ARCHIBONG
V.
DUKE

(1923) JELR 80475 (DC)    
Divisional Court  ·  12 Mar 1923 ·  Nigeria
CORAM
Webber, J.

Webber, J. (reading the judgment of the court)I think the Plaintiffs are entitled to judgment. The contract in this case in express terms assesses the sum to be paid as liquidated damages for a breach. as the Court stated in Kemble v. Farren “ there is nothing illegal or unreasonable in the parties by their mutual agreement, settling the amount of damages, Uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases it saves the expense of bringing witnesses to that point.”

This is exactly the case here, and the term “rescinds” has not the meaning which is usually ascribed to it. The words “If either party rescinds his contract” negative the suggestion that the rescission must be mutual.

The provision for liquidated damages does not exclude the remedy of specific performance. It does not release the parties from their agreements but they must perform it notwithstandi…

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