INTRODUCTION

Within the law of contract a breach of contract is a civil wrong which

involves civil liability. The sole concern will be remedies available in
civil proceeding. In civil proceedings, the injured party may claim
specific relief in damages or specific performance or injunction. In an
action for damages, the injured party claims compensation in money for
the fact that he has not received the performance for which he
bargained for. Damages are the most importance and the most frequently
discussed in reported judicial decisions. The bulk of judicial discussion
on remedies is devoted to damages. In contractual situation, a person who
has performed his own part of the contract, but has not received the
agreed counter-performance from the other party may either claim back
his performance or the reasonable value
DEFINATION OF REMEDIES
According to black law dictionary, remedy is a legal means or method
use to enforce the right, obtain redress for a wrong, or prevent an injury.
It is the way a court of law provides relieve when someone has been
wrong or their right has been violated through a money judgment or an
other for a specific performance
REMEDIES FOR BREACH OF CONTRACT
When a contract is broken, the injured party may have several courses of
action open to
him, namely:
1. To refuse further performance of the contract, i.e., rescission
2. To bring an action for damages
3. To sue on quantum meruit
4. To sue for specific performance
5. To sue for an injunction.

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RESCISSION
The right of rescission is an equitable and exists in a number of
circumstances. By way of illustration, we mention three of those
circumstances: First, the right is available to a party injured by breach of
a fundamental term in a contract, e.g. a condition. Secondly, it is
available to a party injured by the misrepresentation of the other party.
Thirdly, it is available where a contract is vitiated by mistake.
The effect of rescission in the case of misrepresentation and mistake is to
terminate the contract ab initio as if it never existed. As stated by Lord
Atkinson, in
Abram Steamship Co. v. Westville Steamship Co. (1923) A.C 773,
at p.781.
Such rescission terminates the contract, puts the parties in status
quo ante and restores things, as between them, to the position in
which they stood before the contract was entered into.
On the other hand, rescission in the case of breach of a condition only
terminates the contractor from the moment of rescission. Rights and
obligations that have already matured are therefore not affected.
If follows, therefore, that whereas the right of rescission for
misrepresentation and mistake is lost if restitution in integrum (full
restoration) is no longer possible between the parties, no question of
restoration arises in the case of rescission on grounds of breach. However,
if in the latter case, the rescinding party is able to make restoration, the
court will, in the interest of justice, require him to do so. Thus, where a
buyer of goods rightfully rejects the goods for breach of a condition as to
quality, the ownership of goods vests ( or revests) in the seller.
Furthermore, where the seller of goods rescinds the contract because of
the buyer’s default, he must, without prejudice to his right to damages,

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return any part of the purchase price that has been paid before the
rescission of the contract.
On a total breach of a contract or a breach of a fundamental term in a
contract (i.e., on a breach of a condition) the injured party may, if he so
wishes, treat the breach as entitling him to rescind the contract. If he opts
for his right, then:
a. He is absolved from further liability on the contract.
b. He may, in the event of a total failure of consideration, recover any
money paid by him.
c. He may institute an action for damages against the offending party.
d. By treating the contract as rescinded he makes himself liable to restore
any benefit he has received, for example, if he has agreed to sell goods
and has received all or part of the price, he must return it, unless it is a
term of the contract that he need not do so.
e. If the injured party claims damages from the party who has broken the
contract, he must give credit in his calculation of damages for the
purchase price (or any other benefit) received by him.
f. A deposit paid by the purchaser need not be repaid if the sale goes off
by the purchaser’s default, but a sum give in part payment of the price is
returnable.
g. If the breach has only been a breach of warranty, the injured party must
perform his part, although he has a right of action for damages.
However, it is necessary to note that the right to rescission, whether it
arises from breach, mistake or misrepresentation, will be lost if the
innocent party has affirmed the contract, i.e., if he opted to treat it as
subsisting, and also if an innocent third party has acquired the goods in
good faith and for value.

