Emmanuel U. Okeke V. James O. Oche (1993)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

In the High Court of Benue State of Nigeria, in the Makurdi Judicial Division and in suit No. MD/5/85. The Plaintiff claim against the Defendant is as follows:-

“(a)(i) The sum of N31,542 being the sum paid by the Plaintiff to the Defendant for a consideration that has totally failed.

(ii) The sum of N5000.00 as General Damages for breach of contract.

(iii) An Order asking the Defendant to remove the structure.

OR. In the Alternative

(b)(i) Special Damages for breach of contract in the amount of N31,226.58 as follows:-

45% of contract cost NI4,193.90 Cost escalation estimate at 120% N17.032.68

(ii) The sum of N5000.00 as General Damages for breach of contract.”

Pleadings were ordered filed and exchanged. In the course of the trial the Defendant successfully sought leave to amend the Statement of Defence and also to include a counter-claim. The Plaintiff filed a Reply to the Counter-Claim. The case suffered protracted delays caused by non-appearance of counsel but in the end the case was heard. The Plaintiff testified and called one other witness in support of claims and the Defendant also gave evidence and called a witness. At the conclusion of the trial and after the address of counsel, the learned trial judge partially found for the Plaintiff. He entered judgment in favour of the Plaintiff in the sum of N17,193.90 as Special Damages. The Defendant felt aggrieved with the decision and has now appealed to this Court. The Notice of Appeal contained five Grounds of Appeal and shorn of their particulars, they are read as follows:-

“1. The learned trial Chief Judge erred in law and misdirected himself on the facts when after awarding the sum of N300.00 to the Plaintiff “for total failure of consideration for money paid for the building of boys quarters at Otukpo.” he went further to award N14,193.90 to the Plaintiff as representing 45% of the total contract sum of N31,542,00.

2. The learned trial Chief Judge misdirected himself in fact when he failed to properly evaluate, assess or appraise the evidence adduced by the so called P.W.3 (P.W.2) while relying heavily on the said evidence in giving his decision.
3. The learned trial judge erred in law and misdirected himself on the facts in awarding to the Plaintiff the sum of N14,193.90 as representing the alleged 45% of the proportion of work not done when Plaintiff did not specifically plead the particulars of such claim or prove the alleged 45% of work not done.
4. The learned trial Chief Judge misdirected himself on the facts when he held that “I believe P.W.2 for he gave straight opinion evidence about the building x x x. He was the only expert who saw the building and assessed the State of its construction x x x. I am satisfied with his qualification and experience to give such an opinion evidence.
5. The judgment was unreasonable and cannot be supported having regard to the weight of evidence.”

In compliance with the provisions of Order 6 of the Rules of this Court as amended Briefs of Argument were filed and exchanged. At the hearing of this Appeal on the 24th April, 1993, even though Defendant (hereinafter referred to as the Appellant and the Plaintiff the Respondent) failed to appear in court after due service of the Hearing Notice, this court invoked the provisions of Order 6 aforesaid and treated the Appellants’ Appeal as having been argued. The learned counsel for the Respondent appeared in court and relied on the Respondent’s Brief. He urged the court to dismiss the Appeal. But before dealing with the Grounds of Appeal and the issues involved for its determination, it is appropriate at this stage to set out the facts leading to the case between the parties.

