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In The Supreme Court of
On Friday, the 6th day of May
2005
Before Their Lordships
S.C. 33/2000
Judgement of the Court
Delivered by
Ignatius Chukwudi Pats-Acholonu.
J.S.C.
The appellant a construction
company had entered into a contract with the respondent to construct a
laboratory building and what is described as the General Service and Supply
Centre at an initial price of
(a)
That the whole works should be completed within a period of 44 weeks.
(b)
That the appellant if occasion so demands may apply for extension of
time to complete the job.
(c)
That the architect's certificate is a condition precedent for
payment.
The construction work was not
completed within the due date agreed but the parties after several meetings
agreed that the completion work be extended to 139 weeks.
As late as the middle of 1985,
the appellant applied for further extension of total of 67 weeks. According
to the appellant, the consultant architect approved only for an extension of
35 weeks in spite of the protestation of the appellant. The appellant was
equally piqued further in this seemingly jaundiced state of affair by the
refusal or failure of the respondent to pay its entitlement to certificate
No. 35 of the sum of
The respondent on the other
hand denied all liabilities and maintained that the unenviable situation was
caused by the incompetence of the appellant in not putting the best men on
duty and this resulted in perennial requests for extension of time which
delayed the work and in turn had the resultant effect of escalating costs.
With this in mind, the respondent then counter claimed for damages for a sum
of
At the High Court the suit of
the appellant was dismissed while the counter claim succeeded. The award of
damages was somewhat bizarre in the language it was given. I shall come to
this later. An appeal to the Court of Appeal was dismissed hence a final
appeal to this court.
From dizzying great number of
grounds of appeal the appellant formulated 6 (six) issues for determination.
They are as follows:
1.
Whether the lower court was correct in upholding the learned trial
judge's decision that the appellant was not entitled to the extension of
time sought? Grounds 1, 2, 3, and 5.
2.
Whether the appellant was, in the circumstance and having regard to
the contract entitled to any sums of money due in consequence of the
extension of 67 weeks sought by it but which the respondent neither formally
granted nor refused? Ground 4.
3.
Whether the two lower court did not so
misconstrue the first relief sought by the appellant as to occasion a
serious miscarriage of justice? Ground 17.
4.
Which of the parties, having regard to the contract validly
determined the contract or were the two lower courts right in holding that
the respondent validly determined the contract?
GroundsS, 7, 8, 9, 10,
11, 13, 14, 15.
5.
Whether the respondent was entitled to the measure of damages as
stipulated under the contract especially in the light of the holding of the
court that the respondent did not determine the contract in accordance with
the contract document - Exhibit P2, but under the common law?
Ground 16.
6.
Were reliefs granted in the counter claim proper in the
circumstances? Ground 18.
The respondent on its own
adopted the issues framed by the appellant and argued its case based on the
manner argued by the appellant.
The appellant's grouse against
the judgment of the Court of Appeal is in the lower court's affirmation of
the decision of the Trial Court. The High Court after dismissing the case of
the appellant in particular stated as follows in that Judgment:
As to the plaintiffs claims in
paragraph 26 and 27 of his further amended statement of claim, their success
depend strongly on section 25(3) (a)
of Exhibit P2 the return of the equipment, tools and materials will wait
until the whole project is finally and satisfactorily completed by another
contractor. The defendants will then have the responsibility to return
whatever remain of the equipment to the
plaintiffs.
The counter-claims also
succeed but they cannot take effect until after the successful completion of
the project. Section
25(3) (d) which is quoted above
supply the full answer.
For the benefit of doubt, I
make the following orders: -
On the plaintiff's claims:
1.
Relief 1 fails. There is no basis whereby I can grant any extension
of time, how much more of 67 weeks extension. The declaration is refused.
2.
Relief 2 also fails with the exception of the sum of
3.
Relief 3 also fails as the plaintiff was in breach of the contract.
4.
Reliefs (4) and (5) are to be treated in accordance with the
contract.
5.
Relief No. 6 fails in its entirety and it is hereby dismissed.
6.
Relief Nos. 7, 8 and 9 also fail in their entirety and they are
refused.
On the Defendant's
Counter-Claims
1.
On reliefs 1 and 4 the defendant is entitled to extra expenses to be
incurred in completing the project. The calculation of such extra expenses
shall be in accordance with Clause 25 (3) (d) of the Bills of Quantities -
Exhibit P2.