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DAMAGES
Whenever a party to a contract is in breach of it, the other party has a
right of action for damages. Therefore, an action for damages is the one
remedy which is available in every breach of contract. The object of
awarding damages for breach of contract id to put the injured party, so far
as money can do it, in the same position as if the contract had been
performed. In other words, the aim of damages is to compensate the
innocent party to the contract and place him in the position that he would
have been had contract been performed. Action for damages is a common
law remedy. In the award or assessment of damages, the court may ensure
that the loss was occasioned by the breach and that it was not too remote.
Damages in Contract
The leading case of Hadley v Baxendale (1854) laid the common law
foundation for the assessment of damages arising from a contractual
breach. Hadley was a mill operator who contracted with Baxendale to
have the latter deliver a broken mill shaft to the manufacturer for repair.
The term of the contract was that Baxendale was to transport the shaft the
next day. He delayed several days, so Hadley's mill remained closed for a
longer period of time. Hadley claimed damages for the profit the mill
would have made had it been delivered on time. The only information
Baxendale received was related to carrying the shaft on the Plaintiff's
behalf. He had not been told that the mill would be closed until the shaft
was returned. Furthermore, Hadley may well have had a spare shaft, as is
common practice in the business (do you recall trade usage: see earlier?).
Hadley's action failed and Baxendale was not liable for the loss of profit.
The principle arising from that decision is now the basis for the concept
of remoteness in damages, which lays down two categories of
compensation which can be recovered, and which are often described as
the 'first' and 'second' limbs of the Hadley v Baxendale rule:

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1. Losses which arise in the normal course of things and are a natural
consequence of the breach;
2. Losses which arise as the result of special circumstances (not being
natural consequences) which were either known to the parties or may
reasonably be supposed to have been in the contemplation of the parties
when the contract was made.
The concept of foreseeability in tort, which you have already encountered,
is equally applicable here as both categories of damages shown above are
foreseeable: the first because they flow naturally from the breach, and,
secondly, if the other party (Baxendale in this case) had been told what
would result from the breach as a result of the late arrival of the mill shaft.
Applying the above principles to the case, the court found on the facts
that the only way Hadley could succeed in his claim for damages was to
show that Baxendale would reasonably foresee that the mill would be _
closed because there was no shaft, and that some special circumstances
had been made known to him. He failed on both points.
Hence the claim was too remote. How far one can expect the parties to
have sufficient knowledge of each other's business is often difficult to
determine in a commercial sense, particularly if such knowledge is
outside the normal course of business. In Victoria Laundry (Windson) Ltd
v Newman Industries Ltd [1949] the Defendant was installing a new
boiler in the Plaintiff's laundry and that installation was needed as soon as
possible; but the Plaintiff gave the engineers no further information. Due
to faulty work by the Defendant's sub-contractors, completion was
delayed for 20 weeks and the Plaintiff sued for what was clearly breach
of contract. This issue was quantum: how much?
The Plaintiff claimed damages in excess of the lost revenue resulting
from the closure of the laundry, and this amount was based on the fact
that the new boiler was 'state-of-the art' at the time, and would have been

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more profitable than the old model it replaced. On the basis of Hadley v
Baxendale, the court rejected the claim for additional profits arising from
the new dyeing process as they were not foreseeable, and not a natural
consequence (the first 'limb')- Furthermore, there were no unnatural
consequences pointed out by the Plaintiff to the Defendant at the time the
contract was entered into (the second 'limb'). It was held therefore, that
the normal business profits lost during the period of delay were
recoverable, but not the profits the Plaintiff might have received as the
result of the increased efficiency of the new boiler.
As the result of the Victoria Laundry decision, it can be argued that a
third 'limb' can be added to the two previously stated:
- losses will also be foreseeable and recoverable when the party in breach
actually possesses knowledge of special circumstances outside the
ordinary course of business (the profit-making attributes of the new boiler)
and which would be liable to cause more loss. It can further be argued
that knowledge in itself may not necessarily be sufficient, but there must
be some form of acceptance of the liability.
As a final example, assume A breaches his contract with B and, in so
doing, causes B to be in breach of his contract with C. B mitigates, or
minimises his losses, by selling the goods which formed the contract with
C to a third party D, at a loss. Then the measure of B's claim in damages
against A will be the difference between the market price of the goods
and the re-sale price to D. In other words, if B's contract price with C was
exceptionally high, so that his loss on re-sale is correspondingly higher,
he will be unable to claim this from A, unless A was aware of the above-
market price that B was obtaining
from C

