damages to be awarded. The normalmeasure of damages in action for wrongful dismissal is the amount thatthe plaintiff would have earned had the employment continuedaccording to contract. Where, however, the defendant on giving theprescribed notice, has a right to terminate the contract before the endof the term, the damages awarded, apart from other entitlements,should be limited to the amount which would have been earned by theplaintiff over the period of notice, bearing in mind that it is the duty ofthe plaintiff to minimize the damage which he sustains by the wrongfuldismissal: see Nigeria Produce marketing Board v Adewunmi23 (1960-1993)GR 255 at 25625

{1972} NSCC 662 at 665. Also, in Halsbury’s Laws of England, vol.25,(3 rd ed), para 995 it was stated that:“Where it is an express term of the contract that a servant who isdismissed without notice is to be paid his wages for a certain period inlieu of notice, or where there is a usage to that effect, the measure ofdamages for the breach is the amount of such wages, which is to beregarded as liquidated damages… In any other case, the damages areto be measured by the amount of wages which the servant has beenprevented from earning by reason of his wrongful dismissal …”In the present case, the letter of appointment (exhibit 1), forms part of thecontract of employment between the parties. It contained a term relating toperiod of notice or payment of salary in lieu of notice. Since the plaintiff’sappointment has been determined without justification and without notice, thedamages to which he is entitled must be what he would have earned duringthe period of notice, i.e. a month’s salary, together with other entitlementssuch as leave pay. There is no evidence of leave pay accruing or the amountof such. In the result, the award of damage, would be limited to one month’ssalary, i.e. D800.”(I) General guide to award of damages for breach of contract –This was provided by the Court in Mansong photos Ltd v WAEC“Whenever one party breaks a contract into which he has entered,the other party has a right of action against him for damages. Theobject in assessing and awarding unliquidated damages is to putthe party who has suffered loss in as good a position so far asmoney can achieve it, as he would have been had the contractbeen performed. Generally damages are awarded by way ofcompensation to the plaintiffs for pecuniary loss. The rule inHadley v Baxendale (1854)9 Exch 341 laid down two propositionsin that the plaintiff must prove either that the damage he hassuffered arose naturally and in the course of events from thedefendant’s breach, or if the damage is of an unusual character,24thus –24 Supra at 985-98626

that both parties were aware when the contract was made that if itwere broken, damage of an unusual character would be liable toresult from the breach. I believe the second proposition of thisrule supports the present case under considerations.”Immediately it has been established that a loss is one for which the defendantis liable, the court must calculate the sum of damages, what amount willcompensate the plaintiff for the loss sustained or for loss of expectation, i.e.loss of bargain. This is the usual way in which contract damages arecalculated, and its aim is to put the plaintiffs in the position they would havebeen in if the contract had been performed. It means, for example, that aplaintiff who was buying goods with the intention of selling them can claim theprofit that would have been made in that sale and that a plaintiff who is forcedto sell goods at a lower price when the original buyer pulls out, can claim thedifference between the contract price and the price at which the goods wereeventually sold. Similarly also there may be reliance loss. There are somecases where it is difficult or even impossible to calculate precisely whatposition the plaintiff would have been in if a contract had been performedcorrectly, and in this case the courts may instead award damages calculatedto compensate for any expenses or other losses incurred by the plaintiff inreliance on the contract see; Anglia Television Ltd v Reed {1972}1 QB 60and C & P Haulage v Middleton {1983}3 All ER 94, CA.Similarly also an innocent party may claim damages for loss of chance to gainsome benefit even if it is not absolutely certain that such a benefit would, infact, have been obtained had the contract been performed as agreed. Clearlycalculation of such damages involves some speculation and would depend onthe value of the benefit, and the likelihood that the plaintiff would have beenable to obtain it: see Manubens v Leon {1919}1 KB 208. Moreover a plaintiffcan recover damages for loss of profits expected to be earned fromtransaction which had not even happened at the time when the breachoccurred, but which the breach prevented; see Victoria Laundry (Windsor)Ltd v Newman Industries Ltd {1949}2 KB 528. However, in Blackpool &Fylde Aero club v Blackpool Borough Council {1990}3 All ER 25,damages were awarded to a flying club when a local council failed to considerits tender for a flight concession along with other tenders so that the club lost27

the chance of winning and therefore operating the tender even though it wasnot certain that the club would have actually won the tender.”(J) General damages – basis for awardThe position is restated by the Supreme Court in Mansong Dambell,Mansong Photos Ltd v WAEC25 thus –“In the law of contract, general damages are not awarded just for theasking. There must exist a clear basis for their award. The impressionis created that general damages, because they are general, must beawarded in any sum or amount as a matter of routine once the plaintiffproves the breach of the contract. General damages, thoughapparently without limitation or limitless do not routinely follow asuccessful action on breach of contract, like the day following the nightand vice versa. Although the word “general” generally is not a word oflimitation but one concerning or including most cases and instances,the qualifying epithet or adjective does not tell a trial Judge that the skyis the limit of the award of such damages as he can go to any sum ofmoney such as D363, 600.00. That is quite a big or huge amountconsidering the facts of the case. General damages are not awarded tocompensate a plaintiff who fails to prove special damages. They arequite distinct specie in the law of damages. “(K) Nominal damages – what it is and when it should be awardedThis was laid down in Mansong Dambel, Mansong Photos Ltd v WAECthus –“The Court of Appeal, in some predicament in the award of D363,600.00 by the Learned Trial Judge, had another look at the facts of thecase and decided in the place of general damages to award nominaldamages of D500.00. Is the Court right in awarding nominal damages?The appellants say that the Court was wrong in awarding nominaldamages. The respondent says that the Court was right in awardingnominal damages. Who is right?2625 2002-2008) 2 GLR 102 at 11226 Ibid28

In The Mediana (1900) AC 113, Lord Halsbury said at page 116 that:“Nominal damages is a technical phrase which means that you havenegative anything like real damage, but you are affirming by your nominaldamages that there is an infraction of a legal right which, though it givesyou no right to any such damages at all, yet gives you a right to the verdictof judgment because your legal right has been infringed.”Although Lord Halsbury also said in his definition that nominal damagesdoes not mean small damages, that is what it materially, or essentially is,as it is in most cases, the smallest damage in the hierarchy of damages.In Beaumont v Greathead (1846) 2 CB 494 at 499, Maule J held thatnominal damage is a sum of money that may be spoken of but that has noexistence in point of quality. Nominal damages are a trifling sum awardedwhen a legal injury is suffered but when there is no substantial loss or injury tobe compensated. They are damages awarded for the infraction of a legalright, where the extent of the loss is not shown, or where the right is one notdependent upon loss or damage, as in the case of rights of bodily immunity orrights to have one’s material property undisturbed by direct invasion. Theaward of nominal damages is a declaration that the plaintiff’s right has beenviolated. See McCormick, Handbook on the Law of Damages. Nominaldamages are a token and negligible amount which the Court in the exercise ofits powers awards, most of the time grudgingly, to fill an apparent vacuum inthe process of awarding damages. They are damages which the Courtawards with all reluctance, most of the time, to please the plaintiff, althoughthe Courts pretentiously do not come out to say this. “(L) Employment Contract – measure of damages for unlawful dismissalor termination –This will depend on the terms of the contract of employment. The GambiaCourt of Appeal in Gambia Utilities Corporation v Charlotte L. Njie–“(1) Where an employer, in a contract for employment, had notreserved the right to terminate employment by notice generally,but had limited the grounds for termination by notice, terms of27held that27 (1994) GR 21 held I29

such notice did not apply where an officer had been dismissed fora reason other than one of the specified grounds. Accordingly, inthe latter case, damages payable for the breach of contract arisingfrom wrongful dismissal were not limited to the amount of salarypayable in lieu of notice prescribed in the contract. There was novalid notice, under common law or the contract, to so require.(2) The provision in the respondent’s letter of appointment that“the appointment is terminable either by the corporation oryourself upon giving a month’s notice in writing or upon thepayment of one month’s salary in lieu of notice” did not apply toconfirmed officers except on the ground of commission of seriousoffences. The rules and regulations of the Gambia UtilitiesCorporation in force at the time of respondent’s employment setout grounds of dismissal for “confirmed” employees. Validtermination by notice was on only one ground – the commissionof serious offences.”The Court stated thus –“In relation to the issue I have formulated above, the whole thrust of Mr.Janneh’s arguments in this appeal was to the effect that the lawemerging from a number of decided cases both in this country andNigeria and from textbook writers was that an aggrieved servant,whose employment was prematurely (vis-à-vis the prescribedretirement age0 and wrongfully terminated, was entitled to damagesrepresented by the amount the servant would have earned under thecontract up to the time of its consummation, but that if the employerhad reserved unto himself the right under the contract to terminateemployment by giving a prescribed notice, then the quantum ofdamages was limited to the salary payable in lieu of such notice. Tothis end he prayed in aid of his arguments, the following cases, interalia:Melville Cates v The Gambia Utilities Corporation, Civil AppealNo.6/91 (unreported) especially at pages 112-113. Professor Y.O.Beredugo v The College of Science and Technology Port Harcourtand Dr. Wakama, (1991)4 NWLR 651 especially at pages 653 and30

659. Union Bank of Nigeria Ltd v Edet, (1993)4 NWLR 288,especially at pages 292, 293, 300 and 301.The textbooks he referred to were:Chitty on Contracts (Specific contract), Vol.II (23 rd Edition) atpages 386-387; and Freedland’s The Contract of Employment,(1976 Edition) at page 250.That the law pertinent to the issue of the quantum of damages inwrongful dismissal cases is as submitted by Mr. Janneh is beyonddispute. But he also referred us to the decision of this court in B.George Artley v The Gambia Ports Authority, Civil Appeal No.5/91.In drawing our attention to that case Mr. Janneh lived admirably up towhat is expected of an officer of the court, who owes a duty not only tohis client, but also to the court which must be assisted to administerjustice. I say this because Artley when looked at superficially, appearsto be against Mr. Janneh’s argument in favour of the proposition of thelaw as he submitted it to us. The main issue in Artley hinged onwhether the ground for his dismissal was contemplated by the partiesas per their contract of employment. The service regulations formingpart of that contract empowered the employers to terminate theemployment by notice on the ground of misconduct. On the other handthe letter terminating Artley’s employment cited redundancy as thereason for dispensing with his service. In a unanimous judgment ofthis court, Akanbi JA, observed, after a review of a number ofauthorities pertinent to the vexed issue of quantum of damagesincidental upon wrongful dismissal, that Artley “no doubt enjoyedsecurity of tenure at least until retirement at the age of 55 years, andthere could be no valid termination of his appointment unless foundguilty of an offence meriting disciplinary action as set out in Clause 7 ofthe Conditions of Service.” In the final analysis he awarded damagesof D6,000 for “loss of 4 years’ service.” Artley was aged 51 years atthe time of his dismissal.The argument canvassed on behalf of Artley’s former employers thatdamages awardable should be limited to the period of the prescribednotice was tacitly rejected as the court applied the principle in Hadley v31

