Adecon (Nigeria) Limited V. Adeoye Faboro (1993)

LawGlobal-Hub Lead Judgment Report

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

In the writ of summons as well as the statement of claim filed by the plaintiff against the defendant, the plaintiff claimed the sum of N90,768.12k for building work executed for the defendant. Under a building Contract A, the parties entered into an agreement dated 26th March, 1979 where the plaintiff as a Building Contractor was to build six single classrooms, three twin classrooms, one store, one clerks’ department, one administration block and two toilets for the Nigerian Army Cantonment in Ojo, Lagos.

The defendant was the Contractor who sub-contracted the building to the plaintiff. The defendant paid the plaintiff N18,800,00 leaving a balance unpaid of N16,900.00 out of the contract sum of N35,700.00. The defendant did not deny this up to this stage. It agreed it was owing the plaintiff the sum of N16,900.00 on Contract A. Its further answer was that the parties had agreed that the amount of N16,900.00 due to be paid to the plaintiff out of Contract A would be and was in fact incorporated into the costs of the next sub-contract of another project to be awarded to the plaintiff.

Under the second building Contract B, the parties entered into an agreement on the 9th September, 1981, that the plaintiff was to build one unit of two-bedroom three stories (six flats) in Ogun State for N120,000.00 with an attached schedule of payment also dated 3rd November, 1981. According to the plaintiff, Contract B was reviewed and the contract sum was increased by an additional sum of N9,000.00 on account of the rising cost of building materials and labour. Under the same contract, N16,000.00 was collected from the plaintiff towards the taking of insurance on the building under construction. When it was realised that the insurance money would not be paid by the contractor or sub-contractor but by the owners of the building themselves, the defendant promised to refund the N16,000.00 collected from the plaintiff, which refund was not made, and has now formed part of the claim by the plaintiff. The plaintiff also claimed the sum of N2,430.00 for what I call incidental expenses in respect of transport, accommodation. e.t.c.

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The third contract C was entered into between the plaintiff and the defendant for a contract sum of N85,000.00. It is common ground that the plaintiff did not complete the work. The only issue was that while the plaintiff claimed to have done 80% of the work, the defendant alleged that he did only 20%. The plaintiff claimed N70,000.00 for work done in respect of this Contract C. He claimed to have stopped the work without his own fault but due to lack of fund.

The total breakdown of the claim made by the plaintiff was as follows: Under Building Contract A, he claimed N16,900.00 being unpaid balance from the total sum bf the contract price of N35,700.00. Under Building Contract B, he claimed N147,430.00 made up of the original contract price of N120,000.00 plus the additional cost of N9,000.00 for the inflation; refund of insurance premium paid by the plaintiff to the defendant which sum was promised to be refunded but which was not; incidental expenses of the sum of N2,430.00 such as transport and accommodation.

By addition, the amount due from Contract A = N 16,900.00
the amount due from Contract B = N147,430.00
and the amount due from Contract C = N 70,000.00
Total =  N234,330.00

The plaintiff however admitted that he had been paid N143.561.88k by the defendant. This amount deducted from the original amount of N234,330.00 would amount to N90,768.12k.

The defendant, apart from denying the various claims by the plaintiff put forward its own counter-claim for the sum of N123,000.00. On Contract A, while it agreed that it was owing the plaintiff N16,900.00, it argued that that amount has been incorporated into Contract B in computing the cost price of Contract therefore was owing nothing. As regards the sum of N9,000.00 for which Contract B had been increased, taking into account the inflationary trend, the defendant flatly denied this. It further denied having received N16,000.00 for the payment of insurance premium from the plaintiff. It also denied ever agreeing to pay any incidental expenses of N2,430.00. For Contract C, it alleged that the plaintiff only did 20% of the work and the cost of its completing the contract by engaging the services of another contractor was N68,000.00. It then claimed N50,000.00 for loss of profit and incidental expenses for mobilisation placed at N5,000.00 together, making a total of N123,000,00.

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At the trial, evidence was led by the parties. The plaintiff testified on his own behalf and called other two witnesses. The defendant/company testified through four witnesses including its Chairman and Managing Director.

The learned trial Judge rejected the counter-claim on the ground that no evidence was led to support the N123,000.00 alleged as damages for breach of contract by the plaintiff. He found in favour of the plaintiff in the following terms:

“(i) The schedule of payment to Exhibit B did not include N16,900.00.
(ii) Contract B was completed by the plaintiff since the defendant itself through an expert, D.W.3, showed that only one uncompleted building was reported upon in the quantity survey.
(iii) The respondent’s version on Contract C that he executed Contract C to the extent of 80% and that he was due to be paid N70,000.00 was preferred because he impressed the court as a witness of truth.”

Based on these findings of facts, the learned trial Judge awarded a total sum of N63,383.00 to the plaintiff upon addition of N16,900,00; N120,000.00 and N70,000.00 and by subtracting N143,561.88k therefrom being accepted as having been paid by the defendant to the plaintiff. The total sum therefore awarded by the learned trial Judge was N63,383.00k.

Dissatisfied by this judgment, the defendant has appealed to this court. Briefs of argument have been filed and exchanged by the parties and the defendant/appellant postulated one main issue together with what he called three subsidiary issues for the determination of this appeal. They are as follows:

“MAIN ISSUE
Whether the learned trial Judge was right in awarding the total sum of N63,383.00 to the respondent on the oral and documentary evidence before him.


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