Adecon (Nigeria) Limited V. Adeoye Faboro (1993)
LawGlobal-Hub Lead Judgment Report
IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.
In the writ of summons as well as the statement of claim filed by the plaintiff against the defendant, the plaintiff claimed the sum of N90,768.12k for building work executed for the defendant. Under a building Contract A, the parties entered into an agreement dated 26th March, 1979 where the plaintiff as a Building Contractor was to build six single classrooms, three twin classrooms, one store, one clerks’ department, one administration block and two toilets for the Nigerian Army Cantonment in Ojo, Lagos.
The defendant was the Contractor who sub-contracted the building to the plaintiff. The defendant paid the plaintiff N18,800,00 leaving a balance unpaid of N16,900.00 out of the contract sum of N35,700.00. The defendant did not deny this up to this stage. It agreed it was owing the plaintiff the sum of N16,900.00 on Contract A. Its further answer was that the parties had agreed that the amount of N16,900.00 due to be paid to the plaintiff out of Contract A would be and was in fact incorporated into the costs of the next sub-contract of another project to be awarded to the plaintiff.
Under the second building Contract B, the parties entered into an agreement on the 9th September, 1981, that the plaintiff was to build one unit of two-bedroom three stories (six flats) in Ogun State for N120,000.00 with an attached schedule of payment also dated 3rd November, 1981. According to the plaintiff, Contract B was reviewed and the contract sum was increased by an additional sum of N9,000.00 on account of the rising cost of building materials and labour. Under the same contract, N16,000.00 was collected from the plaintiff towards the taking of insurance on the building under construction. When it was realised that the insurance money would not be paid by the contractor or sub-contractor but by the owners of the building themselves, the defendant promised to refund the N16,000.00 collected from the plaintiff, which refund was not made, and has now formed part of the claim by the plaintiff. The plaintiff also claimed the sum of N2,430.00 for what I call incidental expenses in respect of transport, accommodation. e.t.c.
The third contract C was entered into between the plaintiff and the defendant for a contract sum of N85,000.00. It is common ground that the plaintiff did not complete the work. The only issue was that while the plaintiff claimed to have done 80% of the work, the defendant alleged that he did only 20%. The plaintiff claimed N70,000.00 for work done in respect of this Contract C. He claimed to have stopped the work without his own fault but due to lack of fund.
The total breakdown of the claim made by the plaintiff was as follows: Under Building Contract A, he claimed N16,900.00 being unpaid balance from the total sum bf the contract price of N35,700.00. Under Building Contract B, he claimed N147,430.00 made up of the original contract price of N120,000.00 plus the additional cost of N9,000.00 for the inflation; refund of insurance premium paid by the plaintiff to the defendant which sum was promised to be refunded but which was not; incidental expenses of the sum of N2,430.00 such as transport and accommodation.
By addition, the amount due from Contract A = N 16,900.00
the amount due from Contract B = N147,430.00
and the amount due from Contract C = N 70,000.00
Total = N234,330.00
The plaintiff however admitted that he had been paid N143.561.88k by the defendant. This amount deducted from the original amount of N234,330.00 would amount to N90,768.12k.
The defendant, apart from denying the various claims by the plaintiff put forward its own counter-claim for the sum of N123,000.00. On Contract A, while it agreed that it was owing the plaintiff N16,900.00, it argued that that amount has been incorporated into Contract B in computing the cost price of Contract therefore was owing nothing. As regards the sum of N9,000.00 for which Contract B had been increased, taking into account the inflationary trend, the defendant flatly denied this. It further denied having received N16,000.00 for the payment of insurance premium from the plaintiff. It also denied ever agreeing to pay any incidental expenses of N2,430.00. For Contract C, it alleged that the plaintiff only did 20% of the work and the cost of its completing the contract by engaging the services of another contractor was N68,000.00. It then claimed N50,000.00 for loss of profit and incidental expenses for mobilisation placed at N5,000.00 together, making a total of N123,000,00.
At the trial, evidence was led by the parties. The plaintiff testified on his own behalf and called other two witnesses. The defendant/company testified through four witnesses including its Chairman and Managing Director.
