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BEST BROTHERS INTER (NIG) LTD v. MINISTRY OF ENVIRONMENT & PUBLIC UTILITIES, EDO STATE & ORS (2022)

BEST BROTHERS INTER (NIG) LTD v. MINISTRY OF ENVIRONMENT & PUBLIC UTILITIES, EDO STATE & ORS

(2022)LCN/16025(CA) 

In the Court of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, July 28, 2022

CA/B/385/2018

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

BEST BROTHERS INTER (NIG) LTDA PPELANT(S)

And

1. MINISTRY OF ENVIRONMENT AND PUBLIC UTILITIES, EDO STATE 2. EDO STATE GOVERNMENT 3. ATTORNEY GENERAL OF EDO STATE RESPONDENT(S)

 

RATIO:

THE CONSIDERATION OF THE COURT IN DETERMINING WHETHER A CASE IS STATUTE BARRED

It is settled law that in determining whether a case is statute-barred, a Judge is limited to the Writ of Summons and Statement of Claim, without recourse to the Statement of Defence or any document or process – Mulima V. Usman (Supra) at 1999. Also, to determine whether or not an action is statute-barred the Court considers:
(a) When the cause of action accrued
(b) The date of the commencement of the suit as indicated in the writ of summons
(c) Period of time prescribed for bringing an action to be ascertained from the statute in question. Time begins to run for the purpose of the Limitation Law from the date the cause of action.
See Idachaba V. University of Agriculture Makurdi (2021) 11 NWLR (Pt. 1787) 209 at 225 per Abba-Aji JSC. ADEMOLA SAMUEL BOLA, J.C.A

A PARTY IS ALLOWED TO SUE FOR DAMAGES ARISING FROM THE BREACH OF CONTRACT

Having established by evidence that the Appellant performed part of the contract which he was not paid inspite of demands made for payment, the law is settled that if a party has rendered services (or has supplied goods under a contract which has not been fully performed and which has been determined by him because of the Defendant’s repudiatory breach of contract, he may sue for damages arising from the breach of contract or being a restitutionary claim to recover the value of the services rendered and the good supplied, to recover the value of the services rendered or the goods supplied on a quantum meruit or quantum valebat bat, see SBN Plc V. Opanubi (2004) LPELR-3023 (SC). ADEMOLA SAMUEL BOLA, J.C.A:

THE CLAIM ON QUANTUM MERUIT ARISES WHERE THERE IS A BREACH OF A CONTRACT BY THE OTHER PARTY

In De Benardy V. Harding (1853) 3 Exch. 822, 824 (1853) 155 ER 1586, 1587 Alderson B observed thus:
“Where one party has absolutely refused to perform or has rendered himself incapable of performing his part of the contract, he puts himself in the power of the other party either to sue for breach of it, or to rescind the contract and sue on quantum meruit for the work actually done.”
Payment of quantum meruit will arise if one person has expressly or impliedly required another to render him a service or execute a piece of work specifying any remuneration but the circumstances of the request imply that the service is to be paid for or if a person by the terms of the contract is to do a certain piece of work for a lump sum, and he does only a part of the work, he may be able to claim on a quantum meruit if completion of the works has been prevented by the act of the other person Adio JSC the case Olaopa V. OAU Ile –Ife (1997) LPELR-2571(SC). ADEMOLA SAMUEL BOLA, J.C.A

THE PARTICULARS AND LEADING EVIDENCE MUST SHOW THAT THERE IS ENTITLEMENT TO RECOVER PAYMENT FOR THE OBLIGATIONS PERFORMED

In Savannah Bank V. Opanubi it was held “…where the contract is divisible or severable whether by way of work done, goods supplied or services rendered the claimant should find no difficulty in stating the particulars and leading evidence to show that it is entitled to recover payment for the obligations the performance of which he had completed.”
It is the law that imposes the obligation to pay a reasonable sum on the basis of quantum meruit, and it is a common law remedy. See Olaopa V. OAU Ile-Ife (Supra). ADEMOLA SAMUEL BOLA, J.C.A:

ADEMOLA SAMUEL BOLA, J.C.A:(Delivering the Leading Judgment): This is an appeal challenging the decision of Hon. Justice E.F. Ikponwen (Chief Judge) of Edo State delivered on 20th day of April, 2018 in the High Court of Justice, Benin Division in suit No. B/360/2015. The learned Chief Judge held that the case of the Claimant now Appellant failed in its entirety, statute barred and not maintainable.