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Liquidated Damages
Under the freedom of contract approach, it is quite common for the
parties to a commercial arrangement to include clauses which give a
genuine pre-estimate of the damages which are to be paid by one party to
another in the event of breach. However, the philosophy of awarding
damages in compensation, not punishment, leads in some cases to
problems in predetermining the amount of damages. Thus, if there is a
dispute which is litigated, the courts will not strike it down as a penalty if
the amount stated is excessive. That said, it is a particularly useful device
in construction contracts, where it may be easier to estimate the loss the
injured party will suffer if, for some reason, work is delayed or stopped
on site. And if the liquidated damages clause has been agreed on, the
courts may enforce it even though it can be shown the actual loss is
greater or smaller.
In Cellulose Acetate Silk Co Ltd v Widnes Foundry Ltd (1925), (1933)
Widnes agreed to pay Cellulose Acetate £20 a week for each week they
delayed in erecting the latter's factory, past the agreed-on completion date.
Delay occurred for 30 weeks at a loss calculated at £195 a week, totaling
£5,850. The Court held Widnes was only liable to pay £20 a week as
agreed. In Philips Hong Kong Ltd v Attorney-General of Hong Kong,
(1993), a contract involving the construction of Route 5 from Tsuen Wan
to Shatin, included a liquidated damages or 'agreed damages' clause. This
calculated the amount Philips would have to pay on a daily
basis if construction was delayed. When sued by the then Attorney-
General, Philips argued that the liquidated damages clause was a penalty
and not a genuine pre-estimate of the loss suffered. If the courts had
considered that the so-called genuine pre-estimate of loss suffered was a
penalty for non-performance, then it was probably not enforceable.

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This may sometimes occur where one sum can compensate for a series of
possible breaches (where the progress is linked to certain key dates which
may or may not have been met).
The Privy Council did not rule that way in this case. Although a single
lump sum was payable on the occurrence of certain events, and might
well yield a sum to the injured party that was larger than his actual loss,
the contract sum estimated was not excessive and was a genuine pre-
estimate of the loss. In summary, the courts' dislike for penalty clauses is
based on the theory that they are inserted into the contract in terrorem,
that is, to frighten the potential defaulter. The law in this area can be
complex and, in practical terms, great care needs to be taken in drafting
liquidated damages clauses that, at the end of the day, might be
interpreted as a penalty to the party in breach, rather than compensation
to the innocent party.
UNLIQUIDATED DAMAGES
No damages have been fixed in the contract, so the court decides the
amount payable, subject of course to the Plaintiff proving his loss, as
indeed he would have to do in a tort action. As you saw in the preceding
paragraphs, the courts will not enforce a penalty, but will award damages
on normal, contractual principles.
Damages for Injured Feelings
This is a complex area of the law, as its underlying foundation is
predicated (based) on trying to place the injured party in the same
position as if the contract had been performed. So where does that leave
the potential Plaintiff in our tour example, in which he has suffered
disappointment and perhaps physical discomfort or injured feelings? The
early judicial view was that such compensation would not be awarded in
cases involving, among other things, mere inconvenience, annoyance,
disappointment and without any resulting real physical inconvenience;

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Hobles v London & South Western Rowley Co (1875). _ This approach
was based on policy considerations, in that the courts did not want to
open the floodgates to damage claims in such circumstances. However,
judicial thinking has advanced since then and does not necessarily
disregard the fact that such feelings can arise from a breached contract. In
Jarvis v Swan Tours Ltd (1973), where Jarvis experienced disappointment,
distress, upset and frustration resulting from glowing promises made by
Swan Tours for his Swiss holiday package, Lord Denning and Davis L
J acknowledged the difficulties in assessing damages in these types of
claim and the inherent policy considerations, but noted that emotional
distress has been satisfactorily awarded in tort claims.
This general approach was followed in Jackson v Horizon Holidays,
(1975) Jackson and his family were hoping to get a holiday in Ceylon (Sri
Lanka) in which everything was 'of the highest standard'. The advertised
amenities — mini golf course, pool, beauty and hairdressing salons —
did not materialise and the food was mediocre. Jackson obtained damages
in contract for both himself and his family, on the basis he had contracted
with Horizon Holidays for their benefit. Consequently, the damages
awarded by the court of £1,100 could be deemed excessive. Criticism of
this judgment has come from the House of Lords, See Woodar v Wimpey,
(1980). As nominal damages for the family would have been more
appropriate. In English contract law, if A (Jackson) contracts with B
(Horizon Holidays) in return for B's promise to do something for C
(Jackson's family) and B repudiates the contract, C has no enforceable
claim and A is restricted to an action for nominal damages by reason of
having suffered no loss. The Jackson award does not seem to follow this
principle.
However, the awarding of damages by the courts for mental stress
remains generally only applicable to the Jarvis and Jackson leisure-type

