Oswald Vanderpuye Vs Coker Gbadebo (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, JSC.

In this appeal, Dr. Oswald J. Vanderpuye, is contesting a decision of the Court of Appeal, Lagos Division, in which the lower courts affirmed the judgment of trial Lagos High Court. The respondent who was plaintiff at the trial high Court is a builder and civil engineering contractor. The appellant wanted two buildings to be constructed for him at his two landed properties, No. 14, Enia Soro Beyioku Street, Surulere, and Plot 839, Victoria Island, Lagos. The appellant approached the respondent and requested him to undertake the two jobs. The parties, on 6th October, 1976, agreed both orally and in writing that the respondent should proceed to construct the two buildings.

When the two buildings were almost completed, the appellant, in August 1977, terminated the contract agreement and barred the respondent from carrying on with the remaining work on the two buildings. The respondent went to court and claimed N90,000.00 damages against the appellant for the breach of the contract agreement. The appellant, on his part, counter-claimed against the respondent’s claim and asked for N105,002.48 being general and special damages for the respondent’s breach of the contract.

Pleadings were called and delivered and the trial opened. At the end of the hearing the learned trial Judge, Olusola Thomas J (as he then was), entered judgment for the respondent and awarded him N51,612.00 damages against the appellant. The learned trial Judge dismissed the appellant’s counter-claim. Dis-satisfied with the judgment, the appellant appealed to the Court of Appeal which, in a considered judgment, dismissed the appeal.

The appellant has now come before us armed with 14 grounds of appeal. From those grounds, for appeal formulated the following 7 issues and urged that the appeal be determined on them:

“(1) Whether the learned Justices of Appeal were correct in re-affirming the findings of the High Court in holding that time was not of essence of the contract in issue.

(2) Whether on the facts of this case the appellant was justified in terminating the contract in the manner he did. (Note: This is another way of asking whether the respondent was in breach of the contract).

(3) Whether in view of the evidence led and the documents tendered in this case the learned trial Judge was justified in allowing respondent’s claims and in dismissing the appellant’s counter-claim, wherefore it now arises as an issue whether the Court of Appeal was right in upholding the finding of facts made by the learned trial Judge on this issue, and on their own showing in other important particulars listed hereunder.

(4) Was the Court of Appeal right to have said that there was no pleading in the defendant’s Amended Statement of Defence and Counter-Claim to the effect that time was an essence of the contract between the plaintiff and the defendant?

(5) Was the Court of Appeal right to have held that the defendant completed the contract, if ever at all, within a reasonable time?

(6) Was the Court of Appeal right in its perception and evaluation of the printed evidence before it when it purported to have made the following findings of fact;

(a) That it came to a certain conclusion from a few of the letters written by plaintiff to the defendant, when there was not a single letter emanating from the plaintiff to the defendant

(b) That “On the part of the respondent there was the evidence of disappointment of provision of money by the appellant,” etc. (306-307) when those facts were neither pleaded by the plaintiff, notwithstanding the fact that it held that parties are bound by their pleadings and that evidence given but never pleaded goes to no issue and should be rejected as shown and stated at page 302 paragraph 6, i.e. lines 22 – 26.

(c) That the defendant by his conduct breached the contract while absolving the plaintiff in spite of overwhelming trial and documentary evidence to the contrary.