Solel Boneh Nigerial Limited V. Canitec International Coy. (2006)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
Solel Boneh (Nigeria) Ltd which is the Appellant and shall herein be so referred to is the main contractor to the University of
Port Harcourt Teaching Hospital Project. Canitec International Company Ltd is the Respondent and a subcontractor to the Appellant. The services of the Respondent were employed by the Appellant to execute the laying of terrazzo works and skirting works in “Block J” at the University of Port Harcourt. The said subcontract was settled at the rates of N1,400.00 (One thousand four hundred Naira) per square metre and N300.00 (three hundred Naira) per linear metre respectively. The terms of the subcontract were documented and executed as the subcontract Agreement as exhibited in “Exhibit. A” (pg 21-24 of the records for this appeal referred). The job was successfully executed and duly paid for in terms of “Exhibit A”.
The Appellant subsequently made another offer to the Respondent termed “an extension of the existing subcontract to cover the “Mortuary Block and Block H,” at the same rate with the earlier one which had been executed and concluded.
Expectedly, the Respondent made a counter offer of N3,500.00 (three thousand five hundred Naira) and N600.00 (six hundred Naira) respectively for the terrazzo works and the skirting works. There was no written response from the Appellant. It would appear then that the contract had been repudiated. Was it?
The letter of extension of the subcontract to cover the “Mortuary Block and Block H” is “Exhibit 8.” “Exhibit c” embodies the counter – offer made by the Respondent. Without responding to “Exhibit C”,
the Appellant sent “Exhibit D” to the Respondent which contents complaints of the failure of the Respondents to commence work as offered in ‘Exhibit B”. In “Exhibit E”, the Respondent requested a confirmation/acceptance of its counter offer at the reviewed rates for the extension, but received no response. The Respondent nonetheless mobilized to site.
From this point, the accounts of the facts by the Appellant vary from these by the Respondent.
While the Appellant purports that the agreement between the two parties were eventually ratified in an addendum to “Exhibit A” in a document marked “Exhibit M”, the Respondents refute this version and have its own story to tell.
It is the version of the Respondent that by several meetings with the Appellant’s then Project Manager Mr. Sergiu Mesesan, the parties verbally agreed to the upward review of the rates to N2,600.00 (two thousand six hundred Naira) per square metre for terrazzo and N500.00 (Five Hundred Naira) per linear metre for skirting for the “Mortuary Block and Block H”. Whereas nothing is said of the Appellant’s letter ratifying the said new rates, the Respondent cites “Exhibit F” as its acceptance of the reviewed rates!.
The bone of contention between the parties is thus the amount at which the extension to the “Mortuary Block and Block H” were executed, and the issue of the Retention fee.
The trial Court Coram – Ogbuji J. accepted the case made out by the Respondent. Accordingly, on the 24th day of March 2004, it entered judgment against the Appellant in the sum of N6, 923,750.00 Six million, nine hundred and twenty three thousand, seven hundred and fifty thousand Naira) in favour of the Respondent.
The Appellant seeks a reversal of the decision of the trial Court upon nine grounds of appeal to which a 10th ground was added by leave of this Court. Two issues were distilled for determination and these are:-
- Whether the Plaintiff was entitled to any additional payment in respect of the sub contract (Grounds 1, 2, 3, 4, 5, 6, 7 and 9).
- Whether the Plaintiff was entitled to payment of Retention fees under the sub contract (ground 10).
The Respondent also formulated two issues for determination as follows:-
“a). Whether having regard to the parties’ offer and counter offer the rates for the works which was common ground between the parties and other pieces of evidence given by the witnesses, the trial Court can properly conclude that extrinsic oral evidence could be given to vary and or add to the award of the works in “Block H” and the rates for terrazzo and skirting works contained in the subcontract agreement between the parties.
b). Whether on the available evidence before the Court, the Respondent was entitled to the balance of the contractual sum in quantum meruit for the works executed at the agreed upward revised rates before the same was frustrated/terminated by the Appellant”.
This appeal shall be determined upon the issues formulated by the Appellant.
