CORAM

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OLABODE RHODES-VIVOUR

A. NNAMANI – JUSTICE, SUPREME COURT

M.L. UWAIS – JUSTICE, SUPREME COURT

A.G. KARIBI WHYTE – JUSTICE, SUPREME COURT

M.L.UWAIS – JUSTICE, SUPREME COURT

ESO, JUSTICE SUPREME COURT

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PARTIES

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STEPHEN E. OKONGWU

APPELLANTS 

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NIGERIAN NATIONAL PETROLEUM CORPORATION

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW / LAW OF CONTRACT / DAMAGES

 

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SUMMARY OF FACTS

The appellant’s contract of employment was breached by the respondent. The respondent offered him alternative employment which in effect meant the appellant will lose 10 months’ salary.

 

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HELD

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The court held that the appellant was entitled to damages for the period between when the contract was breached and when he got another employment and that the alternative employment offered was unreasonable.

 

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ISSUES

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1. Whether the learned trial judge made a finding that the appellant mitigated damage up to the time he secured a new job after the receipt of Exhibit “M” and whether the Justices of the Court of Appeal were right to reverse this finding, if made and limit the period of mitigation to the time when the appellant received Exhibit ‘M’ without showing that the finding was perverse or not the proper exercise of judicial discretion.

2. Whether the appellants loss of salary will be computed or assessed on N7, 104.00 per annum or on N14, 000.00 per annum at least from April, 1977 which was admitted by the defendants as the appellant’s salary under the salary structure in the Oil Industry at the time he was offered appointment by the Defendants.

3. Whether in computing or assessing the damage suffered by the appellant account should not be taken of the one month salary which the appellant pail in lieu of notice In order to take up the appointment which the defendants later breached.

4. Whether the appellant is not entitled to general damages.

 

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RATIONES DECIDENDI

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BREACH OF CONTRACT: WHEN EXEMPLARY DAMAGES IS RECOVERABLE

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Unless those facts of special knowledge on which the claim to exemplary damages is based could be said to have been incorporated into the terms of the contract and therefore became foreseeable to the parties I do not see how exemplary damages could be ordinarily germane to cases of breach of contract – Nnaemeka- Agu J.S.C

 

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BREACH OF CONTRACT: PRINCIPLE OF ASSESSMENT OF DAMAGES

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The principle of assessment of damages for breach of contract which has been applied by the courts is restitutio in integrum -that is, that in so far as the damages claimed are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred – Nnaemeka- Agu J.S.C

 

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BREACH OF CONTRACT: THE PROPER AMBIT OF THE DUTY TO MITIGATE LOSS.

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The duty to mitigate does not imply that a plaintiff whose contractual right has been breached is automatically relegated to a position inferior to the defendant’s wherein he is obliged to pick up, as it were, the crumbs that fall from the master’s table. The true position is that a defendant who is already in breach of his contract is, as it were, demanding a positive action from the plaintiff who is innocent of blame. For this simple reason, the law has never taken the view that such a plaintiff has to undertake an onerous burden in the name of mitigation of damages. The duty of mitigation on a plaintiff is that of a reasonable man acting reasonably- Nnaemeka- Agu J.S.C

 

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CASES CITED

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Westheim v. Chicoutimi Pulp Co.) (1911) A.C. 301 at p. 307

Pilkinton v. Wood (1953) 2 All E.R. 81

Hadley v. Baxendale (supra).

Rookes v. Bernard (1964) A.C.1129, at p. 2226

 

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STATUTES REFERRED TO

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Not Available

 

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