H.G.R. Limited V. Bikem Limited (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The Appellant as plaintiff in the High Court of the Federal Capital Territory (FCT) Coram: Hon. Justice Ndukwe-Anyanwu (as she then was) claimed as follows in the Amended Statement of Claim:-

1. Payment of the sum of N348,786.00 being the cost of additional expenses incurred in the course of developing the site at the instance of the Defendant and or its supervising engineer.
2. Payment of the sum of N258,000.00 being the cost of materials kept on site but which the Defendant had used or converted.
3. Payment of N350,198.00 balance on the actual contract sum.

The Defendant filed its statement of defence and the case proceeded to trial, at the end of which the learned trial Judge dismissed the plaintiff’s claim hence this appeal.

FACTS BRIEFLY STATED

The Appellant’s case is that it was awarded a building contract by the Defendant/Respondent at a total cost of Three Million, Three Hundred and Fifty Thousand, One Hundred and Ninety-Eight Thousand Naira only (N3,350,198.00). That a letter of award indicated that a sum of N350,198.00 was to be deducted from the total contract sum as discount.

On receipt of the letter of award, the Appellant wrote a letter to the Respondent rejecting the imposed discount contending that it was never discussed. The Appellant’s contention is that the project construction started before the letter of award was issued and that the issue of discount was taken up with the supervising Architect upon receipt of the letter of award and he assured them to go on with the project promising that the full fees would be paid.

The Appellant also argued that in the course of construction and on the instruction of the supervising Architect who acted for the Respondent, certain alterations/additional works were carried out which the Architect also promised would be fully paid for. The Appellant subsequently wrote to the Respondent stating details of those alterations/additional work. When the project came to an end, the Appellant sought to remove its unused materials and tools on site which were bought with its money but the Respondent refused. It was based on this refusal and non- payment of the full contract sum with expenses incurred on the additional/extra work that the Appellant instituted the action at the High Court.

The Respondents’ version is that the Respondent gave a contract to the Appellant for the development of Plot 77 Maitama, Abuja by virtue of Exhibit A (which is the letter of award) for a total sum of N3,350,198.00 (Three Million Three Hundred and Fifty Thousand, One Hundred and Ninety-Eight Naira only) with a condition that the actual contract sum to be paid to the appellant would be Three Million (N3,000,000.00) while the sum of N350,198.00 would be deducted as discount. That the Exhibit “A” further divided the contract into stages and Appellant through Exhibit “C” accepted Exhibit A but only a “passionate plea” to the Respondent to reconsider the reduction of 10% contract sum as discount. The Respondent did not consider the Appellant’s plea and the content of Exhibit “A” remained the basis of the contract. The Respondent while in the cause of the development of the Plot 77 Maitama pointed out several defects and requested Appellant to put them right in accordance with Exhibit B the bill of quantity but the Appellant failed to do so instead prepared another bill of quantity and requested for an additional sum of -N348,786.00 as cost of alteration which was not agreed upon by the parties. The Respondent contended that the Appellant only completed Phase 1 stage of the project and abandoned site leaving some materials on site which Respondent did not use. That the Appellant despite the clear content of Exhibit “A” and the fact that he proceeded with the contract accordingly made a summersault and brought a claim for the sum of N350,198.00 which clearly was not part of the agreement. Also that Appellant unilaterally made up a claim for the sum of N348,786.00 as additional work or alteration which was not part of the contract between them and so it was based on the above facts that the Appellants’ claim was dismissed by the court below.

On the 16/2/09, date of hearing Mr. Adekola Mustapha learned counsel for the Appellant adopted their brief filed on 7/6/07 and urged the court to allow the appeal. In the Brief learned counsel formulated two issues for determination which are:-

1. Whether in the circumstances of this case and the evidence adduced before the court, the dispute between the parties is one that can be determined without resort to oral evidence.
2. Whether the learned trial judge was right to hold that the Appellant did not discharge the burden of proof placed on it with regard to its claims for variation/additional work and materials left behind on the site but which the Respondent disallowed it from removing.

The Respondent and counsel were absent even though served on 11/2/09 and so the Respondent’s Brief filed on 6/3/08 and deemed filed on 23/6/08 was taken as argued by the court. In the Brief the Respondent framed five issues for determination which are as follows:-

1. Whether by virtue of EXHIBIT “A” and “C” there was a contract between the parties and what are the terms of the contract.
2. Whether the contract can be altered or varied by oral evidence.
3. If Issue 1 is resolved in the affirmative whether the Appellant accepted the Offer or Counter-offer and what is the effect in the circumstances of this case.
4. Whether the parties reached an agreement to pay for an additional work or an additional bill of quantity and whether same had been established in this court.
5. Whether the Appellant has discharged their burden of proof in this case and whether they have made out a case for the award of specific damages.

The issues as couched by the Appellant’s counsel being simpler I shall use them.

ISSUE NO.1

Whether in the circumstances of this case and the evidence adduced before the court, the dispute between the parties is one that can be determined without resort to oral evidence.

Mr. Mustapha, learned counsel for the Appellant submitted that PW1 had testified that the Appellant/Plaintiff had not agreed with the ten percent (10%) discount and apart from writing to the Respondent it also informed Architect Dele Oguneye who asked them to continue with the promise that the contract sum would be paid. That the witness had testified further that Architect Oguneye prior to this particular contract was well known to the Appellant and so there was no cause to doubt his verbal assurance. That this piece of evidence was not denied nor controverted at the trial so should be believed as the true position of things; He cited Health Care Product (Nig.) Ltd v. Bazza (2004) 3 NWLR (pt. 861) 582; Mainage v. Gwamma (2004) 14 NWLR (pt.893) 323; Marisaju v. Hassan (2004) 11 NWLR(pt. 883) 181.