It is the submission of the learned Counsel for the Appellant that the works offered for the “Mortuary Block and Block H” were an extension of the sub-contract for “Block J” and the agreed rates were N1,400.00 (one Thousand Four Hundred Naira) and N300.00 (three Hundred Naira) for terrazzo & skirting works respectively. The Respondent has fully been paid along with compensation for price fluctuation on the jobs done, contends the learned Counsel. The learned Counsel cites “Exhibits “A”, “B” and “M” as the contract documents and which are binding on the parties. Having thus embodied their terms of agreement in written documents, extrinsic oral evidence is not allowed to vary or subtract from or contradict the said documents. (Refers: KOIKI V. MAGNUSSON (1999) 9 NWLR PT 615 P 492.) The learned Counsel argues that the Respondent which had, in paragraph 4 of its statement of claim made reference as follows:-
“The said subcontract Agreements/addendum are hereby pleaded and shall be relied upon at the trial”,
could not have turned round to deny its existence successfully before the trial Court. The learned trial Judge was thus in error, contends Counsel, when he failed to give effect to Exhibit “M” which is the addendum. The testimony of the PW1 to wit
“…I did not execute any addendum on the 17th August 2000 with the Defendant.
I saw that said “Addendum” in the process the Defendant filed in the Court, I did not execute that document. I did not instruct any person.”
is at variance to the pleadings of the parties and it is a well settled law that parties are bound by their pleadings and any evidence on a fact not pleaded goes to no issue. The learned Counsel relies on the cases of:-
- WOLUGHEM v. GUDI (1981) 5 SC 319 AND
- FBN v. MAINASARA (2004) 43 WRN 29. Also cited is the provision of Order 24 Rule 9 of the Rivers State High Court (Civil Procedure) Rules.
Further, contends Counsel, the issue of the non- execution of “Exhibit M” is that of forgery which should have been specifically but was neither pleaded nor established and therefore goes to no issue.
It is also the submission of the learned Counsel that the failure of the Respondent to refer to the oral offer alleged made by the then Project Manager in “Exhibit E” shows clearly that no such offer was made by the Appellant. The Appellant had, in its paragraph 13 of the statement of Defence, agreed to compensate the Respondent following pleas of market price fluctuations and the sum of N299,250.00 (Two Hundred and ninety-nine thousand, two hundred and fifty Naira) was paid to the Respondent as evidence in “Exhibit K” item eleven.
Having accepted this compensation, the Respondent thereby waived any rights to claims, real or imagined (Refers MOROHUNFOLA V. KWARA TECH. (1990) 4 NWLR PT 145 p.506 AND ARIORI V. ELEMO (2001) 36 WRN 94).
Counsel submits that although the learned trial Judge clearly identified the payment made in “Exhibit K”, he failed to apply the proper legal principles by dismissing the Respondent’s claim. Nothing in “Exhibit K”, submits the learned Counsel raised any inference that it was a part payment.
The learned Counsel for the Respondent submits that the ingredients of a valid and enforceable contract are offer, acceptance and consideration. That it is the law that a counter offer automatically repudiates the Appellant’s offer (see GREEN FINGER AGRO-IND. LTD VS. YUSUFU (2003) 12 NWLR PART 835, PAGE 488 AT PAGE 508, PARAGRAPHS C- G, 509-510, PARAGRAPH D-A, 511, PARAGRAPHS F-H).
The learned Counsel contends that following the Respondent’s acceptance of the Appellant’s offer as evidenced by “Exhibit F,” the valid and enforceable contract between the parties is “Exhibit F” Counsel cites the case of F.G.N. V. ZEBRA ENERGY LIMITED (2002) 18 NWLR PT 798 PG 162 AT 194 to buttress his submission on “Exhibit F” implying that the Appellants by conduct, had accepted the counter offer made by the Respondent. The learned trial Judge was therefore right in admitting extrinsic oral evidence in favour of the Respondent.
In admitting the extrinsic oral evidence, the learned trial judge cited section 134 of the Evidence Act and referred to the exceptions which apply thereto as follows:- (at page 86 of the records for this appeal being page 23 of the Judgment of the trial Court).
The exceptions include:-
(a) “A stranger to the agreement can give oral evidence to prove the truth of what has been agreed in order to establish the ignorance, carelessness or fraud of the parties to the agreement.
(b) Evidence may be admissible to contradict or vary a private document intended by the parties to operate merely as a collateral or informal memorandum of a transaction, and binding legal instrument.
(c) Where a contract not required by law to be in writing, purports to be contained in a document which the Court is justifiably satisfied was not intended to express the whole agreement between the parties, proof may be given of any omitted or supplemental oral term expressly or impliedly agreed between them before or at the time of the execution of the document, if it be not inconsistent with the documentary terms.