Baxendale [1854]9 Exch. 34. I shall deal with that principle later on inthis judgment. For the moment let me revert to Artley’s case.At a glance Artley seems to fly in the face of the long chain ofauthorities cited by Mr. Janneh. However a closer comparison willshow that that case is distinguishable from those other authorities onthe basis that in the latter authorities (those cited by Mr. Janneh) it isevident that the employers had a right, in accordance with theprovisions of the service contracts relevant to them, to terminate bynotice generally. In Artley on the other hand it was held, on thepeculiar facts of that case, that notice was competent only ondisciplinary grounds. As already stated Artley was dismissed, not fordisciplinary reasons, but on grounds of redundancy. Therefore thecourt held that the purported notice given was no notice at all since thenotice prescribed in the contract was of restricted application and didnot cover redundancy. In that sense Artley’s case was on all fours withthe case of McClelland v Northern Ireland General Health ServicesBoard [1957]1 WLR 594.In that case the House of Lords, by a bare majority, held that where acontract of employment of a senior clerk was based upon anadvertisement for “permanent and pensionable” employment andwhere it contained an express provision for termination by theemploying authority by notice in the event of gross misconduct, it wasnot terminable by notice, by the employer, in any other event. Theshort and pertinent facts in McClelland were that she was appointed asenior clerk after she had responded to a public advertisement whichstated in part:-“Subject to a probationary period, appointments will bepermanent and pensionable.”Attached to her appointment were conditions of service of whichcondition 4 stipulated a six-month probationary period at the end ofwhich, depending on a satisfactory report on her performance, shewould be confirmed, but if the report was unsatisfactory she could bedismissed by the board giving her one month’s notice. Condition 9provided that every person appointed to the service of the board had to32

take an oath of allegiance and that if one failed to do so he would beinstantly dismissed. Condition 12 provided ad follows:-“Dismissal and reduction in rank, and termination of employmentotherwise; the board may dismiss any officer for grossmisconduct and may dismiss any officer who is proved to theirsatisfaction to be inefficient and unfit to merit continuedemployment. Except where an officer has been guilty ofmisconduct, the board shall give at least one month’s notice oftheir intention to exercise their power of dismissing under thisrule. As an alternative to dismissal, the board may orderreduction in rank of an officer who is found by them to be unfit todischarge the duties of the grade in which he has beenemployed. One month’s notice in writing shall be given by allpermanent officers who wish to terminate their employment withthe board.”McClelland was dismissed after being given notice of six months on theground that she had been affected by a regulation which had beenintroduced when she was already in the service of the board and whichrequired female officers who got married to resign. She refused toresign. She sued for wrongful dismissal but her claim was thrown outby the trial court and her appeal to the Court of Appeal for NorthernIreland was unsuccessful. On further appeal to the House of Lords, itwas held by a bare majority, allowing her appeal, that condition 12 ofthe conditions of service 9supra0 was exhaustive in content and that itonly provided for dismissal on ground of gross misconduct. McClellandhad been guilty of none and therefore the notice under condition 12could not be applied to her. A contention by the board’s counsel thatMcClelland’s contract of employment was one of general hiring for anindefinite period and therefore that it was capable of being terminatedon reasonable notice was rejected.On the special facts of the present case I feel persuaded to follow theration in McClelland’s case.” 2828 Ibid at 24-2733

The Court also held following the rule in Hadley v Baxendale that –“where two parties have made a contract which one of them has broken,the damages the innocent party ought to receive in respect of suchbreach of contract should be such as may fairly and reasonably beconsidered either as flowing naturally from such breach itself, or suchas may reasonably be supposed to have been contemplated by bothparties at the time they made the contract as a probable result of suchbreach.” 293. AGREEMENTS ARE BINDING(a) The Courts strictly treat agreements as binding and thereby strictlyuphold the sanctity of contracts at all time.The Gambia Supreme Court in Armanti Co. Ltd v D.H.L. International(Gambia) Ltd30held that a party is bound by the terms of an agreementwhich he signs. He can only put up a defence that he was induced to signdue to fraud or misrepresentation.In Mamadi Jabbai v The Gambia Red Cross Society31 The GambiaCourt of Appeal held that –“Generally, if the conditions necessary for the formation of a contract arefulfilled by the parties thereto, they will be bound by it. See Union Bankof Nigeria Ltd. V professor Albert Ojo Ozigi (1994)3 NWLR (PT 335)385. It is settled law that where parties to an agreement are ad idem on allterms of the agreement, it is valid in law and an agreement voluntarilyentered into must be honoured in good faith.This is also embodied in the doctrine of equity, ‘pacta sunt servanda’, forequity will not allow the law to be used as an engine of fraud. Equity looksat the intent rather than form and will impute an intention to fulfil anobligation. See Jadesimi v Egbe (2003)3 NWLR (Pt 827) 1: Nicon vPower and Industrial Eng. Co Ltd. (1986)1 NWLR (Pt 14) 1.”29 Ibid at 2930 (2002-2008)1 GLR 194 at 20331 (2002-2008)2 GR 233 at 24334

(b) Bindingness of Standard form contractsThe Supreme Court in the Armanti case further held that parties to a standardform contracts are strictly bound by it. The Court adopted the statement ofCheshire & Fifoot in law of Contract thus – “if the document is signed, itwill normally be impossible or at least difficult to deny its contractualcharacter and evidence of notice, actual or constructive is irrelevant. Inthe absence of fraud or misrepresentation, a person is bound by awriting to which he has put his signature whether he reads its contentsor has chosen to leave them unread.”According to the Supreme Court “The legal position is that if the documentis of a class which either the party receiving it knows or any reasonableperson would expect to contain contractual conditions, the party cannotplead ignorance of the terms even though he chose not to read it, or isunder some personal, but non legal disability, such as blindness,illiteracy or an inability to read the document under consideration.”324.APPLICATION OF WARSAW CONVENTION 1929 TO INTERNATIONALCARRIAGE OF GOODS BY AIR CONTRACTS(f) The Courts treat it as applicable in The Gambia.(g) Scope of application:The Supreme Court in Armanti’s case held that the convention “By Article (1),the convention applies to all international carriage of persons, luggage orgoods performed by aircraft for reward and also to gratuitous carriage byaircraft performed by an air transport undertaking.”Limit of liability for loss resulting from breach of contract for internationalcarriage of goods by Air(h) The quantum of liability is limited to US$100.Responsibility for carriage of goods under such contractsThe Supreme Court in Armanti held that “In international transport, a contractof carriage can be entered into through an agent who is the contracting3332 Supra at Pp.225-22633 Supra held 1235

carrier, and performed by another person, the actual carrier. Neither theoriginal Warsaw convention 1929 nor the Hague Protocol of 1955, unlike theGuadalajara Convention of 1961, makes it clear whether ‘carrier’ referred to inthese convention includes the contracting Carrier.” 34The Court further held that the actual carrier and the contracting carrier, eachbear responsibility for the carriage. 355.FORM OF CONTRACT(a). Nature of Document containing ContractAccording to the Supreme Court in Armanti’s case “ A contract need not be inone document if it is written. It can be constituted by a series of documents. Ihold that both Exhibits ‘A’ and ‘H’ comprise the contract of carriage betweenthe appellant and the respondent.”36(b). The application of Equity to uphold as valid, contracts that in law areinvalid by virture of their formThe Gambian Courts have invoked their equitable jurisdiction on appropriatecases to validate a contract that in law is invalid for the purpose of doingsubstantial justice. Let us look at these instances.One such instance is the case of Ali Jacobs v Carrol.37S.4 of the Statute ofFrauds 1678, which is a statute of general application in the Gambia by virtueof S.2 of the law of England (Application) Act and oral contract relating to andis unenforceable and invalid in law. The Gambia Court of Appeal, appliedequity and accepted that “inspite of the oral contract in land beingunenforceable, acts of part performance such as payment of some of thepurchase price, coupled with moving into possession, are considered as aprotection of the contract from the effect of the statute and a Court of equitywould enforce such a contract and award specific performance in a disservingcase.34 Supra at P.22235 ibid36 Supra held 1537 (1995/96) GR 7 at Pp.12-1336

6. INTERPRETATION OF CONTRACTSThe approach of Gambian Courts is that –a) Court must give effect to the intention of the parties as conveyed by theexpress words of the contract.b) Clear and unambiguous words to be given their literal and ordinarymeaning without twists and interpolations.c) The document must be read as a whole and not in isolated patches.This position was established by the Gambia Supreme Court in GreengoldLtd v Kombo Poultry Farm Ltd. 38 In interpreting certain clauses of theagreement in issue before it, the Court said –“The wordings of the above clauses of the agreement are clear,simple, straightforward and unambiguous. Clauses 8 and 9 statethat All the expenses incurred by the plaintiff and the defendantas the case may be “will be deducted from sales of marketablechicken before the sharing of it profits. Clauses 9 in providing forsharing of net profit between the parties in certain ration statedafter the words “net profit” the following words “i.e. afterdeducting of all expenses incurred by GG and KPF respectively”.Since the words are clear and unambiguous, the Court is bound to give themtheir literal, ordinary and grammatical meaning without twists andinterpolation. The words literally and ordinarily mean that expenses shall berefunded to the parties that incurred them before it can be considered if thepartnership had made profits or losses. I find it difficult to conceive howprofits can be declared before the expenses are paid. It is absurd andincongruous to suggest that profits can be declared before deduction ofexpenses. Net profits literally mean profit after settlement of all costs. Theword “net” is denied in the Sixth Edition of Black’s Law Dictionary at page1040 as “that which remains after all allowable deductions such ascharges, expenses, discounts, commissions, taxes, etc are made.” Italso defined “net profit” at page 1041 as “profit after deduction of allexpenses. Clauses 8 and 9 clearly provide that the incurred expenses will be38 (2002-2008)1 GLR 308 at 327-32837

deducted from the sales of proceeds of marketable chicken. The provisionsdid not state that the deductions shall be made from declared profits. There isneed to call to mind the fact that the plaintiff claimed for refund of expensesand not for its share of the profits. If it had claimed for its share of profits, thenthe contention that the partnership has not made profits would have beenrelevant and tenable. The Court of Appeal with due respects fell into palpableerror when it held at lines 10 – 11 page 197 of the record of this appeal that“the refund of expenses “before the sharing of profits”, presupposesthat profits are made.” I think that this error is the result of undulyemphasizing the words “sharing of profits.” With due respects to that panelof distinguished jurists, this approach is not correct and is likely to defeat theintention of the parties to the contract as expressed in the clear wordings oftheir agreement. It is a trite principle of interpretation of documents that thewordings should not be read in isolated patches as the Court of Appeal did inthis case. It must be read as a whole. This is the most natural and genuineexposition of a document. The words therein must be interpreted in the lightof other provisions of the document. The decision of the Court of Appeal thatthe claim for refund can only be justified after a proper account has beentaken is completely at variance with the express words of exhibit A. such anintention was never expressed in any words in that document. In the samevein, it is against the express words of exhibit A for the Court of Appeal tohave held that a claim for refund of expenses can only be justified after suchaccount is taken and it shows that the joint venture has made profit. It is aninveterate and hallowed principle of interpretation that the intention asconveyed by the words used must be gathered from the written instrumentitself. The Court cannot substitute its own intention and wishes for theexpressed intention of the parties. It does not lie within the jurisdiction of aCourt to rewrite an agreement for the parties by reading into it terms or wordsthat are not stated therein.”38

