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April 19, 1939
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
The' following joint judgment was delivered:-
PETRIDES, C.].. GOLD COAST, BUTLER LLOYD, ACTING C.J., NIGERIA AND STROTHER-STEWART, J.
Plaintiff by his writ claimed £500 damages for loss sustained by him through defendant's breach of a contract to erect a building at Accra, made between the parties and dated 5th August, 1937. Of this amount £122 5s. was claimed as special damages according to particulars attached to the writ.
There were no pleadings and the defendant's Counsel in his opening said :-
•• There was litigation over the site and parties could not get on the site, till after West African Court of Appeal Judgment-June, 1938. Prior to this, defendant intimated to plaintiff he could not pay owing to cocoa hold-up ..
•. By the Specification, plaintiff contracted to construct the foundation and walls which were not in accord with the building regulations-Contract £1,675. Claim inconsistent-(l) Claim for entire breach, (2) Claim for special damages. Pleads no damage has arisen from the breach-admits- breach ".
The trial Judge gave judgment for the plaintiff for £205 5s., of which £55 5s. was for general and the balance £150 for special damages. He rejected the contention of defendant's Counsel that the contract was illegal on the ground of public policy and therefore unenforceable. His reasons for doing so are contained in the following passage in his judgment
The description of the materials, etc. to be used in the work are set out in the building permit and had the work been proceeded with it is obvious the building Inspector would have compelled the work to be done in accordance with that permit; and as the contract provides for a lower standard than permitted by the Building Regulations, all that would happen would be that the owner would get a more substantial building than that provided for in the contract and the extra expense would fall on the contractor, and I hold that although it may be an argument in mitigation of damages possibly, yet it cannot be said to render the contract illegal. "
The contract relied upon by the plaintiff, hereinafter referred to as the contract, is contained in Articles of Agreement made the 5th August, 1937, 1:etween the defendant (Owner) and the plaintiff (Contractor). By the contract the defendant agreed to demolish an old building on a site at Rowe Road, Tudu, Accra, and erect a new building thereon for £1 ,675. These articles recited that :-
WHEREAS the Owner is desirous of constructing a Building at R
AI Generated Summary
This joint judgment of PETRIDES, C.J., BUTLER LLOYD, AG. C.J., and STROTHER-STEWART, J., concerns a building project at Rowe Road, Tudu, Accra. The Owner and Contractor executed Articles of Agreement on 5 August 1937 to demolish and rebuild for 1,675, with work to be performed strictly to the annexed Specification and Drawings. The specified cement mix was lower than that required by the Accra Town Councils Building Permit. The trial judge awarded the plaintiff 205 5s in damages and rejected the illegality argument, reasoning that any discrepancy would be cured by the building inspector and that additional costs would fall on the contractor. On appeal, the court held the contract illegal and unenforceable because the Accra Building Regulations require compliance with permit terms. It further denied recovery of 55 5s demolition costs under pleadings framed solely for breach of contract. The appeal was allowed, with costs against the respondent.