Oswald J. Vanderpuye V. Coker Gbadebo (1989)

LawGlobal-Hub Lead Judgment Report

BABALAKIN, J.C.A. 

The respondent as plaintiff in the Lagos State High Court, took action against the appellant as defendant for the sum of N90,000.00k as damages for breach of agreement both oral and in writing made on 6th day of October, 1976 between the parties for the erection of two houses one at Surulere and the other at Victoria Island. Against this claim the appellant filed a defence and a counter claim for N105,002.48k being general and special damages for breach of the said contract.

The respondent filed a reply to the Statement of Defence and counter claim of the appellant.

The matter proceeded to trial and judgment was given on 24th February, 1986 in favour of the respondent.

The appellant’s counter claim was dismissed.

Dissatisfied with this judgment the appellant has now appealed to this court on many grounds of appeal.

In this court, briefs of argument were ordered, filed and exchanged.

In the brief of argument filed on behalf of the appellant, appellant’s counsel stated thus:-

“The real issue for determination in the case herein can be formulated as follows:-

“(1) Whether the learned trial Judge was correct in holding that time was not of the essence of the contract in issue.

(2) Whether the plaintiff in law discharged the onus of proof cast on him to establish his claim before the Honourable Court before the learned trial Judge gave judgment in his favour.

(3) Whether the learned trial Judge properly evaluated the oral and documentary evidence before him before he gave judgment in favour of the plaintiff and dismissed defendant’s Counter-Claim.”

On his own part, counsel for the respondent put the issues for determination as follows in the brief of argument filed on behalf of the respondent:

“(a) The Agreements between the Parties were they oral or written.