Aggrieved with the judgment, the Appellant filed a two ground Notice of Appeal on 11th day of May, 2018. The Record of Appeal was compiled and transmitted to this Court on 11/2/2020 and was deemed compiled and transmitted on 2/7/2021.

The Appellant’s Brief of Argument was filed on 29/10/2018 but deemed properly filed and served on 2/7/2021. It was settled by Martin Omozogie Ighekpe Esq.

The Respondents’ Brief of Argument was filed on 11/2/2020 but deemed properly filed and served on 2/7/2021. It was settled by Akhimie Emmanuel E. Esq. of Counsel.

RESUME OF BACKGROUND FACTS
​The Appellant is a Construction Company who bided for and was awarded the contract for the drains along 2nd East Circular Road, (from St. Paul’s Anglican Church to Sakponba Road) Benin City by the 1st Respondent – Ministry of Environment and Public Utilities, Edo State – vide a letter dated 11th of August 2008.

The Appellant accepted the offer for the execution of the contract wherein the Appellant was mobilized by the 1st Respondent with the sum of N19,991,660 (Nineteen Million, Nine Hundred and Ninety One Thousand, Six Hundred and Sixty Thousand Naira) only representing 25% of the contract sum, thus the Appellant swung to action to perform the contract.

The Appellant subsequently raised an interim certificate for the sum of N32,136,343.30 (Thirty Two Million, One Hundred and Thirty-Six Thousand, Three Hundred and Forty Three Naira and Thirty Kobo) only covering the area of the work done.

​It is the Appellant’s claim that upon the failure of the 1st Respondent to pay the above sum, it instructed its solicitors to write a letter demanding for the payment of the above sum. That apart from the failure of the 1st Respondent to accede to the demand notices for payment from the Appellant compiled with a statutory pre-action notice and the final demand notice for the payment of the above sum, the Appellant consequently instituted this action.

The matter proceeded to trial on 16th of November, 2017, parties adopted their respective written addresses, and judgment reserved for 10th day of April 2018 on which day judgment was delivered in favour of the Respondents. The decision culminated to this appeal.

The Notice of Appeal filed by the Appellant contained two grounds viz
GROUND ONE
“The trial Court erred when it held that there was a breach of contract arising from the non-completion of the contract within 3 (Three) months as contained in the offer letter.”
GROUND TWO
“The trial Court erred in law when the Court held that the Appellant’s claim was statute barred.”

Pursuant to these Grounds of Appeal, the Appellant formulated two issues for determination set out as follows:
1. Whether the trial Court was right to hold that the non-completion of the contract subject matter of this appeal within Three (3) months as contained in Exhibit ‘A’ (the offer letter) amount to a breach of the contract. If the answer is in the affirmative it will lead to the refusal claim (sic) of the Claimant. (Distilled from Ground 1)
2. Whether the subject matter of this appeal is statute barred? (Distilled from Ground 2)

ISSUE ONE
It was submitted that the trial Court was in error when it held that the Appellant was in breach of the contract with the Respondent as the Appellant had three (3) months within which to complete the contract, without considering the contractual relationship between the parties particularly when the Respondent took advantage of the contractual relationship up till the signing of the certificate of work done.

Counsel referred to the cases Akinyemi V. Odu’a Investment Coy. Ltd. (2012) 210 LRCN 180 at 203; Babatunde V. Bank of the North Ltd (2012) 206 LRCN 61 at 83.