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situations. In the Australian case of Baltic shopping Co. v Dillon (The
Michkail Lermontor) (1993), the appellate Court limited the award of
similar damages only in contracts involving relaxation, pleasure,
entertainment and so on, but not in commercial contracts generally

MEANING OF QUANTUM MERUIT

Quantum Meruit means ‘as much as he has earned’. A claim for a
quantum meruit arises where there is an agreement for services or for
supply of goods and no price or remuneration has been fixed for the
goods or work done. The claim is contractual in nature and it implies the
payment of a reasonable sum. In Warner & Warner International v.
F.H.A (1993) 6 NWLR (pt. 298) 148 SC, the court held that a claim on
quantum meruit means that no specific sums can be claimed or proved. If
they can, then each items stands on fails on the basis of evidence.
In Ekpe v. Midwestern Nigerian Development Corporation (1967)
NMLR 407 the appellant, a daily paid worker applied to be put on a
permanent staff. He was given a form to fill and filled from and submitted
six months after, he was neither a permanent member nor paid any salary.
He brought a claim for the payment of salary for 6 months.
The Court of Appeal held that where work has actually been done by one
party under a void contract, the party who did the work can sue on
quantum meruit to recover his remuneration for the work done provided
he did the work in good faith and without the knowledge that the contract
was void.
In International Nigerbuild Construction Co. Ltd. v. Giwa (2003)
NWLR (pt. 836) 80, the court held that where a plaintiffs can proof the
rendering of services under an unenforceable contract, they contract is
admissible as evidence of the value of services rendered and he may
receive on a quantum meruit basis. Where work done is done or services

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rendered of which the defendant has had some benefit, the plaintiff can
recover the value of work done on a quantum meruit basis.
Thus in Kpebimooh v. Board of Governors, Western Ijaw Teachers
Training College (1993) NWLR (pt.298) 148 SC, it was agreed that the
contractor would be paid an increase on the contract price but no price
was fixed. The court held that since the work was done for their
defendants at their request without any agreement as the price, the law
will imply an agreement to pay a reasonable remuneration which may be
recovered on a quantum meruit. In Kuku v. Permaroof Contractors Ltd.
(1969) NCLR 334 the plaintiff agreed to do certain building work stated,
the defendant repudiated the contract and before the plaintiff knew, he
has caused some work to be done and sued to recover for the work done.
Taylor C.J. held that where one party to a contract has repudiated a
contract, or disabled himself from performing it, the other party may treat
it as at an end and if he has performed his part of the contract wholly or in
part, he has a right to sue on quantum meruit for what he has done. Where
the price to a contract is not fixed the employed can sue on a quantum
meruit to recover what he has earned, that is the reasonable amount to be
paid for this service.
SPECIFIC PERFORMANCE AND INJUNCTION
Under the common law, a breach of contract obligations is compensated
through the payment of damages. Specific enforcement of contractual
obligation was not available at common law except under equity.
In equity too, the enforcement of contractual obligation are subject to
many restrictions, based on the character of the remedy. One restriction is
where the contract calls for personal performance. Other restrictions are
impracticability to perform specifically or the form of relief which does
not lend itself to specific performance or the form of relief may be
unnecessary and undesirable.