7. CONTRACTS THAT ARE ILLEGAL OR CONTRARY TO PUBLICINTEREST NOT ENFORCEABLEThis was laid down by The Gambia Court of Appeal in The State v AbdoulieConteh39thus –“The general Common Law rule is that the principles ofpromissory estoppels and estoppels by representation do notapply to promise or representation not to prosecute a person foran offence. Any contract or arrangement that affects theadministration of justice even in the slightest degree, is illegal andvoid. This is because it is in the interest of the public that thesuppression of a prosecution should not be made the matter of aprivate bargain. The Courts will neither enforce nor recognize anyagreement which has the effect of withdrawing from the ordinarycourse of justice the prosecution of an offence. The fact that theprosecutor deserves no gain, financial or otherwise and eventhough the agreement secures the very object of prosecution isimmaterial.” See Egerton v Brownlow (1890)24 QBD 742, WindhillLocal Board of Health v Vint (1890)45 Ch.D 357 at 360.There is however an exception to this general rule where the wrong give riseto both civil and criminal remedies and where the element of public wrong isnot pre-eminent and the result of the offence is confined only to a personalinjury, an agreement or promise to take or go on with criminal proceedings willbe enforceable. Examples of such wrongs include criminal defamation,assault and battery. In Fisher v Apolinans Co. (1873)10 Ch App 292 anagreement to prosecute was enforced because the offence gave rise to civilor criminal remedies and injury was personal. The application of the doctrinesof promissory estoppels and estoppels by representation even in thesecategory of offences should in my view still be subject to the discretion of theCourt depending on the peculiar facts and justice of the case.39 (2002-2008)1 GLR 150 at 178-17939

Where the offence is a matter of public concern in that it pre-eminently affectsthe public interest, the principles of promissory estoppels and estoppels byrepresentation will not apply to preclude criminal prosecution fromcommencing or continuing prosecution against an accused. Example of suchoffences include perjury, interference with and obstruction of a publichighway, affray, riot and obstruction of the police in the performance of theirduty. See Collins v Blantern (1767)2 Wils. K.B. 341, Chibb v Hutson(1865)1 Ch. 173 and Jones v Merionetshire permanent benefit buildingsociety (1892)1 Ch. 173 and Schering Ltd v Stockholms Enskilda BankAliebolag (1946) AC 219 at 252 also reported at (1946)1 ALL ER 36 at 47.The leading English case on the application of this equitable principle to thetwo set of offences is Keir v Leeman (1846)9 QB 371 where Denman CJ laiddown the rule thus –“We shall probably be safe in laying it down that the law willpermit a compromise of all offences, though made the subject ofcriminal prosecutions, for which the injured party might sue andrecover damages in an action. It is often the only manner inwhich he can obtain redress. But if the offence is of a publicnature, no agreement can be valid that is founded on theconsideration of stifling a prosecution for fit….In the presentinstance the offence is not confined to personal injury, but isaccompanied with riot and obstruction of a public officer in theexecution of his duty. These are matters of public concern andtherefore not legally the subject of a compromise.”In our present case the offences alleged against the respondent are preeminentlypublic in nature. It is public revenue that is alleged to have beentaken by the respondent. The respondent is also alleged to have obstructedpolice officers in the performance of their duties. Even though the offencegives rise to both civil and criminal proceedings, since it is public in nature, apromise not to initiate or continue criminal proceedings against therespondent is not recognized by law and no court can or should enforce sucha promise for any reason. The trial Court was therefore wrong to have heldthat the appellant was estoppels from bringing criminal proceedings againstthe respondent because of the letter of the Solicitor General (exhibit A4)40

indicating that Government does not intend to act on the adverse findings andrecommendations of the Commission of Inquiry against the respondent.8.VARIATION OF CONTRACTS(a) Variation of Contract – How done and when it exists –This was settled in Mamadi Jabbai case thus –“The next issue to consider is whether there was a variation of the contractin terms of the fundamental term as to salary. ‘Variation’ in the context ofthe instant case, means change in the amount earned by the Appellant permonth. The law is that parties to a contract may effect a variation of theterms of the contract by modifying or altering its terms by mutualagreement. No change in the terms of an employee’s contract may bemade without his consent. Such consent may be express or by theemployee agreeing to the change orally. See Tolley’s EmploymentHandbook, 8 th Ed., paragraph 10.21 page 54. The evidence before theTrial Court was that the Appellant was called in March 1996 by theSupervisor together with ten other members of his team who informedthem that they would not be paid full salaries because UNHCR did nottransfer funds to Respondent, but that the staff would be refunded later,and that as a result of this information he received the sum of D500 permonth thereafter until October 1997. This piece of evidence was notrebutted, and the Trial Court believed the Appellant’s evidence that theywere so informed. But can it be argued with any measure of optimism thatthis notification constitutes variation of the contract between the parties? Icannot assent to the argument that it constitutes a variation. In my view, itdoes not constitute an agreement to change the amount earned by theAppellant every month. Properly understood, it means that the Appellantwould continue to earn his monthly salary of D1, 000 but would be paid thehalf of it later. This is why he continued to “plough” in hope. In any event,there cannot be any talk of variation except by mutual agreement of theparties to a contract. According to the learned authors of Chitty onContracts 24 th Edition, paragraph 22:029 page 1083, ‘’a mere unilateral41

notification by one party to the other, in the absence of any agreement,cannot constitute a variation of contract.’’I accede to the submission of the learned Counsel to the Appellant thatwhat transpired between the supervisor and the Appellant (and his team)was merely a unilateral notification of the deferment of payment of theother half of his salary and not an agreement to a reduction of the amountearned by him. Besides, there is no evidence of power in the Respondentto vary the terms of the contract with the Appellant unilaterally. Evenwhere there is power to vary, the law is that an express power to vary theterms of a contract can only be enforced where it was clearly specified.See Lee v Gec Plessey Telecommunications (1993) 1 IRLR 383. Exhibit“K” which is the Respondent’s Contract of Service Rules, does not makeprovision for such a power to vary a term of the contract. If what took placein March 1996 was not a variation, it follows that the Appellant’s continuedwork or earning of D500 per month did not constitute an agreement tovary.2(b) Difference between a new and a varied or altered contractAccording to The Gambia Court of Appeal in Ali Jacobs v Carrolaccepted test of the difference between a new contract and varied contractwas suggested by Lord Haldane in Morris v Baron & Co. {1918)AC1 at 5. Itreads: “There should have been made manifest the intention in any event of acomplete extinction of the first contract and not merely the desire of analteration, however sweeping, in terms which leave it still subsisting.” (Theemphasis is mine.) In other words, if the changes do not go to the very root ofthe contract, there is merely a variation. In Goss v Nugent (1832(LJKB 127,the nature of a variation was pithily stated by Lord Denman CJ, thus:“but after an agreement has been reduced into writing, it iscompetent to the parties at the time before breach of the newcontract not in writing either altogether to waive, dissolve orannul the former agreement, or in any manner add to, subtractfrom, vary or qualify the quality of it and thus make a new contract40“The40 Supra at P.11-1242

which is to be proved partly by the written agreement and partlyby the subsequent verbal terms engrafted upon what will be thusleft of the written agreement.”In my view, I do not believe that in law, the plaintiff could be said to havewiped the deed out and substituted it with the oral contract, there was nomention of the property, its size or whereabouts. The only things said aboutthe terms of this contract were that the property should cost £11,000 and thatit should be paid very soon after the conversation. Both parties couldunderstand this contract because they instinctively linked it to the deed of1980 to know the parties, the whereabouts of the property, its nature, etc. anew contract, oral or written, should have been able to create a completecontract which could stand on its own without any reference to, ordependence on, any other contract for understanding it. For these reasons, Ibelieve that the oral contract was only an alteration or a variation of the deedof 1980, and not a replacement or a rescission of it. ”9. THE RIGHT OF A PARTY TO BE DISCHARGED FROM A CONTRACTDUE TO THE BREACH OF IT BY THE OTHER PARTYThe approach to the determination of this issue was stated by the GambiaCourt of Appeal in Ali Jacobs v Carrol thus –“In Chitty on contracts – General Principles (25 th ed), para 59, it isrightly stated that: “Any breach of contract gives rise to a causeof action; not every breach gives a discharge from liability.”Indeed, in a contract of lease, especially, a party by reason of theother’s breach is not entitled to treat himself as discharged fromhis liability to perform his own unperformed obligations under thecontract: see Total Oil, Great Britain Ltd v Thompson Garages(Biggin Hill) {1972}1 QB 318. A contract does not becomerescinded ab initio nor is it rescinded by the breach of it: seeJohnson v Agnew {1908} AC 367 at 373. The fact that thedefendant was in the habit of violating his contracts does notpermit the plaintiff from treating himself as discharged,automatically. He has to formally terminate the contract bycommunicating his intention clearly to the defendant. Until he43

terminates the contract, he is bound by it, and should live with itas he has always done.” 4110. WHEN A DECREE OF SPECIFIC PERFORMANCE CAN BE MADEAccording to the Court of Appeal in Ali Jacobs v Carrol “ A decree of specificperformance will be made by a court upon certain laid out terms. Although itis an equitable remedy and exercised according to discretion, it is notexercised arbitrarily. Some of the things equity would like a person wantingthe specific performance of a contract to observe are the following, as statedin Snell’s principles of Equity (27 th ed) at pp 594-596: 666;“That the person seeking the enforcement has performed or hasbeen ready and willing to perform all terms and conditions then tobe performed by him;That he is ready and will to perform all terms and conditionsthereafter to be performed by him;That he has not acted in contravention of the essential terms ofthe contract.Time which sometimes is regarded as of essence in a contract, issometimes not regarded as such in equity, except:Where the contract states that time is of the essence;Where later any of the parties gives notice that time would be ofthe essence;Where a time is stipulated in the contract for the payments ofeach instalment.”It may be noted in this appeal that the defendant violated all the dates onwhich the various instalments were to be paid, an essential part of thecontract. He also later did not pay the correct amounts to be paid under theoral contract of 1985 which stipulated that he should pay immediately theamount of £11,000. He, however, paid only half of that amount in dalasiscontrary to the contract. Then he was to pay the other half of the price beforethe house could be conveyed to him upon clause 2 of the written contract of1980 which said that: “The vendor shall execute a proper assignment of the41 Supra P.1244

