Emmanuel U. Okeke V. James O. Oche (1993)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

In the High Court of Benue State of Nigeria, in the Makurdi Judicial Division and in suit No. MD/5/85. The Plaintiff claim against the Defendant is as follows:-

“(a)(i) The sum of N31,542 being the sum paid by the Plaintiff to the Defendant for a consideration that has totally failed.

(ii) The sum of N5000.00 as General Damages for breach of contract.

(iii) An Order asking the Defendant to remove the structure.

OR. In the Alternative

(b)(i) Special Damages for breach of contract in the amount of N31,226.58 as follows:-

45% of contract cost NI4,193.90 Cost escalation estimate at 120% N17.032.68

(ii) The sum of N5000.00 as General Damages for breach of contract.”

Pleadings were ordered filed and exchanged. In the course of the trial the Defendant successfully sought leave to amend the Statement of Defence and also to include a counter-claim. The Plaintiff filed a Reply to the Counter-Claim. The case suffered protracted delays caused by non-appearance of counsel but in the end the case was heard. The Plaintiff testified and called one other witness in support of claims and the Defendant also gave evidence and called a witness. At the conclusion of the trial and after the address of counsel, the learned trial judge partially found for the Plaintiff. He entered judgment in favour of the Plaintiff in the sum of N17,193.90 as Special Damages. The Defendant felt aggrieved with the decision and has now appealed to this Court. The Notice of Appeal contained five Grounds of Appeal and shorn of their particulars, they are read as follows:-

“1. The learned trial Chief Judge erred in law and misdirected himself on the facts when after awarding the sum of N300.00 to the Plaintiff “for total failure of consideration for money paid for the building of boys quarters at Otukpo.” he went further to award N14,193.90 to the Plaintiff as representing 45% of the total contract sum of N31,542,00.

2. The learned trial Chief Judge misdirected himself in fact when he failed to properly evaluate, assess or appraise the evidence adduced by the so called P.W.3 (P.W.2) while relying heavily on the said evidence in giving his decision.
3. The learned trial judge erred in law and misdirected himself on the facts in awarding to the Plaintiff the sum of N14,193.90 as representing the alleged 45% of the proportion of work not done when Plaintiff did not specifically plead the particulars of such claim or prove the alleged 45% of work not done.
4. The learned trial Chief Judge misdirected himself on the facts when he held that “I believe P.W.2 for he gave straight opinion evidence about the building x x x. He was the only expert who saw the building and assessed the State of its construction x x x. I am satisfied with his qualification and experience to give such an opinion evidence.
5. The judgment was unreasonable and cannot be supported having regard to the weight of evidence.”

In compliance with the provisions of Order 6 of the Rules of this Court as amended Briefs of Argument were filed and exchanged. At the hearing of this Appeal on the 24th April, 1993, even though Defendant (hereinafter referred to as the Appellant and the Plaintiff the Respondent) failed to appear in court after due service of the Hearing Notice, this court invoked the provisions of Order 6 aforesaid and treated the Appellants’ Appeal as having been argued. The learned counsel for the Respondent appeared in court and relied on the Respondent’s Brief. He urged the court to dismiss the Appeal. But before dealing with the Grounds of Appeal and the issues involved for its determination, it is appropriate at this stage to set out the facts leading to the case between the parties.

Put shortly, the facts are:- sometimes in February 1984, a building contract was entered into between the Respondent and the Appellant. The later was to build a four bedroom bungalow for the Appellant at Igumale, the village of the Appellant. The plan of the building was specified in Exhibit A. The agreed price for the building was the sum of N28,500.00. The Appellant was to hand over the keys of the completed building to the Respondent by Christmas of that year. Inconsideration whereof the Respondent made a down payment of N20,000.00. Due to pressure from a friend, the Respondent paid in the balance of N8,500.00 even though it was initially agreed that the balance shall be paid on the completion of the building. The Respondent when he came from abroad discovered that the building was not completed and the structure set up was not fit for his habitation. The work was very badly done, “the walls all cracked up; all over some or the wall…bent inside and some outside; there were pools of water around the base. The second contract was the building of boy’s quarters at Otukpo. The agreed cost was N3000.00 which the Respondent paid in three installments. This contract was not performed at all. The Appellant on the other hand claimed that he had done the work he contracted to do for the Respondent. He claimed under the Building Agreement, it was a term of the contract that the balance of the money would be paid by the Respondent in leveling the block work prior to the roofing and not on completion of the house. The Appellant further contended if any structural defects were detected in the building it was occasioned by soil defect due to the unsuitability of the soil. The Appellant also claimed because of the unsuitability of the soil he had to expend his own money in the sum of N8,000.00 by rectifying the foundation by putting pinning. The Appellant further denied that Exhibit A the building plan was not what was agreed between the parties. On the question of boys’ quarters the Appellant claimed that the agreed price was N9,500.00 and not N3,000.00. The Counter-Claim of the Appellant was the balance on the cost of the boys quarters. He counter-claimed N6,500.00 as the balance of the cost of the construction of the boys quarters at Otukpo. It is significant to note that the Appellant did not claim the sum of N8, 000.00 he was forced to expend in rectifying the foundation of the house at Igumale.

In his judgment aforesaid, the learned trial judge found as a fact that the boys’ quarters were not built and the Appellant admitted receiving the sum of N3000.00 from the Respondent. He therefore entered judgment for the Respondent in respect of boys’ quarters for the total failure of consideration. Thus by the necessary implication, the Appellant’s Counter-Claim was refused. There is no Appeal on the Counter-Claim and I therefore deem it, that the learned trial judge was correct in his finding that the Appellant had failed to construct the boys quarters.