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.

(b) If there were agreements were there any variations on the agreements.

(c) Were there any delay in executing the building projects.

(d) If there was any delay, was it of such as to warrant termination of the agreements.

(e) Whether the respondent has been guilty of unreasonable delay and whether the appellant had justification to determine the contracts.”

The summary of the submissions of learned counsel for the appellant in the brief of argument filed on behalf of the appellant as well as in his oral argument before us are that the learned trial Judge was in error when he held that although it came out in the course of evidence from the plaintiff that the buildings were to be completed within 9 months it was not pleaded by either party that time was of essence for the completion of the building and therefore the evidence goes to no issue.

That both the plaintiff and the defendant having admitted that the contract had to be completed within 9 months, the learned trial Judge cannot suo motu exclude that piece of evidence. That when a contract is silent over the time for performance, the law implies that the obligation should be performed within a reasonable time.

That evidence obtained under cross-examination is admissible. That the delay of the respondent in completing the building of the house at Surulere on time is injurious to the appellant.

That the learned trial Judge failed to evaluate the purport of the documents tendered in support of this case by the appellant properly and therefore failed to ascertain the true position of affairs in the circumstances.

That it is trite law that contracts must be strictly construed in the light of terms agreed to by parties.

That the learned trial Judge was in error to have dismissed the appellant’s counter-claim without due consideration of his case made therein and the documentary evidence tendered in support.

That the appellant was justified in terminating the contract as he had given sufficient warnings to the respondent of his intention to do so.

That there was no basis at all for the monetary award granted by the learned trial Judge in favour of the respondent.

That the lapse of time in making the judgment in this case available to the appellant is contrary to the provisions of Section 258(1) of the Constitution of Nigeria and is not only indefensible but also culpable.

He cited many legal authorities in support of his submissions. He urged us to allow the appeal.

On his own part, learned counsel for the respondent submitted in the brief of argument brief on behalf of the respondent and in his oral argument before us that there was no evidence that the building projects were abandoned by the respondent. That it was the appellant who terminated the oral agreement in August 1977 by locking up the two building sites and prevented the respondent from further executing the contract.

That it will not be correct to complain of delay on the part of the respondent because the question of time being of essence of the contract was not pleaded and any evidence led in that regard goes to no issue.

That if there was any delay, this has been caused by daily interceptions by the appellant in the course of the building progress by making various alterations and additions and difficulties in providing money in time to prosecute the projects. That all the circumstances of the execution of this contract considered it cannot be said that the respondent has been guilty of unreasonable delay.

That the various letters written by the appellant to the respondent are not sufficient to warrant his terminating the contract as he did.

That the learned trial Judge was right in dismissing the appellants counter-claim for N105,002.48k because he alone testified on this claim and the basis of his claim as given in evidence by him was as the result of physical and mental anguish and loss of earning as he had to make up for the construction of the two buildings.

That the appellant ought to have called an expert e.g. a quantity surveyor to assess the progress made in the work and determine the value of how much work remained to be done.

That the appellant did not even call the workers he engaged to complete the work after locking out the respondent from the premises.

He too cited legal authorities in support of his submissions. He urged us to dismiss the appeal.

From my perusal of the printed record of proceedings and the grounds of appeal filed in this case the main issues for determination in this appeal are:

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

(2) Whether on the facts of this case the appellant was justified in terminating the contract in the manner he did.

(3) Whether in view of the evidence and the documents tendered in this case the learned trial Judge was justified in allowing the respondent’s claims and in dismissing the appellant’s counterclaim.

(4) The observations of counsel for the appellant on failure to make a copy of the judgment in this case available to the parties on the day of the delivery of the judgment as provided for in the 1979 Constitution.

I wish to observe that because a transaction of this magnitude is essentially based on an oral agreement makes the decision on each of the above issues for determination to turn on facts which I will now examine seriatim in relation to the findings of the learned trial Judge on them in order to see whether or not the learned trial Judge’s decision can be supported as a whole.

The law is that parties are bound by their pleadings and that any evidence led in respect of matters not pleaded must be ignored. I have carefully examined the pleadings in this case and I observe that none of the parties pleaded that time was of essence in the performance of the contract as rightly found by the learned trial Judge.