said property immediately on receipt of the amount due in 1981.” This clausewhich is a part of the contract, clearly cannot be performed by the plaintiffbecause of the time, i.e. the year, in which that portion of the contract shouldhave been performed. That portion is impossible to enforce now, and equitycannot enforce any part of a contract which is impossible for any party toperform. In all, the defendant has not come to equity with clean hands. Forthese reasons, I would refuse to make an order of specific performance. Theplaintiff wrote to the defendant on about 3 June 1987 and rescinded thecontract of the sale of the house, made in 1980 as well as the new contract of1985 just entered into.11. EQUITY CANNOT REDEEM A CONTRACT THAT HAS BECOMEIMPOSSIBLE TO PERFORMAccording to the Gambia Court of Appeal in Ali Jacobs v Carrol, “equitycannot enforce any part of a contract which is impossible for any party toperform.”4212. REIMBURSMENT IN QUASI CONTRACT SITUATIONSThe test for determining the liability of a party to reimburse another for costsincurred by the later to the benefit of the former in quasi contract situations(where there was no contract between them in respect of the incurring of suchcosts). Was laid down by the Gambia Court of Appeal in Ali Jacobs v Carrolin the following statement –“In the course of examining the rents of the defendant, and the properties ofwhich he was the tenant, the question of unlawful enrichment came upincidentally from the evidence and the record before the court. the learnedtrial judge, Obayan J, dealt with this matter briefly and concluded that thedefendant made all the improvements on the plaintiff’s property without askinghim permission, and that he was a volunteer who therefore did not deserveany remedy. I believe it and not that he was a mere standby, a volunteer,who deserved no remedy at law. In Leigh v Dickeson (1884)15 QBD 60, thebeneficiaries of the trust of the plaintiff-respondent and the defendant-42 Supra P.1445

appellant were tenants in common of a house. The defendant-appellant haddone certain repairs which might be taken to have been reasonable andproper, he had paid for or at least had become liable to pay for those repairs.An action having been brought against him, he sought by a counter-claim torecover that money he had paid or was liable to pay. The beneficiary of theplaintiff-respondent had derived benefit from the expenditure incurred by thedefendant-appellant, and the defendant-appellant sought to reimburse himselffor the cost of the repairs in proportion to the benefit which the tenant incommon with him had received. After reviewing the situation in whichtraditionally people are reimbursed in quasi-contract, Brett MR, supported bycotton LJ and Lindley J, dismissed the appeal; in that, there was no properremedy in law or equity for the particular case on appeal. But in the course ofreviewing the circumstances under which the courts would authorisereimbursement, Brett Mr, said:“But it has been always clear that a purely voluntary payment cannot berecovered back. Voluntary payments may be divided into two cases:Sometimes money has been expended for the benefit of another personunder such circumstance that an option is allowed to him to adopt or declinethe benefit in this case. If he exercises his option to adopt the benefit, he willbe liable to repay the money expended; but if he declines the benefit he willnot be liable. But sometimes the money is expended for the benefit ofanother person under such circumstances that he cannot help accepting thebenefit, in fact that he is bound to accept it; in this case he has no opportunityof exercising any option and he will be under no liability. Under which classdoes this case come?” (The emphasis is mine). See also Anson’s Law ofContract (24 th ed) 620 foot note (3).The rhetorical question of Brett MR must be transposed to the present appealand its surrounding circumstances with regard to the building put up and theother developments made voluntarily by the defendant which were allapparently accepted by the plaintiff. Nowhere in the record is there evidencethat the defendant was forced by law to pay any money to a third party onbehalf of the plaintiff. For example, when the defendant was paying money orbuying the materials for building the right wing to the house or the outhouse or46

the first floor, he did them all voluntarily. The question to ask is: when allthese moneys were expended on the improvements and developments of thehouse of the plaintiff, did he have an option to adopt or reject these activities?Or were these improvements so suddenly foisted on him that he hardly hadany chance to reject them, if he had wanted to? For clarity, I may risk arepetition of myself: the plaintiff carefully selected the type of man who wouldbe his tenant; a man who would develop the house for him for a very low rent.That person was the defendant. When he was therefore developing thehouse, it would appear that not only did the plaintiff know about the activities,but perhaps, he expected them;Although the facts of this appeal would appear to show that there could besome kind of accountability between the plaintiff and the defendant whichstarted during the development of the rented property, the defendant paid noattention to it. It is always the law, that a person who feels he has sufferedsome injury at the hands of another is the one to bring his case to court. thecourt cannot, suo motu, stir up a suit, even though the basis of the injury hascome up in another issue being examined by it.In this appeal, for example, the defendant bought a counterclaim to demandthat the proposed purchase of the house should be specifically ordered by thecourt. he could also, on the alternative to the counter-claim, have asked thathe should be refunded all the monies he had expended in improving theproperty to be purchased, if the court would not order specific performance ofit or purchase and conveyance. As the defendant had not asked for thealternative remedy which could have provoked an investigation and debateinto the question of unlawful enrichment, the matter should be made to resthere.“ 4343 Supra at 16-1747

13. THE RIGHT TO REPUDIATE A SALE OF GOODS CONTRACT FORBREACH OF WARRANTIES – WHEN EXERCISABLE –The approach of the Courts to this question is contained in the judgment ofCourt of Appeal in Ali Jacobs ltd v S.S. Ceesay Construction Ltdfollows –“The buyer, after delivery of the grader, had discovered a numberof faults and remedied them. After the remedy, the buyercompanyhad informed the seller-company of what it had done,and of the faults remedied. Still the buyer -company had notrejected the grader and was still keeping it, two months aftertaking delivery. Indeed, the buyer-company did not repudiate thecontract until 29 May 1989, some three to four months after takingdelivery of the grader. Is the time lapse reasonable? InBernstein v Pamson Motors (Golders Green) Ltd {1987}2All ER 230, the buyer sought to reject a new car with seriousdefects causing a major break-down on the motorway after he hadthe car for three weeks, but had only done 140 miles. It was heldthat the buyer could not reject; he was entitled to damages only.Rougier J held that the buyer had lost the right to reject, as thereasonable time in the case meant sufficient time to give the car ageneral trial, not time sufficient for hidden defects to bediscovered.”44asOne would want to know what the buyer-company was doing all the fourmonths during which it had been able to fix the machine to its satisfaction. Inmy opinion, four months period in the circumstances was too long to make upone’s mind as to whether to reject to keep a second hand grader which hadbeen found almost unmerchantable and had many defects. Going by RougierJ’s view with which I agree, the four months indecision and delay was toolong.44 (1995/96)GR 404 at 406-40748

It is tantamount to acceptance. The excuse that the grader was being keptand used for the discovery of latent defects is unacceptable.Another way of creating acceptance under section 35 of the Act is, when thegoods have been delivered to the buyer, and he does any act in relation tothem which is inconsistent with the ownership of the seller. Although as underthis contract, the buyer-company had paid for the goods on its arrival, in view,the seller-company had not parted completely with the ownership, nor had thebuyer-company got all the property. The position is accurately described byDevlin J in the case of Kwesi Tek Chao v British Trader & Shipping Ltd{1954}2 QB 459 at 487, thus –“I think that the true view is that what the buyer obtains, when thetitle under the document is given to him, is the property in thegoods, subject to the condition that they revert if uponexamination he finds them to be not in accordance with thecontract. This means that he gets only conditional property in thegoods, the condition being a condition subsequent. All hisdealings with the document are dealings only with thatconditional property in the goods. It follows, therefore, that therecan be no dealing which is inconsistent with the seller’sownership unless he deals with something more than theconditional property… If the property passes conditionally, theonly ownership left in the seller is the reversionary interest in theproperty in the event of the condition subsequent operating torestore it to him. It is that reversionary interest with which thebuyer must not, save with the penalty of accepting goods, commitan inconsistent act.”From the buyer-company’s evidence, that it had satisfactorily fixed the grader,the company used it for the contract for which it had been ordered, and theapproval of which was being awaited. The grader which had not yet beenapproved was despatched from Banjul to the Trans-Gambia Highway, 120miles away to work, and the bull-dozer part of fit was used for bull-dozing.The use of the bull-dozer by the buyer-company to work in pursuance of acontract for which it was going to be paid, was a clear case of exploiting thereversionary interest in the seller-company which could only be touched on49

paid of approving to buy the grader. In my opinion, the buyer-company did anact which was inconsistent with the ownership of the seller-company, and inlaw, the buyer should be deemed to have forfeited its right of repudiation, andhad accepted the grader, which is still in its possession.14. AGENCY(a) Agents fiduciary duty of disclosure to principal under a contract ofagencyThe approach laid down by the Gambia Court of Appeal in Dulab Real EstateAfric Ltd v Peters45is that – “It is a rule in the law of agency that in alltransactions with his principal, an agent must disclose every material factwhich ought to be known by him, if it is likely to operate upon principal’sjudgment: see Demeruru Bauxite Co v Hubbard {1923} AC 673. Where anagent fails to disclose a material fact, the fairness of the transaction isimmaterial and it is voidable at the option of the principal who may obtainrescission of the transaction; see Armstrong v Jackson {1991}2 KB 822 .That was in the case in which the plaintiff as principal had instructed thedefendant as agent to buy him six hundred shares in a company. From theoutset, the agent made no disclosure whatever to the principal of the true factof the transaction. The agent purported to act as a broker, whereas in fact hewas really acting as a principal. The principal was deceived throughout. Itwas held that the plaintiff was entitled to a decree setting aside the whole ofthe transaction.It is further the rule in agency that all moneys received on the principal’sbehalf must be paid over or accounted for to the principal unless the agenthas for good and lawful reason repaid them to the person from whom hereceived them: see Wilkinson v North suburban Properties Ltd {1959}174Estates Gazette 213, CA. Where an agent fails to pay moneys received onbehalf of his principal, he is liable to an action for money had and received:see also Blaustein v Maltz, Mitchell & Co {1937}2 KB 142. That was acase of principal and agent for the proposition that in a money claim in which45 (1997-2001)GR 392 at 399-40050

the principal is calling upon his agent to account, the agent is bound to handover money collected for the principal. “(b). The existence and nature of a contract of agencyThe Gambia Court of Appeal in Shyben A. Madi & Sons Ltd v Sarr (No.1)adopted the statement of law in Law of Contract by Cheshire, Fifoot andFurmston 47 that –“….an agency agreement is one by which the agent is authorizedto establish privity of contract between his employer, called theprincipal, and third party. It produces effects of two quitedifferent kinds.First, it created an obligation between the principal and the agent,under which each acquires in regard to the other certain rightsand liabilities. In this respect agency takes its place as one of thespecial contracts of English Law, such as the contract for the saleof goods or for the hire of a chattel.Secondly, when acted upon by the agent, it leads to the creationof privity of contract between the principal and the third party. Acontract made with a third party in the exercise of his authority isenforceable both by and against the principal.”The Court went further to state that –“Authorities are replace on agency, and Black’s Law Dictionary (6 th Ed) atpage 62 defines it as “…when one party is authorized to do certain acts for, orin relation to the rights or property of the other.” In the English House of Lordscase of Garnac Grain Co Inc v Future & Fairclough Ltd {1967}2 All Er 353at 358, Lord Pearson had this to say:“The relationship of principal and agent can only be establishedby the consent of the principal and the agent. They will be held tohave consented if they have agreed to what amounts in law tosuch a relationship, even if they do not recognize it themselvesand even if they have professed to disclaim it.”4646 (1997-2001)GR 712 at 721-72247 12 th Edition at pages 469-47051

