KINGDON, C.J., NIGERIA, PETRIDES, C..J., GOL,D COAST, AND DOORLY, J.
The plaintiff claimed in the Court of the District Magistrate, Accra, the sum of sixteen pounds being balance of amount due and owing by defendant for work done to defendant premises under an agreement.
The agreement provided for the painting, etc. of defendant’s house by plaintiff at a total cost of twenty pound. The defendant advanced four pounds and was to make other advances as the work proceeded. The plaintiff led evidence that he completed the work, but had received no payment except the four pounds advance and so claimed the balance of sixteen pounds. The defendant led evidence that the work done by plaintiff with the four pound advance was so bad that he refused any further advance, and the plaintiff did no more work on the house, the defendant getting the work finished by another contractor.
The trial Magistrate found that no reliance could be placed on any of the witnesses, and, as we understand his judgment, he rejected the claim of the plaintiff for payment of a balance due, but found that the defendant had been guilty of breach of contract in refusing a second advance and awarded plaintiff five pounds by way of damages for such breach. We can find nothing to suggest, as appellant’s counsel contends, that the five pounds was awarded by way of quantum meruit for the work done.
We are of opinion that in awarding damages for breach of contract, the Magistrate went outside the scope of the issues before him. The question of whether there was a breach by one party or the other was not in issue and was not threshed out. The onus was on the plaintiff to prove his claim for payment of a balance due. He clearly failed to do so and his claim should have been dismissed. The learned Judge in the Divisional Court evidently came to the same conclusion, though he did not put it quite in the same way and did not specifically direct what judgment should be entered in the Magistrate’s Court, or set aside the award of costs to plaintiff in the Magistrate’s Court, or award the defendant costs in the Magistrate’s Court. In our opinion, he should have done all of these things. The appeal is dismissed and the following order is made in lieu of the order made in the Divisional Court. The judgment of the District Magistrate, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance of that judgment it shall be refunded. The plaintiff's claim in the District Magistrate’s Court shall stand dismissed. The defendant is awarded his taxed costs in the Court of the District Magistrate. The award of £7 Is costs to the defendant-appellant-respondent in the Divisional Court stands good, and the defendant-appellant-respondent is awarded costs in this Court assessed at £18 16s.