On the second part of the claim, it
is apparent that the respondent was claiming damages for breach of contract.
Contrary to the finding by the court
a quo, I am of the view that
such damages cannot properly be awarded in an application for summary
judgment. This is because the damages must be proved.
In ...
On the second part of the claim, it
is apparent that the respondent was claiming damages for breach of contract.
Contrary to the finding by the court
a quo, I am of the view that
such damages cannot properly be awarded in an application for summary
judgment. This is because the damages must be proved.
In clause 9 of their agreement, the
parties agreed that in the event that the appellant terminated the services
rendered to it by the respondent, the latter would be entitled to claim “as
genuinely pre–estimated liquidated damages, 75% of any charges that the
appellant might have been liable to pay.” This was to be for the period
equivalent to the required notice period or “the remaining period of the
contract, whichever was applicable.”
It is therefore evident that the
respondent was required to place before the court evidence to prove the damages
claimed. On the basis of clause 9 of the agreement, it was incumbent upon the
respondent to establish the following:
“(i) The basis upon which the
damages it claimed constituted “genuinely pre-estimated liquidated” damages;
(ii) Whether the amount claimed
constituted 75% of such damages; and
(iii) The period the respondent
considered applicable, between the period of “due notice of termination” and
the “remaining period of the contract.”
In the absence of this evidence, I
find that the respondent did not prove the damages in the sum of US$3,000= that
it claimed, and was awarded by the court a
quo. The court took the view that it could simply take the period
required for notice in lieu of
notice and multiply the monthly service charges of US$1,000= by three and award
damages in the sum of US$3,000=. There is no indication that the court a quo applied its mind to clause 9 of
the agreement at all.
On this basis, I find that the court
a quo misdirected itself.
Further, notwithstanding clause 9 of
the agreement, it is part of our law that a plaintiff who seeks damages must
take into account any necessary expenditure he would have incurred pursuant to
the contract. It should be pointed out that damages, by their nature, do
not easily lend themselves to determination in a summary judgment. Damages are
never “unarguable.” It has already been stated that this is an extraordinary
remedy which is not readily granted unless it has been established that a
plaintiff's claim is clear both in fact and in law.
I do not find that in this case the
appellant's claim for damages meets these stringent conditions….,.
“1….,.
2….,.
“(i)….,.
(ii) The respondent be and is hereby
granted leave to defend the claim for damages in the sum of US$3,000=.
(iii) The respondent shall pay the
costs of this application.
3. The appellant shall pay the costs of this
appeal.”