Put shortly, the facts are:- sometimes in February 1984, a building contract was entered into between the Respondent and the Appellant. The later was to build a four bedroom bungalow for the Appellant at Igumale, the village of the Appellant. The plan of the building was specified in Exhibit A. The agreed price for the building was the sum of N28,500.00. The Appellant was to hand over the keys of the completed building to the Respondent by Christmas of that year. Inconsideration whereof the Respondent made a down payment of N20,000.00. Due to pressure from a friend, the Respondent paid in the balance of N8,500.00 even though it was initially agreed that the balance shall be paid on the completion of the building. The Respondent when he came from abroad discovered that the building was not completed and the structure set up was not fit for his habitation. The work was very badly done, “the walls all cracked up; all over some or the wall…bent inside and some outside; there were pools of water around the base. The second contract was the building of boy’s quarters at Otukpo. The agreed cost was N3000.00 which the Respondent paid in three installments. This contract was not performed at all. The Appellant on the other hand claimed that he had done the work he contracted to do for the Respondent. He claimed under the Building Agreement, it was a term of the contract that the balance of the money would be paid by the Respondent in leveling the block work prior to the roofing and not on completion of the house. The Appellant further contended if any structural defects were detected in the building it was occasioned by soil defect due to the unsuitability of the soil. The Appellant also claimed because of the unsuitability of the soil he had to expend his own money in the sum of N8,000.00 by rectifying the foundation by putting pinning. The Appellant further denied that Exhibit A the building plan was not what was agreed between the parties. On the question of boys’ quarters the Appellant claimed that the agreed price was N9,500.00 and not N3,000.00. The Counter-Claim of the Appellant was the balance on the cost of the boys quarters. He counter-claimed N6,500.00 as the balance of the cost of the construction of the boys quarters at Otukpo. It is significant to note that the Appellant did not claim the sum of N8, 000.00 he was forced to expend in rectifying the foundation of the house at Igumale.

In his judgment aforesaid, the learned trial judge found as a fact that the boys’ quarters were not built and the Appellant admitted receiving the sum of N3000.00 from the Respondent. He therefore entered judgment for the Respondent in respect of boys’ quarters for the total failure of consideration. Thus by the necessary implication, the Appellant’s Counter-Claim was refused. There is no Appeal on the Counter-Claim and I therefore deem it, that the learned trial judge was correct in his finding that the Appellant had failed to construct the boys quarters.

In the Appellant’s Brief, it is contended that the trial court entered judgment in favour of the Respondent on the grounds that (a) the evidence of the Respondent that no boys quarter was built for him by the Appellant was clearly un-rebutted and that there was total failure of consideration in that regard. (b) Exhibit A is the plan agreed for the building and not other plan and (c) that P.W.2 was an expert witness who saw the building and assessed the state of construction and that his expert evidence that only 55% of the work on contract done was correct. The court therefore found for the Respondent as foI1ows:-

“To conclude, I award to the Plaintiff the sum of N3000.00 for failure of consideration, for money paid for the building of the boys quarters at Otukpo which work was not done; I award to the Plaintiff the sum of N14,193.90 representing the proportion of work not done for the house at Igumale. In total I award to the Plaintiff special damages of N17,193.90 against the Defendant. I make no award for General Damages.”

Now, in his Brief of Argument, the learned counsel for the Appellant has identified and formulated three issues arising for the determination of the Appeal.

The issues read:-

“1. Whether it was proper for the trial court to award the Respondent 45% of N31, 542.00 which the court found to be the total contract sum for both the boys’ quarters at Otuk po and the house at Igumale when it had already made a separate award of N3000.00 to the Respondent in respect of the said boy’s quarters and after the Respondent had abandoned his claim for failure of consideration in respect of the boys’ quarters. 2. Whether the trial court properly evaluated, appraised or assessed the evidence of P.W.1 and P.W.2 before acting on same.

3. Whether the Respondent pleaded and proved his entitlement to the N17, 193.90 Special Damages awarded to him as is required by law.”

Now, the learned counsel for the Appellant first argued the 1st issue. It is submitted that the court below in the course of its judgment firstly awarded to the Respondent the sum of N3000.00 for failure of consideration, for money paid for the building of the boys’ quarters at Otukpo. This is so, even though the Respondent had abandoned his claim during address. The trial court later awarded to the Respondent the sum of N14, 193.90 purporting the same as representing 45% of the proportion of the work not done for the house at Igumale. The court based the 45% proportion of work not done including the cost of the boys’ quarters which was already fully awarded. The total amount recoverable by the Appellant should be 45% of N28, 542.00 and not 45% of N31.542.00. It is submitted that the learned. Chief Judge was wrong in law to have awarded the sum of N3000.00 which was abandoned by the Respondent’s counsel during Address. Learned counsel referred to and relied on the following cases:

1. Federal Housing Authority v. Horst Sommer and 2 others (1986) 1 NWLR (Pt.17) 533,
2. Ekpenyong v. Nyong (1975) 2 S.C. 71
3. Kuti v. Balogun (1978) 1 S.C. 53
4. Kaycee v. Prompt Shipping Corporation (1986) 2 NWLR (Pt.23) 458.

