Faderera A. Akintola & Anor Vs B. Stabilini & Co. Ltd (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC

This is an appeal by the defendants against the judgment of the High Court of Lagos given on 14th April, 1969, for the plaintiff “in the sum of £8,316:16s:10d with £200 as general damages and 100 guineas costs.” There was also a cross-appeal by the plaintiff which arose in this way: Having filed their appeal to this court, the defendants applied for and were granted a stay of execution of the judgment appealed against. The plaintiff thereupon applied for and also obtained leave to appeal against the order for a stay and thereafter filed appropriate grounds of appeal. At the hearing of the main appeal, this subsequent appeal by the plaintiff was abandoned and accordingly dismissed.

The case – Suit No. LD/488/64 – the judgment wherein is the subject matter of this appeal was originally commenced against the late Chief S.L. Akintola by the plaintiff whose Writ of Summons was endorsed as follows:-

“Plaintiff’s claim against the defendant is for the sum of twelve thousand four hundred and eight pounds sixteen shillings and ten pence (£12,408: 16s:10) being the amount due in respect of a Building Contract executed in Lagos between the Plaintiff’s and the defendant on the 7th day of December, 1962. The Plaintiffs completed the construction of the building mainly at their own expenses.

PARTICULARS OF CLAIM

1.    Balance outstanding on the contract and cost of variations    …………….     £10,397.5.1d

2.     Cost of two new Book Shelves    …………….     11.11.9

3.    General damages for breach of  contract    …………….    2,000.0.0

The defendant has neglected inspite of his several promises to pay to the Plaintiffs the said sum of money despite repeated demands.”

Pleadings were ordered and duly filed and delivered during the lifetime of the original defendant – Chief S.L. Akinola. Having regard to the judgment of the learned trial Judge, the complaints of the appellants against it, and the fact that the case was heard after the death of the original defendant although it was fought by the defendants, now appellants, who were substituted therefor – the issues as settled on the pleadings appear to us to be of considerable importance. In this connection, we consider the averments contained in paragraphs 2, 3, 4, 5, 6 and 8 of the Statement of Claim and the answers thereto as contained in paragraphs 2, 3, 4, 5 6, and 9 of the Statement of Defence of particular material relevance.

Paragraphs 2, 3, 4 5, 6 and 8 on the plaintiff’s Statement of Claim are as follows:-

“2. By a Building Contract Agreement executed in Lagos on the 7th December, 1962, the plaintiffs undertook to complete the erection of the defendant’s house in Ogbomosho and the defendant agreed to pay £9, 200.

3. At the request of the defendant the plaintiffs had to carry out major additional works and variations including an office block, windows, doors, kirbs, gates, baths, garages, spring fountain, electrical wirings, balustrade and other costly items as shown in the plaintiff’s letters to the defendant dated 1st July, 1963, 16th September, 1963, 16th January, 1964, and 15th April, 1964, at a total cost of £29,708.16s.10d. The defendant made payments amounted to £19,300 leaving a balance of £10,408.16s.10d outstanding.

4. The plaintiffs completed the said works to the satisfaction of the defendant and submitted statements of account and demands for payment by registered correspondence and orally.

5. At the many calls the plaintiffs made on the defendant to demand payment he assured them that the sum of £10,408.16s.10d being balance outstanding would be paid at certain future dates.

6. Inspite of the defendant’s several promises he had failed or neglected to pay up the balance till this action was taken.

8. The plaintiffs also claim the sum of £2,000 as general damages resulting from the delay by the defendant in making payment.”

The averments contained in paragraphs 2, 3, 4, 5, 6 and of the Statement of Defence are in the following terms:

“2. The defendant admits paragraphs 1 and 2 of the Statement of Claim.

3. In further answer to paragraph 2 of the Statement of Claim, defendant avers that the contract referred to in the said paragraph was duly concluded and fully satisfied by both parties to the agreement.

4. The defendant denies paragraphs 3 and 4 of the Statement of Claim and puts the plaintiffs to strict proof of the allegations therein contained.

5. In further denial of the said paragraphs 3 and 4 of the Statement of Claim the defendant avers that by a separate and oral contract made between himself and the plaintiff at Ogbomosho some additional work outside the contract referred to in paragraph 2 of the Statement of Claim was commissioned from the plaintiff and the bill was fully satisfied on the completion of the new contract.

