Attorney-general Of Anambra State V. C.N. Onuselogu Ent. Ltd (1987) LLJR-SC

Attorney-general Of Anambra State V. C.N. Onuselogu Ent. Ltd (1987)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The respondent, C.N. Onuselogu Enterprises Ltd., was on 14th June, 1977 awarded a contract for the construction of Awka-Etiti-Isieke road by the Anambra State Government represented as defendant by the appellant in this appeal.

The value of the contract was N6,738,585.00 and was to be completed in seventy eight weeks. Work started in earnest but by November, 1979, the Anambra State Government was falling into arrears in the payment on interim certificates of works done. The respondent none the less remained on the site and carried on those works he could possibly execute. But by 27th November, 1979 the agent of the appellant had declined signing any further interim certificates claiming he had instruction to do so; thus the interim certificate No. 16 valued at N500,000.00 was not signed. There was an interim certificate No.15 signed for the sum of N77,491.80 for which no payment was made, The term of the contract stipulated payment on interim certificate within twenty-eight days of its submission.

The respondent thus was placed in a very uneasy situation whereby there was delay in compensating villages with houses and crops along the road which prevented the contractor moving quickly, interim certificates were not being honoured as stipulated in the contract and this led to cash flow problem for the contractor. As if the situation was not bad enough, the appellant on 17th December, 1980 terminated the contract on an allegation that the respondent had abandoned the site. The respondent contractor had to sue for breach of contract and damages.

In the claim of the respondent as plaintiff in the High Court, he claimed a total of N3.590,000.73 as special damages. It should be remembered that various variations crept into the contract which is not unusual in contracts of this nature, but this was not the contentious issue at trial. The trial Court gave judgment for the plaintiff and awarded the following:

i. Works executed but uncertified on certificate 16 N500,000.00

ii. Materials on site N278,764.00

iii. Fluctuations on materials and labour N375,354.00

iv. Loss of profit on work not done N720,896.86

v. Idle time before termination N99,321.00

vi. Interest and bank charges 5% for 27 months N351,960.00

Total N2,326,395.86

The appellant appealed to Court of Appeal where the appeal was dismissed in part with variation in the quantum of damages as follows:

i. Materials on site 27,864.00

ii. Equipment on site 772,136.00

iii. Fluctuations on

material and labour 375,354.00

iv. Loss due to idle time 99,321.00

Thus the Court of Appeal allowed the appeal in respect of the N500,000.00 claimed on work done but uncertified for payment, and loss of profit, bankcharges, value of work executed in respect of interim certificates 1-15 for N5,444.00, N720,096.86, N351,960.00 and N207,554.01 respectively.

The two parties have now appealed to this Court.

The main appeal by Attorney-General of Anambra State with many grounds all allegedly on grounds of error in law though ground 1 is no more than the general ground based entirely on facts, as to assessment of evidence. The respondent, Onuselogu Enterprises Ltd. cross appealed. And the sting of the grounds of appeal is on affirmation by the Court of Appeal of the award of N500,000.00 earlier made by the trial Court on interim Certificate 16 not certified by the appellant’s agent. But it is pertinent to set out the grounds of appeal very relevant to the issue fought in this Court.

Before then I have to mention that contrary to expectations the parties sorted themselves out in this Court by agreeing on some claims leaving only the sum of N500,000.00 in issue with the question juxtaposition of payment of mobilization fee and the retention fee. The main appellant (that is the Ministry) in the grounds of appeal inter alia contends as follows:

“GROUND 1

Error in Law

The learned Justices of the Court of Appeal erred in law in awarding to the respondent the sum of N1,965,041.96 as special damages when the respondent did not discharge the burden of proof imposed on him by Law in respect of those claims.