In my judgment, the learned trial judge’s finding that the first defendant wasthe agent of the third defendant was not in anyway perverse as it was basedon the evidence adduced before him.“(c) Liability of principal for the acts of his or her agent – basis.The position is stated by the GCA in Mansong v GNIC48 thus –“It is indisputable that Fansu Ndong was the defendant’s agent.The only question is whether the defendant should be vicariouslyliable for the fraud he perpetrated on the plaintiff. The principal isnot liable for the act of his agent committed beyond the actual orapparent scope of authority of the agent. The law, I think, hasbeen well put in Halsbury’s law’s of England (4 th ed), vol.1, para820 as follows:“Where an act done by an agent is not within the scope ofthe agent’s express or implied authority, or falls outside theapparent scope of his authority, the principal is not boundby, or liable for, that act, even if the opportunity to do itarose out of the agency … Where the agent obtains themoney or property of a third person by means of any actbeyond the actual, or apparent scope of his authority, theprincipal is not responsible unless the money or propertyor the proceeds thereof have been received by him or havebeen applied for his benefit, in which case he becomesliable to the extent of the benefit received.”The test of liability is authority, actual or ostensible. (see Clerk &Lindsell on tort (14 th ed), para 274.)15. BAILMENT(a) The existence and nature of a contract of gratuitous bailment.(b) Basis of liability for gratuitous bailment.(c) Burden of proof on the plaintiff and the defendant – who has48 (1960-1993) GR 535 at 54252

duty to prove presence or absence of negligence.The Gambia Court of Appeal in Minteh v Danso (No.2)49 laid down theapproach to the determination of these issues in the following statements –“At common law, bailment is often associated with a contract, butthis is not always the case… An action against a bailee can oftenbe put, nor as an action in contract, nor in tort, but as an action onits own, sui generis, arising out of the possession had by thebailee of the goods”(d). Gratuitous bailment can be treated as a quasi-contractIn Minteh’s case (No.2)50 The Gambia Court of Appeal relied on and adoptedthe statement of Lord Denning in Building & Civil Engineering HolidaysScheme management ltd v Post Office 51 that –“These grounds of appeal relate to bailment, and so the nature of the bailmentin this appeal and how bailment should be pleaded may now be examined. Inthis case, because the defendant did not charge anything for keeping theplaintiff’s money for him, the bailment involved is gratuitous and governed bythe law governing gratuitous bailments. Like the plaintiff in every civil action,the bailor must establish his claim according to the rules, i.e. he must pleadaccording to law and adduce evidence to establish his case. After the plaintiffhas proved his case, which is that he handed over the chattel to the bailee onthe terms they agreed, and that the bailee is unable to return the goods, thebailee assumes the burden of proving lack of “gross negligence” in causingthe loss of the goods, particularly if the loss or destruction of the goods isalleged to be through the bailee’s negligence or carelessness.Counsel for the defendant, it would appear, assumed that because there is aburden on the bailee among other burdens to establish that there was no“gross negligence” on his part, the bailor must necessarily state the alleged“gross negligence” and establish the particulars of it. The bailor, in myopinion, does not have to establish negligence and provide its particularsunless his action on the bailment is based on an allegation of negligence.49 (1997-2001)GR 123 at 127-12850 Supra at 12651 (1966)1 QB 247 at 260-26153

Negligence, however, is not the only fault on which a bailee can be sued inbailment. Thus in Halsbury’s Laws of England (3 rd ed0, vol.2 at page 102,para 202, the law on the basis of commencing an action in gratuitous bailmentwas stated thus: “in order… to maintain an action in the case of gratuitousdeposit, the plaintiff must show that the defendant has been guilty of eitherbreach of orders, gross negligence or fraud.” See also Olukoko v Oyekoya12 WACA 514.In this case on appeal, it is noted from the statement of claim and evidencethat the plaintiff sued on breach of orders. Although the plaintiff sued onbreach of orders, and not on negligence, because of the subsequent negligentacts of the defendant which led directly to the loss of money, it was stillincumbent on the latter to prove that he carefully followed the instructionswhich the bailor gave him, and that he did all that was expected of him, ascarefully as if he was carrying out instructions on his own affairs: and if thesubject of the bailment had got destroyed or lost, the loss or destruction didnot come about as a result of the failure to obey instructions with care. Thefact therefore that the bailee has the burden of proving care and absence ofnegligence, is an integral part of the general defence available to him in thiscase. It does not mean that the bailor first has to prove any negligence. Iaccordingly fail to see, where according to ground (1)(a) the learned trialjudge went wrong in saying that there was no evidence of gross negligencefrom the plaintiff. Because he did not allege it, and did not have to prove any.“The position was more elaborately stated by the Court per Chomba P thus –“In my considered judgment, the argument that the plaintiff had abandonedthe original cause of action is fallacious. The pith of the cause of action asstated in the statement of claim is that while he was in Italy in December1992, the plaintiff sent to the defendant 53,000 Deutch marks with instructionsthat the defendant should bank it on behalf of the plaintiff. It was then allegedthat the defendant failed to refund that money when due demand for its returnwas made by the plaintiff, the money not having been banked as instructed.To my mind, what was stated in the statement of claim was a mereamplification of the relief claimed in the writ of summons: money had andreceived by the defendant for and on behalf of the plaintiff.54

I accept that what was endorsed on the writ was a claim in quasi-contract; butI also hold that what was claimed in the statement of claim was in quasicontract,with some padding or with an elaboration. In holding that the reliefclaimed in the statement of claim was in quasi-contract, I rely on the speechof Viscount Simon in Fibrosa spolka Akeyjna v Fairbairn Lawson CombeBarbour ltd {1943} AC 32, HL where he stated at page 46 the following:“… The claim of a party, who has paid money under a contract, toget the money back, on the ground that the consideration forwhich he paid it has totally failed, is not based on any provisioncontained in the contract, but arises because in thecircumstances that have happened, the law gave a remedy inquasi-contract to the party who has not got that for which hebargained. It is a claim to recover money to which the defendanthas no further right because in the circumstances that havehappened the money must be regarded as received to theplaintiff’s use.”(The emphasis is mine).The payment referred to in the Fibrosa was a deposit towards the price forgoods ordered by the plaintiffs from the defendants. However, before thegoods were supplied the contract of sale was frustrated by an act of war. Theplaintiffs demanded the refund of the deposit, but to no avail. They then sued.The facts of Fibrosa may not be synonymous with, but are analogous to,those of the present case. In both cases, I would venture to say, the receiverof the money was a gratuitous bailee.I also derive support for the foregoing view from the statement to be found atpages 100 – 101 of Chitty on Contracts, vol.2, at pages 102 – 103 at para2642, viz:“Frequently, bailment is founded upon a contract, but a contractis not essential for bailment. A bailee may be liable in tort to thebailor whether or not there is any valid contract between theparties. Gratuitous bailment, in particular, is independent of thelaw of contract.” (The emphasis is mine).It was consequently fallacious to argue on behalf of the defendant thatbecause the plaintiff in his statement of claim alleged a gratuitous bailment,55

he was necessarily claiming relief in contract, and therefore had abandonedthe action based on quasi-contract of money had and received to the accountof the plaintiff. Such an argument implies that a gratuitous bailment isessentially a transaction in contract. As noted from the passage in Chitty oncontracts, that argument is a far cry from the true legal position. 52(e). Money had and received as a quasi contractThis is clear from the portions of the judgment of the Court of Appeal inMinteh’s Case (No.2) reproduced in paragraph 17 herein.16. CONTRACT ARISING BY WORDS OR CONDUCTThe courts in appropriate circumstances, to do substantial justice haveinferred the existence of contract by words or conduct. Such circumstancesarose in the case of West Coast Air Ltd Gambia Civil Aviation (No.2).approach of the judicial committee of the Privy Council stated in a portion ofits judgment thus –“A class of which quite commonly come before the courts in various formsconsists of those in which parties join in some common venture or activityrequiring co-operation but, after preliminary expenditure has reasonably beenincurred by one party on the faith of the arrangements, the other becomesunwilling to proceed further. Arrangements for government concessions canbe a specifies of this genus. The disappointed party may have to accept theconsequences of taking the risk, but the common law does offer severalpossible ways of fulfilling reasonable expectations by recognising a right tomonetary compensation. For instance it may be possible to see the dealingsof the parties as giving rise to an implied contract or a duty of care in tort.In the present case, it becomes unnecessary to consider tort. The courtbelow found a contract without identifying with any precision how it was madeor what were its terms. Their lordships agree that the dealings can properlyand realistically be analysed as creating a contract. The letter of 20 January1992, together with the surrounding circumstances, evidences a contract by53The52 Supra at 131-13253 (1997-2001)GR 420 at 43056

words and conduct between the company and the authority whereby, in returnfor an obligation by the company to take all reasonable steps to provide aregional and domestic air service, the authority promised unreserved support.The authority’s promise was express. It constituted acceptance of the kind ofduty existing when parties agree to do something which cannot effectually bedone without co-operation; see Mackay v Dick (1881)6 APP Cas 251 at 263per Lord Blackburn. In the circumstances, the applications for and granting ofthe licences brought the minister directly into the contractual relationship,which thus became a tripartite agreement to co-operate in all reasonableways to establish the airline.“17. ENTIRE OR DIVISIBLE CONTRACTWhether a contract is an entire (indivisible) or divisible contract will depend onthe peculiar circumstances of each case. This was the approach adopted bythe privy Council in West Coast Air ltd v G.CA. when it held that –“the description ‘entire contract” is not a particular helpful one inthis contract. Traditionally that label is applied to contracts wherecompletion of one party’s performance is a condition precedent tothe other party’s liability to pay. That is not this case. Thecontract was for both regional and domestic services, but thesuggested severability or divisibility is unsupported by theevidence. The company planned to provide these services with asingle aircraft and as an integrated operation. The expenditureclaimed, extensive particulars of which were given in evidence,was not broken down as between domestic and regional services.Most of it could not be so broken down. It was not put to Mr. Tostiin cross-examination that the regional services on their ownwould be economically feasible without a complementarydomestic service, nor is there anything to suggest that this was atall likely. From the first, services operated in combination werewhat was contemplated on both sides. The severability argument,not raised at the trial or in the initial grounds of appeal, appears tohave been so afterthought. While appreciating that the Court of57