2.
The defendant is entitled to damages for non-completion of the work.
3.
Reliefs 3, and 5 have been withdrawn and they are hereby dismissed.
The Court of Appeal after
synthesizing the whole judgment of the High Court and in particular the
singular features of the award made by the High Court observed, and in the
light of its comment, field as follows:-
"In awarding damages on the
counter-claim the learned trial judge found as follow:-
1.
"On reliefs 1 and 4 the defendant is entitled to extra expenses to be
incurred in completing the project. The calculation of such extra expenses
shall be in accordance with clause 25(3) (d) of the Bills of Quantities -
Exhibit P2.
2.
The defendant is entitled to damages for non-completion of the
contract as to be calculated under clause 22 of the same bills of quantities
- Exhibit P2
3.
Reliefs 3 and 5 have been withdrawn and they are hereby dismissed".
According to the learned SAN
the learned trial judge has by implication refused the claims of the
respondent but made his own orders. He has submitted that he cannot make an
order which the respondent has not sought from him; and placed reliance on
the cases of Ajikawo v.
Ansaldo Nig. Ltd.
(1991) 2 NWLR (Pt. 173) 303. I do
not agree that the learned trial judge refused the claims. He granted them
alright but rather than confine himself to awarding the damages sought he
went on to make an order that was not specific, and which after the
calculation he has ordered may be in excess of the amounts claimed. By
virture of the settled law in this country a
judge in a litigation that involves a claim for damages must as much as it
is possible tailor the amount he awards to the amount of
. damages claimed, but in this case the
learned trial judge had to resort to the relevant clause of the contract
binding both parties for the purpose of the assessment.
And the issue formulated in
this appeal having been discussed thoroughly in this judgment, for the
foregoing reasoning, I find that grounds of appeal married to the issues
have no merit and substance. All the grounds are therefore dismissed. The
end result is that the appeal fails in its entirety. I hereby dismiss the
appeal and affirm the judgment of Sijuade J".
Taking issues 1, 2, and 3,
argued together, the learned counsel for the appellant submitted as follows
and I would here quote him in
extenso:
"It is also common grounds
that at the time of terminating the contract in July 1985, the architect had
not communicated his approval or rejection of the extension of time sought.
In substance, if not informed however, he had approved the extension"
This sort of inferential
deduction is obtuse, skewed and incomprehensible. I find it difficult to
hold that when the architect on application or request for extension of time
though in principle sees nothing intrinsically wrong with such a request and
evincing an intention to support it, but failed to communicate same to the
appellant or is completely silent, it should be taken as amounting to an
approval. The strange and sickening feature of this case is the incessant
extensions which according to the appellant was
caused by the respondent while the respondent laid the blame at the feet of
the appellant who it accused of incompetence, inability to fully mobilise
effectively, and needless delay. The submission of the appellant that an
approval should be read in non-communication of the state of mind of the
architect, appears strange having regard to some
averments of the appellant in its pleadings.
"Under the express terms of
the contract the architects have responsibility for approving applications
for extension of time".
"The architects supported the
two applications for extension of time but the defendant at all material
times prevented the architects from granting and or communicating to the
plaintiff the grant of extension of time. The plaintiffs pleads letter dated
10th April 1984 and May 1985 and relevant minutes of the
meetings".
"The plaintiff will at the
trial contend that:
(1)
The defendant prevented the architects from granting and/or
communicating to the plaintiff the grant of extension of time applied for;
(2)
The architects failed to act as they should have done under the
express terms of the contract;
(3)
The architects delayed the plaintiffs application for extension of
time for an unreasonable time; and
(4)
The architect
failed to act impartially and independently and/or abused their powers
and/or acted in excess of their jurisdiction in the handling of the
plaintiff's applications for extension of time.
I really do not understand why
we were referred to Exh. 14
which was a minute of a meeting between both parties. I very much
doubt if it is in the appellant's interest. Its main complaint in that
meeting was the problem of obtaining some materials for construction of the
structures as reflected in the minute of the meeting held on 10/4/85. Part
of it reads thus:
"The engineer said that if
however there is evidence of problems in getting anything imported, the
consultants could be informed so as to look into any of the contractors
problem regarding the foregoing and the consultants may necessarily contact
and get the assistance from the University or the Client by a (sic)
way of writing letters to the Federal Authorities in granting necessary
documents ..........