PARTICULARS

1. Claim for special damages must be strictly proved according to law.
2. Exhibits ‘B’ & ‘G’ tendered by P.W.1 did not suffice to prove the averment contained in those exhibits since no weight should be attached thereto in that PW1 did not see or have personal knowledge of what he deposed to in those exhibits.
3. Exhibit ‘G’ being the claim for N500,000 being work done and not certified for payment is not binding on the appellant since it was prepared otherwise than in accordance with the course of conduct binding the parties.
4. Apart from the evidence of PW 1 there is no other independent evidence from the respondent to prove the damages claimed by the respondent.
5. The claim for loss of profit – N720,096.86 was not related either to the total sum of the contract or to the value of work not executed before the termination of the contract,nor does it relate to the value of work already completed.
6. The claim for interest on bank charges is meant to be 5% on overdue payments and not 5% of the total contract value or of the total value of work executed or unexecuted under the contract.
7. The award of N351,961.85 as 5% of the overdue payment do not relate to any amount outstanding as overdue payment under the contract.
8. The value of the work executed in regard to certificates 1 – 15 is N2,025,542.01 and not N207,554,01 and this has been paid to the respondent except certificate 15 which is still outstanding and unpaid.
9. The award of N207,554.01 is not based on any claim before the High Court or the Court of Appeal.
10. The respondent was owing the appellant the sum of N495,000.00 as unrefunded mobilisation fee. The respondent was overpaid to the tune of N167,015.75. The Justices of the Court of Appeal instead of assessing the debt owed by the respondent awarded special damages for breach of contract as claimed by the plaintiff.

GROUND 2

ERROR IN LAW

The Justices of the Court of Appeal erred in Law in failing to juxtapose Exhibit ‘G’ and Exhibit ‘Y’ in order to determine the preponderance of evidence before it so as to determine if the respondent has proved his claim under that head.

PARTICULARS

1. Exhibit ‘G’ is the calculations made by PW 1 in respect of the claim for N500,000.00 as work done and not certified as per Certificate 16.
2. Exhibit ‘Y’ is the calculations of the appellant in respect of the same claim.
3. No weight should be attached to Exhibit ‘G’ as the maker did not see or have personal knowledge of what he prepared or deposed. Exhibit ‘Y’ is prepared in the usual manner with the knowledge of the respondent.

GROUND 3

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law in awarding damages for work executed but not certified amounting to N500,000.00 when the respondent did not discharge the burden of proof imposed on him by the law,

PARTICULARS

1. Award of the damages was based on the calculations and evidence of P.W. 1 when no weight should be attached to the evidence of PW 1.
2. The unilateral measurement carried out by the PW 1 did not comply with the course of conduct between the parties which require a joint measurement of any work executed.
3. The appellant carried out a joint measurement as evidenced by Exhibit ‘Y’ which he submitted to the respondent for comments and this approximates more to the course of conduct between the parties,

GROUND 4

ERROR IN LA W

The learned Justices of the Court of Appeal erred in law in awarding damages for N207,544,01 being value of work executed in regard to certificates 1-15 when such a claim was not before either the trial court or the Court of Appeal.

PARTICULARS

1. Both the appellant and respondent admitted that the value of work executed with regard to certificates 1-15 is N2,025,542,01 and that payment has been made for certificates 1-14 leaving certificate 15 unsettled before the termination of the contract.
2. The award should therefore be N77 ,491.80 being the amount outstanding on Certificate 15.
3. There is no where the figure of N207,554.01 was claimed by the plaintiff or admitted by the defendant either in the pleadings or in the evidence before the court.

GROUND 5

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law in awarding N351.244.62 being interest on bank charges on overdue payments when the 5% awarded under that head is meant to be 5% on overdue payments and not 5% of the total contract value or of the total value of work executed under the contract.

PARTICULARS

1. Under the conditions of contract, the Form of Tender and appendix thereto which together form the contract document, Exhibit ‘8’ 5% is payable by the appellant on interest on bank charges on overdue payments i.e. payments made 28 days after the certificates of completion has been signed.
2. The only outstanding payment of completed job is certificate No. 15 amounting to N77 ,491.80

The respondent has not proved that any other certificate was outstanding for more than 28 days.