The learned trial Judge rejected the counter-claim on the ground that no evidence was led to support the N123,000.00 alleged as damages for breach of contract by the plaintiff. He found in favour of the plaintiff in the following terms:
“(i) The schedule of payment to Exhibit B did not include N16,900.00.
(ii) Contract B was completed by the plaintiff since the defendant itself through an expert, D.W.3, showed that only one uncompleted building was reported upon in the quantity survey.
(iii) The respondent’s version on Contract C that he executed Contract C to the extent of 80% and that he was due to be paid N70,000.00 was preferred because he impressed the court as a witness of truth.”
Based on these findings of facts, the learned trial Judge awarded a total sum of N63,383.00 to the plaintiff upon addition of N16,900,00; N120,000.00 and N70,000.00 and by subtracting N143,561.88k therefrom being accepted as having been paid by the defendant to the plaintiff. The total sum therefore awarded by the learned trial Judge was N63,383.00k.
Dissatisfied by this judgment, the defendant has appealed to this court. Briefs of argument have been filed and exchanged by the parties and the defendant/appellant postulated one main issue together with what he called three subsidiary issues for the determination of this appeal. They are as follows:
“MAIN ISSUE
Whether the learned trial Judge was right in awarding the total sum of N63,383.00 to the respondent on the oral and documentary evidence before him.
OR ALTERNATIVELY
Whether the respondent established by credible and sufficient oral and documentary evidence that he was entitled to the N63,383.00 awarded to him by the learned trial Judge.
SUBSIDIARY ISSUES
(a) Whether or not the sum of N 16,900.00 on Contract A was incorporated in Contract B.
(b) Whether the Contract B was completed.
(c) Whether the work done on Contract C by the respondent entitled him to the sum of N70,000.00 awarded to him.”
Learned counsel for the respondent having also filed a brief submitted that the matter herein turns out principally on the findings of facts as no subsidiary issue of law is involved and accordingly, he postulates that the issue for determination of this appeal will pivot principally, if no solely, on the evaluation of facts by the Court of Appeal itself.
Before I go into the consideration of the issue posed by the counsel for both parties, the learned counsel for the respondent has raised some objections to the grounds of appeal filed by the appellant which must be dealt with. The appellant originally filed two grounds of appeal but later filed four additional grounds of appeal pursuant to an order of this Honourable Court dated 30th January, 1983 making a total of six grounds of appeal filed so far and renumbered Grounds 1 to 6 accordingly.
Learned counsel for the respondent challenged Ground 1 of the grounds of appeal to the effect that it was incompetent as having offended the provisions of Order 3 rule 2(2) of the Court of Appeal Rules, 1981 in that it has failed to set out the particulars of the errors complained against clearly.
Although the appellant and the respondent before this court simply adopted their briefs without further oral arguments, I have checked in the brief filed by the respondent to find out whether he has established the complaints made in respect of Ground 1 by proffering adequate argument for the same but I am afraid I cannot see such argument to enable me to say that the framing of the grounds of appeal offended the provisions of Order 3 rule 2(2) of the Court of Appeal Rules, 1981. In fact, the framing of the ground is in my view adequate because the appellant stated that the learned trial Judge was wrong in upholding the plaintiff’s claim by failing to critically examine the evidence led which Included the Exhibit tendered and some particulars of errors were given. All these, in my candid view, are enough for this court to consider the ground of appeal. That objection therefore is overruled.
Learned counsel for the respondent did not stop there. He also challenged Ground 4 of the grounds of appeal on the ground that it did not contain sufficient particulars as required by Order 3 rule 2(2) of the same rule.
I understand this challenge to mean that, by virtue of Order 3 rule 2(2) of our rules, where a ground of law alleges misdirection or error in law, the nature of the misdirection or error should be clearly stated, but they must be separately stated as the two cannot be hemmed in or compressed in a single ground of appeal, otherwise such ground of appeal that complained of both misdirection and error in law shall be and is hereby declared incompetent and struck out. See the decision of Obi v. Owolabi (1989) 5 NWLR (Pt.153) 702. To that extent, I agree therefore that this Ground 4 is incompetent.