The engineer warned the
contractors not to seize this opportunity in relaxing their duties of making
all efforts to ensure that those required supplies are found delivered to
the site of the project"
The message of the engineer
representing the University is that the respondent would not condone any
tardiness or unnecessary delay which the contractors might latch upon by
needless application for extension and therefore fail to complete the
project in time. In Ex. 17 the consultant architect reminded the employers
to ensure that a reply to two extensions applied for
viz, first for 35 weeks and for 32 weeks was given
prompt reply, it is the letter that the appellant has interpreted to mean
that the architect was in support. There is indeed nothing in that document
to show that the architect was for or against. It can hardly be contested
that since the consultant architect was an employee of the respondent any
likely extension must be well considered by referring any request or
application to the respondent as he who pays the piper dictates the tune.
The appellant equally berated
the High Court for holding that it was not within the competence of the
court to grant extension of time thereby usurping the power of the
architect, stating that it never sought such relief. The claim for the
declaration in respect of the extension is worded in this manner, that is to
say:-
"(1)
Declaration that the plaintiff is entitled to 67 weeks extension of
time and any sum due in consequence thereof ”
Analytically dissecting this
claim which is couched in the present tense by use of the expression "is
entitled" and "not was entitled", it denotes that it is the appellant's
right still subsisting. It is a claim situate in the present and appearing
to show that its grant would enure to the
appellant in its future dealings with the respondent. Still on this the
Court of Appeal in its consideration of the ramifications of the application
referred to Exh. 68 where
the appellant now appealed direct to the respondent humbly pleading for
extension of time. Implicit in this unusual request directed at the
respondent and not the architect who the appellant had said held all keys to
the grant or disallowance of the application, was that the appellant was
aware that it was the respondent that held the key to any extension. That is
to say, that the appeal was made over and above the agent, and being made to
the principal in a language that bespeaks of a grant of a benefit and not a
right. It was couched in the words of supplication. The intended
intervention would have the effect of overriding the words of the contract
and if so granted, would undeniably and irresistibly affect the agreement
whereby the architect might no longer be the person to grant or refuse any
extension.
Let me compare the evidence of
DW1 with that of DW2 on this matter. In his evidence in Chief the
plaintiff's witness testified as follows in respect of the application for
the 35 and 32 weeks respectively.
"The plaintiff sought for
extension of time in March 1984. This is a copy of our letter". Counsel
seeks to tender it. "It was admitted and marked Exh.
P12 and was approved and 35 weeks extension was given to us. The approval
was given at the site meeting to which we were invited by the architect"
"In November 1984 the
plaintiff applied for extension of another 32 weeks to complete the contract
....... No formal approval was communicated to us
....... The architect informed us that the defendant wanted to know
the financial implication before a formal approval is given”.
It is interesting that apart
from the fact that notwithstanding that the appellant was given approval for
35 weeks extension they not only failed to complete the job within that
period but cheekily applied for another 32 weeks extension. It is to be
observed that it asked the High Court for declaration that it is entitled to
67 weeks which is the sum total of 35 + 32 weeks applied for. The first 35
weeks were in fact granted leaving only 32 weeks for which its financial
implications were sought for. Besides having regard
to the result of the intervention of the respondent in the matter the
submission of the appellant that the architect is solely responsible for
extension of time can no longer hold. Then it would appear that to all
intents and purposes that the implication of the ramifications of the duty
and power of the architect is that they had been altered. To this let me
restate the evidence of DW2:-
"The procedure in granting the
extension is that the plaintiff applied to the architect for extension of
time. A meeting of the consultants, the contractor and the client
(defendant) where the issue of extension is discussed and a decision is
taken. The architect only made recommendations to the defendants which will
give final approval. The defendants had the discretion to grant or reject
our recommendations"
There are two facts that I
have found in this matter (a) whenever any variation in whatever form
inclusive of the extension of time is to be made all parties attended i.e.
the respondent, its resident engineer, the architects and the
appellents. Any extension of time does not
depend on the architect alone having regard to possible financial
implication and the informal manner parties had been using without the
strict need for any variation being made in writing, (b) The appellant
seemed to have recognized this in their suppliant letter to the respondent.