3. The 5% interest should have been calculated on N77.491.80 or any other amount shown to be outstanding unpaid for more than 28 days.

GROUND 6

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law in awarding a total damages of N1,965,041.96 when the total amount actually awarded by the court under items A, B, C, G and J amounted to N1,785,055.87.

PARTICULARS

1. The learned Justices of Appeal awarded the following items of damages –

ITEM A: Value of work executed in regard to certificates 1-15- N207,554.01.

ITEM B: N500,000.00 being value of work done but not certified as per certificate 16.

ITEM C: Variation N5,444.00

ITEM G: Loss of Profit – N720,096.86.

ITEM J: Interest on Bank Charges on overdue payments N351,961.00 total N1,785,055.87

2. The learned Justices of the Court of Appeal awarded N207,554.01 as item A of the claim but applied the sum of N2,025,542.01 in calculating the total amount due to the respondent which produced an entirely different award to the respondent.
3. The sum of N2,025,542.01 is not in dispute being an amount agreed to by both parties as representing work completed and covered by certificates 1-15 of which certificates 1-14 have been settled.
4. The only unsettled amount is certificate 15 which is N77,491.80 and that should have represented the award under this item.
5. The amount of N1,648,021.96 applied by the Court of Appeal as previous payments was not proved by the plaintiff since the admission of the respondent that Certificates 1-14 have been settled belied that claim.

GROUND 7

ERROR IN LAW

The damages awarded by the learned Justices of the Court of Appeal is excessive and contrary to the legal principles established and enunciated in that behalf.

PARTICULARS

1. Damages are awarded only in accordance with the heads permitted or under the law and must accord within the terms contemplated by the parties.
2. Damages awarded by the Court of Appeal were not in contemplation of the parties and outside the heads permitted by law.

GROUNDS 8

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law in that instead of assessing the debt owed by the respondent the Justices of the Court of Appeal simply awarded special damages of breach of contract as claimed by the respondent.

PARTICULARS

The respondent was owing the appellant N495,000.00 as unrefunded mobilization fee and N167,015.75 as over – payment made to him by the appellant.

2. These facts were well pleaded in the statement of defence.
3. The Court of Appeal should have taken this debt into consideration in awarding the damages claimed by the respondent.
4. RELIEF SOUGHT FROM THE SUPREME COURT OF NIGERIA

To set aside the damages awarded to the respondent by the Court of appeal.

5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
6. C.N. Onuselogu Enterprises Ltd.,

16 Nnaji Street,

Uwani,

Enugu.

2. Attorney-General of Anambra State,

Ministry of Justice,

Enugu.

Dated at Enugu this 4th day of March, 1986.”

(M.T.N.ONWUGBUFOR)

Appellant’s Solicitor,

Ministry of Local Government,

APPELLANT’S ADDRESS FOR SERVICE

Ministry of Justice,

Enugu. ”

In the brief of argument by the appellant there is an attempt to make an issue out of Exhibit B, a report by a witness, Dr. Agbaraoji who is a qualified Quantity Surveyor concerning work done but not certified on what would have been interim certificate No. 16 not signed by the client Ministry. The contention was that this witness never visited the site of the work giving rise to this litigation and that his report was no more than hearsay. This argument could not be developed in this Court as learned counsel for appellant realised in good time that a Quantity Surveyor deals mainly on documents and figures therein which he collates to arrive at his figures (quantity). The appellant concedes that the finding of the trial Court upheld by the Court of Appeal that the contract was improperly determined was right. What is being contested is the quantum of damages. The issues formulated for determination are:

“1. Whether the Court of Appeal was right in awarding some items of damages claimed by the plaintiff/respondent when the plaintiff did not discharge the burden of proof imposed on him by the law in respect of those damages and when the items were not claimed in accordance with the conditions of the contract binding on both parties.