The learned counsel for the Respondent on the other hand argued that the Appellant never abandoned his claim for the sum of N3000.00 representing the payment of the money for the construction of the boys’ quarters which money was receipted by the Appellant and for which he totally failed to perform the contract. The learned counsel merely addressed the court that since the evidence of P.W.2 showed that the building of the house at Igumale could be rectified, addressed the court that the claim on the house was then based on the alternative claim. There was no where in the address where the learned counsel abandoned the claim of the sum of N3000.00.

The learned counsel for the Respondent however conceded that the 45% of work undone was only in relation to the house at Igumale and therefore the amount to be awarded should be 45% of the contract price of N28.542.00 and not on the total contract price of the two projects. Thus, the amount recoverable should be N12.843,90 and not N 17.193.90, Thus rendering the total amount recoverable for the two building contracts to N15.843.90. The learned counsel urged the court to reduce the judgment debt accordingly.

I agree with the learned counsel for the Respondent, the matter is very simple. After the learned trial judge had awarded the sum of N3000.00 for the failure of consideration in the erection of the boys’ quarters, the judge was in error to have awarded a further 45% of the sum as work not done. I accordingly agree that the 45% claim on work not done could only refer to the building of the house on which P.W.2 gave evidence. I have examined the addresses of counsel and I have not seen where the Respondent had abandoned any claim. The learned trial judge obviously made an error which by virtue of Section 16 of the Court of Appeal this Court should amend it. I therefore agree that the 45% awarded as the proportion of the work undone should be limited to the contract sum in respect of the building of this house only, The award of 45% on the sum ofN3000.00 for the building of the boys quarters is hereby set aside. All the cases cited by counsel do not apply to the undisputed facts of this case. The complaint under this head does not involve any question of law. The Appellant did not deny the receipt of the sum ofN3000.00 to construct the boys quarters. There was evidence un-rebutted by the Appellant that no boys’ quarters was built. The Respondent was therefore entitled in fact to a refund of the money for the total failure of consideration. It is to be noted that it was in respect of the boy’s quarters that the Appellant counter-claimed. He led no evidence in support of the counter-claim. It is indeed a fact that it was the Appellant who abandoned his Counter-Claim. From the undisputed facts and as rightly found by the trial court, the claim of N3000.00 was pleaded and proved. Subject to what I have said above the first issue must be and it is hereby resolved against the Appellant.

Next, learned counsel for the Appellant took the 2nd issue. This is concerned with the evaluation and the assessment of the evidence of P.W.1 and P.W.2, It is also to do with the terms of contract i.e., whether the building plan Exhibit A represented the specification of the building contract and if so whether the learned trial judge was right to accept that 45% of the work in Exhibit A was not carried out by the appellant. It is argued that P.W.2 said in his evidence that certain things were not in the building of the house to be specific “Electrical conducting” was not done but under Cross Examination. P.W.2 said under Exhibit A. there was no provision for electrical conduit. The learned trial court was wrong, therefore to have awarded any sum on the failure of the Appellant to provide for conduit wiring when it was not specified in Exhibit A. It is argued, that this Court should therefore set aside the whole award, because there was no evidence of the cost the conduit wiring and the entire award is not divisible, see LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413 at 459.