I hold that when a claim of right metamorphoses into one of supplication, it
ceases to wear the clothe of a right but a mere
privilege. In this case the appellant was literally begging the respondent
for mercies. I see nothing to vindicate a so called right of 67 weeks.
Further to this the parties seemed to have waived the necessity for written
approval in the strict sense since evidence shows that they opted for less
formal way of communicating easily in this matter. By so doing they have
varied or waived strict compliance with the dictates of the contract. See
the operation of section 132 of the
Evidence Act.
When a contractor has been
guilty of inordinate delay occasioned by late mobilization, indolence, lack
of seriousness, persistent shoddy work and in the same vein under a pretence
that the employer should have paid him the sum in respect of a certificate
for a miserly sum of money vis-à-vis the sum total, and purported to
terminate the contract, the court should ignore the pretences and repudiate
the so called determination and in its stead affirm a termination made by
the employer on the basis of the contractors abandonment of work.
"132, (1)
When any judgment of any court or any other judicial or official
proceedings or any contract, or any grant or other disposition of property
has been reduced to the form of a document or series of documents, no
evidence may be given of such judgment or proceedings, or of the terms of
such contract, grant or disposition of property except the document itself,
or secondary evidence of its contents in cases in which secondary evidence
is admissible under the provisions hereinbefore contained; nor may the
contents of any such document be contradicted, altered, added to or varied
by oral evidence:
Provided that any of the
following matters may be proved-
(a)
Fraud, intimidation, illegality; want of due execution; the fact that
it is wrongly dated; existence, or want or failure, of consideration;
mistake in fact or law; want of capacity in any contracting party, or the
capacity in which a contracting party acted when it is not inconsistence
with the terms of the contract; or any other matter which, if approved,
would produce any effect upon the validity of any document, or of any part
of it, or which would entitle any person to any judgment, decree, or order
relating thereto;
(b)
The existence of any separate oral agreement as to any matter on
which a document is silent, and which is not inconsistent with its terms, if
from the circumstances of the case the court infers that the parties did not
intend the document to be a complete and final statement of the whole of the
transaction between them;
(c)
The existence of any separate oral agreement, constituting a
condition precedent to the attaching of any obligation under any such
contract, grant or disposition of property;
(d)
The existence of any distinct subsequent oral agreement to rescind or
modify any such contract, grant or disposition of property.
I do not see any merit in
these three issues canvassed. To my mind they hold no water.
Issue 4 is asking the court to
determine which party validly determined the contract clause 26 of
Exh. P2 which is the Bill of Quantities and in
which the agreement was embodied sets out the conditions under which the
contract would stand determined. The appellant referred to the provisions in
clauses 25 and 26 of the contract Exh. P2 and
submitted that on 10th July 1985 it issued Ex. 47 to the
respondent giving it notice to pay the value on certificate No. 35 failing
which the contract would be determined as none payment within 14 days of non
compliance would be a good ground for determining the contract. It argued
that in response to the letter to the respondent to comply with the demand,
the respondent instead determined the contract.
It is difficult to adequately
and appropriately discuss which of the two parties validly determined the
contract without equally delving into the causative factor that brought
about the serious misunderstanding between the legal combatants. By this I
mean that if as I have held that the appellant is not and was not, and
should not be entitled to the 67 weeks it was claiming, the question of
whose determination is valid intertwined, or is inextricably involved with
the mess associated with the prolonged execution of the project. The
appellant insists that with the respondent failing or refusing to honour
certificate No. 35 in time, and was not paid even after 13 weeks of the
demand; the lower court should not have held that the respondent's
determination came first. The angst of the respondent has been the alleged
tardiness on the part of the appellant; an attitude that seems to be
redolent of indolent nonchalant attitude bordering on sheer levity to work.
In other words it found itself in an uncomfortable position to readily
accede to the payment even of the certificate No. 35. The respondent
submitted that there is no way the subsequent events could not be traceable
to the ungainly and squalid history of the contract execution which it
alleged was hinged on the appellant's incompetence. The court below had held
as follows:-
"In the instant case: it
cannot be said that there was no evidence that most of the delays in the
execution of the contract was caused by the appellant. There is certainly
ample evidence by both sides to buttress the respondent's case that the
delay was caused by the appellant".
Let me review in summary the
evidence of the history of the performance of the contract as considered by
the Court of Appeal. On the 24th October 1983
Exh. P 94 was written to the appellant.