Appeal found it attractive, their Lordships are compelled to regardit as lacking an evidential foundation.“ 54Importance of the distinction between entire and divisible contract. Thisis clear from the statement of Chomba P in GCAA v west coast Air ltd 55thus –“the question which begs resolution is whether the aviation project wasone entire indivisible contract, or it was in fact divisible and severable. Itis necessary to draw distinction because different consequences flowfrom a breach of an essential term of each of such contracts. I find suchdistinction very clearly explained in the following passage occurring atpages 953-954, para 1510 of Chitty on Contracts – General principles,(26 th ed), under the rubric – “Entire and divisible contracts:“In an entire contract... complete performance by one party is acondition precedent to the liability of the other; in such a contract theconsideration is usually a lump sum which is payable only uponcomplete performance by the other party 9hence, the reference issometimes to a ‘lump sum contract’. The opposite of an entire contractis a divisible contract, which is separable into parts, so that differentparts of the consideration may be assigned to severable parts of theperformance, eg. an agreement for payment pro rata. It is a question ofconstruction of the contract whether it is entire or divisible, but inreported cases 9only one of which is of recent date) the Courts havetended to the view that in every lump-sum contract there is an impliedterm that no part of the price is to be recovered without completeperformance. In most modern contracts of any size, however, paymentsby instalments are specified, so that the law on entire contracts isusually not relevant to them.”18. REPUDIATION OF A CONTRACT FOR ACTUAL OR ANTICIPATORYBREACH(a) What kind of conduct can justify repudiation.54 Supra at 430 - 431555555 (1997-2001)133 at 143-14458

(b) How to determine such conduct.The approach was laid down by the Privy Council in West Coast Air Ltd vGCA thus –“while various expressions are used in the authorities to denotethe kind of conduct by a party which will justify the other party intreating a contract as repudiated for actual or anticipatory breach,the common principle is that, to amount to repudiation, a breachmust go to the root of the contract: see federal Commerce 7navigation Co Ltd v Molena Alpha Inc [1979} AC 757 at 778-779per Lord Wilberforce. The test is normally the objective one of theeffect of the conduct on a reasonable person in the shoes of theother contracting party; but, if the evidence shows that theconduct was inspired by the motive of putting an end to anyrelationship, the court will be readier to find the test satisfied. Inthis case. The Company’s latter of 13 July 1992 might well havegone to the root of the contract. Without some explanation, itcould itself have destroyed the company’s faith in the willingnessof the administration to continue to co-operate. It proved to bebut the prelude to a long course of frustrating official action andinaction. By June 1993 the company was certainly abundantlyjustified in rescinding for repudiatory breach.”The High Court per Ayoola CJ in Savage v Socea-Balency Soboa SA 57approached the matter thus –“Not every refusal to perform part of the contract amounts to arepudiation which entitles the other party to treat the contract as at anend. I take the law as stated in Halsbury’s Laws of England (4 th Ed),Vol 29, para 547: “The question whether the refusal to perform part ofthe contract amounts to a repudiation of the whole contract depends onthe construction of the contract and the circumstances of the case.”Where implied repudiation is alleged, the party seeking to rely onrepudiation implied from conduct must show that the defaulting party5656 Supra at 43157 (1960-1993) GR 330 at 335 - 33659

has so conducted himself as to lead a reasonable man to believe thathe will not perform or will be unable to perform at the stipulated time.Not every breach of contract gives rise to a right to rescind eventhough the injured party always has a right of action for damages.Where there is a contractual duty to make an instalment of payment, itis a question in each case whether failure to pay is repudiation.Ordinarily, failure to pay one instalment out of many due under theterms of the contract is not sufficient to amount to a repudiation of thewhole contract. To determine how such non-payment affects thecontract, one should look at the practical results of non-payment anddecide whether or not it goes to the root of the contract: or whether it isevidence of intention to abandon the contract. In Decro-WallInternational SA v Practitioners in Marketing Ltd {1971}2 All ER216 at 221-222 Salmon LJ said:“A breach of contract may be of such a nature as to amountto repudiation and give the innocent party the right (if hedesires to exercise it) to be relieved from any furtherperformance of the contract or the breach may entitle theinnocent party only to damages. How is the legalconsequence of a breach to be ascertained? Primarily fromthe terms of the contract itself. The contract may stateexpressly or by necessary implication that the breach ofone of its terms will go to the root of the contract andaccordingly amount to repudiation. Where it does not doso, the courts must look at the practical results of thebreach in order to decide whether or not it does go to theroot of the contract: see Mersey Steel and Iron Co Ltd vNaylor, Benzon & co: {1881-85} All ER Rep 365 at 370 perLord Blackburn; Hong Kong Fir Shipping Co Ltd vKawasaki Kisen Kaisha Ltd {1962}1 All ER 474 at 487, 488)per Diplock LJ and the Mihalis Angelos {1970}3 All ER 125at 128 per Lord Denning MR.” The principle so enunciatedis applicable to this case.60

C. Repudiation by wrongful termination or recission of a contract.The Court in Savage v Socea-Balency held that –“The termination of the contract by the plaintiff amounts to arepudiation by the plaintiff of the contract. It was based on theerroneous belief that the defendant had committed a breach of thecontract and that such breach justified the plaintiff in treatinghimself as discharged from the obligation to tender furtherperformances. The fact that a contracting party purports to relyupon an inadequate reason for rescinding a contract will normallyamount to a repudiation by him.”19. APPLICATION OF STATUTES OF LIMITATION IN CONTRACTACTIONS AGAINST PUBLIC CORPORATION LIKE GPAThis will depend on the provisions of the time limiting statute. In GPA VCeesay58The Gambia Court of appeal approached the application of s.70 ofthe Ports Act thus –“In this appeal, learned counsel for the defendant, argued themain ground of appeal, which was couched in the followingwords:“(1) The learned trial judge was wrong in interpreting sub-section1 of section 70 of the ports Act, Cap, 68:01, Volume VII page 41 ofthe Laws of The Gambia (1990 edition0 in that the sub-sectionbars the suit. Because of this error, the learned judge failed toconsider sub-section (2) of section 70.”The argument was substantially the same as that which was canvassed in thecourt below. In particular, our attention was drawn to the fact that the sectionforming the basis of the objection and which bars the suit has been thesubject of construction in at least two cases before this court. Those casesare the Touray case (supra) and the Bojang case (supra). I think counsel wasperfectly right in drawing attention to them.Now, the enactment of the limitation period provided under sub-section 1 ofsection 70 of the ports Act, Cap 68:01 reads:58 (1997-2001)GR 82 at 85-8861

“70(1) When any suit is commenced against the Authority for anyact done in pursuance of execution, or intended execution of anyAct or law, or of any public duties or authority, or in respect ofany alleged neglect or default i the execution of such Act, law,duty or authority, such suit shall not lie or be instituted in anycourt unless it is commenced within twelve months next after theact, neglect, or default complained of, or, in the case of acontinuance of injury or damage, within twelve months next afterthe ceasing thereof.”The language is clear Laws of The Gambia, wherein it is enacted as follows:“37(1) when any suit is commenced against the Corporation for any act donein pursuance or execution, or intended execution of any Act or law, or anypublic duties or authority, or in respect of any alleged neglect or default in theexecution of that Act, law, duty or authority, that suit shall not lie or beinstituted in any court unless it is commenced within twelve months next afterthe act, neglect or default complained of, or, in the case of a continuance ofinjury or damage, within twelve months next after the ceasing thereof.”By comparing the two enactment, it would be seen that the wording in both issubstantially the same. The sub-section just quoted is in pari material withsection 70(1) of the Ports Act, cap, 68:01; and if the words “corporation” and“that” in section 37(1) are respectively substituted for “Authority” and “such”contained in section 70(1), the language is practically the same in form andsubstance, conveying .same meaning and effect. Indeed, the said section70(1) was exhaustively considered in both local cases; Touray and Bojang(supra) by the Gambia Court of Appeal. While the Bojang case was an actionfor negligence that of Touray was based on contract.In any case, the next opportunity this court had to revisit the issue of limitationperiod was in the case of Gambia public transport Corporation v Camara, Civilappeal No.26/93, judgment of which was delivered on 21 December 1993.That was a case which was based on a preliminary objection to thecompetency of the action on the ground that it was statute-barred on the dateof the issuance of the writ. As in the present case, it was an action for thealleged wrongful termination of the plaintiff’s contract of employment by theGambia public transport Corporation. And again, as in the present appeal,62

the defendant corporation contended that the plaintiff’s action was notmaintainable on the ground that the action was not commenced within oneyear from the date when the alleged termination took place. The defendantrelied on section 37 of The Gambia public Transport Corporation Act, Cap,70:02. It was held by The Gambia Court of appeal that the suit ought to havebeen dismissed by the trial judge on the ground that the plaintiff’s action wasstatute-barred and, indeed, the objection was unanswerable.The learned trial judge i the present case invited and heard submissions fromboth sides. His ruling embodying his ratio decidendi, is set out in part asfollows:“Certainly there is no contract of employment mentioned in section 7. Withrespect to section 70(1) the operative words are “public duties” and “injury ordamage” which cannot be extended to contract of employment. In interpretingsection 70(1), the rule of interpretation ejusdem generis applies. The dutiesare public duties which are inclusive in those enumerated in both sections 7and 70. Ejusdem generis means of the same class or kind. Contract ofemployment is not of the same kind or class of duties enumerated in bothsections 7 and 70.He then quoted faithfully an extract at pages 132 and 133 of Cross onstatutory Interpretation (2 nd ed) by Dr J bell and Sir George Engle and thedictum of Lord Diplock in quazi v quazi [1980} AC 805. His conclusion afterthose authorities reads:“from the analysis above, it is quite clear that contract of employment is notwithin the ambit of sections 70(1) and (20 and 7 of the Ports Act. The twoGambia Court of Appeal cases cited relate to the public duties of the PortsAuthority but are not applicable to contract of employment and as such notuseful in the instant case. For all the reasons enumerated above, I hold theobjection is misconceived and it is hereby dismissed.”With the utmost respect to the learned trial judge, i think his conclusion to theeffect that the plaintiff’s contract of employment is not within the ambit ofsection 70(1) of the Ports Act, Cap 68:01, on application of he ejusdemgeneris rule, is completely unsupportable having regard to the language ofthat section. As noted earlier on in this judgment, the section is couched insimple, clear and unambiguous language. The section is not limited to the63

performance by the Ports Authority of its public duties; it extends to any act,neglect or default that may be the subject of complaint in a suit against thePorts Authority.The bar against any stale suit that may be commenced against the PortsAuthority outside the limitation period of twelve months is all that the section isabout. The section does not seek to enumerate what type of action is to beinstituted within twelve months and which action may not. To resort to section7 of the Ports Act in construing section 70(1) therefore was not only uncalledfor but irrelevant and erroneous.Furthermore, the learned trial judge fell into a serious error when he rejectedoutright the two Gambia Court of Appeal cases which were brought to hisnotice. Those authorities were binding on him and if he had considered themcarefully together with the cases that were cited therein and had applied theirratio decidendi to the present case, he would not have concluded that they‘relate to the public duties of the Ports Authority but they are not applicable tocontract of employment and as such not useful in the instant case”. Indeed,both cases are on all fours with the case in appeal; see Gambia PublicTransport Corporation v Camara (supra).In the instant appeal, the act complained of occurred on 1 February 1993; thatwas the date on which the plaintiff was alleged to have been dismissed fromthe employment of Gambia Ports Authority. That date marks the point fromwhich the plaintiff’s cause of action began to accrue. In effect, the plaintiff hadtwelve months from the said date within which to commence his action, tha isto say, from 1 February to 31 January 1994. The record shows that theplaintiff’s summons dated 10 August 1995, the suit was purported to havebeen restored to the cause list on Thursday 17 August 1995. It would beseen that the period 1 February 1993 to 17 August 1995 was well over twoand a half years-again completely outside the mandatory limitation period oftwelve months.”A court lacks the power to proceed to hear a matter instituted outside thelimitation period. See GPTC V Camara 59Equity in GPTC V Camara, was held –59 (1960-1993)GR 481 at 49464