It is further submitted that it was not clear whether the assessment of work undone was based on Exhibit A or Exhibit B. therefore the assessment was not exclusively based on the contract entered between the parties and should therefore be set aside,

The learned counsel for the Respondent on the other hand argued that the learned trial court had properly assessed and evaluated the evidence led. It is submitted that although P.W.2 said that there was no provision for conduit wiring in Exhibit A, it does not mean that electrical wiring was not contemplated by the parties. It was the Appellant who made the estimate of the cost of all materials and labour in Exhibit B. It was evidence that the Appellant started to put up the electrical wires on the building. What could only be disputed was whether the wiring should be conduit or surface. In any event, the learned counsel for the Respondent argued that P.W.2 assessed the value for the surface wiring done and it was what was taken into consideration while assessing the total amount of the work undone to the building. It is therefore wrong to claim that the learned trial judge had granted the value of work undone which was not in the contract in Exhibit A. It is finally submitted that the Appellant has pleaded and claimed what damages he was entitled to for the breach of contract. And what was awarded to the Respondent was the cost of what the Appellant agreed to do under Exhibit A which he failed to do.

On the facts and the pleading, the complaint of the Appellant cannot be justified. The learned trial judge accepted the evidence of the P.W.1 the Appellant and P.W.2 the expert and found that in relation to Exhibit A only 55% of the work was done. There was no evidence whatever that the learned trial judge awarded anything outside Exhibit A. The learned trial judge in his judgment held:-

“Exhibit A was the plan of the building D.W.1 tried to discredit Exhibit A as compared with the estimate, Exhibit B.xx x. I find Exhibit A is the plan for the building at Igumale and not any other plan.”

Before making this finding, the learned trial judge had exhaustively and adequately examined, assessed and appraised all the evidence led. I, myself have read the evidence, and am of the view that Exhibit A was the contract entered into between the Appellant and the Respondent and the Appellant promised under the contract to put up the building for the Respondent by Christmas of 1984. It is manifests that the Appellant: even though he was paid the whole contract price as he himself produced in Exhibit B, failed to carry out his own part of the bargain. The learned trial judge further held:-

“The evidence of P.W.2 was clear that certain things were not done when he inspected the house. The building was uncompleted. He also said that some of those things that were done were not fully completed: It was a tale of a bad job all through. I believe P.W.2 for he gave a straightforward opinion evidence about the building to which I find no serious contradiction. He was the only expert who saw the building and assessed the state of its construction. I am satisfied with his qualification and experience to give such opinion evidence. His percentage assessment his based on what holds in the building profession and no one contradicted him on it. I therefore agree that 55% of the ‘work on the contract was done.”

I respectfully agree with the finding of the learned trial judge. The Appellant agreed both in his Statement of Defence and in his evidence in court that there were cracks in the building. Furthermore, P.W.2 was not cross examined on his evidence that only 55% of the work was done. No questions on this important issue were put to him by the learned counsel for the Appellant. There was also no dispute whatever that the Appellant agreed to complete the house for the Respondent at an agreed price and handover the completed house to the Respondent around Christmas of 1984. The Appellant admitted receiving the entire contract sum for the completion of the house and it was not completed. The Respondent refused to accept the structure as it was badly done and was not completed as per the design in Exhibit A. Except for the counter-claim, the Appellant did not seriously deny all the allegations made against the way and the manner he performed his part of the contract. The Counter-Claim was dismissed and there is no Appeal before this Court of the dismissal.

All what I am saying is that the learned trial judge had carefully and meticulously appraised assessed the evidence of both P.W.1 and P.W.2 before he came to the conclusion that what they said in court was the truth of the matter. (1) that Exhibit A was the design of the building contracted to be built and (2) that the Appellant agreed to construct the building on a price specified by him in Exhibit B. (3) that the building will be finished and handed over to the Respondent by the Christmas of 1984 (4) that the house was not completed as per the specification in Exhibit A. (5) that the Appellant had collected the entire contract sum as agree between the parties and (6) Because of the bad workmanship employed in building the house the Respondent had to expend 45% of the contract price to complete the building. These are facts which the learned trial judge arrived at after due consideration of the evidence led by P.W.1 and P.W.2. As a matter of fact P.W.1 and P.W.2 were not cross examined on all these vital issues. Based purely on the undoubted facts the learned trial judge is in my view correct in his conclusions. After examining carefully the judgment of the learned trial judge, I am of the firm view, that he had carefully assessed and evaluated not only the evidence of P.W.1 and P.W.2 but the entire evidence led before him. The second issue is also accordingly resolved against the Appellant. There is no merit in the complaint.