The passage quoted by the appellant to show that the respondent admitted that the contract was to be completed within nine months was quoted out of context. The full passage from where the passage was lifted is at page 73 lines 1-26 of the printed record of proceedings which reads thus:-

“I can show in the exhibits 1 tendered letter in which he praised me. One of the letter was the one dated 5/6/77 (Ex. C2 refers) Witness reads. I admit I have tendered Exhibit C to C4. I see Exh. C. I have received the letter it is not this. It is not true the letter did not praise me, having heard you read it. I hear you read Exh. C2. It is a letter praising me. I hear you read (Exhibit C3 refers). I heard you read Exh. (C4). This letter again is not a letter of compliment as it was written three months after starting the work. The agreement was for the job to be done within 9 months. I agree that on 21/9/76 I wrote out schedule of work in respect of Surulere property. I finished the work in 9 months. It was not up to 5 months that) finished the job. I see Exhibit ‘E’. The date of the letter is 1113/77. He asked me in the letter to finish a flat before the end of the month. It is a flat at Surulere. I did not fail to finish the Oat before the end of the month.”

The above were said by the respondent under cross-examination.

It will be seen that while admitting that the agreement was that the work was to be done within nine months, the respondent emphasised that he completed the work within the time and even earlier than the time stipulated. This is not surprising, because as could be noted, it was in subsequent letters written by the appellant after the contract had been agreed upon that the appellant introduced nine months completion period idea.

The nine months period was never pleaded nor was the fact that time was of essence also pleaded as well. The insincerity of the appellant was further brought out by the learned trial Judge when he compared the evidence led by the appellant with what was pleaded in his Statement of Defence thus:-

“I next take a sample on the part of the defendant. The defendant’s pleading in paragraph 15 of his Amended Statement of Defence is that the plaintiff was in breach of his contract to complete the ground floor of Surulere building ready for occupation. He stated he feared the authorities of the University might ask him to vacate his official University Quarters as he was retiring from their services at the material time.

In the first place, the two letters Exhibits Land M dated 11th July and 9th August respectively showed that the defendant’s appointment was terminated on 4th July, 1977 and extension of time within which he was to vacate the University Quarters given up to 19th August, 1977. The letters upon which the defendant relied came into existence some 6 or 7 months after.

In the second place, some three Letters (Exhibits E, R and a dated 11/3/77, 26/3/77 and 17/6/77) and written by the defendant when neither party contemplated a court action expressed defendant’s desperate requirement for the ground floor flat of Surulere building because of his brother, and made no reference to his possible ejectment from the University Quarters at all.” (See page 131 line 10 to page 132 lines 1 – 2 of the printed record of proceedings).

These findings are duly supported by the evidence and documents tendered in this case.

Conclusively, it is obvious that time being of essence in the contract is neither pleaded nor proved.

Even in cases where time being of essence is proved, and so found by the Judge, but the owner of the house behaves as the appellant in this case behaved by making alterations and interfering with the work, the court has held that the contractor was entitled to complete the project within a reasonable time. See the case of Thornbull v. Nerts (1960) 8 CB (NS) 831.

From the correspondence between the parties, it is obvious that the appellant virtually controlled the supervision of the project, ordered alterations, directed how labour could be obtained and gave definite instructions on how the work should be done and in some cases these instructions must be obeyed with immediate effect.

All things considered, I am of the view that the learned trial Judge is justified in his findings that –

“Although it came out in the course of evidence from the plaintiff that the buildings were to be completed within 9 months it was not pleaded by either party that time is of essence for completion of the buildings. The evidence as to time for the contract goes to no issue and I shall disregard it.”

(See page 132 lines 19 – 26 of the record).

I further hold that even if it has been pleaded that time is of essence in the execution of the contract, the conduct of the appellant has excused and prevented the respondent from keeping to exact time and the respondent was only entitled to complete the work within a reasonable time – vide Thornbull’s case above.

The second issue for consideration is whether on the facts, of this case the appellant was justified in terminating the contract in the manner he did.

Again, a major flaw in this transaction is the fact that there was no written agreement which spells out the conditions and modes and/or manner of term mating this contract. The oral agreement on which the parties relied did not also specify these important aspects of the contract.

