IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CASE NO. 759 OF 2002
C.S. MANJA . PLAINTIFF
BENSON ZIDANA . ....... ...DEFENDANT
CORAM: MANDA, SENIOR DEPUTY REGISTRAR
Makono for the plaintiff
Gonaulinji Court Clerk
ORDER ON ASSESSMENT OF DAMAGES
This matter came for assessment of damages following a judgement delivered in open court by Justice Chinangwa on the 16th day of November 2005. In that judgement, the plaintiff was awarded his entire claim on account that the action was unopposed. This was of course with the exception of a claim for collection costs.
The brief facts of this case were that the plaintiff entered into an oral agreement with the defendant in August of 2001, in which contract the defendant had apparently agreed to sell a dwelling house to the plaintiff at an agreed price of K450 000. The house is located on plot number 21/629, within the city of Lilongwe. At the material time the plaintiff was working for the Reserve Bank of Malawi and it had been his intention to get a loan from the Bank so as to acquire the house. It was in fact the plaintiffs evidence during the assessment, that the Bank had approved his loan for K450 000, subject to the defendant supplying the Bank with title deeds to the house. On his part his part, the defendant is said to have demanded a deposit before he could source the title deeds and according to the plaintiff, he gave the defendant the sum of K128 000 as a deposit. Having received this money, the defendant is said to have written the plaintiff withdrawing his offer to sale the house and only paid back the sum of K36 000 the plaintiff. Indeed it was on this basis that the plaintiff was claiming the rest of the deposit.
At the same time however, the plaintiff also informed the court that he suffered a lot of damages because of the failed contract in that he continued to rent a house when his expectation had been that he was going to be moving into his own house. According to the plaintiff he continued to pay rentals of K7 500 per month, in this regard then, the plaintiff sought to claim from the defendant the rentals he has had to pay from July 2002 to December 2005, which was coming to a total of K315 000. The plaintiff also sought to claim damages for breach of contract in view of the fact that he would want to find another piece of land on which to build a house.
Following the defendants testimony, this court did take occasion to ask the plaintiff a few questions. From the questions, the court was able to find out that the plaintiff had left the Bank in August 2002, following his position being declared redundant. However, it would seem that by the time the plaintiff was made redundant, the defendant had already withdrawn his offer to sale the house. It did also transpire that after the defendant had withdrawn his offer the plaintiff never looked for an alternative house, apparently because there was already an application to buy a house from the defendant. At the same time, the plaintiff did also inform the court that he had informed the Bank about the defendants withdraw of the offer of sale but that the latter never did anything. It was the plaintiffs view that this inaction by the Bank might have been influenced by the fact they knew that he was going to be made redundant. This of course raises the question as to whether the Bank would have been willing to give the plaintiff another loan to buy another house. In other words the issue becomes whether the plaintiff could have mitigated his loss? From the conduct of the Bank, it seems unlikely that they would have advanced the plaintiff any money considering that he was being let go and that there would have been worried about how they were going to recover their money, especially since the plaintiffs terminal benefits were around K188 000, which was less that the K450 000 advance the plaintiff would have obtained.
Nevertheless, it is noted that one of the requirements for giving the plaintiff a loan was that the Bank was going to keep the title deeds to the house and that perhaps this was one way of ensuring that their money would have been recovered even after the plaintiff had left its employment. Indeed it was the plaintiffs assertion that he would have had ten years to repay the loan and that he would have been making monthly installments of K7 500, which coincidentally is the same amount of rent that he claims he has been paying. If indeed then there was a way of the Bank recovering their money after the plaintiff had left its employ and that if it is true that the Bank never took any steps after the plaintiff had informed them of the defendants withdraw of the offer to sell him the house, then I would think that the Bank also contributed, in a way, to the loss in that they could be said to have denied the plaintiff an opportunity to mitigate the damages by looking for another house.
However, much as there might be connotations of liability by the Bank, I should be quick to point out that the claim before me is not one against the Bank but rather it is against the defendant who repudiated the contract of sell of a house after receiving a deposit. Ordinarily under these circumstances the appropriate remedy would have been to order for the specific performance of the contract but it must be stated that an order for specific performance is a discretionary one (see Wolverhampton Corporation v Emmons  1 Q.B. 515). Indeed in exercising the discretion the court will consider among other things the practicability of enforcing the order, among other factors. In this instance the consideration I bore in mind was whether the defendant in this instance still owns the house, especially in view of the time that has elapsed since the withdraw of the offer of sale. From the plaintiffs evidence there was no indication as to whether the defendant still owns the house and perhaps this could be because of the fact that from the outset of this action the plaintiff was only interested in the damages, which I believe is not supposed to be the case as damages are ideally awarded in lieu of specific performance (see Wroth v Tyler  Ch. 30). Suffice to say in this instance that because there was no information as to the current ownership of the house, this court felt inclined not to consider specific performance as a remedy, for fear that the enforcement of the same might be impossible (see Forrer v Nash (1865) 35 Beav. 167). Thus the only option that was available to me was to assess the damages for breach of contract and the resulting inconvenience.
In assessing the damages fro breach of contract in this instance, the decision in Wroth v Tyler (supra) is quite pertinent. The law was settled in that instance that the damages to be awarded to a plaintiff in cases like the present would be the difference between the contract price of the house at the time of the breach and the price of the house at the time of judgement, which was delivered on 16th November 2005. It is noted in this instance that whilst we were given the value of the house at the time of the breach, the current value of the house or at least an approximate, were never provided. In these circumstances, I do not think that it can be said that the plaintiffs claim was sufficiently proved as it has been left to the court to speculate what the current value of the said house. Since the loss was not sufficiently proved, the only damages that can be awarded to the plaintiff would have to be nominal (see Dixon v Deveridge (1825) 2 C. & P. 109). I thus award the plaintiff the nominal sum of K10 000 for breach of the contract of sale.
Having awarded the plaintiff the nominal damages, I now direct my attention to his claim for damages for being inconvenienced. Indeed where breach of contract causes the plaintiff physical inconvenience or discomfort he may recover damages (see Burton v Pinkerton (1867) L.R. 2 Ex. 340. however, it was held in the case of Watts v Morrow  1 W.L.R. 1421, that the quantum of such damages should be a modest one. In this instance I would consider the sum K20 000 to be fair compensation for the plaintiffs inconvenience and I accordingly do award him that sum.
Thus the plaintiff is awarded the total sum of K30 000 as damages. The plaintiff is also awarded costs of this action.
Made in Chambers this day of .2005.
SENIOR DEPUTY REGISTRAR