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The traditional restriction is that specific performance will not be ordered
where damages are not adequate. Damages are obviously the most
adequate remedy where the person injured can get a satisfactory
equivalent. On the other hand, damages are not adequate where injured
person cannot obtain a satisfactory substitute. In certain types of contract
the courts found damages are not adequate compensation or damages are
not adequate substitute. This is because of nature of the subject-matter.
The law takes the view in respect of a contract for sale of land or of a
house. Other instances where specific performance can be ordered are
contracts to execute a mortgage where, money is paid in advance, to pay
or sell annuity, or were a loss is difficult to prove or contracts are not
legally enforceable.
Specific performance is a decree, which is ordered by the court, which
directs a contracting party to perform the contract which he has promised
to do. It is an equitable relief and alternative remedy to damages in
appropriate cases. It is an example of equity acts in personam which is
granted at the discretion of the court. It is not granted as of right, but
granted judiciously by the court. The court considers in all the cases,
whether specific performance will create hardship for the party. Thus in
Taylor v. H. B. Russet (1947) 12 WACA 1799, the court refused to grant
specific performance for a contract for the sale of land because at the time
the land had been sold to someone else, who had in turn sold it to another
person and the buyers were not aware of their earlier agreement. In
refusing the application, the court observed.
a. That the title to the property had passed and it would be impossible for
him to carry out the order
b. To grant specific performance would result in fostering two or more
further actions.

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c. The doctrine of specific, performance is an equitable relief. It will not
be granted where it will cause hardship to third parties unless it is shown
that the third parties were aware of the evidence of the contract.
d. That the person seeking to enforce a contract must show that all
conditions precedent
have been fulfilled and the party is ready and willing to perform all the
terms which ought to be performed.
SPECIFIC PERFORMANCE
An order compelling a party to perform their contractual obligations.
Example: In sale of land contracts, since land is unique, the court often
orders specific performance. In the case of Mr. Olusegun Odunaiya v.
The Life Camp Paradise Ltd. (2025):
This case from the Federal Capital Territory High Court addresses
specific performance in a property sale dispute. The claimant sought an
order for specific performance to compel the defendant to fulfill its
obligations under offer letters for the sale of duplexes and apartments,
including assessing and collecting installment payments.
In the Supreme Court decision of Incar (Nig.) Plc. V. Bolex Ent (Nig.)
(2001) 12 NWLR (pt.728) 646 on the nature of contract enforceable by
specific performance, the court restated that only a valid contract, which
has given right to a legal or equitable interest is capable of being enforced
by an order of specific performance. In this case the appellant desired to
sell his properties in Port Harcourt, Lagos and Ibadan and invited estate
agents to get buyer. Sunbo Onitirir was the one of them who received this
assignment. Onitiri got a buyer who is interested and duly acknowledge
receipt of N4m cheque. Onitirir informed the appellant of its transaction
and forwarded the cheque. The appellant rejected the offer of N4m, the
appellant received other offers eventually sold the property to the 2nfd
appellant for N4.25m and put the 2nd appellant in possession. Having

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failed to secure the property the respondent commenced an action against
the 1st appellant joining
2nd appellant to claim:
a. A declaration that the plaintiff is the equitable owner of the premises;
b. An order of specific performance against the 1st defendant compelling
him to honour the contract.
Upon the facts disclosed, it is clear that the respondent paid the sum of
N4m to the firm of Sunbo Onitiri but it is also manifest that the action of
the firm was in excess of the willingly allowed the purported agreement
to sell the disputed property cannot bind the 1st appellant as to enable the
respondent to obtain any interest, legal or equitable in the disputed
property.
As the respondent is not in possession of any legal or equitable interest,
he cannot be the beneficiary of the equitable over of specific person. A
person claiming specific performance must have legal or equitable
interest in the property. Generally speaking, specific performance will be
allowed in the following circumstance;
Where damages are hard to quantify
This is where the value of such contract is uncertain or it is difficult to
assess the damages. In a contract to sell annuities or a contract to execute
a mortgage in consideration of money lent, the contract can be
specifically forced. Swiss Bank Corp. v. Lloyd’s Bank Ltd (1979) Ch.
548. A contract to have a loan repaid out of specific property, such a right
is specifically enforceable. Such situation also, damages may be
inadequate remedy because the loss is difficult to prove or the item of
loss may not be legally recoverable.
INJUNCTION
A court order restraining a party from doing something (prohibitory
injunction) or compelling them to do something (mandatory injunction).