2. Having rejected some items of damages, whether the Court of Appeal was right in awarding other items when the proof in respect of all the items is based on the same evidence that is to say the evidence of Prince Agbaroji and Exhibit ‘B’.
3. Whether the plaintiff/respondent can now challenge the judgment of the Court of Appeal in respect of insufficiency of particulars and the state of pleadings when the Counsel to the plaintiff/respondent has conceded in the Court of Appeal that the State of pleadings in this case did not adequately plead the particulars of special damages and has in fact urged the Court of Appeal to enter a non-suit.”

It must be pointed out that the Court of Appeal upheld the appeal in respect of:

(a) Materials on site N27,864.00

(b) Equipment on site 772,136.00

(c) Fluctuation on

material and labour 99,321,00

(d) Loss due to idle labour and dismissed the appeal

in respect of:

(a) Work done but

uncertified on certificate 16 500,000.00

(b) Variations 5,444.00

(c) Loss of profit 720,096.86

(d) Interest on bank charges 351,961.00

(e) Value of work executed

in respect of certificates 1-15 207,554.01

Total N1,785,055.87

There is no appeal against the award of loss of profit in (c) above and variations in (b) above. The parties in Court seem to trade horses in that both agreed on the following as due and not contested:

Loss of profit 720.096.86

Variations 5.444.00

Interests on

overdue payment 351,244.62

Loss due to idle time 77,491.00

but the contentious issues concern the award of N500.000.00 for work done but not certified, and value of work executed in respect of certified certificate 15 which is N207.554.01.

The contention of the appellant Ministry of Works is that special damages must be strictly proved after being specially pleaded. It was submitted that there was not enough pleading to satisfy the general requirement that special damages must be specifically claimed and that there was even no proper proof. The statement of claim in respect of this N500.000.00 is clear in paragraph 23 as follows:

“Wherefore the Plaintiffs who will rely on relevant documents, vouchers, bills etc. at the trial claim from the defendant the following:-

N3.590.000.00 being special and general damages for breach of contract.

PARTICULARS OF SPECIAL DAMAGES

(a) . ………………………………………..

(b) value of work executed but not certified for Certificate No. 16 (see Ministry of Works letter Ref. No. ONSITE/AEW.1.346 dated 9th December.1980) N500.000.00

It is difficult to understand what counsel for appellant further requires for proof of special damages. There is specific pleading as to special damages and there is ample evidence of Dr. Agbaraoji as to collation of documents available and pleaded whereby he arrived at the figure of N500.000.00. The law that special damages must be strictly proved applies to cases of tort in which a party claiming damages for injuries must specifically plead the injuries and damages suffered therefrom and proceed by evidence to prove them. Where there is evidence to support a pleading of special damages suffered in a matter of contract and the evidence is convincing, that is to say without contradiction, and the trial Court accepts that evidence, the appellate Court will not interfere with any award on that claim. Special damage, unlike general damage, is the one the law does not presume. it must be specially pleaded because it arises by special circumstances of the case.

OSHINJIRIN v. ELIAS 1970 1 ALL NLR 153, 154. The statement of claim is very clear as to what was being claimed as work done but not certified. The appellant has made a big issue of the discrepancy in Exhibit G and Exhibit Y which are in connection with Exhibits A and B. What learned counsel for the appellant never adverted to in his brief and submission in Court is that the documents are pleaded. Just before PW 1. Dr. Agbaraoji, gave evidence in chief, the statement of claim was amended without objection in paragraph 23 by the insertion, after the words “relevant documents” of the words “including a report by J.C. Agbaraoji and Partners Chartered Quantity Surveyors, dated January 1982 in respect of the said contract.” To submit that there was no sufficient particularization of the special damage in this case cannot but be an error of appreciation. What is strict proof depends on circumstance of each case. At any rate what is the purpose of pleading Pleadings are statements of facts that a party relies upon to prove his claim and it is always meant to give sufficient notice to the other party of the case he is being called upon to face. Every pleading must contain a statement of all material facts on which a party bases his claim or defence; it contains only fact and not the evidence by which those facts are to be proved. Each fact in logical sequence will be in numbered paragraph, stating clearly without ambiguity what the allegation is that must be met by the other side. All facts which are material to a party’s case are relevant and must be stated – ESSO WEST AFRICA INCORPORATED v L. OLADITI 1968 NMLR 453; BABATUNDE ADISA THANNI v. YAYA LEMONU (1977) 2 SC 89, 117.