“Broad equity in this case cannot override and will not certainly be allowed todefeat positive enactment of limitation and two clear statutory conditionsprecedent to the filing of an action in court. Lord Hewart CJ rightly observedin spillers v Cardiff Assessment Committee {1931}2 KB 212.“ 6020. “ FORCE MAJEURE” CLAUSE IN CONTRACTSThe Gambia High Court in Mansong photos Ltd v WAECof a force majeur clause and how it should be applied thus –“the defendant claimed that is was lawful for it to revoke the contract with theplaintiffs by invoking clause 7 (b) of the contract which provides for a forcemajeure situation, since government had failed to pay its subvention as wellas the candidates not paying their examination fees as the deadline was fastapproaching. Counsel for the defendant argued that the word “or” in clause7(b) of the contract appearing immediately after the specified instances of aforce majeure covered the situation arising from the stated reasons cancellingthe contract.It is explained in Chitty on Contract, para 1035 that the expression “forcemajeure” in a force majeure clause is normally used to describe a contractualterm by which one 9or both0 of the parties is excused from performance ofthe contract in whole or in part upon the happening of a specified event or anevent beyond its control. Such clauses may assume a variety of forms, and aterm “the usual force majeure clause to apply” has been held to be void foruncertainty: see British Electrical & Association Industries Ltd v PatleyBressings ltd {1950}1 WLR 280. Furthermore force majeure clauses havebeen said not to be exemption clauses: see Fairclough Dodd and Jones v JH Vantol Ltd {1957}1 WLR 136.I think it is necessary to examine the situation contemplated where the forcemajeure clause could be invoked. Clause 7(b) of the contract spells out thesituation as follows:“For purpose of this clause ‘force majeure’ includes acts of God,strikes or concerned acts of workmen, fires, quarantine61stated the meaning60 Ibid at 48961 (1997-2001)GR 984-98565

estrictions, wars, earthquakes, streams, floods or other adverseweather conditions or any other events which neither party couldreasonably be expected to prevent or control but shall include anyevent caused by or any employees or contractors of either party.”My understanding of this clause is that the word “or” immediately after thespecified instances of a force majeure is conjunctive and not disjunctive asthe defendant has argued against and wants this court to believe otherwise.In other words, the force majeure clause could be invoked in circumstancesfalling within the examples specifically mentioned.Even assuming that the force majeure clause is applicable and could beinvoked by the defendant, I believe it is important to ascertain and determinewhether the notice period of fifteen days had been strictly complied with bythe defendant. clause 7(c) of the contract agreement provides, inter alia:“Either party shall within fifteen days notify the other of any eventto ‘force majeure’ affecting such party’s ability to fulfil the termsand conditions of this agreement. Similarly either party heretoshall notify the other of restoration of normal conditions withinfifteen days.”Given that the circular from the Ministry of Education addressed to all Headsof Government and Government Assisted Middle Schools is dated 17 October1994 and was tendered in evidence as exhibit D, and the defendant informedthe plaintiffs by letter dated 17 November 1994 as per exhibit 3, it seems tome that the notification period of fifteen days given by the defendant to theplaintiffs fell outside the stated period, and thus could not, in my consideredopinion, be invoked by the defendant in avoiding the contract as having beenfrustrated in relieving them in performing its own side of the contractagreement. In my judgment, the defendant is in breach of the contract.”21. AGREEMENT AS TO TIME FOR THE PERFORMANCE OF ACONTRACT –(a) how such agreement is applied –The Court in Savage v Socea-Balency case laid the approach thus –66

“Where parties have agreed as to the time for the performance ofa contract, one party cannot abridge that time by serving noticeon the other party demanding performance at an earlier time.”22. REFUND OF MOBILISATION FEES FOR EXECUTION OFCONSTRUCTION CONTRACT –In the Savage v Socea-Balency case the Court held that –“The defendant in a separate head of claim has claimed a refundof the mobilization payment made to the plaintiff. The plaintiff isnot liable to make such a refund since there has been no totalfailure of consideration. I take the law as stated in KeatingBuilding contracts (4 th ed), at p.54 as follows:“If the employer pays money under a contract which thecontractor fails to complete the employer can recover that moneyin an action for money had and received if there had been atotalfailure of consideration. If the employer has received any valuefrom performance by the contractor there has not been a totalfailure of consideration, and any payment is not recoverable eventhough it was made in advance of performance. In suchcircumstances the employer can claim damages for breach ofcontract.”23. ORDER OF SPECIFIC PERFORMANCE –(a) when preferred to damages –The position was stated by the Court of Appeal in Kebbeh v Sillah; Sallay vKebbeh62thus –“The law takes the view that the purchaser of a particular piece of land or ofparticular house (however ordinary), cannot, on the vendor’s breach, obtain asatisfactory substitute, and therefore specific performance is available to him.It seems that this is so even though the purchaser has bought for resale: seeChitty on Contracts Vol.1 (General Principles), (26 th ed), para 1864 atpage 1204. As was observed in Harnett v Yielding (1805) 2 Sch & Lef 54962 1960-1993)GR 430 at 431 and 43567

at 553, the historical foundation of the equitable jurisdiction in granting adecree for specific performance of a contract is that the party seeking itcannot obtain a sufficient remedy by the common law judgment for damages.Hence the traditional view was that specific performance would not beordered where damages were an adequate remedy. However, the acid test isnot simply whether damages are an adequate remedy, but rather whetherspecific performance would do more perfect and complete justice than anaward of damages: see Tito v Waddell (No.2) {1977} Ch D 106. Referencemay also be made to a similar formulation of the same test: is it just, in all thecircumstances, that a plaintiff should be confined to his remedy in damages?See Evans Marshall & co Ltd v Bertola SA [1973] 1 WLR 349 at 379; andsee also Beswick v Beswick [1968] AC 58 for the evidentiary rule that theburden is on the plaintiff to show that the common law remedy is notadequate”24. PRINCIPAL CONTRACT AND SUBCONTRACTa) Relationship between the twob) Relationship of sub-contractor to principal contractThe Court of Appeal in Agro Industrial company (Gambia) Ltd v Gratte BrosInternational Ltd laid the position thus –I also note that the various documents exhibits B, BQ, E, H, N, O and P to whichreferences were made, contained no stipulations tending to incorporate the termsof exhibit A into the contract between the plaintiff and the defendant in this case.In Halsbury’s Laws of England (4 th ed), Vol.4, para 1271, the following appears:“An agreement by a sub-contractor to carry out work inaccordance with the terms of the principal contract does notnecessarily incorporate all the relevant terms of the principalcontract into the sub-contract.”And in the case of Chandler Bros Ltd v Boswell [1936] 3 All ER 170, theCourt of Appeal in England refused to imply in a sub-contract a term nottherein expressly stated even though the sub-contractor had knowledge of theterms from the “principal contractor”. Indeed, as a matter of general principle“no stipulation is to be implied into a contract unless it must be taken, on the68

evidence, to have been the presumed intention of the parties and where it isnecessary to give the transaction the efficacy that both parties must haveintended it to have.” See Atuwo v Agip Ghana Ltd (1965) ALR (Comm)195; The Moorcock (1886-90) All ER Rep 532; McClelland v NorthernIreland General Health Services Board [1957] All ER 129 at 132, HL.In the instant case, true it is that the items to be supplied and the work to becarried out by the defendant under the head contract, exhibit A, are a part ofwhat the plaintiff was under a contractual obligation to perform in accordancewith the terms of the agreement in exhibit B; but it is no less true that theplaintiff in this case is not a party to exhibit A and therefore can neither sue onit nor to derive advantage therefrom unless the contract between it and thedefendant so stipulates. 6325. WAIVER OF RIGHT IN CONTRACT –a) Waiver explainedIn Sissoho v Northern Assurance Co Ltd 64 the Court stated thus –“In Lickiss v Milestome Motor Policies at Lloyds [1966]2 All ER 972at 975 the principles of waiver was described thus:“… If one party by his conduct leads another to believe that thestrict rights arising under the contract will not be insisted on,intending that the other should act on that belief, and he doesact on it, then the first party will not afterwards be allowed toinsist on the strict rights when it would be inequitable for him soto do.”b) Need to plead waiver of contractual right –This was stated in Sissoho v Northern Assurance Co Ltd“Waiver must be pleaded. It was not raised at all at the trial by theinsured by way of reply to the defendant’s denial of liability by reason ofbreach of the conditions of the policy. In the circumstances, thelearned Chief justice cannot rightly be criticised for failing to consider65thus –63 (1960-93) GR 521 at 526-52764 (1960-1993) GR 26765 Ibid69

the question of waiver which was not an issue before him. Therationale behind the principle that waiver must be pleaded is clearlystated in Ivamy, General Principles of Insurance Law (2 nd ed 1970), atpage 256 as follows:“To put forward a plea of waiver, whether before or after branch,of a condition precedent to the right of action contained in apolicy is a very serious step. It is quite obvious that it isessential in the interests of justice that the insurance company insuch circumstances should have its attention called beforehandto the fact that it is intended to rely on an issue of the kind uponwhich evidence can be called.”(c) Waiver – meaning and effect –This was explained in Mamadi Jabbai v Gambia Red Cross Societythus –“I come now to the question of waiver. Do the facts of this case supportthe submission of learned Respondent’s Counsel on waiver? Theanswer must be in the negative. Waiver is the intentional and voluntarysurrender or relinquishment of a known privilege or right by a partyentitled to the same which, at his option, he could have insisted upon. Itis a curious phenomenon and is in certain circumstances available to aplaintiff. It is also available to a defendant. The concept of a waiverpresupposes that the person who is to enjoy the benefit or who has thechoice to two benefits is fully aware of his right to the benefit orbenefits, but he either neglects to exercise his right to the benefits, orwhere he has a choice of two, he decides to take one but not both. Theexercise has to be a voluntary act. See Fasade v Babalola (2003) 11NWLR (Pt 830) 26. There is little doubt that a man who is not under anylegal disability should be the best judge of his own interest. If, therefore,having full knowledge of the rights, interest, profits or benefits conferredupon or accruing to him by and under the law, but he intentionallydecides to give up all these, or some of them, he cannot be heard tocomplain afterwards that he has not been permitted the exercise of his6666 Supra at 243-24470