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In the case of ISQM HOMES LIMITED v PRODAC NIG LTD, a 2025
ruling from the FCT High Court that discusses the court's discretion to
grant interlocutory injunctions for maintaining the status quo. Other
recent examples found include Dr. Lucky Edewor v. Dr. Tommy Okon
(2024, National Industrial Court of Nigeria), which affirmed the need to
maintain the status quo ante bellum, and a 2023 National Industrial Court.
An injunction is an equitable remedy and applicable under discretionary
ground. It is not subject to the same restrictions that apply to a claim for
specific performance. An injunction is appropriate where the contract is
negative in nature or where the contract contains a negative stipulation.
An injunction is an order by which one party to an agreement is required
to do or refrain from doing a particular thing. An injunction is
restrictive/preventive or mandatory/compulsive.
However, such an order is subject to a balance of convenience ‘Test and
may be refused if the prejudice suffered heavily outweighs the advantage
that will be demised from such restoration. Kennaway v. Thompson
(1981) QB 88. An injunction will not be granted where it will compel or
indirectly the defendant to do an act which he could not have been
ordered to do by specific performance. For instance, in a contract of
service, an employee cannot be restrained from committing a breach of
his positive obligation to work for this would amount to enforcing a
contract of service. Contract commonly enforced by an injunction are
contracts in restraint of trade.
An injunction may put so much economic pressure on the employee as to
force him to perform the positive part of the contract. Thus in Warner
Bros Pictures Inc. v. Nelson(1937) 1 KB 209, a film actress signed
undertaking with the plaintiffs, her employees, not to act for any other
organizations. She was restrained by an injunction from breaking her
undertaking. Similarly, in African Songs Ltd. v. Sunday Adeniyi Suit No:

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LD/1300/174 delivered on Jan. 14, 1974 (unreported), a musician who
undertook to perform and record solely for the plaintiff company was
restrained from recording for himself or for any other company for the
remaining period of the contract. The plaintiff also sought an injunction
to restrain the distribution of gramophone records and an order that they
should be withdraw from the public. Dosumu J. held that since the
records had already been distributed all over the country, nothing could
be done about it. In a contract of employment, an injunction to restrain
the breach by an employee of a stipulation will only be issued if the
contract contains an express negative promise. The remedy may
contradict statutory provisions to make an employee perform his position
obligation to work. Where the defendants obligations is not to render
personal services, even though it may not be specifically enforceable an
injunction can be issued. For instance, to restrain a shipowner from using
a ship under charter inconsistently with the charter party, to restrain
breaches of exclusive dealing agreement. An injunction has been issued
to restrain a seller of uncut timber from interfering with the right of the
buyer to cut down the timber.
It is not specific performance, but an injunction merely to prevent the
vendor from breaking the contract. However, if a contract is made for the
sale of unascertained generic goods such as coal or iron, an injunction not
to break the contract or not to withhold delivery will not normally be
granted since it embraces a positive obligation.
A negative stipulation which is too wide may be severed and enforced in
part. Severance is not governed by the rules relating to severance of
promises in illegal contract. Thus, in Warner Bros Pictures Inc. v.
Nelson(1937) 1 KB 209, the actress undertook two things, not to act for
third parties and not to engage in any other occupation. Without plaintiffs

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written consent the plaintiff sought an injunction to restrained her from
acting and the court granted it. The court stated that the stipulation that
she could not engage in any other occupation could not be granted as
such undertaking would force her to choose between idleness and
performance of her obligation to work. If the negative stipulation is
invalid or illegal the question severance will be determine by the
principles governing illegal contract. In African Songs Ltd. v. Sunday
Adeniyi Suit No: LD/1300/174 delivered on Jan. 14, 1974 (unreported),
Dosunmu J. granted an injunction restraining the defendant from making
any records or tapes for himself or any other organization.
The court held that the granting of an interim injunction would not drive
the defendant to perform for the plaintiff or make him remain idle. In all
the circumstance of the case, the injunction to be granted must be such as
will be limited in scope and time and as will be reasonable for the
protection of the plaintiffs business as records dealer. The court restrained
the defendant from recording gramophones or tape music for commercial
purpose for one year which was the period left for the agreement to run.

REFERNCE
OLUSEGUN YEROKUN, Modern Law of Contract, 2nd ed., Nigerian Revenue
Project Publishers (2004)
I.E. SAGAY, Nigerian Law of Contract, 2nd ed., Spectrum Law Publishing (2001)
TREITEL, G.H The law of Contract, 7th ed, London: Sweet and Maxwell (2007)
ANSON, Principle of the Law of Contract, 13th Ed.,
M.C. OKANNY, Nigerian Commercial Law, Revised Ed., Africana First Publishers
Plc (2009)

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