The purpose of pleadings is to put the other side on the alert as to what he is going to meet. A party dragged to court, as it is commonly said in this country, must know what he is being accused of; he must know what the allegations against him are. Therefore it is the requirement of practice that every fact necessary for a party’s case must be positively, distinctly briefly and unambiguously stated so that full information the adversary needs to know about the case he is meeting will be shown, ESIN v. MATZEN AND TIMM (NIGERIA) LTD. (1966) 1 ALL NLR 233, 235-236. Where the rules require specific pleading of certain facts there is no derogation from the basic rule that pleadings should contain only statements of fact and not evidence by which those facts are to be proved. Fraud, statutory exception, defence of laches, res ipsa loquitur are special matters that must be specifically pleaded to be relied upon. But they are not law but only facts leading to Law and to be supported by evidence at the trial. Similarly, as in this case, where special damage is claimed it must be specifically pleaded and particularized and evidence must be led to convince the court as to the authenticity of the claim. ODUMOSU V. AFRICAN CONTINENTAL BANK LTD. (1976) 1 S.C. 55, 69. The appellant knew that the document, Exhibits A and G and other letters were in issue in special damage claim. The pleading of the documents may be inelegant but there is certainty as to the claim and the appellant was certainly in no doubt as to what he was going to meet.

In the instant appeal the appellant contends that Exhibit G, being the document pleaded and tendered by respondent through the maker Dr. Agbaraoji, should not have been preferred to their own Exhibit Y, both in respect of Interim Certificate No. 16. The appellant contends that the trial Court and Court of Appeal ought to have juxtaposed the two documents and the rejection of Exhibit Y was unfair and contrary to practice.

In all claims for special damages where there are conflicting documents as to the amount actually due the Court of trial must take all care to ascertain which one is to be relied upon, or whether facts must be extracted from each so as to do justice in the case. As I have held earlier, Exhibit G was pleaded and was legally admissible as it was admitted in evidence. It contains the due sum of N500,000.00 as the value of work done on the road construction. Whereas Exhibit Y mentions the sum of N36,513.58 only as due on Interim Certificate No. 16. The letter terminating the contract was written on 17th September, 1980. It could be observed that the Interim Certificate of the appellant which is exhibit Y was made in March, 1980, about six months before the termination of the contract. Exhibit G, the respondent’s version of Interim Certificate 16 was made after the termination of the contract and it is dated 8th December, 1981. While the true position in a matter of conflicting figures in two separate documents on the same subject matter is as stated in Airoe Contractors and Civil Engineering Co. Ltd. v. University of Benin (1985) 3 S.C. 1,21,23, the juxtaposition envisaged must comply with certain requirements. The documents must not only relate to the same subject matter, but must also relate to the same period. Exhibits G and Y mention Interim Certificate No. 16 but that is the end of their relationship. The former covers a period far beyond March 1980 whilst the latter ends in March 1980. They are certainly not relating to the same period even though they related to the same contract of construction of Awka Etiti-Isieke road. Once a party has proved his case on a point he has properly pleaded and the defence has not assailed successfully that case, he is entitled to judgment on it. I have no reason to interfere with the award of N500,000.00 made in respect of the work actually done but not certified by the appellant’s agent. There is clear evidence that the appellant all along refused to certify further certificates after certificate No. 15, and his evidence remains uncontradicted.

The parties seem to agree that payment had already been made on Certificates 1 – 14 and only Certificate No. 15 has outstanding payment of N77,491.80 which I hereby uphold.