(d) Where there exist a contract purporting to be fully expressed in writing, whether required by law to be so or not, proof may be given of a prior or contemporaneous oral agreement or warranty, not inconsistent with the document, and which forms part of the consideration for the main contract. However, both the terms of the collateral agreement and animus contradendi of the parties there to must be strictly prove. The burden of proof is upon the party who alleges non-completeness of the full terms of the document,
(e) Where there exists a separate oral agreement constituting a condition precedent and with reference to any obligation under a contract. In such circumstance extrinsic evidence of such oral agreement is admissible in interpreting the contract.
(f) In the Court, knowing the terms of a deed and all the circumstances surrounding its execution is satisfied that the parties intended by the instrument to agree to terms which though not clearly expressed, are in its belief to be implied in it, there is no reason why it should not give effect to it. Extrinsic evidence to some extents, may therefore, be admissible to show the true nature of the transaction of the apparent intention of the parties although such evidence may vary or add to the written instrument, (See SAVANNAH BANK (NIG) LTD vs. SALAMI (1996) 8 NWLR (Pt. 465) 131 @ 139 Paragraphs G – H and 147 Paragraphs B-G.)” ( Refer pg. 86 at d of records for this appeal.)
The Savannah case represents the state of the law, but how does it advance the cause of the Respondent? Which of the exception applies to the case at hand? The learned trial Judge did not identify any, but found as follows:-
“Looking at all relevant documents in this matter, the terms of the contract can be ascertained but extrinsic oral evidence can be led to add to or vary the written documents/instruments. Furthermore, though the new rates were not agreed in writing (emphasis mine) but the parties agreed orally for the new rates, it follows that the parties intended to vary the rates in Exhibits ‘A’ and ‘B’ and I so hold. See Section 132(1)(b)(c) and (d) of the Evidence Act.
It is also my considered view and I so hold that the correspondence between the plaintiff and Defendant i.e. Exhibits “B” to ‘F’ are to the effect that the parties intended to vary the rates in Exhibits ‘A’ and ‘L’ respectively – The main subcontract executed on the 26th January, 1999 and “ADDENDUM” thereto, and that the same was accordingly varied as per the agreed rates in Exhibit ‘F’ which is N2, 600.00 (Two Thousand, Six Hundred Naira) and N500.00 (Five Hundred Naira) for Terrazzo works and in serial No, 9 at the rate of N400.00 (Four Hundred Naira) for Skirting.
It is my finding that the purported signature of the PW1 (Plaintiff) on Exhibit ‘M’ was not after all signed or executed by the PW1 or Plaintiff. It was a make belief signature of the Pw1 (Plaintiff). In effect I agree with Plaintiff counsel’s submission that in the case of Exhibit ‘M’, the best evidence in rebuttal to due execution is that of the party rebutting same or someone who knows his signature. See (OMONIYI v. SODEINDE (2003) 13 NWLR (Pt 836) 53 @ 64 65 and Section 100 Evidence Act.) Furthermore, the Defendants Project Manager who signed on Exhibit “M” was not called to testify as to the authenticity of the Pw1’s signature of the Pw1. This is very fatal to Defendant’s case.
In my view and I so hold the effect of Pw1 not executing Exhibit ‘M’ means that no probative value will be attached to it. And I decline to attach any weight to it. In the circumstance hold that the agreed rates which were duly settled upon by the parties are N2,600.00 (Two Thousand, Six Hundred Naira) per square metre and N500.00 (Five Hundred Naira per linea metre for Terrazzo and Skirting works respectively for all the Blocks and Mortuary buildings as contained in Exhibit “L”.
There is no law which prohibits a trial Judge from evaluating an admitted document in order to ascertain its evidential value, and the weight to attach to such piece of evidence. Thus, having admitted “Exhibit M” in evidence, the learned trial Judge was right in evaluating same. What this Court needs to do is examine the status of the said exhibit vis-a-vis the state of the pleadings and the evidence of the parties.
In both its main brief and the reply brief, the Appellant maintains that “Exhibit M” was pleaded but not controverted by the Respondent: the evidence of the Respondent as Plaintiff in Court is therefore inadmissible and should not have be acted upon by the learned trial Judge.
The learned Counsel to the Appellant referred to parag 4 of the Respondent’s statement of claim which made reference to the addendum. Parties are bound by their pleadings submits Counsel who cites WOLUCHEN V. GUDI (supra) F.B.N. v. MAINASARA (2004) 43 WRN 29 to buttress his submission. The learned Counsel also relies on the provisions of Order 25 Rule 9 of the Rivers State High court, (Civil Procedure) Rules which provides that every allegation of fact in any pleading not outrightly or by implication denied is taken as admitted.