This, no doubt, accounts for the reason why the appellant virtually took complete control of the execution of the contract as could be noticed in most of his letters to the respondent.

Having held that time was not of essence of completion of the contract in the case presented by either party one will now consider whether or not the respondent was working towards completing the work within a reasonable time.

As could be seen from the evidence of the respondent quoted above under issue No. 1 and a few of the letters written by him to the appellant, the respondent was working steadily to complete the work within reasonable time. He had even completed part of Surulere project on schedule for use by the appellant.

Then came the battalion of correspondents from the appellant to the respondent ranging from fixing the time of completion of the work to instructions about execution of the work in relation to men and materials as well as alterations to work already done.

An example of such letters is Exhibit C4 which reads:-

Exhibit ‘C4’-

From: O. J. Vanderpuye,

University of Lagos,

22/6/77.

Dear Mr. Coker Gbadebo,

I spoke to Mr. Bashorun, the man who brings my letters to you about a Carpenter and electrician and he has confirmed that he brought a carpenter to you who has already started fixing the doors today – I travelled to Surulere and actually saw this carpenter at work.

At the same time the carpenter at 182 Agege Motor Road has been waiting for you at the building site since 8a.m. He is good at cabinet work and he has seen the built-in wardrobes and kitchen cupboard, etc., at my quarters here. Please, therefore buy very urgently the necessary planks and let him do the built-in wardrobes and kitchen cupboards and perhaps the windows. There is sufficient work for the 2 carpenters, as there are 2 flats, and besides, later on, there is the 1st floor also. Please see that the 2 carpenters are working at the same time, so that the work can finish soonest, as the delay is causing me a great deal of trouble and making me loose a lot.

Mr. Bashorun says also that he will bring an electrician from NEPA to you who can complete the wiring also bring the meter to the house and connect the electricity. Please see that he starts work immediately. The Nursing Sister of NEPA got an application form for SUPPLY OF ELECTRICITY, in case you not been able to get one, please see that the wiring is completed, so that NEPA can inspect and approve, before applying for the electricity.

Please see that water is connected to both Surulere and Victoria Island (Plot 839) immediately. To delay is dangerous, as they may not be willing to help again to cut the road, after some time.

Please get the louvre windows (so that the carpenter can do this). Small wash-hand basins, water heaters, mirror, towel rails, toilet paper holders.

The work must finish very soon.

You must please hurry up about this work. A lot depends on this work. Even people are getting a bit surprised, they are the people who have their buildings to give to you, even my wife is a bit surprised at the constant disappointments. You will certainly get a lot of other works if you don’t continue to disappoint. I am rather annoyed myself, because you don’t put all the workmen to the job at once at the same time. If you need any workmen, my brother-in-laws, or friends, can get them for you, please just let me know.

Please hurry and buy the remaining things and see that all the workmen arc working at the same time. I help you with medicines anytime you arc not well and you should help me greatly also.

Yours sincerely.

(Sgd.) O. J. Vanderpuye.”

On the part of the respondent there was the evidence of disappointment of provision of money by the appellant for materials and labour and incessant alterations in the work already done. He even stopped providing money for execution of Victoria Island building.

The appellant at last purported to terminate the contract of the two houses in August, 1977.

The learned trial Judge then formulated the real issues he would consider to decide whether or not the appellant rightly terminated the contract thus:

“(1) Whether there was evidence that the plaintiff abandoned the building projects so as to amount to breach of his agreement to build. In which case, the defendant would be justified in taking over the project and mitigate damages.

(2) Whether there was evidence of any delay at all, on the part of the plaintiff in prosecuting the building projects.

(3) If there was delay, whether the delay was such as to frustrate the subject matter of contract and to justify steps taken by the defendant to prevent the plaintiff from continuing with the project.

In finding the answers to the above posers, I have to rely on the relevant documents put in evidence by the parties and to construe the manner the construction works progressed. Those documents had come into existence when neither party was contemplating any court action and they revealed the trend of events and the posture adopted by the parties to the agreement and projects generally.”

