Dr. J.N. Udom V. E. Micheletti And Sons Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Enugu Judicial Division (Coram: Macaulay, Oguntade and Uwaifo. J. J. C. A.) delivered on the 24th day of November. 1988 wherein that court set aside the judgment of the High Court delivered in the case on the 16th day of January, 1980, and entered judgment for the Defendant/Respondent/Appellant (hereinafter simply referred to as Defendant).

The historical background of the case giving rise to the appeal may be summarised as follows:-

The Defendant, who is a medical practitioner by profession, entered into a written building contract with the Plaintiff/Appellant/Respondent (hereinafter referred to as Plaintiff) for the construction by the Plaintiff of two separate houses at the Defendant’s leasehold property situate at Plot ‘L’ Lugard Avenue Extention, GRA, Enugu known as Nos. 6 and 8 Federal Crescent, G.R.A., Enugu. The agreed contract price was then N27,000.00 (Twenty-seven thousand Naira) and the Plaintiff was expected to complete the work in 30 weeks from 31st October, 1966. While the completion of the houses ought to have been on or before 28th May, 1967, the Defendant was to pay for their cost within 15 months from the commencement date. Be that as it may, the buildings were not completed before the out-break of the Nigerian Civil War.

Soon after the War ended, there were exchange of letters by the parties over the state of the account and over the state of the works. However, in 1973, eight years after the commencement of work, the Defendant made the first payment to the Plaintiff. This was admitted by the Defendant who while testifying before the trial court said in answer to a question.

“Q. In 1973 you paid the plaintiff only N6,000.00

A. Yes, it is true that that was the only payment I made for the construction of the two houses.”

On account of the Defendant refusing to make further payments, the Plaintiff instituted the action giving rise to the instant appeal, claiming against the Defendant the sum of N21.800.00 (Twenty-One Thousand, Eight Hundred Naira) as the balance of the contract price.

The Defendant in his defence not only pleaded but maintained that the plaintiff’s action was statute-barred; that plaintiff was in breach of the building contract although he was entitled to a set-off against the contract price.

After the exchange of pleadings by the parties and the case went to trial, the High Court (Coram: Araka, C. J.) in a considered judgment held that the plaintiff had not shown that it had completed the buildings, adding that since it had not quantified in monetary terms the work that remained to be done, if could not recover. It was further held that the Defendant could not insist that the work be completed according to the contract since he had waived his rights under Exhibit K – letter dated 5th August, 1972 from the Defendant to the plaintiff in respect of the contract. The Defendant was beside not adjudged to be entitled to loss of rent for the years 1967 to 1972 but the trial court nonetheless proceeded to award him 4,800 representing general damages for loss of rent for 1975 – a year outside the period claimed by him.

Being aggrieved by the trial court’s decision, the plaintiff appealed to the court below which after a careful consideration of the case entered judgment for the plaintiff in the sum of N21,800.00. As earlier stated, the only payment made by the Defendant for the two houses was in February,1973 when he paid plaintiff N6.000.00. Besides, on his own showing and as found by the trial court, the Defendant had let the houses to tenants since 1976 and had been collecting rents for upwards of 16 years without paying to plaintiff the N21,800.00 adjudged by that court.

It is against this judgment that the Defendant has now appealed to this court premised on a Notice of Appeal containing six grounds.

The parties subsequently exchanged briefs of argument in accordance with the rules of this court. The Defendant submitted the following four questions for our determination, to wit:

“(1) Was the Court of Appeal right in entering judgment for the respondent in the sum of N21.800 when the respondent did not complete the building contract and without giving credit to the appellant for his materials and shed used by the respondent in the construction work