SLOGANI PROPERTIES LTD v. CHUKWURAH
(2021)LCN/15589(CA)
In The Court of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, December 14, 2021
CA/OW/370/2018
Before Our Lordships:
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
SLOGANI PROPERTIES LTD APPELANT(S)
And
IKECHUKWU CHUKWURAH RESPONDENT(S)
IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Abia State, Umuahia Judicial Division, delivered by Hon. Justice I. A. Nwabughogu on Friday the 19th day of September, 2017 which partly entered judgment in favour of the Respondent.
The Respondent (Claimant at the lower Court) commenced the action leading to this appeal by a writ of summons, statement of claim and other accompanying processes dated 14/6/2013 and filed on 3/7/2013. He claimed against the Appellant (Defendant) in his Statement of Claim as follows:
(a) Specific performance of the contract between the Claimant and the Defendant for the supply and installation of electrical pipes, cables, fittings and accessories for fifty-eight (58) buildings at Diamond Estate, Umuobia, Olokoro in Umuahia South L.G.A. of Abia State.
(b) Alternative to relief (a), the sum of N11,520,000.00 (Eleven Million, Five Hundred and Twenty Thousand Naira) only as damages pursuant to the contract and in lieu to specific performance.
(c) Interest on all sums of money found due to the claimant at the prevailing money market lending rate of 20% (twenty percent) per annum, calculated from the 22nd day of May, 2013, until the said sums of money is fully liquidated.
(d) Cost of this suit.
Briefly put the genesis of this appeal was that the Appellant and Respondent by Exhibit C1 (A Memorandum of Understanding) dated the 11th day of March, 2013 entered into a contract for the supply and installation of electrical materials by the Respondent with respect to Diamond Estate comprising of 58 housing units situate at Umuobia Olokoro, Umuahia South L.G.A of Abia State. The agreed sum of the contract is N11,520,000.00 which should be payable two months from the date of commencement of the supply and installation, thus the Appellant issued the Respondent a post-dated cheque for that agreed contract.
The respondent supplied some electrical materials to the site called Diamond Estate-Umuobia Olokoro Urnuchio Abia State from the 21st March, 2013 to the 9th April, 2013 and piped 28 buildings out of the 58 buildings and abandoned the contract.
The Appellant called the Respondent severally to come and complete the work. However, the Respondent neglected, failed and refused to come and complete the work. The Appellant wrote a letter dated 29th April, 2013 calling on the Respondent to come and complete the work within 7 days or the Appellant will terminate the contract. Still the Respondent neglected, failed and refused to come back to site to complete the work. Consequently, on the 24th May, 2013, Appellant wrote a letter to the Respondent terminating the contract. It was on the basis of these facts that the Respondent commenced this action before the Abia State High Court.
The learned trial judge at the end of the case on 29/9/17 delivered judgment partly in favour of the Respondent’s claim and dismissing the other part. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 16/11/2017 containing six grounds seeking to set aside part of the judgment of the High Court awarding the sum of N7, 983,300.00 to the Respondent.
The Appellant’s brief of argument which was settled by Ngozi Ukweni Esq., was filed on 6/9/18 and deemed filed on 29/2/19. There was no reply brief by the Appellant to the Respondent’s brief.
ISSUES FOR DETERMINATION:
The Appellant in his brief of argument distilled four issues for determination and these are:
1. Whether the learned trial Judge was right to have awarded the sum of N7,983,300.00 to the Respondent as damages when in reality, it was the Respondent who abandoned the contract despite repeated calls by the Appellant for the Respondent to come and complete the work thereby breaching the contract. Distilled from ground 1, 2 & 6 of the Notice and Grounds of Appeal.
2. Whether the learned trial Judge was right. to have held that “having carefully gone through the evidence of the parties, I am convinced that the claimant did complete the piping and the pulling of the wires in the pipes in the 58 houses of the contracts” when it was clear from the pleadings and evidence of the parties that the Respondent did not at anytime complete the piping and pulling of wires in the 58 houses of the contracts (Distilled from grounds 3 and 5 of the Notice and Grounds of Appeal).
3. Did the learned trial Judge consider Exhibit C5 and D1 relied upon by the Respondent and Appellant respectively before holding that “the Respondent could not conclude the work on account of the failure of the Appellant to plaster the walls which was to be done by the Appellant, the Employer” (distilled from Ground 4 of the Notice and Grounds of Appeal).
