A.C.E. Jimona Ltd V Nigerian Electrical Contracting Co.ltd (1966)
LawGlobal-Hub Lead Judgment Report
LEWIS, J.S.C.
This is an appeal by the defendants from a judgment of the High Court of Lagos (Caxton Martins Ag. J.) in which judgment was entered for the plaintiffs for £5,189-13s.-6d. with costs. The matter had begun as three separate suits in respect of three different contracts alleged to have been made between the parties and these three suits had been consolidated for hearing in the High Court. The first objection taken by the defendants/appellants on theappeal is that the learned trial judge was wrong to hold that the contention of the defendants that there was no binding contract was inconsistent with the defence as pleaded.
This necessitates an examination of the pleadings and it is to be observed that though very similar the Defence is not the same in each case. In suit LD 222/63 the plaintiff in paragraph 3 stated as follows:-
“By a letter dated the 17th day of January 1961, the defendants accepted the plaintiffs’ tender of £1,852 less 5% discount for electrical installations on 2 blocks of buildings at police barracks, Ije-Apapa, built by the defendants for the Federal Ministry of Works and Surveys under their contract No. 580-578.”
The Defence to this suit did not deny this paragraph though in paragraph I there was a general traverse. It did however in paragraph 5 of the Defence state as follows:-
“The defendants aver that the plaintiffs only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again.”
In suits LD 223/63 and LD 224/63 there was in each case a similar paragraph 3 of the Statement of Claim to that in suit LD 222/63 but in these suits the Defence did in each case specifically deny paragraph 3 and “put the plaintiffs to strict proof thereof’, following this paragraph in each case with a further paragraph similar to paragraph 5 of the Defence as set out in suit LD 222/63. Now the main objects of pleadings are twofold namely to clarify what is the issue between the two parties and not to mislead the other side. It was contended by Chief F. R. A. Williams for the defendants that it was permissible to plead in the alternative and when so doing to put forward what would otherwise be inconsistent defences.
He relied on the cases Berdan v. Greenwood And Another (1878) 3 Ex. D. 251 and In re Morgan 35 Ch. D. 492. Whilst this is a valid point it presupposes that the defence was pleaded in the alternative and we do not find it was so done in these suits and we do not consider it proper to infer it. Now the effect of a general traverse was explained in Warner v. Sampson [1959] 1 Q.B. 297 at 310 by Lord Denning when he stated:
“Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he has admitted. Others he has denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins (1888) 4 T.L.R. 574, but since 1893 it has been recognised as convenient and permissible: see Adkins v. North Metropolitan Tramway Co. (1893) 10 T.L.R. 173. Sometimes the pleader ‘denies’, sometimes he ‘does not admit’ each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded’ as if it were specifically set out and traversed “seriatim.” ‘In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations “denied” ‘: see Bullen and Leake on Precedents, (3rd ed., p. 436).
So this general denial does no more than put the plaintiff to proof. Mr Scarman did suggest at one stage that it might indirectly involve a positive averment. For instance, he said that, if pleaded in a libel action, it would involve a denial that the words were false and hence it would carry the implication that they were true and would amount to a plea of justification. But he did not pursue this illustration, and I think it clearly untenable. There are some denials which do involve an affirmative allegation (see MacLulich v. MacLulich); but not this general denial. It only puts the plaintiff to proof.”
In this case whether there be a specific denial of the paragraph of the Statement of Claim dealing with the formation of the contract as in suits LD 223/63 and LD 224/63 or a general traverse as in suit LD 222/63 the effect is in our judgment solely to put the plaintiff to proof that the defendants did accept the plaintiffs’ stated tender. The Defence did not deny the contract as such and paragraph 5 of the Defence when it refers to “the defendants will contend that the plaintiff only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again,” (our underlining), clearly contemplated that there was an agreed contract but that it was not performed satisfactorily. In our judgment this was not a plea in the alternative but a defence arising out of unsatisfactory performance of the contract which followed quite logically the putting of the plaintiff to proof of his allegations as to the formation of the contract. To read the Defence otherwise would not be to give it its natural meaning and in our view the plaintiff could, if it was so construed as being in the alternative, certainly have claimed that he was misled as nowhere was it suggested in the Defence that the defendants were not the proper other party to the contracts at issue.
The next point taken on the appeal by the defence was that there was no contract with the defendants but only with Associated Construction and Engineering. We have already dealt with this point from the pleadings aspect but whilst it is correct that no evidence was offered establishing that Associated Construction and Engineering and A.C.E. Jimona Ltd. were, to all intents and purposes, the same firm, albeit that the latter was a limited company, the evidence of the 1st defence witness Mr A. A. Agoreyo goes a long way to establishing their mutual dependence. The defence that A.C.E. Jimona Ltd. was not a party to the contract, was not, as has been stated, pleaded and one finds that A.C.E. Jimona Ltd., the defendants, specifically wrote to the plaintiffs in “Ex. B.” and stated “we maintain on our part, that at the time of award of contract to you, no set pattern of payment conditions were made,” when the letter was headed as dealing with all three contracts the Area Of Law of this litigation and no reference was made to Associated Construction and Engineering.