He also complained against Grounds 5 and 6 that they are vague and bereft of particulars required in law and that they are therefore incompetent and should be struck out under Order 3 rules 2(2) and 4 of the Court of Appeal Rules, 1981.
A perusal of these two grounds will show that they contained sufficient particulars and are not vague to make them incompetent. The objection on these grounds is overruled.
The only ground that has been decided by me to be incompetent is Ground 4 which dealt with the fact that the learned trial Judge erred in his finding that Contract B for the sum of N120,000.00 was completed by the defendant.
Ground 3 of the grounds of appeal has not been challenged and it includes a complaint also against the finding in respect of Contract B for the sum of N120,000.00 in favour of the respondent and therefore, it follows that the main and the subsidiary issues postulated by the appellant are in order and encompass the complaint in respect of Contract B enough to allow argument to be canvassed in respect of Contract B in this appeal.
In this appeal, the plaintiff would be referred to as the “respondent” while the defendant is the “appellant”.
This appeal shall be approached on the basis of the complaint of the appellant solely directed against the conclusion reached by the learned trial Judge in his assessment of facts and in awarding N63,383.12k in favour of the respondent.
In the brief, the learned counsel for the appellant was unable to dislodge the finding of facts by the learned trail Judge that the appellant owed the respondent the sum of N16,900.00 on Contract A and the finding stands valid.
The next issue to be decided is whether this amount of N16,900.00 was incorporated in the contract price of N120,000.00 fixed for Contract B.
The learned trial Judge held, that Contract B was duly completed by the respondent but that the balance of N16,900.00 arising from the first Contract A was not part of the costs of the construction of the building in Contract B. The learned trial Judge perused the schedule of payment in respect of Contract B which was also marked Exhibit B. He noted that it contained works to be completed against the payments to be made and the total sum came to N120,000.00. He observed that in the schedule of payment, no provision was made for the payment of N16,900.00. He also looked at Exhibit G. particularly Item 3 in paragraph 2 of which read:
“Outstanding balance from job which was to be spread on the payment to be made on Abeokuta project…. N16,900.00”
and came to the conclusion that the N16,900.00 was to be paid alongside the payment to be made in respect of Contract B. He held that it could not mean that the sum of N16,900.00 is included in the total contract price of N120,000.00.
Learned counsel for the appellant challenged this conclusion. He stated some principles of law relevant to interpretation and construction of documents by the courts. He pontificated that where a contract has been reduced into writing, no evidence may be given on the terms of such contract except the document itself not may the contents or any such contract be contradicted, altered, added to or varied by oral evidence. He cited the following cases:-
(a) Section 131(1) of the Evidence Act.
(b) Afolabi v. Polymera (1967) 1 All NLR 144.
(c) Adisa v. Saibu (1977) 2 S.C. 89
(d) Da Rocha v. Hussain (1958) 3 FSC 89; (1958) SCNLR 280;
that courts do not make contract for the parties. Contracts are to be construed strictly according to the words the parties have themselves uttered or written, unless there is evidence that the parties intended a different or special meaning.
He also cited the cases of Aouad v. Kessarawani (1956) 1 FSC 35; (1956) SCNLR 83; (ii) Mandilas & Karaberis v. Otokiti (1963) 1 All NLR 22; (1963) 1 SCNLR 69; (iii) College of Medicine v. Adegbite (1973) 5 S.C. 149 and (iv) Niger Dams v. Lajide (1973) 5 S. C. 207, that the courts must give effect to the intention of the parties.
He submitted that all these principles must be borne in mind by the court in determining the first sub-issue for determination, namely, whether the sum of N16,900.00 on Contract A was incorporated in Contract B.
I find no useful purpose served by the propagation of principles of law to be invoked in interpreting or construing documents such as the contract between the parties.
The learned trial Judge has perused Exhibit B and invoked same to explain what meaning to be given to the expression “outstanding balance from the job which was, to be spread on the payment to be made on Abeokuta project………… N16,900.00” contained in Exhibit G. I do not agree with the learned counsel for the appellant that the learned trial Judge’s finding was contrary to all rules of evidence and canons of interpretation of documents. The learned trial Judge did not consider Exhibit B in isolation of any document, at least not in isolation of Exhibit G. I therefore come to the conclusion that the finding of the learned Judge has not been sufficiently faulted.