ights or that he has suffered by his not having exercised his rights.Such a person would be held to have waived those rights or to put it inanother way estopped from raising the issue. See Fasade v Babalola(supra) and Ariori v Elemo (1983) 1 SCNLR 1. He cannot be heard tocomplain thereafter that he was denied the advantage of benefitingfrom those benefits and rights. See Ogbonna v A.G. of Mo State (1992)1 NWLR (Pt 220) 647; Shanu v Afribank PLC (2002) 17 NWLR (Pt 95)185 and Ariori v Elemo (supra).I am unable to see how it can be said that the Appellant waived hisright to the second half of his salaries. Indeed, he was entitled to insiston being paid full salaries when he was approached and informed thathe would be paid later. He may well have protested and sued under thecontract for breach of contract and for damages. He did not do any ofthese because he had hope that he would be paid later. If theargument advanced on waiver is that the Appellant waived hisimmediate right to insist on being paid full salaries when they wereimmediately due and to sue for breach and damages, but continued towork, it could hold water. But to argue that his consent to a deferredpayment of his half salaries constituted a waiver of his right to his fullsalaries demonstrates a lack of appreciation of the meaning of theconcept of waiver on the part of the Respondent’s Counsel. Thatargument to my mind is inept and falls flat on its face together with thecases cited in support thereof.”27. RECISSION OF CONTRACT(a) General principles.This was restated by the Supreme Court of The Gambia, per Ayebi JSC inAlhagi Momodou Jobe case67thus –“The right to rescind is the right of a party to a contract to have it setaside and be restored to his former position. So until and unless the67 Supra at pp.115-11771

contract is rescinded, it remains valid. This is rescission in the strictsense and must be distinguished on the one hand from contracts voidab initio for example on ground of illegality, and on the other hand fromcontracts with no inherent invalidity which are subsequently dischargedby breach at common law. At common law the most common groundsupon which a party may rescind a contract for invalidity are fraudulentmisrepresentation, innocent misrepresentation, fraud itself, mistake,and misdescription, amongst others.Generally to rescind the contract, the innocent party must communicatehis intention to do so to the other party. The effect of rescission is thatthe party who rescinds is entitled to be restored to the position hewould have been in had the contract not been made. That being so,the property which is the subject-matter of the contract must bereturned or possession must be given up, and accounts taken of profitsor deterioration.In particular, a vendor who rescinds on account of the purchaser’sdefault as appears in the instant case may forfeit and retain anydeposit already paid but cannot recover any unpaid part of the deposit.The mode of rescission led to the view that rescission is not strictly ajudicial remedy because it is an act of the parties.However as a remedy, the assistance of the court is often requiredboth to determine whether a party is entitled to rescind and also toobtain restitution of the property sold under the contract. Additional tothat, rescission is regarded as an equitable remedy and only a court ofequity could do what is necessary to make restitution.It is therefore trite learning that the purpose of rescission is to restorethe status quo ante. According to Bowen LJ in Newbigging vrs Adam(1886) 34 Chan Div. 582 at 595 “there ought to be a giving back and ataking back on both sides”. The remedy of rescission, it is said will notlie if the parties are not in a position to make restitutio integrum. Thusin Clark vrs Dickson (1888) E.B. & E 148 at 154 Crompton J held that:72

“When a party exercises his option to rescind the contract, hemust be in a state to rescind; that is he must be in such asituation as to be able to put the parties into their original statebefore the contract”.At common law, this requirement of restitution is so strictly interpreted andinsisted upon to be precise that, the injured party can sometimes bedisadvantaged. Equity therefore set in to do what is reasonable. In doing so,equity can set aside the contract in circumstances where the common lawwould not, it can also direct accounts to be taken and balances to be struckand adjustments to be made which were impossible at common law.This flexibility of equity in its view of restitution was expressed by LordBlackburn in Englanger vrs New Sombrero Phosphate Co. (1878) 3 App.Cases 1218 at 1278 to 1279 thus:“A court of equity can take account of profits and make allowancefor determination. And I think the practice has always been for acourt of equity to give this relief whenever by the exercise of itspowers, it can do what is practically just, though it cannot restorethe parties precisely to the state they were in before the contract”.“(b) How a contract can be rescindedThe Supreme Court in Momodou Jobe’s case68stated thus –“It may be effected by mutual agreement of the parties or by one of theparties declaring rescission of contract without consent, of other if alegally sufficient ground therefore exists, or by applying to courts for adecree of rescission. Abdallah, INC V Martin 242 Minn 416, 65 NW 2d641, 644.”68 Ibid at Pp.30-3173

(c) When recission takes effectThe Supreme Court in Momodou Jobe’s case69 stated that –“The Court of Appeal correctly relied on the passage in Cheshire, Fifootand Lamston’s Law of Contract, 11 th Edition, page 275 and the statementof Lord Atkinson in Abram SS Co v Westville Shipping co. Ltd (1923) AC773 at 781, which even though dealt with recission on grounds ofmisrepresentation stated the general law that a contract is rescinded if aparty makes it clear to the other party that he refuses to be bound by itsprovisions and the recission is justified by the facts. The respondent bythe letter of 6 th February 2007 made it clear to the appellant that he hasrescinded the contract.”(d) Effect of recissionThe Supreme Court in Momodou Jobe’s case70stated thus –“I hold that this decision of the Court of Appeal is correct for ex nililonihil fit (you cannot put something on nothing). In addition to thegeneral law that recission nullifies a contract, the trial High Court had inits judgment stated the consequence of the respondent electing torescind the contract. Having ordered that in the event of recission allmonies paid by the appellant to the respondent shall be kept by the lateras damages, the trial High Court as I have already held thereby adjudgedthe contract as nullified in the event of recission. That is why it orderedthat the respondent shall upon recission be entitled to keep moniesalready paid to him by the appellant as damages. So upon recission thesum already paid to the respondent as part of the purchase price hadceased to be so, it was now damages in the hands of the respondent.There was no basis to talk of the balance of the purchase price. Thecontract had effectively ceased to exist as a direct effect of the order ofthe Court.”69 Ibid at 3170 Ibid at 3074

(e) Court ordered recission – how enforcedThe approach was stated by the majority decision of the Supreme Court in MomodouJobe’s case thus –“The argument by the appellant that the respondent had no authomaticright to rescind and could only rescind by order of Court is not correctin the light of the terms of the judgment of the trial High Court that “indefault of so doing, the plaintiff may have the contract rescinded withthe plaintiff retaining monies paid by the defendant under it by way ofdamages”. This judgment as reproduced here clearly gives therespondent the right to rescind the contract if the appellant defaults inpaying the judgment within 90 days. The use of the word “may” heregives the respondent a right to elect to rescind or still continue withcontract and pursue the payment of the judgment debt. The right torescind on default in this case is a matter clearly provided for in thejudgment. It does not require recourse to any rule of law or equitableprinciple to determine whether it exists or can be exercised. It is not aright that has arisen by virtue of any rule of law or equity. It is expresslyordered by the Court. It is therefore the judgment we must look at tofind out if the exercise of such a right is automatic or not. The judgmentclearly states the sequence of events as follows “in default of so doing,the plaintiff may have the contract rescinded”. It clearly states that theelection to rescind follows the default. That is what the judgmentordered and which was affirmed in the ruling on the review. Theexercise of the right is automatic in the sense that by virtue of the orderof the Court it did not require any other condition or decision for it to beexercised once there is such default of payment. Macmillan EnglishDictionary for Advanced Learners 2 nd Edition 2007, Macmillan, Londonat page 86 states the ordinary meaning of the word “automatic” as“happening as a result of specific conditions, rules or laws, without aspecial decision made”. The exercise of the right here is the result of aspecific condition, the default in payment. There is nothing in thejudgment requiring that there is need for another order of Court or thatsome other conditions need be satisfied before it can be exercised. Thesubmission of learned counsel for the appellant in paragraph 7:08 of his75

statement of case that the trial High Court “never held or ordered thatthe contract shall be rescinded or be declared rescinded or that thecontract could be rescinded without the need for a further order of theCourt or without an application to the Court made by respondent” is tomy mind an engagement in sophistry. The judgment never ordered thatthe right of election can only be exercised on the further order of courtor upon an application to the court by the respondent. The Court didnot state that the contract stands rescinded upon default of payment. Itleft the decision to rescind on default of payment with the respondentand stated no pre-condition for such decision. Where a Court hasordered without more that a party may as in this case rescind a contractupon the occurrence of an event (default of payment) it will bepreposterous and absurd to suggest that when that event occurs, anapplication should be made to the court to apply for an order to rescindbefore the party can rescind. Why the need for a further order of Court?Non.”28. AWARD OF INTEREST ON JUDGMENT SUMS IN CONTRACT CASESThe position is as follows –(a) The interest rate agreed upon by the parties in their contract is the rate theCourt must levy on the adjudged sum from the date of accrual of the cause ofaction to the date of judgment.(b) Where the parties did not provide for the levy of interest or where there is noagreed interest rate, and there is a claim for interest, the court has adiscretion to award an appropriate rate according to the justice of the casefrom the date of accrual of the cause of action to the date of judgment.(c) The Court can only levy interest at the rate of 4% from the date of judgment tillthe payment of the judgment debt.The Court of Appeal in Singham Investment Co Ltd v N.H. Farage 71 stated theposition in (b)and (c) above thus –“The old Common Law rule as stated in Williams v Reynolds (1865)6 B &S 495 and Wallis v Smith (1882)21 chD 243 is that if the defendant’s71 Supra at 99-10076

each consisted of a failure to pay money, the plaintiff’s loss consistedonly of that sum. The application of this rule occasioned hardship andinjustice in may situations especially in cases where it can readily becontemplated that the defendant’s failure to pay the money on time willprevent the plaintiff from making a profitable use of the money. InPresident of India v La Pintada Cia Navegation Sa (No.2) 1985 1AC 104the House of Lord found the rule unsatisfactory. The Courts haveresponded to this situation by deciding that in such situations theplaintiff will be entitled to damages under the second arm of the rule inHadley v Baxendale. See Wadsworth v Lydall (1981)2 ALL ER 401endorsed by the House of Lords in the La Pintada case. In this case apurchaser of land had agreed to pay £10,000 by a fixed date, knowingthat the vendor intended to use the money to make a down payment onanother piece of land. In fact the purchaser only paid £7,200 and thevendor had to borrow the other £2,800 to pay interest on the loan. It washeld that the vendor could recover the interest as part of the damageunder the second branch of the rule in Hadley v Baxendale.Loss of use of the money owing to delayed payments in breach of acontract can also be the natural, probable or unavoidable result of thedelayed payment. As stated in Chieshire, Fifoot and Furmston’s Law ofContract, 11 th Edition, Butterworths at page 596, “in a commercialcontext a debtor will very often know that if he pays late, his creditor willuse this opportunity to make profitable use of the money.”77