Furthermore, the defendants themselves conceded in respect of suit LD 223/ 63 that they wrote a letter (Ex. 2) on note-paper headed A.C.E. Jimona Ltd. with underneath printed “Associated Construction and Engineering,” though the letter was signed solely on behalf of A.C.E. Jimona Ltd. and that accordingly they were bound in respect of that contract, and in fact they wrote a letter (Ex. 19) on similar headed note-paper in respect of suit LID 224/631.
Their own employee, Mr A. A. Macaulay, when swearing affidavits on their behalf when the defendants sought leave to defend the actions, specifically referred to sub-contracts entered into with the plaintiffs by the defendants A.C.E. Jimona Ltd. We are therefore clearly of the view that by their conduct A.C.E. Jimona Ltd. accepted that it was equally with Associated Construction and Engineering obtaining the benefit of the contracts, which in effect they had taken over, and they are now estopped by their conduct from denying that. In our judgment no question of assignment arises and the learned trial judge did not so accept the defendants’ contention in this regard.
The defendants however next contended that if the Court found that there was a contract between the plaintiffs and the defendants, and this Court accepts that the learned trial judge rightly so found, then it was not proved that the plaintiff was entitled to interim payments if the work was not satisfactory. Now the plaintiff in paragraph 4 in his Statement of Claim in suit LD 222/63 stated “In accordance with the usual practice of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P W D., tenders, both the plaintiffs and the defendants further agreed that interim payments for work done would be made by the defendants to the plaintiffs on the issue of monthly certificates by the P.W.D. or in accordance with progress reached by the plaintiffs from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 223/63 stated “Both the plaintiffs and the defendants agreed further to be bound by the usual practice as to payment of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P.W.D., tenders, and in particular that interim payments would be made by the defendants to the plaintiffs on the latter’s presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 224/63 stated “Both the plaintiffs and the defendants agreed further to be bound as to payment for work done under the contract by the usual practice of the Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works (P.W.D.) tenders, and in particular that interim payment would be made by the defendants to the plaintiffs on the latter ‘s presentation to the defendants of demand or request notes for such payments in accordance with progress reached from stage to stage.” (our underlining).
It is to be noted that the defendants objected that the plaintiffs did not prove either the usual practice of the Royal Institute of British Architects or the general conditions for the Federal Ministry of Works tenders but in suit LD 222/63 there was the alternative claim “or in accordance with progress reached by the plaintiffs from stage to stage” and in the other two Statements of Claim there were the words “and in particular that interim payment would be made by the defendants to the plaintiffs on the latters presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” so that this objection was not fatal to the plaintiffs case. The plaintiffs established that previously they had received interim payments from the defendants in respect of a contract with them in regard to Queen’s College Yaba and the defendants’ own witness, Mr Haastrup, stated “as usual I made request for interim payments as work progressed. It was the agreement between the defendants and myself.” We do not consider the learned trial judge was wrong to find that it was proved that interim payments should be made and it must be kept in mind that the plaintiffs had no privicy of contract with the P.W.D. so they could not ask for the P.W.D. to certify their work, as the defendants submitted that they should have done, as only the defendants could do that. The plaintiffs for their part conceded that they had not finished the work on any of the three contracts but they gave credit for this in each claim to the defendants when they submitted their final invoices. Having made their claims as to the work done for which they were entitled to be paid it was for the defendants to object if they were not satisfied, but on their own admission they did nothing, not even having the ordinary business courtesy to acknowledge these submitted claims of the plaintiffs.
Instead they brought in another contractor, Mr. Haastrup, and when he inspected the work, and as he says, found it unsatisfactory, the defendants asked him to complete the contracts without calling in either any independent witness to assess the value of the work done or anyone from the P.W.D. nor did they give the plaintiffs any opportunity to be present when the work was inspected and valued. Indeed the defendants did not value the work or, at any rate, they offered no evidence at the trial of the value of the work done but sought to say that it should be the agreed price less any monies paid to Mr. Haastrup, overlooking the fact that Mr. Haastrup was an interested party to make the work as expensive as possible and that he did not give evidence of the value of the work actually done by the plaintiffs.
We therefore do not consider the defendants offered satisfactory evidence negativing the plaintiffs claim for the work done and Mr. Ogunsanya in reply for the defendants himself conceded that he thought there was merit in a quantum meruit assessment of the plaintiffs’ work but could not suggest how this could now be satisfactorily calculated otherwise than by deducting the payments made to Mr Haastrup. In our judgment the defendants had the opportunity to make the necessary assessment of the value of the work done and not having taken it they are bound now, due to their own inactivity, to the terms of the plaintiffs’ claims
All the grounds of appeal argued having failed, the appeal is dismissed with thirty guineas costs.
Other Citation: (1966) LCN/1327(SC)
