"The assignment is what section of the constitution covers breach of contracts and how do we relate it to a case where one pays transport fare from one destination to another and the vehicle broke down and nothing is done by the transporter to complete the journey for the passenger. Meanwhile there is a line in the ticket that reads 'no refund'"
I have decided to reproduce that article here with the above rephrased heading as follows:
INTRODUCTION
The most common and popular legal instrument known to the average Nigerian is the CONSTITUTION! Any reference to the law of the land would impel the common man to ask, ‘where is it in the constitution?’ or to assume that it is ‘clearly stated’ in the constitution! Rightly so, as Dr Mohammed Nuhu Jamo1 would say, the constitution is the ‘mother of other laws’ in Nigeria. Funny to know that the constitution in force (1999) only came into effect as a schedule to Decree 24 (Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999), under the General Abdulsalami Alhaji Abubakar administration on the 29th of may 1999! But as mother of all laws, the constitution that came into force in 1999 ‘gives birth’ to laws that existed even before the birth of ‘Nigeria’, and that is where we comfortably posit the BREACH OF CONTRACTS in our body of laws.
Section 315 of the 1999 Constitution provides for ‘Existing Law’ in the following terms:
(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
By the above provision, the Common Laws of England, the Doctrines of Equity and the Statutes of General Application that were in force as at 1st January 1900 and have since then been developing with every legislation and adjudication in Nigeria have force and life. Herein fits the law of contract, an aspect of which is the breach of contract which is the subject-matter of this piece.
BREACH OF CONTRACT: DEFINITION, REMEDIES
For there to be a breach of contract, a relationship must exist that qualifies in law as one ‘creating reciprocal legal obligations to do or not to do particular things’, ‘there must be mutuality of purpose and intention’3. In simple terms, two parties must come to a ‘give and take’ understanding and agreement. One party does an act, renders a service or refrains from same for a consideration from the other party which could be tangible or intangible. This is the case whether the contract is a formal one under seal (which in law is enforceable even without consideration), or a simple contract - written or by word of mouth, (parol). It is where there is default by one party to the contract that a breach is said to occur. In the words of the distinguished Court of Appeal Judge of Ibadan Division, Fabiyi JCA in the recently decided case of OBADIMI Vs. ADEDEJI4,
“There is no gain saying that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract, or either performs the obligation defectively or incapacitates himself from performing the contract.”
Elucidating further on the subject, Muhammed JCA in the same case stated: “...in other words, if there was a breach of the agreement to sell the concern, the most important question is ‘who made the sale inconclusive’? The answer is that the person who had stalled the sale stands in breach of the contract”5
Breach of contract usually results in injury to one party or more, and in accordance with the maxim: ‘ubi jus, ibi remedium’6, such a party will be entitled to legal remedy barring any fault on its part. Remedies for breach of contract could come by way of Injunction, Specific performance or Quantum Meruit (much as deserved), but the most common, conducive and readily available remedy for a breach of contract is DAMAGES. The damages usually awarded to the injured party could come under one of several classes: Special (specific items with clear or known monetary values, and which are within the contemplation of the parties at the time of the contract), General (where the court itself has to estimate or assess the damages, and ‘which the law will presume to be direct, natural and probable consequence of the act complained of’7). Damages could also be Nominal (where the injured party has suffered no loss as a result of the breach, entitled to nominal damages due to the violation of his right per se), and Exemplary (awards made with the secondary object of punishing the defendant party in breach for his conduct in inflicting harm on the plaintiff)
THE PASSENGER WHO PAYS TO BE TRANSPORTED
Between a passenger who boards a vehicle to be conveyed to a destination and the transporter who collects money (consideration) from the passenger, there exists a clear contract whose terms are said to be ‘implied’. The terms of every contract could either be express or implied or both. Formal and written contracts are known for their express terms, though many still have myriads of implied terms by virtue of the circumstances of each transaction, as well as statute or case law, while parol (Oral) contracts are usually held by implied terms. This is where the kind of contract between the passenger and the transporter comes in. In the words of the erudite professor8,
“...in the case of implied contracts, terms are not expressly stated. The court in such circumstances, will normally construe the existence of a contract from the conduct of the parties rather than from their words or correspondence. For example, a passenger usually enters a bus without any dialogue between him and the conductor or driver. Yet to all reasonable men, his action implies that he will pay his fare, while the bus owner is obliged to carry him safely to his destination...”