It is further the contention of the Appellant that the Respondent did not effectively controvert “Exhibit M” at the appropriate time and place e.g at the stage of pleadings. By the denial of “Exhibit M”, the Respondent allege forgery which should have been specifically pleaded but was not.
The statement of claim of the Respondent is at pages 32-35, while the statement of defence is at page 36-38 respectively of the records of this appeal.
Both parties referred to an addendum, but the Respondent did not controvert the authenticity of the addendum. The only addendum that has been featured in this appeal and before the trial Court is “Exhibit M”. Having pleaded the Exhibit in its statement of claim, the Respondent’s witness cannot be heard in his evidence to raise the issue of the authenticity of the said document.
Contrary to the findings of the learned trial Judge, “Exhibit. L” is not a documentation of the extension of the subcontract to the “Mortuary Block” and “Block H.” Further, by the contents of the said “Exhibit L” the parties are different and so are the terms. “Exhibit F”, a document, infact a letter signed by one Chief C. A. Okoro as Managing Director (Canitec-Inlt. Co, Ltd.) refers exclusively to the “Mortuary Building and Block H.” There is no mention whatsoever of “Block A” in respect of which “Exhibit L” was made and executed by the parties. I should also say that “Exhibit L” bears “RCC Reynolds Construction Company (Nig) Ltd,” and not Solel Boneh (Nigeria) Ltd; which is the Appellant before us. There is nothing in “Exhibit L” which mentions the Appellant as a party in the said transaction.
In deed, the material upon which the agreement is made is a letter headed paper bearing “RCC Reynolds Construction Company (Nig) Ltd”.
“The sub-contract Agreement” as “Exhibit L” is headed is made, in these terms:-
“This Agreement, is made on the 25th day of June 2001, between Reynolds Construction Company (Nigeria) Limited of Plot 1682, Sanusi Fafunwa Street, Victoria Island, Lagos (hereinafter called “the Contractor) and Canitec International Coy Ltd of 13, Igobekwu Street, D/Line Port Harcourt. rr, (herein after called “the sub-Contractor”).
“RCG/ REYNOLDS CONSTRUCTION COMPANY(NIG) LTD.
Project: U. P. T. H.
Site No: C. 1.291
Location: PORT HARCOURT
CLIENT: FEDERAL MINISTRY OF HEALTH
SUB-CONTRACT AGREEMENT
THIS AGREEMENT is made the 25th day of JUNE, 2001 between REYNOLDS CONSTRUCTION COMPANY (NIGERIA) LIMITED of Plot 1682, Sanusi Fafunwa Street, Victoria Island, Lagos (hereinafter called “the Contractor”)
AND
CANITEC INTERNATIONAL COY. LTD OF 13, Igbokwe St. D/Line Port Harcourt (hereinafter called “the sub-contractor”)
Description- of Subcontract:
(1) CEMENT AND SAND SSPEED|NG (BLK ‘A’)
(21 TERRAZZO WORK (BLK ‘A’)
(Details of works are contained in the annexed Bill of Quantities)
Sub-Contract Price: N6, 280,000.00 (Six Million Two Hundred and Eighty
Thousand Naira)
Advance Payment: Nill…. % of Sub-contract price.
(only against an acceptable Bond)
Terms of Payment: Monthly/After deliver/On Completion
Date of Commencement of Works: ……………….
Period of Works: ….weeks/months
Final Acceptance after Completion: ……6……. months
Retention Percentage: ………(10…) per cent
Release of Retention Money: ……..6…Months after completion- Entire work
Liquidated Damages: N…100,000.00……per /week
…………………………………………………………………..
…………………………………………………………………..
…………………………………………………………………..
…………………………………………………………………..
(SGD.) (SGD)
Signed on behalf of the Contractor Signed on behalf of the Sub-Contractor
Contractor
Date 28/06/01
Witness for the Both Parties
Date____________________________
(SGD)
Contractor’s Head Office Approval
Date 14/7/01″
Further, there is no document emanating from the Appellant to the Respondent evidencing any form of variation or acceptance of the counter offer of the Respondent on the Mortuary and Block H works. It is also instructive to note that “Exhibit N”, a letter written by Chief C. A. Okoro as Managing Director, to the Managing Director of the Appellant. The letter dated the 16th October 2001 is for the attention of “Engr. B. Arbit” and is headed withdrawal of Letter – Re: Terrazzo Works on “Mortuary Block” and “Block H”, content of the letter is hereby reproduced for the ease of reference:-
“16th October, 2001
The Managing Director
Solel Boneh Nig. Ltd.,
1682, Sanusi Fafunwa Street,
Victoria Island, Lagos
ATTENTION: ENGR. B. ARBIT
Dear Sir,
WITHDRAWAL OF LETTER – RE: TERRAZZO WORKS ON MORTUARY AND BLOCK “H”
Please refer to our letter on the above – subject matter dated 27th September 2001 on the basis of which we write to you as follows:
Sequel to our discussions with Messrs F. Boaz, Chief Engineer, and Moshe Ben-Baruk, Project Manager of your company and in view of our present and future business relationship which we want to sustain, we hereby withdraw the referenced letter.