Lastly, the learned counsel for the Appellant argued the third issue. The complaint here is concerned with the award of 45% of the contract price as Special Damages. It is submitted that the Respondent neither specifically pleaded the particulars of the special damages nor proved the same as prescribed by law and the Rule of the court. It was contended therefore the Respondent was not entitled to the award of the Special Damages. It is canvassed for the Appellant that the evidence adduced by P.W.2 as to the proportion of work done or undone under the contract was not pleaded and therefore went to no issue joined by the parties and should therefore have been ignored by the trial court. Learned counsel referred to the following cases.

1. N.I.P.C. Ltd v. Thompson Organization Ltd & Others (1969) 1 NMLR 99 at 104.
2. Emegokwue v. Okadigbo (1973) 1 ANLR (Pt.1) 379 at 383.

It is further submitted that the Pleadings of the Respondent under paragraph 16(g) and (h) were not sufficient and did not meet the requirements of the law. “It is mandatory for a Plaintiff in a building contract of this nature, to plead and give particulars of all the segments of the works that are alleged to be defective or uncompleted and prove them strictly.” He is also required to plead the relative value or worth of each segment. Failure to do this, as is the case in this Appeal, is very fatal to the Respondent’s case vide:

1. F.H.A. v. Warner & Warner International Association (Nig.) Ltd. (1986) 5 NWLR (Pt.42) 473 at 494. 2. FHA. v. Horst Sommers (1986) 1 NWLR (Pt.17) 533 at 544 – 5
2. A.-G. of Anambra State v. Onuselogu Enterprises (Nig .) Ltd (1987) 3 NWLR (Pt.66) 547
3. L.S.D.P. v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413 at 458.
4. Oshinjirin v. Elias (1970) 1 All NLR 153 at 154
5. Odumosu v. African Continental Bank Ltd (1976) 1 S.C. 55 at 69.

It is accordingly submitted that the award of the Special Damages is not justified in law. It is further added that though the Respondent had averred to particulars of segments of works that were alleged to be defective in paragraph 16(a) – (f) but the Respondent had woefully failed to plead their relative value or worth and had failed to prove the averments. Learned counsel for this proposition relied on the cases cited above.

It is further submitted that even if it could be argued that the Respondent had pleaded with proper particulars under paragraph 16(a) to (f) the lumping of all segments together by P.W.2 in arriving at a percentage of the work not properly done or not done at all did not amount to strict proof as is required for Special Damages. Therefore the Respondent had failed to prove strictly the averments contained under paragraph 16 of the Statement of Claim. It is further argued that the evidence led is at variance with the pleadings of the Respondent, therefore the entire evidence ought to be ignored see Anthonia Umoffia v. Mrs. Ndem (1973) 12 S.C. 69, Amajideogu v. Ononaku (1988) 2 NWLR (Pt.78) 614.African Continental Bank Ltd. v. Egbunike (1988) 4 NWLR (Pt.88) 350 and the NIPC Ltd case supra.

It is lastly submitted that the award of N3000.00 for the construction of the boys’ quarters was not justified in view of the evidence led by the Appellant.

The learned counsel for the Respondent on the other hand argued that the Respondent had properly pleaded and led credible evidence in proof of the Special Damages. It is submitted that since the claim before the trial court was that of a breach of contract, there was no duty on the Respondent to classify his claims into Special or General Damages. It is sufficient for the Respondent to show the breach and the damages flowing therefrom. Learned counsel referred to Mobil Oil Nigeria Limited v. Akinfosile (1969) NCLR 217 253 at 260. Kaycee v. Prompt Shipping Co. Ltd. (1963) 1 SCNLR 117 (1986) 2 NWLR (Pt.23) 458 at 468. George & Others v. Dominion Flour Mills Ltd. (1963) All NLR 71 at 72.