It runs thus:-
"It is observed that some of
the enclosing block walls for the above mentioned shafts are slanting and
not at right angles, as specified in the architectural drawings.
Consequently the timber frames for the removable panels on the recess are
also askew. Please ensure that necessary action is taken to rectify these
defects without delay".
It was signed by the resident
engineer. On the 18th of November 1983 and other subsequent dates
several letters were addressed to the appellant in respect of complaint of a
shoddy work. I shall set all of the letters in extenso:-
Our REF: REAS/IART/257/GEN
Date:
18th November 1983
Messrs
Adecentro Nig. Ltd.,
Ile-Ife.
Dear Sirs,
I. A.
Further to my letter ref.
REAS/IART/241/GEN DATED 24th Oct., 1983, on the above subject,
please be reminded that all defected walls and
frames should be made good before any capable trunking
and associated wiring installation can commence.
With particular reference to
building 2, in which the above defects have not yet been made good, whilst
cable trunking installations have already
commenced, please ensure that these installations are removed and the
defects corrected prior to any further trunking
work.
Attached is a list of those
walls and frames which require attention. Please treat as urgent.
Yours faithfully,
A.
Silberman
Egboramy
Resident
Engineer
cc: The Clerk of Works
Unife
Our Ref. RACT/IART/310/GEN
Date: 29th
February, 1984
Messrs
Adecentro (Nig.) Ltd.
Ile-Ife
Attention: Site Manager
Dear Sirs,
RE:
During the inspection tour
that took place on the 23rd February, 1984, we noticed that the
work applied on part of the wall tiles in building No. 2 was carried out not
according to acceptable standard.
You were verbally instructed
to take off these tiles and you promised to do so.
We expect you to finish this
work as soon as possible and according to good standard.
Your co-operation is
appreciated.
Yours faithfully
On Tammuz
Resident Architect
For
Egboramy Company Ltd.
Cc: Clerk of Works.
Our REF: RACT/IART/351/GEN
Date:
28th April, 1984
Adecentro
Nigeria Limited,
Ile-Ife
Dear Sirs,
RE:
After an inspection tour to
the
1)
You have to execute the work mentioned in site instruction No. 27 (9th
March, 1982) in building No. 2 & 3 before starting any work on the roofing
felt.
2)
Building No. 2 Annex 2 - you have to chisel the curve in the external
southern wall between the Annex and the building before applying the combed
Tyrolean.
3)
Building No. 3, Annex 1 - you have to finish the chiselling of the
inner side of the eastern wall before applying the plaster on it.
4)
The black terrasso coping on the roofs
parapet is not finished. You have to grind and level it as it has to be done
in the inner corridors.
5)
There are still some repairs that has to
be done on the retaining wall. The upper stones have to be replaced as you
did in few places. We will instruct you on site.
6)
Many wooden frames need repairs and some have to be completely
replaced. A special inspection tour for this issue will take place on Monday
morning at 11.00 am on 30th April 1984.
7)
In some places, the paint you applied on the walls and ceilings
inside the rooms is peeling off. You have to rub it and repaint the place
before applying the second coat. We shall show you the exact places during
the inspection tour mentioned in clause 6.
Your action on the above is
needed as soon as possible.
Thank you for your
co-operation.
Yours faithfully
On Tammuz
Resident Architect
For
Egboramy Company Ltd
Cc: Clerk of Works.
Cc: Kofo
Popoola & Partners
RACT/IART/372/GEN
21st May, 1984
Adecentro
Nigeria Limited,
Ile-Ife
Dear Sirs,
Please be informed that the
formwork you are carrying out for the connecting bridge between building
No.2 & No. 3 is not acceptable and will not be approved. The horizontal
soffit of the bridge slab is fair faced concrete and the formwork for it
must be done of undamaged clean and smooth plywood and not of the broken
plates you are using.
We would like to remind you
that before you cast any part in the building you have to get our engineer's
approval for the formwork and the reinforcement, a practice which you did
not always follow in the past.
Your co-operation will be
appreciated.
Yours faithfully
On Tammuz
Resident Architect
For
Egboramy Company Limited
Cc: Director of Physical
Planning
Cc: Clerk of Works
Cc: Kofo
Popoola S.Partners
PW1 received these letters. In
his evidence during the cross examination he said:-
"All Exhibits P 94 - P 96 (2)
relate to the defective work we did on the project. It is not true that it
was in the process of correcting the defects that we changed the terrazzo.