We look forward to widening the scope of our business relationship to include other service provided by our company.
Yours faithfully,
CANITEC INT’L CO. LTD.
(SGD).
CHIEF C.A. OKORO
MANAGING DIREGTOR,
Cc: Engineer F. Boaz – Chief Engineer
Moshe Bin – Baruk – Project Manager”.
The import of this letter above-quoted is that the Respondent accepts the extension of the “Mortuary and Block H” at the old rate, the Respondent thereby waived his rights on the matter of review of rates. (cite cases)..
The trial Court also found this much to be correct when he said “it is without dispute that the terms regarding to Block ‘A’ are as contained in Exhibit ‘L’ and have been paid as per Exhibit “K”…”
There is no reference whatsoever made in “Exhibit N” as to any verbal upward review of the said extention. The implication is that no such verbal upward review was agreed on. According, I agree with the submission of the learned Counsel to the Appellant in those terms.
I cannot therefore see my way through the findings of the learned trial Judge to the effect that “Exhibit L” refers to the “Mortuary Building and Block H.”
Thus, “Exhibit K” by which the Appellant is shown to have paid the sum of N2,600.00 (Two Thousand six Hundred Naira) and N400.00 (Four Hundred Naira) for Terrazzo and Skirting works respectively is not in respect of the “Mortuary Block and Block H”, but in respect of “Block A”, a further subcontract entered into by the Respondent with another “contractor” as referred to in “Exhibit L”.
The learned trial Judge was thus misled either by misconstruction or misrepresentation into making the decision he made. Accordingly, the conclusions drawn and the calculations made thereon are not supported by the facts before the trial Court. The learned trial Judge had, in its summation of evidence in the Judgment, found that the new rates were not agreed in writing”
It is thus a material contradiction to later hold, as did the learned trial Judge, that “Exhibits L & K” are evidence of a reviewed rate.
This is a perverse finding which thereby occasions a miscarriage of justice.
Parties are bound by the terms of contract agreement they enter into. (Refer Koiki v. Magnusson (supra)) “Exhibits ‘E” & ‘F’ are evidence of the desire of the Respondent to review upward, the rates of the extention to the “Mortuary and Block H” which was totally ignored and obviously rejected by the Appellant.
In his evidence, the PW1 said inspite of the refusal/neglect of the Appellant to consider his counter-offer; he mobilized to the site and indeed continued with the work because he had already expended resources at the site.
It is too late in the day to cry fowl and attempt to re-write the terms of the contract when the deed is done. The learned trial Judge had no such duty.
“Exhibit F” written by the Respondent is of no moment, no legal effect of whatever imagination. If anything, “Exhibit F” exposes the desperation of the Respondent to perform a job it has not been properly briefed to do and thereby exposing itself to the whim and caprice of the Appellant.
I have looked at all the Exhibits filed in the suit and I find that the learned trial Judge based his findings on a wrong evaluation of documents tendered before him.
By the authority of the case of SAVANNAH BANK OF NlGERIA LTD v. ALHAJI R.A. SALAMI (supra), there are exceptions to the general rule of law that when a transaction has been reduced into writing by the agreement of the parties, extrinsic evidence is inadmissible to contradict or as in this case, vary, add to or subtract from the terms of the document.
In the Savannah case (supra), there was ample evidence that “Exhibit J” which was the bone of contention was incomplete. His lordship Iguh JSC (at pg 148) put it in these terms:
“It is the finding of the learned trial Judge, and this is amply supported by the accepted evidence of the Plaintiffs own witness, PW2 that Exhibit J, did not expressly contain the whole terms of the agreement between the parties. The supplemental oral term expressly agreed to between the parties before J Exhibit J was written does not, on the evidence of Pw2 and the finding of the learned trial Judge appear to be inconsistent with the document itself. (Emphasis mine)
Additionally, the defendant on whom the its burden or proof rested established both by its evidence and that of the plaintiffs witness, Pw2, the non completeness of Exhibit J”.