It goes without saying therefore, that the passenger who boards a commercial vehicle, has the obligation to pay for transport services, which ipso facto creates a reciprocal obligation on the part of the transporter to convey such passenger to the agreed destination. The act of soliciting passengers to a particular destination by notices and by verbal pronouncements on the part of the transporter in person or through its agents, and the act of boarding the vehicle with full knowledge of the advertised destination implies an express consensus ad idem that the transporter will convey the passenger to the advertised destination(s), and that the passenger will furnish payment (consideration) for the transport service rendered. This payment by the passenger could be in advance or in arrears of the transport service rendered depending on how the parties agree, and the prevailing lawful and acceptable practice in the area of jurisdiction.
Considering the foregoing, a passenger who neglects or fails to pay for the transport services would be in breach of the contract whose implied terms are that in exchange for his being transported to destination, he will furnish consideration by making payment. Reciprocally, it will be a breach of contract for the transporter to fail in delivering the transport service either completely or partially (devoid of anything that qualifies as frustration by an ‘Act of God’ in law). While a breach by the passenger could entitle the transporter to the remedy of Specific performance (requiring the passenger to pay the agreed fare and any other penalty arising from the passengers’ failure and/or refusal to pay as agreed), failure to convey the passenger to destination by the transporter will entitle the passenger to the remedy of damages in a legal action. Beyond a refund of the sums paid to the transporter, where such breach arises due to the transporter’s fault either through negligence, malice or other reason that a ‘reasonable man’ could avoid, the transporter could additionally be liable to pay the passenger other damages due to injury arising by virtue of the failure of the transporter to meet his obligation in the contract, and the chain of losses caused the passenger as a direct result. As is the general rule in law, each case would be treated according to its merit and based on its facts.
Where therefore the vehicle breaks-down in transit, it follows logically that devoid of any additional fault of the transporter and depending on the facts of the case, the transporter will under common law, be required to refund the entirety of the sum paid him by the passenger. His part in the contract is to convey the passenger to destination, and failure to do that as agreed entitles him to absolutely no consideration or benefit in common law. When the principles of equity are applied however, he may be granted a ‘Quantum Meruit’ remedy, i.e., giving him the equivalent of that part of the journey which he was able to accomplish. Many jurists will however disagree with this position and cling to the standard common law position by which the passenger may not only be entitled to a total refund of paid fares, but also to general damages (since it may not be practicable to return the passenger to the position he was ‘restitutio in integrum’ before the contract, since that will entail time waste and possibly additional loss).
THE CLAUSE ‘NO REFUND’ ON RECEIPT OF PAYMENT
It is not uncommon to see such words on receipts of payment, usually where payment is made in advance of the transport services. It takes little to see that such words can only have effect to the extent that the transporter is not in breach of his own part of the contract. Those words may therefore make sense, where the passenger for instance, decides midway to abort the journey (though even this is contestable depending on each case). Where however, the transporter fails, neglects, decides or is unable to complete the journey, such a clause will have absolutely no meaning or force in that contract. Were the contrary to be the case, then any one could assemble passengers, collect their monies while issuing receipts with such clauses and shortly thereafter decide to abort the journey and keep the monies collected!!! That would be a most skewed reasoning and intolerable situation before any rational beings! Such has never been, is not, and never will be the position of the law, and God save the people from such barbarity!
CONCLUSION
Contracts are a daily occurrence in human society which by virtue of human nature, are bound to see breaches committed. It is the duty of the law (Contract Law as incorporated by section 315 of the 1999 Constitution of the Federal republic of Nigeria) to see that justice is done in each case by proffering solutions to each case of breach. The case of the transporter is no exception as his obligations to the passenger and vice versa must be done or redressed in the most justifiable manner to give satisfaction to each of the contracting parties by way of Specific Performance, Injunction, Quantum Meruit but most commonly and conveniently, by Damages.
It can be stunning to observe the way parties to such contracts, especially motorists and transport companies handle such cases which leaves much to be desired. It is hoped that expositions such as this will help add to the degree of sanity and civility to the society in which we find ourselves.
BM Integrum Legis Partners (08053430524-Kajit, 08037310418-Manava),
Ungwan Rimi Kaduna.
REFERENCES
1. Senior lecturer of Constitutional Law, Faculty of Law, Ahmadu Bello University, Zaria
2. Constitution of the Federal Republic of Nigeria, 1999
3. Orient Bank (Nig) Plc Vs Bilante International Ltd. (1997) 8NWLR (Pt. 515) 37 at 76
4. (2008) 3 NWLR (Pt 1073) pg 16 paragraphs H-B
5. Ibid, pg 21
6. Meaning ‘where there is a right, there is a remedy’
7. The English Lord, Mc Naghten in Bolag Vs Hutchison (1965) 1 All NLR 182
8. I.E. Sagay, Nigerian Law of Contract (ed) 2000, page 5