On the second Contract B, learned counsel for the appellant submitted that the mere ipse dixit for the respondent that “I completed the project” without further proof is not enough. He suggested that he ought to have proved the certification of the job at every stage either orally or in writing itemising the project costs to correspond with every stage of the project. Failure of the respondent to place these facts before the court ought to have resulted in his case being dismissed.
I do not think this is quite correct. It is not the mere ipse dixit of the respondent that he did the work that was available for the Judge to have arrived at the conclusion to which he reached. P.W.1, David Sunday Faleye, a bricklayer engaged by the respondent gave evidence that he was given the building work to do by the respondent upon a contract given to the respondent by the appellant at Ojo; that the house was completed: that he was also given another work to build a house at Abeokuta; that the plaintiff gave the job to him and that the house was completed. He stated that:
“I remember another house at Abeokuta. I and another were given bricklaying work together. The plaintiff gave the job to me. The house was completed. It remained the soak-away.”
The 2nd P.W. also stated:
“I supplied the materials for the two houses at Abeokuta. The two buildings at Abeokuta were done one after another. The plaintiff completed the building except the soak-away of the 2nd building.”
It therefore follows that there is enough evidence to justify the conclusion reached by the learned trial Judge on the execution of Contract B.
It now remains to be considered the conclusion of the learned trial Judge with regards to Contract C. The respondent said that he had done 80% of the work on Contract C while the appellant rated it at 20%. The learned trial Judge stated in his finding on this item and I quote:
“I am therefore left with the evidence of the plaintiff as to the work he did and were left undone. I also accept the costs of the work he stated he did not complete. He impressed me as a witness of truth. On the other hand, the Chairman and Managing Director of the defendant/company cut a sorry figure in the witness box. As the learned counsel for the plaintiff observed in the course of his address, he quibbled in the manner he gave answers in cross-examinations.”
Learned counsel for the appellant challenged this finding and pointed out that no evidence was led to show the total items of the entire work; the work done or not done were never itemised in the pleadings and this was not helped by the evidence led in the course of the proceedings.
The learned trial Judge, according to the learned counsel for the appellant ought to have dismissed this claim because the claim is in the nature of special damages which ought to be strictly proved item by item particularly when both parties are contending that they have done some percentage of the entire work. The mere fact that the respondent impressed the Court as a witness of truth without more should not be sufficient to justify the finding on Contract C.
However, it is true that the respondents had not proved strictly as he ought to have done the 80% of the total work he claimed to have done in respect of Contract C but the appellant has actually admitted that the respondent had carried out 20% of that job as contained in paragraph 15 of the statement of defence and the counter-claim which reads thus:
“15. The plaintiff at no time whatsoever did he complete the 1st subcontract. He reached only 70% completion. The defendant had to complete this contract. On the 2nd sub-contract the plaintiff only performed up to 20% leaving 80% of the whole contract undone.”
As the job awarded was for N85,000.00, twenty percent of that work would amount to N17,000.00.
The learned trial Judge awarded the total sum of N63,383.00 to the respondent. He stated that N206,900.00 remained unpaid to the respondent and that sum is made up of N16,900.00 in respect of contract A, N120,000.00 in respect of Contract B and N70,000.00 in respect of Contract C. The respondent gave credit to the appellant for having been paid and having received the sum of N143,516.88k.
The learned trial Judge should have entered judgment for the respondent in the sum of N16,900.00 in respect of Contract A; N120,000.00 in respect of Contract Band N17,000.00 as admitted by the appellant and based on 20% pleaded) in respect of Contract C. The total of those sums will be N153,900.00k.  If N143,516.88k is deducted from the amount of N153,900.00k, the balance will be N10,383.12k and judgment must be given to the respondent for that amount and it is accordingly ordered.
The appeal is therefore to that extent partially allowed. There will be no order as to costs.
Other Citations: (1993)LCN/0152(CA)