There are no such incomplete documentation of oral discussions in the instant case. The Savannah v. Salami, case (supra) is therefore inapplicable in this appeal.
By the strict law of contract, a counter offer is in fact a rejection of the offer, which thereby destroys the initial offer and cannot therefore be subsequently accepted. (Refer: CHIEF S.A. OKUBOLE & 1 ORS V. MR. THOMAS OYAGBOLA & 2 ORS. (1990) 4 NWLR PT 147 P 723 @ 742.1 Thus, going by the strict letter of the law, it could be argued that there is no enforceable contract between the parties. {Refer:- THE COUNCIL OF YABA COLLEGE OF TEGHNOLOGY V. NIGERLEC CONTRACTORS LTD.(1989) 1 NWLR PT. 95 P 99 @ 109).
Both parties however, by conduct engaged in some contractual activities, under which some work was done and payment were made. Without “Exhibit N”, made by the Respondent, the situation of the parties would have been governed by the principles of quantum meruit, {Refer DATA PROCESSING MAINTENANCE AND SERVICES (D.P.M.) LIMITED V. EMMANUEL OLAMIDE LARMIE (2000) 5 NWLR Pt 655) as propounded by the learned Counsel for the Respondent. The Respondent however radically changed this legal position by its “Exhibit N” which withdraws its counter offer. The implication is thus a return to “Exhibit B”, the initial offer made by the Appellants. By the terms of “Exhibit B”, the initial contract, though fully executed and paid for, was extended to the “Mortuary Block and Block H.” The rates of work for the said two blocks are therefore as agreed to for that of “Block J”.
It does appear that, as submitted by the Appellant, what the Respondent is left with is the offer of N70.00 per linear square metre (seventy Naira) compensation in view of price fluctuations which said compensation has been paid over to the Respondent. No balance is outstanding nor payable to the Respondent on the said work in the “Mortuary Block” and “Block H”. “Block A” was a completely different agreement as documented in “Exhibit L”.
ISSUE TWO:
It is a common ground between the two parties that the issue of retention fee is as stated in “Exhibit L” which shows that retention percentage is 10% and release of retention money is 6 (six) months after completion of work.
By para. 10 of the pleadings, the Respondent averred that it had completed 75% of the work in “Block A’ and was paid less the 10% retention fee. It would therefore follow naturally that upon becoming due, the Appellant should pay to the Respondent, 75% of the retention fee, being the quantum of work completed. By “Exhibit L” and following the payment for 75% of work executed, 75% of the 10% retention fee should be paid to the Respondent six months after the completion of the said 75% of work executed.
This was the findings of the trial Court at pg.97 of the record for this appeal which finding is hereby affirmed by me.
Thus, whereas there was no evidence before the trial Court to support alleged upward review of the subcontract for the “Mortuary Block” and “Block H”, the work in “Block A” was executed at an agreed reviewed upward rate of the contract. The Respondent has since been paid for the value of work done.
The parties having agreed that the work done was accessed at 75% completion stage, and for which the Respondent has since accepted payment, the issue of the cause of none completion of the job needs not be addressed by this Court. Nor is a determination on whether the suit of the Respondent is premised on the principle of quantum meruit necessary. The existence of contract documents in which the terms of the contract were well spelt out renders a reliance on the doctrine of quantum meruit totally inequitable. That would be rewriting the contract for the parties. (Refer: INTERNATIONAL NIGERBUILD CONSTRUCTION COMPANY LTD, ALHAJI ADEBAYO YAKUBU V. OLALEKAN AYINDE GIWA 2003) 13 NWLR pT.836 p 69 @ 112- 114.
The findings of the learned trial Judge that an outstanding balance be paid to the Respondent upon the upward review of the “Mortuary Block” and Block H” is perverse not being supported by the facts and evidence before the trial Court and is hereby set aside as occasioning a miscarriage of justice (Refer:- ALHAJI K.A. IGBARO v. RASAMIN INDUSTRY LTED (1986) 3 NWLR pt 30 p.588 @ 595, IDUNDUM v. OKUMAGBA (1976) 9-10 SC 227.)
Accordingly, this appeal succeeds except on the issue of 10% retention fee which was accessed at 75% execution rate and should accordingly be paid over to the Respondent.
Parties shall each bear their cost.
Other Citations: (2006)LCN/2106(CA)