The architect was complaining about the peeling of the
paint of the wall and not change of colour of the paint in other
places which caused the delay in the work."
In fact the employer was
complaining of many defects.
It is difficult not to
associate the delays and defective shoddy work to the incompetence in the
civil work. With the plethora of complaints about abysmal work being done,
it was even a surprise that the work was not terminated earlier by the
respondent.
There is a complaint that the
respondent did not give notice before the termination. In the circumstance
of the case need it do so if it felt that the work had been abandoned?.
There are facts found by two lower courts that the appellant was responsible
for the abandonment disguised as a determination of the contract on the
euphemism of non compliance with the dictates of the contract. I believe
that in such circumstances the respondent felt that, the only reasonable
thing to do was termination based on the circumstance that presented itself
and not necessarily on the prescription of the contract. Abandonment denotes
animus non furandile no intention of
going back. Relating to a situation such as this L. N. Duncan Wallace in his
"Building and Civil Engineering Standard" (a commentary on the 4 principal
R, I. B. A., F. A. S. S and I. C. E. Contract) states at p 117 after
detailing the failings on the part of the contractor that would impel the
employer to date the contract.
"This
clause (i.e. R. I. B.
A Conditions Clauses 24, 25(1) gives a contract right to the employer to
determine the contract in certain defined circumstances since it is
expressed to be without prejudice to other rights and remedies, it is beyond
any doubt additional to and not substitution to further common law right to
rescind a contract for fundamental breach"
In
Hudson’s Building and Engineering
Contracts 10th Edition at p. 609,611 and 612 the learned
Author states as follows:-
"A further consideration in
the case of building contracts is that, even were time to be of the essence,
it would afford a building owner little practical relief against a
recalcitrant builder. In most building contracts the contract period is
comparatively lengthy, and long before it has expired the owner or his
architect will know that the builder is in default on his programme and that
completion by the stipulated time is for all practical purpose impossible.
Nevertheless, no right to terminate on this ground could arise until the
completion date, while the obligation in most building contracts to make
interim periodic payments will continue, in spite of the mounting
probability of the employer incurring substantial damage. In addition, if he
allows the completion date to pass and acquiesces in work continuing under
the contract, the employer will be held to have waived compliance with the
original date for this particular purpose".
It is essential that
stipulation that time is of essence must be shown clearly in the contract
agreement as a fundamental term. Where time element is seriously compromised
it is a waiver. However where notwithstanding the waiver, the builder's
lackadaisical attitude to work and lack of due diligence become suffocating
and unbearable and the builder due to his incompetence sought to rely on one
subterfuge or the other to suspend and abandon the work evincing the
intention not to continue, the employer could forthwith terminate the
contract under the common law. Continuing the learned author says;
"The implication of a
fundamental term requiring due diligence by the builder is more essential to
the employer in comparatively lengthy contracts for work done such as
building contracts, rather than a doctrine which has largely been evolved to
suit the requirements of contracts for the sale of land or goods. It is
submitted that in most building contracts this term is necessary to give the
contract business efficacy, and that where a builder persists in a rate of
progress bearing no relation to a specified or reasonable date of
completion, and the employer gives him notice requiring a reasonable rate of
progress, if he then fails to proceed at a reasonable rate he will be
evincing an intention no longer to be bound by the contract and his
dismissal would be justified notwithstanding the absence of any express term
empowering the employer to determine".
What ever might have been any
dereliction on the part of the respondent in this matter (if there is any)
paled into insignificance when regard had to the monumental deficiencies
that generally characterized the nature of the appellant's work. No notice
needed to be given where there has been an effective abandonment. In my view
the determination by the respondent is valid.
I find it utterly indefensible
that the appellant should abandon its work on the excuse that certificate 35
was not paid which is indeed a paltry sum compared to sum of
When a contractor has been
guilty of inordinate delay occasioned by late mobilization, indolence, lack
of seriousness, persistent shoddy work and in the same vein under a pretence
that the employer should have paid him the sum in respect of a certificate
for a miserly sum of money vis-à-vis the sum total, and purported to
terminate the contract, the court should ignore the pretences and repudiate
the so called determination and in its stead affirm a termination made by
the employer on the basis of the contractors abandonment of work.
