Reynolds Construction Company (Nigeria) Limited V. S. I. Edomwonyi (2002)

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IBIYEYE, J.C.A.

This appeal arose from the judgment of Omorodion, J., sitting in the Benin Judicial Division of the Edo State High Court of justice, in suit No. B/358/91, delivered on the 9th day of February, 1996.

In strict compliance with the Rules of Civil Procedure in the trial court, both the plaintiff and the defendant, filed and exchanged pleadings, which were amended and further amended. I am of the view that in order to appreciate the case for each of the two parties certain relevant averments in the said pleadings should be reproduced. I accordingly, reproduce them.

Paragraphs 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the amended statement of claim and paragraphs 1 and 4 of the defence to the counter-claim read:

“1. The plaintiff is a Nigerian Citizen resident at No. 14 Upper Sakponba Road, Benin City, and is the owner of a large parcel of land lying and situate at Avbiama Area within the jurisdiction of this Honourable Court.

2. The defendant is a company incorporated under the Companies Act of Nigeria and carries on the business of extraction of sand, granite and construction work.
3. The plaintiff avers that sometime in May, 1991, he was approached by the defendant with a proposal to clear an area measuring 2 hectares on part of the plaintiff’s land, situate and lying at Avbiama village.
4. The plaintiff avers that he eventually reached an agreement with the defendant on the understanding that the defendant will pay plaintiff the sum of N4,000.00 (four thousand Naira) ground rent as well as clear two hectares out of the plaintiff’s parcel of land situate at Avbiama village.
5. The plaintiff avers that the defendant claimed to have put the entire agreement in writing paid plaintiff the sum of N4,000.00 (four thousand Naira) and the agreement was signed for and on behalf of the plaintiff, since plaintiff was not only illiterate but also blind. At the trial, the plaintiff may found on this agreement.
6. The plaintiff says that he and the defendant agreed that the land will be cleared on 28/5/91. The defendant assured the plaintiff that before 10 a.m. on that day, they will send three bulldozers so as to enable plaintiff to earn money from his own portion (sic).
7. The plaintiff avers that on 27/5/91, two agents of the defendants came to the land and informed plaintiff’s Agent, who works with plantiff that, they will be coming to clear the land on 28/5/91. The plaintiff should stop all the customers, who come to the adjourning burrowing pit (sic) from entering that portion of the land in order to avoid accident that, may be occasioned by felling of trees. The plaintiff says that on 28/5/91, he went to the bush to await the defendant’s servants, having earlier warned his customers not to enter the land. On getting to the defendant’s office, he was told by one Samson, and Jacob, that they could not come to plaintiff’s land to work, because they were sent by their Superior Officer, to go to inspect plaintiff’s neighbour’s land.
8. The plaintiff avers that on the 30th of May, the defendants (sic) commenced work on his neighbour’s land. The plaintiff says further, Mr. John Imana and Pau Ehiorobo assist him in his business and both of them were and conversant with this transaction (sic).
9. The plaintiff avers that he considered the agreement with the defendant more profitable, since he will have a vast area of cleared land from which to extract sand out no sooner had the agreement been reached did the defendant renege on their promise to clear the land.
10. The plaintiff says that he instructed his solicitor to write the defendant, when it became apparent that defendant had no intention of fulfilling its obligations under the contract. The plaintiff shall find on these letters.
11. The plaintiff avers that by the refusal of the defendant to clear the land he has been deprived from making substantial amount of money from Meemax Nigeria Limited as well as unable to extract sand from the land.
12. That within the land allocated to the defendant is an existing sharp sand burrow pit wherein the plaintiff collects about N1,500 (One thousand Jive hundred Naira) daily from customers and as a result of the agreement the plaintiff has been unable to collect these sum (sic)from customers.

Particulars of damages

1. Amount lost from burrow pit from 28/5/91 till filling of action N90,000.00
2. Amount lost for not letting land to Meemax Nigeria Limited 2,000.00

3.General damages 41,000.00

Total N2,500,00.00

4. An order that the defendant clear the one acre of land the benefit of the plaintiff (sic).

As a result of the matters aforesaid, the plaintiff has suffered lost (sic) and claims from the defendant the sum of two million five thousand Naira as damages for breach of contract and as per summons filed in this matter.

Defence to counter-claim

1. Save and except as hereinafter expressly admitted the plaintiff denies each and every allegation of fact contained in the counter-claim as if each and every such allegation was specifically set out and traversed seriatim.
2. The plaintiff denies paragraphs 25, 26, 27 and 28 of the counter-claim and shall contend at the trial that the counter-claim is intended to blackmail or intimidate the plaintiff from pursuing his legal right.

Wherefore the plaintiff shall urge the court to dismiss the counter-claim with destabilising cost (sic).”

The defendant, in its thirty-one paragraph further amended statement of defence and counter-claim essentially denied the plaintiff’s averments in his amended statement of claim. I shall nevertheless reproduce certain paragraphs which I consider of moment. The paragraphs are 5, 7, 11, 12 of the amended statement of defence and paragraphs 28, 29 and 31 of the counter-claim which read:

“5. The defendant avers that it entered into an agreement with the plaintiff in May, 1991, which gave defendant a right to extract sand from part of the plaintiff’s land which was two acres. The defendant shall at the trial of this action rely on the said agreement. The plaintiff is hereby given notice to produce the said agreement.

7. The defendant avers that it was made clear to the plaintiff that the defendant would commence operations on the said land when it deemed fit to do so.
8. The defendant in reply to paragraph 7 of the statement of claim avers that the agreement it entered with the plaintiff was in writing. The plaintiff clearly understood the terms of the agreement and his nominated representative signed on his behalf.
9. The defendant denies the averments in paragraphs 8, 9 and 10 of the amended statement of claim in its entirety and avers that at no time did the defendant agree that the land will be cleared on 28/5/91 and the defendant did not send any of its employee agent (sic) on 27/5/91 or any other date to give the plaintiff date for clearing the land. The defendant states that the plaintiff did not have any burrow pit on his land.

Counter-claim