It is submitted that the Respondent had fully complied with the rules as to pleading. Paragraph 16 of the statement of claim detailed in sufficient particulars all the aspects of malfeasance, general poor workmanship and the completion of only 55% of the works agreed to be carried out. Issues were joined by the Appellant o under paragraph 5 of the Statement of Defence wherein he generally denied the averments contained in paragraph 16 of the Statement of Claim. The Appellant cannot now claim that he was misled or taken by surprise.

As regards the detailed complaints of the Appellant on the issue of 45% of the work which remained undone, the learned counsel relied on his earlier submissions. The complaints of the Appellants are tantamount to complaining on the Respondent not pleading evidence. The claim of the Respondent was that 45% of the work undertaken to be done was not done and therefore the Respondent was claiming proportional value of 45% of the contract sum.

It is further submitted that none of the cases cited by the Appellant are relevant to the undisputed facts of this case. There was no duty on the Respondent to label and prove his claims before the court as special damages.

It is again submitted that the complaint of the Appellant on the question of the pleadings and the evidence being at variance cannot be justified. The Respondent averred that only 55% of work contracted to be done was carried out, he needed not to plead the evidence by which he would establish that 45% of the work was not done. On the question of the award of N3000.00 for the construction of the boys quarters, the learned counsel argued that the trial court had considered all the evidence led before it, before it came to the conclusion that the Appellant did not construct the boys quarters. The finding was a finding of fact after due consideration of the all evidence led and accepted by the trial court.

Now, it is trite law that the aim of pleading is to give notice of the case to be met which enables either party to the dispute to prepare his evidence and argument upon the issues raised and saves either party from being taken by surprise. See Ukuta v. Alliance Int. (Nig,) Ltd (1992) 8 NWLR (Pt.259) 374. The essence of pleading is to compel the parties to define accurately and precisely the issue upon which the case is to be contended to avoid element of surprise by either party and not to adduce evidence which goes outside the fact pleaded. See Ugbodume v. Abiegbe (1991) 8 NWLR (Pt.209) 261.

It is also trite law that both the parties and the court are bound by the pleadings and matters not pleaded are the subject of the jurisdiction of the court. See Obmiami Brick & Stone (Nig.) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260.

The question that must be decided is whether the Respondent has (1) properly pleaded the claimed that only 55% of work undertaken to be performed was infact carried out and he was thus claiming 45% of the value of the contract which was not performed and (2) whether the Respondent has proved the same. It is also trite law that a party claiming special damages must specifically plead such special damage and give sufficient particulars of it in his pleadings.

Paragraph 16 of the statement of claim reads:-

“16. In purported execution of the works mentioned in paragraph 4 hereof the Defendant has put up a building structure that is totally defective, especially in the following particulars. (a-g) x x x (b) completion of only about 55% of the works.”