In the cross appeal the plaintiff/appellant contends that the Court of Appeal was in error to have set aside the trial Court’s award for material and equipment on site. The particulars of special damage clearly set out the following inter alia:

“…………..all relevant documents, vouchers, bills etc. including a report by P.c. Agbaraoji and Partners. Quantity Surveyors, dated January 1982 in respect of the said contract”

and gave the followings particulars

“(d) materials on the site N27,864.00

(e) equipment on site 772,136.00”

The duty of the defendant who is faced with a specific plea by a plaintiff in a statement of claim is to specifically deny those matters he is disputing; failure so to do may amount to an admission. The defendant/respondent in paragraph 25 of statement of defence in reply to the specific plea in paragraph 23 of statement of claim avers only

“25. The defendant will at the trial contend that the plaintiff’s claims as contained in paragraph 23 of the statement of claim are misconceived and should be dismissed with substantial costs.”

Certainly this is not a traverse of paragraph 23 of statement of claim. This paragraph 25 of statement of defence is not only meaningless but virtually renders the averment in statement of claim untraversed; in that case the claim would ordinarily have stood unchallenged and uncontradicted. It would in some cases in Nigeria be sufficient to deny by simple traverse that defendant does not admit an allegation. It is a different matter when looking at the words employed by the defendant, no meaning could be deduced in relation to an averment. In that case specific allegation is deliberately left untraversed and as it is not the duty of the Court to infer denial the fact untraversed remains unchallenged. Ajibade v. Mayowa & Anor. (1978) 9 and 10 S.C.1. 6; Eko Odume v. Ume Nnachi & Ors (1964) 1 All NLR 329. The Defendant who wishes to deny an allegation must do so clearly and unambiguously so that the Court and his adversary will with certainty know he is not admitting. Therefore traverse must be specific not general, it must clearly allude to the fact pleaded and not be evasive and ambiguous. Atta & Ors. v. C. Nnacho & Ors. (1965) NMLR 28. The Court of Appeal never adverted to the shortcoming in the statement of defence and made out of the statement of claim an issue not deserving of credit to the defendant. At the trial no issue was made out of paragraph 23 of statement of claim and it should not be the business of Court of Appeal to open a new vista in the dispute between the parties. The appellate Court must take special care to see that it deals with issues raised and contested in the trial Court otherwise it will be in a pitfall of making a case the parties never anticipated and never contested. Decision based on such novel issues are only obiter but may mislead Courts that have no opportunity of seeing the actual history of the case from trial Court to the highest appellate Court. Overseas Construction Ltd v. Creek Enterprises Ltd. & Ors. (1985) 3 NWLR Pt 13,407, 408; Chief Ebba v. Chief Ogodo & Anor. (1984) 4 S.C. 84; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR Pt 39, 1, 3.

However, if a specific allegation or averment is made concerning special damage, it is the duty of the plaintiff to give specific particulars of those allegations so that the other side will know what to meet in the case. It is the duty of the plaintiff to prove his case and should not rely on the weakness and short-comings of the defence. The Court of Appeal might have opened a new vista in the case for the defence which the defence did not deserve but the principal question is whether the plaintiff who is the cross appellant now discharged the burden of proof required by law. The burden of proof on the appellant to my mind he never discharged. There were no particulars of the materials alleged to be on site. Were the material laterite heaps, iron rods, bitumen, asphalts or culvert rings What quantities of these materials were not indicated in the particulars of claim for special damage However liberal Nigerian trial Courts may be in tolerance of deficient pleadings, extreme caution should be taken in making sure that special damages claimed are well particularised. It is for this reason I find that though the defendant made a mess of his pleadings by virtually saying nothing in traverse of the statement of claim, the failure of the cross appellant to particularise the special damage should not be a licence for the Court to make a case where there was none.

The cross appeal therefore fails and award of:

i. Materials at site N27,864.00

ii. Equipment on the site 772,136.00

iii. Fluctuations on

materials and labour 375,354.00

iv. Loss/expenses

for idle time 99,321.00

Total 1,274,675.00

made thereunder therefore fails.