That flowing from the above decided cases, relied on by the trial Court, it was submitted that the law allows the trial Court to look into the relationship of the parties during the pendency of the contract. He enjoined the Court to determine whether either of the parties had taken advantage of the other in relation to the dispute before the Court.

​It was submitted that it was morally despicable for a person or a party who has benefited from the agreement to say that it is null and void like in the instant case. That this Court has frowned at the attitude of the 1st Respondent in decided cases. Refer to Inyang V. Ebong (2002) 2 NWLR (Pt. 751) 284 at 333–334.

Submitted that the subject matter of this appeal had a peculiar issue as it relates to the work done by the Appellant which the trial Court neglected or refused to determine between the parties.

It was argued that the Appellant completed a milestone and requested for payment of the said milestone to enable them complete the contract. The Respondents refused to comply. Inevitably that it was the Respondents that frustrated the contract referring to Exhibits ‘C’ and ‘D’ and ‘A’ – the award letter.

Appellant referred to Exhibit ‘C’ which is the interim certificate of work done dated 26th of March, 2010 for the sum of N32,136,343:30.

​The Appellant submitted or sent several letters of demand for the payment without response. These were Exhibit ‘D1’, ‘D2’ and ‘E’ respectively.

He submitted that the 1st Respondent was bound by the content of Exhibit ‘D1’ – ‘D2’ and ‘E’ respectively. Refer to the case of Vaswani V. Johnson (2001) 11 NWLR (Pt. 679) 588-589; Gwani V. Ebule (1990) 5 NWLR (Pt. 149) 201 at 217.

Counsel submitted that the evidence of the PW1 was clear and uncontroverted on the issue of performance bond and the completion date of three months as indicated in Exhibit ‘A.’ Contended that the failure of the trial Court to place reliance on the evidence of the Appellant which was uncontroverted occasioned miscarriage of justice. See S.O. Intern (Nig) Ltd. V. Delmas (2015) ALL FWLR (Pt. 767) 719 at 734.

It was submitted that had the trial Court averted its mind to the uncontroverted evidence of the Appellant’s witness PW1 Viz – a –viz the evidence of the DW1 which relate to the time for the execution of the contract, the holding of the trial Court would have been different.

​The PW1 stated that it look more than 3 months before the Appellant was mobilized to site and same was uncontroverted. That from the testimony of PW1 under cross-examination that the mobilization of 25% of the contract sum was after three months of the acceptance of the contract. That trial Court fell into grave error in relying on Exhibit A, in holding that the Appellant was in breach of the contract even when the parties conceded that there was no final agreement between them. Refer to paragraph 5 of the DW1 Statement on Oath on page 98 of the Record. The implication of the above was that the three months completion date was waived by the Respondent particularly when the interim certificate was executed by the Appellant on the 1st Respondent. On waiver, Counsel referred to the case of Ajayi V. Harry (2015) ALL FWLR (Pt. 770) 1302 at 1315-1317.

It was submitted that when parties to a contract contravene a specific provision in the contract it will not vitiate the contract. See Edosa V. Zaccala (2006) ALL FWLR (Pt. 306) 881 at 894–900.

It was submitted that by parity of reasoning the non-signing of a formal contract will render the contract between the Appellant and the 1st Respondents as a simple contract. Refer to the Flowliness Ltd. V. BV Inter. Projects Ltd (2015) FWLR (Pt. 808) 741, 754.

​It was submitted the contravention of clause 3 of Exhibit ‘A’ did not vitiate or breach the contract, the subject matter of the appeal.

Submitted that assuming without conceding that the contract was breached by the Appellant, it will not affect the payment of the work done by the Appellant as the Appellant’s claim before the trial Court is for the work done. Exhibit ‘C’ was duly executed by the Appellant.
He urged the Court to resolve issue No.1 in favour of the Appellant.