He then examined the relevant correspondence namely Exhibits A, C, B, H, N, E, O, F, C1, Q, C2, G3, R, S, C4 and C3, matched them with the evidence led and came to the following conclusions at page 153 line 26 to page 154 last line of the printed record of proceedings:

“From this laborious exercise, it is quite clear that the defendant was the supervising authority of the two building projects. He was actively involved in every step virtually taken in the building construction, short of carrying bricks himself. He gave directions at every turn and compiled variations. He would coax, cajole and flatter the plaintiff as a good boy where his work pleased him and would rebuke, lash out and scold as his whipping boy where he was displeased. He was always pushing and a tone of urgency and importance ran through all his instructions. Again, I observe that yet on the face of his pleadings, there was no averment that time was of the essence of the projects.

Taking a fair view of the over all effect of the defendant’s letters, I can hardly see any point in the projects that would suggest that the plaintiff had abandoned them at any time before 30/6/77 when the defendant demanded the keys of the Surulere buildings.

Indeed, there could have been no room for it as the letter showed, that the defendant was breathing down the plaintiffs neck. Again, I cannot see any question of delay arising in the circumstances of this case. The building projects were going simultaneously at two places. While the defendant was putting pressure on seeing to the completion of a part of the Surulere building project within 5 months of the commencement of the work, the Victoria Island project was expected to continue. My considered judgment is that the prevention of the plaintiff from proceeding with the project could not be attributed to anything but a sudden fancy of the defendant for whatever reason or reasons. I have not found that the plaintiff abandoned the projects. I have not found any delay in the prosecution of the projects. I therefore hold that the defendant was solely responsible for the breach of the defendant’s agreement to build the house and that there was no justification shown for it.”

and I must say that both the learned trial Judge’s observations and conclusions above arc justified having regard to the evidence led in this case.

He has proceeded on the right method in the circumstances of a case of this type as directed by the Supreme Court in the case of Fashanu v. Adekoya (1974) 6 S.C. 83 at pages 91 – 92 thus:

“The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly,the duty of the Court in ascertaining the truth in these circumstances is all but easy and the test of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and as argued by learned counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.”

On the award of damages, from the analysis above, in respect of evidence in this case, it was found conclusively or at least on the preponderance of evidence that the appellant was the person who acted in breach of the agreement between the parties. As a result, the learned trial Judge awarded damages that flow from this breach. He gave reasons for the award taking the award on each house one by one and considering the award on the evidence led. He put the evidence on an imaginary scale, weighted them and arrived at the conclusions reached. I have not been persuaded to disagree with him on his findings and I confirm the damages awarded.

Having found that the respondent is not in breach of the contract the appellant’s counter claim was rightly dismissed as there was no justification in the appellant’s action in taking over the building projects as he did.

The final complaint of the appellant are as follows:-

“4.9(a) The judgment pronounced by the learned trial Judge in the matter on the 24th day of February, 1986, deserves castigation by the Appellate Court and calls for necessary direction being given to avoid such lapse in the future in any court in the Federation of Nigeria in that the judgment was not made available to the appellant until some weeks after its being applied for, to wit on 16th April, 1986, wherefore there is flagrant and indefensible violation with impunity of Section 258(1) of the Constitution of Nigeria, 1979, whereby the litigants are entitled to have judgment furnished to them on the date of the delivery thereof.

PARTICULARS/GROUNDS OF CONTENTION

These are (a) to (d) as shown at pages 160-161 of the Record.

4.91 The Supreme Court having held that failure to deliver judgment to parties on date of delivery did not annul the judgment and pursuant to the amendment to the Constitution by Section 258(6), it is submitted that the lapse experienced in the circumstance is not only indefensible but also culpable.”

I agree with the above observations and advise. They are appropriate and the officers and officials of our High Courts are advised to heed them.

Finally, as I have pointed out at the beginning of this judgment this appeal is mostly on facts and unless the decision of the lower court is perverse or not supported by evidence led, the Court of Appeal will not interfere.

I find that the decision in this case is not perverse and the findings of fact on which the said decisions are based are supported by evidence led and documents tendered in the case.

The appeal, therefore, fails and is hereby dismissed.

The judgment of Thomas, J., delivered on 24th day of February, 1986 is hereby affirmed.

I award N350.00k costs in favour of the respondent.

Other Citations: (1989) LCN/0080(CA)