There is the question of mobilisation fee paid to the appellant/contractor and the retention fee held by the respondent. The credit balance is in favour of the defendant/respondent to the tune of N528,233.55 which will be deducted from his total amount now awarded the appellant.

SUMMARY OF AWARDS ON THE APPEAL

SUMS AGREED BETWEEN THE PARTIES:

i. Loss of profit at 20% N720,096.00

ii. Variations 5,444.00

iii. 50% interest on

overdue payment 351,244.62

iv. Value of work on

Interim Certificate No. 15 77,491.00

Add to this money on Interim

Certificate No. 16 not certified 500,000.00

TOTAL N1,654,275.62

From this will be deducted outstanding mobilisation money in juxtaposition with the retention fee:

i. Balance of mobilisation

fee due from plaintiff/cross appellant N460,787.75

ii. Retention fee held

by appellant defendant 202,554.20

258.233.55

Total due to plaintiff/respondent N1,654,275.62

Cross Appellant – 258,233.55

1,386,042.07

Less the sum

erroneously awarded by

Court of Appeal on Certificates 1-15 207,554.01

1,188,488.06

Each party to bear its own costs.

ESO, J.S.C.: I have the privilege of a preview of the judgment just delivered by my learned brother Belgore, J.S.C. I am in full agreement. I abide by all the orders made by my learned brother Belgore J.S.C.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, BELGORE, J.S.C. and I agree with his reasoning and conclusions.

The issues involved in these appeal and cross appeal were considerably narrowed by the commendable agreement between both learned counsel I.C. Akpamgbo, S.A.N. and T. Onwugbufor- on some of the money being claimed. It was not in contention that work done under Certificates 1 – 15 amounted to N2,025,542.01 and that while payment had been fully made on Certificates 1 – 14, payment on Certificate 15 amounting to N77,491.80 was yet to be made. In other words, the Respondent Contractor had been paid N1,948,050.21 on Certificates 1 – 14 Mr. Onwugbufor conceded the following payments as due to Respondent Contractor:-

(i) Variations N5,444.00

(ii) Loss of profit N720,096.86

(iii) Interest on bank charges N351,961.00

Mr. Akpamgbo on his part conceded the sum of N207,554.01 which was item (e) in the damages awarded by the Court of Appeal as being payable by the respondent Contractor to the appellant.

All that remained in contention therefore on the appeal were:

(a) N500,000 awarded to the respondent contractor as work done and not certified for certificate 16.

(b) The N258,233.55 which appellant claimed was due to it after a juxtaposition of the payment due to the Respondent Contractor and the balance due on the Mobilization paid to it.

On the Cross Appeal, four items which were rejected by Appeal were in issue: the Court of

(i) materials on site N25,864.00

(ii) equipment on site 772,136.00

(iii) fluctuations on materials and labour 375,354.00

(iv) loss of expenses for idle time 99,321.00

On the N500,000.00 claimed as work done not certified, Mr. Onwugbufor’s main attack was on the evidence of P.W.1, Dr. Agbaraoji, Quantity Surveyor, more particularly on Exhibits B and G, which he tendered. First, it was submitted that the documents were not pleaded and second, that even if they were pleaded, Exhibit G did not have so much weight as to support the N500,000 awarded the respondent Contractor under this head. It was further contended that there was Exhibit Y, prepared by an official of the appellant Government which set the amount due on this head of claim at N29,000 but that the learned trial Chief Judge did not even advert to it. The short answer to the first complaint is that the documents were properly pleaded. Learned Counsel’s attention was drawn to page 69 of the record where Chief Umeadi, S.A.N., then learned counsel to the Respondent, had amended paragraph 23 of the Statement of Claim by the insertion of the words, ‘Relevant documents including a Report by P.C. Agbaraoji and Partners………..said contract”

As regards the weight to be attached to Exhibit G (the quantities and calculations tendered by Dr. Agbaraoji), it is enough to state that Dr. Agbaraoji gave evidence and both the trial Court and the Court of Appeal accepted his testimony. It is obvious that the appellant had an uphill task in convincing this Court to now reverse that finding. As for Exhibit Y, there were sufficient reasons on the records why the learned trial Judge ignored it. The testimony of Mr. Osakwe who tendered Exhibit Y is significant. At page 111 and under cross-examination he said:-

“what I used was from my records. I prepared Exhibit Y for my own records and not for submission to the Ministry of Works. I did not submit Exhibit Y to any body. I showed the defence lawyers Exhibit Y before I went into the witness box. When I showed the lawyers Exhibit Y they took it from me.”