4. Whether the learned trial Judge was right when he granted an unclaimed and entirely new relief not sought by the Respondent in his claim (Distilled from Ground 6 of the Notice and Grounds of Appeal).
The Respondent’s brief of argument settled by Thelma Clement Esq., was filed on 4/10/19 and deemed filed on 9/3/21. The Respondent adopted the four issues for determination as formulated by the Appellant. I too adopt the issues for determination as formulated and agreed by both counsel with slight modifications. And I shall consider the submissions of both counsel on issues one and two together and thereafter deal with issues three and four as separately argued by both counsel.
ISSUES ONE AND TWO:
1. Whether the learned trial Judge was right to have awarded the sum of N7,983,300.00 to the Respondent as damages.
2. Whether the learned trial Judge was right to have held that “having carefully gone through the evidence of the parties, I am convinced that the claimant did complete the piping and the pulling of the wires in the pipes in the 58 houses of the contracts.”
Submission of the Appellant
Learned Counsel for the Appellant submitted that there was no basis for the award of the sum of N7, 983, 300.00 to the Respondent as damages when the Respondent abandoned the contract they entered into with the Appellant. He drew the attention of the Court to Exhibits C5 and C6 which effectively determined the contract following the failure of the Respondent to continue work on site. He cited the case of ADECENTRO (NIG) LTD V. V.C. OAU (2005) 15 NWLR PT. 948 Pg. 312 Para F and AIKI V. IDOWU (2005) 9 NWLR PT. 984 Pg. 47 to buttress their point that the Respondent indeed breached the contract and therefore not entitled to any charges. He urged the Court to resolve this issue in favour of the Appellant.
On issue two, Counsel for the Appellant submitted whether the finding of the learned trial judge was right that the Respondent had completed the piping and the pulling of the wires in the 58 houses for which the contract was made. He drew the attention of the Court to Paragraph 35 of the Respondent’s statement of claim and Paragraph 39 of the Respondent’s witness statement on oath wherein he admitted he is entitled to quantium meriut compensation for the services the Respondent rendered to the Appellant. And that by this admission, it is clear that he did not complete the work. He relied on NTUKS V. NPA (2007) 10 SCN 125. Counsel equally referred to the depositions of DW1 and DW2 who both stated that the Respondent only piped 28 houses and for CW1 and CW2 equally stated under cross-examination that they did not complete the piping of the houses and installation of fittings and accessories. Counsel therefore asked for evidence not clarified in to be relied upon. See UBA V. ACHORU (1990) 6 NWLR PT. 156 Pg. 254. He argued the Court below was wrong in its finding and urged that the finding be set aside.
Submission of the Respondent
Learned Counsel for the Respondent argued issues one and two together and in doing so submitted that the finding of the trial judge was fair as the Respondent never abandoned the contract. He added that the contract was entered on 11th March, 2013 and the Respondent supplied materials to the tune of N7,983,000.00 and this can be seen from Exhibits C1 to C3 at various dates 21/3/2013 to 9/4/2013. And these were all backed by evidence. Counsel pointed that the Appellant admitted not plastering the units as to pave way for the Respondent to complete the work. This the Appellant did not do. Counsel added that if indeed the Respondent had abandoned the contract he could not have bought the materials as shown in Exhibits C1 and C3. And the Appellant admitted that the Respondent was entitled to quantum meriut and as such he cannot turn round to query why the Court awarded the sum to the Respondent. He submitted that it was in fact the Appellant that was in breach of the contract. Both DW1 and DW2 testified in their respective depositions that the Respondent was entitled to quantum meruit. He citedTHOMAS W & SONS (NIG) LTD V. P I LTD (2019) 12 NWLR PT 1687. He added that the Respondent having supplied and completed substantial part of the contract long before the purported withdrawal/termination of the contract by the Appellant, he was entitled to quantum meriut as the Appellant would be unjustly enriched if allowed to terminated the said contract. He therefore urged the Court to resolve issues one and two in favour of the Respondent.
RESOLUTION OF ISSUES ONE AND TWO
What is being challenged was the award of the sum of N7,983,000.00 to the Respondent based on the contract between the parties. The learned trial judge in the circumstance did not make the award without basis as evidence placed before the Court convinced him to make such an award. It is not disputed by either party that there was a contract between the parties. The Appellant however claimed that the Respondent abandoned the work. Evidence led before the Court however was to the effect that the Respondent did not abandon the work having proceeded to procure materials for the work within 14 days from the date of the contract vide Exhibits C1 – C3 and went ahead to commence work only for the work to stop because the Appellant could not perform his part so as to enable the Respondent continue.