6. The defendant denies paragraphs 5, 6 and 8 of the Statement of Claim, puts the plaintiff to strict proof of the allegations made therein and avers that he did not make any promise to plaintiff or anyone else which he has not fully implemented.

9. The defendant will also contend that the claim should be dismissed as it is frivolous, vexatious and is an abuse of the process of the court.”

Thus on the pleadings, the original defendant did not at all admit owing the plaintiff anything. On the contrary, his case was that whatever obligations rested upon him by reason of any agreement entered into between him and the plaintiff, such obligations had been completely performed or satisfied. The plaintiff was therefore put to the strict proof that the defendant was indebted to it; and had therefore to prove by preponderance of evidence that it was entitled to recover the amount claimed by it.

As already observed, this case has had a chequered career, for after the close of pleadings but before it could be heard, the original defendant died and by an order of court the two appellants were thereupon substituted as defendants. The case then proceeded to trial.

At the hearing before the learned trial Judge, one witness gave evidence for the plaintiff and one also for the defendants. For the plaintiff, Benedict to Stabilini (P.W.1), the Managing Director, testified and tendered an agreement, Exhibit A entered into by the plaintiff and the original defendant (hereinafter to be referred to as defendant) in the case. To the agreement, Exhibit A, there were attachments, Exhibits A1 and A2 which relate to specifications and certain sums of money to be paid in respect of a house to be erected at Ogbomosho for the defendant at a total cost of £9, 200. Benedict to Stabilini (P.W.1), also tendered Exhibits B, B1, B6 and C, being copies of letters purported to have been addressed to the defendant about some extra work undertaken by the plaintiff for the defendant, presumably in respect of the same house. There was no evidence that there was any agreement between the plaintiff and the defendant as to the price of the subsequent extra work.

In his judgment, the learned trial Judge reviewed the evidence, such as there was, in the case. He observed that the plaintiff’s case was not without difficulty because the evidence in support of it was meagre and because there was no evidence of any agreement as to the price of the extra work described in the proceedings as variations on Exhibit A, which was undertaken by the plaintiff, and according to the plaintiff, at the request of the defendant. Nonetheless, the learned trial Judge entered judgment on his own computation in favour of the plaintiff in the sums already stated above.

The defendants have brought this appeal against that judgment. They have complained in their grounds of appeal that the judgment of the learned trial Judge is against the weight of evidence; that the trial Judge was wrong in holding that certain letters alleged to have been written to the defendant, the receipt whereof was never acknowledged, amounted to an admission of indebtedness on the part of the defendant to the plaintiff; and that the trial Judge was wrong in law to have assessed the amount due to the plaintiff on the principles adopted by him.

In his submissions in support of these complaints, Mr. Harrison – Obafemi, counsel for the defendant, drew this court’s attention to the evidence before the learned trial Judge and, in particular, to certain admissions by the plaintiff to the effect that there was no separate written agreement in respect the variations; that it received £19, 300 from the defendant; that the plaintiff never at any time discussed the price of the variations with the defendant, nor did they both agree on or negotiate the additional work; and that the claim before the court was in respect of the extra work done on the house for the defendant. Learned counsel then contended that the learned trial Judge was wrong in law to have entered judgment for the plaintiff as he did on the face of these admissions and the difficulty in which the learned trial Judge found himself in reaching a decision. It was submitted further by learned counsel that in the circumstances disclosed by the evidence, the plaintiff should have been non-suited.

We think these submissions are well-founded. There is no doubt that the evidence given by the plaintiff in support of its claim was unsatisfactory, and that the learned trial Judge found himself in some difficulty in arriving at the decision to enter judgment for the plaintiff as is borne out by the under-mentioned passages of his judgment.

In dealing with the issues in controversy between the parties, the learned trial Judge said:-

“The trouble in this case is that there was no separate written agreement in respect of the variations which cost more than the actual work agreed upon. The actual works as per Exhibit ‘A’ was to cost £9, 200, while the costs of variations amounted to £20, 508,16s.10d.”

The learned trial Judge then continued:-

“No

Other Citation: (1972) LCN/1553(SC)