Besides, Mr. Osakwe sat in Court throughout the hearing of the case.

The claim of the appellant for juxtaposition was in my view on firmer ground. Although at page 89 of the records Chief Onuselogu who gave evidence as P.W.2 admitted that he retired only N505,000.00 of the N1,010,787.75 mobilisation given him, learned Senior Advocate Mr. Akpamgbo still argued that his client was still contesting his indebtedness. It does not seem to me that there is much room for contention in this head of claim. After accounting for the N202,544.20 retention fee owed the respondent, it seems to me the appellant’s claim for N258,233.55 is well founded.

Arguing the cross-appeal, Mr. Akpamgbo submitted that item (i), i.e. materials on site was rejected by the Court of Appeal because in its view Exhibit B, the report of Dr. Agbaraoji, was not annexed to the Statement of Claim. In their pleadings, paragraph 23, the cross-appellant set out four heads of claim under Particulars of Special Damages. They were items (d), (e), (f), and (h) therein. It seems to me that it is now trite law that a party is expected to plead all the facts and/or materials he intends to rely on in proving his case but certainly not the evidence by which he intends to effect proof. To that extent to insist on having Exhibit B annexed was a misdirection. But special damages have to be pleaded and strictly proved. All that the cross-appellant pleaded were the bare assertions contained in (d), (e), (f) and (h) above. Although an amendment of paragraph 23 of the amended Statement of Claim brought in documents prepared by Dr. Agbaraoji, I am of the same view that the mere assertions of the claims was insufficient. The pleadings ought to have included more particulars of the materials and equipment on site. The failure of the respondent to the cross-appeal to ask for better and further particulars cannot discharge the cross-appellant from its primary responsibility of pleading full particulars of the special damages it is claiming. Of course it is trite that evidence in relation to any matter not pleaded goes to no issue. In any case the position of the cross-appellant had been compromised when its counsel in the Court of the Appeal conceded the issue of insufficiency of pleadings and requested for a Non-Suit. At page 230 of the record, learned counsel then representing the cross-appellant said –

“In view of the state of the pleadings in this case which did not adequately plead the particulars of special damages, we urge this Court to enter a non-suit since the appellant does not deny liability”

This Court has repeatedly said that it will not welcome the occasional practice of parties making a different case in each Court in the hierarchy of Courts. See Abaye v Ofiii (986) 1 NWLR Pt. 15, 134, 145. It was for these reasons, and the more detailed reasons contained in the lead judgment, that I allowed the appeal only in part and dismissed the cross-appeal.

For the avoidance of doubt, in relation to the issue contested before this Court, the appellant has failed in its challenge to the N500,000 awarded to the respondent company but succeeded in being awarded N258,333.55 as mentioned in this judgment. Both parties are of course entitled to the sums of money conceded by each side also mentioned earlier in this judgment.

I abide by all the orders made by my learned brother, BELGORE, J.S.C.

KAWU, J.S.C. I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C. and I agree with him that the appeal ought to be allowed and the cross appeal dismissed. I will, for the reasons stated in the said lead judgment allow this appeal and dismiss the cross appeal. I abide by the orders contained in the judgment including the order as to costs.

OPUTA, J.S.C.:I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Belgore , J.S.C. and I am in entire agreement with the award made in the lead judgment. The issue in this appeal is more arithmetical than legal. It merely involves additions and subtractions which had been very well done in the lead judgment.

Appeal allowed

Cross-appeal dismissed

Other Citation: (1987) LCN/2312(SC)