It was while in the process that the Appellant went ahead to issue Exhibits C5 and C6 to the Respondent terminating the contract on reason of abandonment. There was harmful evidence before the Court that the Respondent did not abandon the work. And it was such evidence that made the trial judge to award damages against the Appellant in favour of the Respondent. It is glaring that the Respondent indeed commenced work on the project having purchased materials for same. Although the piping and pulling of the wires was not completed in the entire 58 houses as can be borne by evidence, the award of the damages was not solely based on the completion of the entire work but it was based on the quantum of work done by the Respondent having accessed same from the evidence before the Court. The Respondent testified in his evidence and under cross-examination that he completed the entire work and waiting for the Appellant to conclude plastering of the walls to enable him conclude the remaining aspect of the installation of electrical fittings and accessories. And the Appellant admitted that the Respondent indeed supplied those materials in pursuit of the contract. In my considered view therefore, the words used by the trial judge to say the Respondent had completed the piping of all the 58 houses cannot justify that the Respondent was not entitled to damages at least for the work done. Thus issues one and two are resolved in favour of the Respondent against the Appellant.
ISSUE THREE
Submission of the Appellant
Did the learned trial Judge consider Exhibit C5 and ‘D1 relied upon by the Respondent and Appellant respectively before holding that “the Respondent could not conclude the work on account of the failure of the Appellant to plaster the walls which was to be done by the Appellant, the Employer.”
This issue relates to Exhibits C5 and D1 upon which the Respondent/Defendant relied thereon. The challenge here related to the findings of the trial Court as to whether the Respondent worked on the 28 houses as claimed by the Appellant or 58 houses as claimed by the Respondent who abandoned the work. He referred to DR. SEBATINE MEZU V. COOPERATIVE AND COMMERCE BANK (NIG) PLC & ANOR (2013) 3 NWLR (PT 1340) 188 AT 206. The Respondent could not complete the work on account of the failure of the Appellant to plaster the walls which was to be done by the Appellant, the employer. Counsel relied on EIGBE JALE V OKE (1996) 5 NWLR PT 447 PG 128. Both Exhibits C5 and D1 were tendered before the Court and Counsel hinged on these two Exhibits to hold that it was the Respondent that was in breach of the contract by abandoning same. Counsel added that the two Exhibits C5 and D1 were never challenged and hence the Appellant’s reliance on them. He referred toU.B.A. V ACHORU (1990) 6 NWLR PT 156 PG 254. He submitted that failure to consider Exhibits C5 and D1 amounts to failure of justice. He urged the Court to resolve issue three in favour of the Appellant.
Submission of the Respondent
Learned Counsel for the Respondent was emphatic that the trial Court properly evaluated Exhibit C5 and D1 and this is more so considering when the trial Court asked at page 240 line 4 of the record of appeal thus:
‘‘So which work did he abandon as alleged by the Defendant.’’
That was in reference to the contract agreed upon since the Appellant claim the Respondent only worked on 28 of the houses thereby leaving 30 undone. And the Appellant’s DW2 admitted that the installation could only be done after plastering which the Appellant could not perform. He submitted that the Respondent unequivocally gave evidence of the stage of the work at the site as at the time he received Exhibit C5 and same was admitted by the Appellant. The Respondent gave a concise evidence of his constrain to further the work in the site because the Appellant had refused to plaster the wall. The Appellant also admitted to this fact through DW2 evidence. Counsel therefore submitted that the trial Court was right when it held that the Respondent could not complete the work because the Appellant failed to plaster the walls which were to be done by them.
Thus the Appellant having not performed part of his obligation cannot lay blame on the Respondent who was waiting for him to perform his part of the contract. He urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE THREE
Here I find both the Appellant and the Respondent placed reliance on Exhibits C5 and D1. Exhibit C5 was a letter recalling the Respondent to site within 7 days. However, it was the Respondent’s contention that prior to the receipt of Exhibit D1 dated 31/5/2013 purporting to terminate the contract, he had concluded the supply of electrical materials and substantially completed the installation of the materials as under the contract. What stopped the Respondent from proceeding to complete the work was the non-plastering of the structure by the Appellant. Thus it is clear that it was the responsibility of the Appellant to do his part which he failed to do that led to the stoppage of the work by the Respondent not that he abandoned the work. The finding of the trial Court on Exhibits C5 and D1 was therefore apt. Issue three is resolved in favour of the Respondent.