In respect of issue 5, the
appellant said that the question for determination is really whether or not
the appellant did not do the work covered by valuation 36.1 think it is a
simple question. The respondent through DW1 in his evidence testified as
follows:-
"The last application
submitted by the plaintiff was valuation No. 36 - Exh.
43.
We (Quantity Surveyors) were more than half way through in the
approval exercise before the notice of termination by the contractors was 5
received"
The appellant argued strongly
that as the court found out that some work was done in respect of valuation
36, there ought to be payment for it. On this point the respondent
replicando drew the attention of the court to
terms of payment, to wit, that there should be a valuation certificate by
the quantity surveyors on the basis of which the architect would issue the
certificate. The resolution of this matter is not much of a thorny one
seeing that DW1 has testified that they the quantity surveyors were halfway
in the approval exercise in respect of valuation 36 before the termination
by the appellant. To my mind the ipse dixit of DW1 shows that the
quantity surveyors had evinced the intention to approve. That being the case
notwithstanding that all procedures were not completed, I am of the view
that the appellant is entitled to equity in this case as the justice of the
situation ought to make the respondent pay for the service rendered and
appropriated here. It is my view therefore that the appellant is entitled to
the sum of
I now discuss the arguments of
both parties in respect to issue No. 6.
In the 6th issue
the appellant's complaint is on the relief granted to the respondent in its
counter-claim. The appellant took issue on this matter and argued that the
lower court made an award that was not pleaded and cited N.B.C.I. v.
Spariess Dry Cleaning Nig.
Ltd (1998) 13 NWLR (Pt. 580) 11, 21
and Yusuf v. Yetunde
(1998) 12 NWLR (Pt. 579) 483 at 493.
It further submitted that it is a summersault for the lower court to condemn
the trial court for making an order not sought for, and turning round to
make the same order that it frowned at and disavowed. The learned counsel
for the appellant further submitted that the claim as contained in the
counter-claim being the specie of special damages must be specifically
proved as each of the claims is itemized and the learned counsel cited
Shell Pet. Dev. Co. v. Isaiah
(1997) 6 NWLR (Pt. 508) 236,
Yahaya v.
Oparnide (1997) 10 NWLR
(Pt. 523) 126, and Morgan v. Birnie
(1833) 9 Bing, 672.
The respondent in turn
submitted that no ground of appeal raised the issue on this part and
therefore the court should ignore the argument on this point. I am amazed at
the argument of the respondent on this matter. It is certainly not correct
to say that the appellant did not raise the question canvassed under this
issue. To waive the arguments proffered on this issue as non event amounts
to an over simplification of a complex matter.
Ground 18 of the amended
notice of appeal reads thus:
18
"The Court of Appeal erred in law by granting to the respondent based
on its counter-claim reliefs which were not sought, nor specific and
supported by evidence.
Particulars.
(i)
The respondent having failed to adduce evidence in proof of its
counter-claim, the reliefs therein were wrongly granted.
(ii)
The court lacks the power to make an order that was not specific to
grant a relief not sought to or award more than is claimed by a party".
It is evident that ground 18
is the cornerstone of the argument canvassed under issue No. 6.
The learned Court of Appeal
though agreeing that the trial court awarded the claims made nevertheless
held that the trial court "went to make an order that was not specific and
which after the calculation he has ordered may be in excess of the amount
claimed"
The Court of Appeal went on:-
"By virtue of the settled law
in this country, a judge in a litigation that ) involves a claim for damages
must as much as it is possible tailor the amount he awards to the amount of
damages claimed. But in this case the learned trial judge had to resort to
the relevant clause of the contract building of both parties for the purpose
of assessment".
It cannot be doubted that the
award made by the trial court which came under hammer of the Court of Appeal
was ungainly, inelegant, woolly, nebulous, frosty and difficult to discern.
Besides I fail to see the evidence led where the items specified in the
counter-claims were proved. Every item contained in the claim of special
damage must be specifically proved and such a proof must be
characterized by testimony that
ties each item with the proof proffered i.e. the
evidence led. This is elementary. See A. G. Leventis
(Nig) Ltd. v. Akpu
(2002) 1 NWLR (Pt. 747) 182;
Joseph v. Abubakar
(2002) 5 NWLR (Pt. 759) 185 C.