It was earlier pleaded in paragraph 4 of the Statement of Claim that the Appellant agreed on consideration to put up a building as specified in Exhibit A. In paragraph 16 it was pleaded that only 55% of the works were carried out. And by paragraph 21(b) (1) the Respondent claimed 45% if the contract cost amongst other things. The claim aforementioned was labeled as Special Damages. In my view, the Respondent had adequately, precisely, and accurately pleaded his claim against the Appellant. There was no doubt that the Respondent was claiming 45% of the agreed contract sum which he alleged was not performed by the Appellant. The question now is, was the Respondent bound to give the particulars of the work undone or was it sufficient to merely aver that 45% of the work was not done? In my view, the pleading as contained in paragraph 16 of the statement of claim is sufficient in law to put the Appellant on notice that the claim against him was for his failure to perform 45% of the job he has undertaken to do and for which he had been fully paid. The claim of the Respondent even though labelled as special damages is clearly a claim for General Damages arising out and flowing from the breach of contract. It has been held that it is improper in cases of breach of contract to categorize’ damages by the use of the words “general” and “special”. The measure of damages for breach of contract is damages naturally arising from the breach of such as may be reasonably be supposed to have been in contemplation of the parties. See Maiden Electrons v. A.-G., Federation (1974) I S.C. 53. See also the case of Akinfosile v Mobil supra See also Shell B.P. v. Jammal Engineering Ltd. (1974) 1 ANLR (Pt. 1) 542 (1974) 4 S.C. 33. The object of awarding damages for breach of contract is to put the injured party, so far as money can do it, in the same position as if the contract has been performed. Thus, the injured party can never get more in damages than the loss which he has suffered, Breach of contract is actionable per se, thus a party who has suffered or proved no loss may win his action for breach of contract. See Universal Vulcanizing (Nig,) Ltd. v. I.U.T.T.C (1992) 9 NWLR (Pt.266) 388.

In action for breach of contract such as in the case under discussing, there is clearly no distinction between “special and “general damages”, It is only general in the law of torts that Special Damages play prominent role. See Agbaje v. National Motors (1971) 1 ULLR 119.

In view of the above, the complaint that the Respondent did not properly plead Special Damages is clearly of no moment. Considering the pleading as a whole, all what the Respondent was claiming was the value of the 45% of the work not done in breach of the contract. It cannot be said to be a claim for “‘special damages” as mentioned above the issue of Special Damages is generally limited to a claim in tori. It is accordingly ‘my view, that the argument of counsel on the sufficiency of the pleading is not justified and the rules governing particularization of special damages do not apply. Therefore all the cases cited by the learned counsel for the Appellant are irrelevant.

Even if I am wrong in the above exposition of the law on the measure and kinds of damages recoverable in a case involving a breach of contract, I am of the firm view that the Respondent had sufficiently and precisely averred in his statement of claim what he was actually claiming. The complaints of the Appellant relate only to the evidence by which the Respondent was bound to succeed in his allegation that 45% of the work was not done. It is trite law that evidence should not be pleaded. Neither party in a case pleads evidence by which he proposes to prove the facts on which he relies. To do so would amount to the cluttering the pleadings with unnecessary details when alleging material facts and that is bed pleadings. See. Ekretsu v. Oyobebere (1992) 9 NWLR (Pt.266) 438 See also the Obimiami case supra.

Thus, it is my judgment that the Respondent has properly pleaded the material facts upon which he grounded his claim that the Appellant had failed to perform 45% of the work he had undertaken to do. This claim even though labeled as “a Special Damage” it is not. It is a claim flowing naturally from the alleged breach of contract. It is also my judgment that the Respondent is not required to plead the evidence by which he was to prove the material facts.

We are now left with the question whether the Respondent has proved the allegation that the Appellant failed to execute 45% of the works he contracted to do and whether he had proved the claim for the refund of N3000.00 being the contract price for the construction of the boys quarters which the Respondent alleged the Appellant totally failed to carry out. In dealing with the second issue above, I have exhaustively dealt with the findings of fact by the learned trial judge. After carefully examining the evidence, I opined that the decision of the learned trial court was amply supported by the evidence led and accepted by him. It will serve no useful purpose for me to repeat myself. Suffice it for me to hold as the learned trial judge held that on the balance of probabilities the Respondent has proved his claims. The third issue is accordingly resolved against the Appellant.

In the result, save as to award of 45% on the N3000.00 the contract sum for the construction of boys quarters this Appeal fails as it is totally lacking in merit. I accordingly affirm the decision of the trial Chief Judge on the 24th July, 1989 but with the following variation. In total, judgment is hereby entered in favour of the Respondent against the Appellant in the sum of N15,843.90. The Respondent is entitled to the costs of this Appeal which I assess at N1,5000.00 inclusive of out of pocket expenses.

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Other Citations: (1993)LCN/0148(CA)