ISSUE FOUR:
Submission of the Appellant
Whether the learned trial Judge was right when he granted an unclaimed and entirely new relief not sought by the Respondent in his claim.
On this issue, Counsel for the Appellant submitted that the trial judge granted a relief not claimed by the Respondent before the Court. He cited CHRISTLIEB PLC V. MAJOKODUNMI (2011) 5 NWLR PT. 1240 Pg. 294, 310 -311 Para. A. The basis of the complaint here is the grant made by the judge when he stated in his judgment at pages 244 of the record of appeal thus:
“The claimant is hereby awarded the sum of N7,983,300.00 (Seven Million, Nine Hundred and Eighty Three Thousand Naira) only as damages for breach of contract.” He relied on AWONIYI V REGISTERED TRUSTEES OF AMORC (2000) 1O NWLR PT 678 PG. 545 PARA A and a host of other cases. Counsel equally placed reliance in the Supreme Court decision of AMADI V CHINDA (2009) 10 NWLR PT. 1148 PG 107 @ 124-125 PARA H-A on Courts to only grant reliefs claimed and not to go beyond. Also A.G FEDERATION V A.I.C LTD (2000) 10 NWLR PT 675 PG 293. He urged the Court to resolve this issue in favour of the Appellant.
Submission of the Respondent
It is the submission of Counsel for the Respondent that the relief claimed was in line with his claim before the Court. He submitted that the alternative claim of the sum of N11,520,000.00 for damages pursuant to the contract entitled the Respondent for claims in quantum meriut by performing his obligation under the contract before the purported unilateral termination by the Appellant. Counsel also distinguished the case of AMADI VS CHINDA (supra) from the case at hand in that in the Amadi’s case damages awarded was not pleaded whereas here it was pleaded. The findings of the trial Court at pages 241 lines 16-23 and at pages 243 lines 8-10 is succinct:
“The amounts calculated by the Claimant in his pleadings and evidence which brings the total sum claimed as the contract sum are not contained in the contract Exhibit C1. However, it is clearly stated therein that the claimant is to supply the materials and also install same. The materials supplied are clearly itemized in the pleading. The Claimant is therefore entitled to the proved cost of the materials. However, I find it difficult to assess the cost of labour having regard to Exhibit ‘C1’, the pleadings and, evidence.”
He urged the Court to resolve issue four in favour of the Respondent since the Court only awarded what was proved before it and no more.
RESOLUTION OF ISSUE FOUR
Was the relief granted by the Court not claimed? The Appellant insists there was no law before the Court that entitled the Court to make the grant it did in the circumstances. The Court at page 244 of the Record of Appeal granted the relief thus:-
“The Claimant is hereby awarded the sum of N7,983,300.00 (seven million, nine hundred and eighty-three thousand three hundred naira) only as damages for breach of contract.”
Counsel for the Appellant cited numerous authorities against the award of damages. I find it strange that counsel for the Appellant could submit that the award was not born out of the claim before the Court. The claim before the Court upon which this award was made is:
(b) Alternative to relief (a), the sum of N11,520,000.00 (Eleven Million, Five Hundred and Twenty Thousand Naira) only as damages pursuant to the contract and in lieu to specific performance.
It is not disputed that there was a contract between the parties. And in pursuit of the said contract the Respondent commenced work on site as agreed by the parties. It is equally proved by evidence that the Respondent supplied materials on site and did work on 28 of the 58 houses. It is equally born by evidence that the Respondent expended the sum of N7,983,300.00 vide Exhibits ‘C1’ – ‘C3’. The cumulative effect of all these is that there was indeed a contract between the parties. Evidence had it that it was the Appellant who could not perform his part of the contract thereby leading to its purported termination by him. Can the Appellant still maintain that the Respondent abandoned the project and still go ahead to deny any claim by the Respondent as to damages against the Appellant?
In the case of Warner V F. H. A. (1993) 5 NWLR pt. 298 148 at 176 where the Respondent wrongfully terminated a building contract which was already partly completed, the Supreme Court held that the injured contractor had the option of either suing for damages where the measure of damages is normally the loss of profits for the unfinished balance plus the value of the work done at contract prices or ignoring the contract and claiming a reasonable price for work and labour done in quantum meruit.