A;
Blackwood Hodge (Nig) Ltd v.
Omun Const. Co. (2002) 12 NWLR (Pt. 782)
523
The lower court did not make
matter easier by its own quibblings and
indulging in equivocation. To my mind this counterclaim was not in the least
proved. Even the nonchalant opposition of the
respondent in this issue shows its unseriousness
to contest the argument of the appellant. In my view the claim on the
counter-claim not having been proved and the respondent failing or refusing
to oppose it by forensic advocacy cannot be sustained. Issue No
6 has merit.
In the final analysis the
appeal is only partially successful to the extent that issues Nos. 5 & 6
are allowed and the rest fail.
I make no order as to costs. I
set aside the judgment of the lower court in respect of payment to valuation
No. 36 Exh. 43 and the counter claim. The
judgment is confirmed in all other respect.
Judgment delivered by
Idris
Legbo Kutigi.
J.S.C.
I have had the privilege of
reading in advance the judgment just delivered by my learned brother Pats-Acholonu
J.S.C. I agree with his reasoning and conclusions. He has adequately dealt
with all the issues canvassed before us. The appeal therefore succeeds in
part only as follows –
1.
The plaintiff/appellant is entitled to the sum of
2.
The awards or orders made in respect of the defendant/respondent's
counter-claims are set aside. The counter-claims are dismissed.
3.
The appeal is dismissed in all other respect. I also make no order as
to cost
Judgment delivered by
Akintola
Olufemi Ejiwunmi.
J.S.C.
As I have had the privilege of
reading before now the judgment just delivered by my learned brother, Pats-Acholonu
J.S.C., I find myself in agreement with his reasoning leading to the
conclusion in the said judgment.
In the
result, I also abide by the
consequential orders made in the lead judgment.
Judgment delivered by
Dahiru
Musdapher. J.S.C.
I have had a preview of the
judgment of my Lord Acholonu, J.S.C. just
delivered in this matter and I entirely agree. In the aforesaid judgment his
Lordship painstakingly discussed all the issues submitted to this court for
the determination of the appeal. I accept the reasoning as mine and I
accordingly also partially allow the appeal to the extent that issues 5 and
6 are resolved in favour of the
appellant while issues 1, 2, 3
and 4 are resolved against the
appellant. I make no order as to costs.
Judgment delivered by
Sunday
Akinola Akintan.
J.S.C.
The appellant, a building
contracting company, was the plaintiff in this case instituted at the
Ile-Ife High Court, then in
The defendant denied the claim
and counter-claimed for
The trial court held, inter
alia, in respect of the counter-claim, that the defendant is "entitled
to extra expenses to be incurred in completing the project. The calculation
of such extra expenses shall be in accordance with Clause 25 (3)(d)
of the Bill of Quantities- Exhibit P2 (2).
"The defendant is entitled to
damages for non-completion of the contract as to be calculated under Clause
22 of the same Bill of Quantities - Exhibit P2."
The court did not award any
specific sum in respect of the two heads of claim even though the defendant
counter-claimed for specific sums for each item of its counter-claim.
The plaintiff appealed to the
court below against the decision. But the defendant did not cross-appeal
against the failure of the trial court to award specific sums as
counter-claimed. The lower court dismissed the appeal and hence the present
appeal.
The main issues canvassed in
this court are that it was wrong of the trial court as well as the court
below for not acceding to the appellant's request for the 67 weeks extension
sought for the completion of the contract and the refusal of the various
items of damages claimed by the appellant. All these issues were fully set
out and dealt with in the leading judgment prepared by my learned brother,
Pats-Acholonu, J.S.C. I quite agree with the
conclusion reached in the leading judgment that apart from the award of the
sum already due to the appellant as contained in the certificate No. 35 of
job done issued by the respondent, there is totally no merit in the entire
appeal. Similarly, the respondent cannot be assisted in respect of the
failure of the trial court to make specific awards in respect of the
defendant's counter-claim since there was no cross-appeal against that
decision to the lower court. The court below was also right in not making
any award to the respondent in respect of the counter claim.
In conclusion, and for the
reasons given above and the fuller reasons given in the leading judgment,
which I had the privilege of reading before now, I also dismiss the appeal
with costs as assessed in the leading judgment.
Counsel
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