Thus as in the instant case where one party has absolutely refused to perform or has rendered himself incapable of performing instant of the contract, he puts it in the power of the other party and hence the Respondent either to sue for breach of it, or rescind the contract and sue on a quantum meruit for the work actually done.
I must say here that the claim of the Respondent for breach of contract before the lower Court was in order and the award for damages was properly made and within the ambit of the law.
On the whole, this appeal is unmeritorious and must fail. It is hereby dismissed. A cost of one hundred thousand (N100,000:00) is awarded against the Appellant in favour of the Respondent.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Ibrahim W. Jauro JCA, where the facts in issue have been thoroughly and succinctly set out and determined.
The Respondent had instituted this action at the lower Court seeking for an order of specific performance of the contract between him and the Appellant for the supply and installation of electrical pipes, cables and fittings for 58 buildings at Diamond Estate, Umuobia Olokoro, Umuahia, Abia State or in the alternative, the sum of N11,520,000 (Eleven Million, Five Hundred and Twenty Thousand Naira only) as damages pursuant to the contract. The Appellant in its defence held that the Respondent had abandoned the contract halfway consequent upon which the Appellant had gone ahead to terminate the contract. The lower Court in its judgment had dismissed the claim for specific performance but held that the Respondent was entitled to damages for breach of contract in the sum of N7,983,200 (Seven Million, Nine Hundred and Eighty-three Thousand, Three Hundred Naira only). Aggrieved, the Appellant instituted the instant appeal.
Appellant’s counsel has argued that the Respondent counsel was not entitled to the award of the sum of (Seven Million, Nine Hundred and Eighty-three Thousand, Three Hundred Naira only) because he, the Respondent, had abandoned the contract halfway and that the trial judge had not considered Exhibits C5 and D1 before arriving at its decision. The Respondent on the other hand had submitted that they had indeed undertaken a part of the contract and even supplied the entire materials needed to complete the work as itemized in Exhibits C1 – C3 and that the only reason why they couldn’t complete the project was because the Appellant had failed to plaster buildings as agreed on by the parties.
As eloquently put forward by my Lord, Fatayi-WiIliams JSC (as he then was), in the antiquated and time-tested case of Mogaji v. Odofin (1978) 3-4 SC 91:
“In short, before a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on the imaginary scale. He will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier, not by the number of witnesses caned by each party, but the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.”
This, no doubt is what was done by the lower Court in the instant case. When the evidence of the Respondent is put on one side of the imaginary scale and the totality of the evidence adduced by the Appellant put on the other side of the scale, including the evidence of both parties that the Respondent was to supply the materials needed to carry out the project which he did, the evidence led by the Respondents was indeed heavier, and the weight of the evidence properly went in favour of the Respondent, as rightly held by the lower Court.
When there has been a proper evaluation of the evidence by the lower Court, the appeal Court is loath to interfere with the findings of the lower Court because the primary duty of ascribing probative value to the evidence at the trial, upon proper evaluation of the totality of the evidence, devolves exclusively on the trial Court that had the opportunity of hearing and watching the witnesses testify. The appellate Court will not usurp that function. See Mohammed v. State (2021) 6 NWLR (Part 1771) Page 123 at 154 Para E – F per Eko JSC, Guardian Newspapers Ltd. V. Ajeh (2011) 10 NWLR PART 1256 p. 574 at592 para C – D per Rhodes-Vivour, DSC.
As pointed out by my learned brother, the lower Court did not make the award of the sum of N7,983,300 (Seven Million, Nine Hundred and Eighty-three Thousand, Three Hundred Naira only) without basis but upon proper evaluation of the evidence before it, as it held in its judgment at page 241 of the Record thus:
“In the circumstance, I find Exhibit C3 series as containing the number or units of materials supplied for the contract… The cost of the materials in Exhibit C3 series is the sum of N7,983,300.00 (Seven Million, Nine Hundred and Eighty-three Thousand, Three Hundred Naira)… The materials supplied are clearly itemized in the pleading. The Claimant is therefore entitled to the proved cost of the materials.”
For all the foregoing reasons and the fuller reasons advanced in the lead judgment, I, in agreement with my learned brother, also dismiss this appeal and affirm the decision of the lower Court. I also abide by the consequential order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, Ibrahim Wakili Jauro, JCA
I agree with the reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal and affirm the judgment of the lower Court.
I abide by the order as to cost.
Appearances:
NGOZI UKWENI, ESQ. For Appellant(s)
THELMA CLEMENT, ESQ. For Respondent(s)