2ND ISSUE
Whether the subject matter of this appeal is statute barred (Ground 2)
It was submitted that the Appellant was offered the contract, the subject matter of this appeal on the 11th of August 2008, by the 1st Respondent. The Appellant accepted the contract on 12th August 2008. The only challenge is the date the Respondent mobilized the Appellant to site after three months of accepting the offer. That the Respondents did not challenge the mobilization of the Appellant with 25% of the contract sum.

He referred to the evidence of the DW1 which admitted that the 1st Respondent through the directors in the employ of the 1st Respondent executed the interim certificate Exhibit ‘C’ work done in favour of the Appellant.
Exhibit ‘C’ the interim certificate was executed on the 26th February 2010.

It was submitted that the Respondents through their Counsel submitted that the contract was awarded on the 11th of August 2008 while the suit the subject matter of this appeal was instituted on the 22nd of December 2015 a period of 7 years, 4 months and 14 days after the date the contract was awarded. The Respondents’ Counsel further submitted that the suit the subject matter of this appeal having been filed on the 22nd of December, 2015 more than 6 years of the provision of the limitation; the suit was statute barred.

It was submitted that the address of Counsel cannot substitute evidence. Omisore V. Aregbesola (2015) ALL FWLR (Pt. 813) 1673 AT 1752.

It was also argued referring to the decision of the lower Court that the holding of the lower Court was perverse. That the trial Court did not determine when the dispute between the parties arose.

​Submit that it is the claim of the Claimant that determine the jurisdiction of the Court, that the Court ought to have examined the provision of Section 4 of the Limitation Law of Bendel State as applicable to Edo State to determine when the subject matter of this appeal was caught up with the limitation law.

It was contended that the trial Court was in error when it held that the suit the subject matter of this appeal was statute barred even when the trial Court admitted that Exhibit ‘C’ was executed by the Appellant and the 1st Respondent on the 25th of March 2010; when the dispute the subject matter of this appeal had not arisen.

It was equally submitted that the trial Court did not avert its mind to Exhibit ‘D’ a letter dated 4th of October, 2010 showing that the Appellant was still on site as at the 4th of October, 2010.

Submitted that the interim certificate Exhibit ‘C’ was executed by the Appellant and the 1st Respondent on 26th of March 2010.

​It was contended that before the execution of the interim certificate of work done that is Exhibit ‘C’ on 26th March 2010, there was no dispute between the Appellant and the 1st Respondent as the cause of action arose when the 1st Respondent failed and neglected to pay the Appellant the sum of N32,136,343.30 which necessitated the pre-action notice issued to the 1st Respondent.

That it was therefore safe to suggest that the cause of action accrued or occurred on the 26th of March, 2010 and the subject matter of this appeal was filed on the 30th December 2015. From 26th March 2010 to 30th December 2015 was 5 years. That the final demand letter was written on 5/10/2015 which the 1st Respondent refused to respond to.

On when cause of action arose, counsel referred to the cases P.T.I. V. Matthew (2012) ALL FWLR (Pt. 623) 1949 at 1952; Speaker Oyun Local Govt. V. Ajimoti (2011) ALL FWLR (Pt. 585) at 328.

It was submitted that the Respondents failed and neglected to expressly plead facts with respect to the defence of limitation in the 1st–3rd Defendant’s join statement of defence.

​That the Respondent did not file a preliminary objection during the trial of this suit even though it was pleaded in the statement of defence paragraph 12 as follows:
“The Defendant’s (sic) avers that they shall before the trial of this suit file a notice of preliminary objection against this suit for being statute barred”.

It was submitted that the Defendant failed to plead the defence of limitation in the statement of defence as required by law and this failure renders the objection incompetent. Referred to the case Ademetan V. I.T. Rcca (2016) ALL FWLR (Pt. 821) 1502 at 1523–1524.
Counsel urged the Court to resolve issue 2 in favour of the Appellant, allow this appeal and set aside the judgment of the trial Court.

RESPONDENTS’ BRIEF OF ARGUMENT: ISSUES DONATED
The Respondents donated two issues for determination in this appeal viz:
1. Whether failure of the Appellant to comply with Clause 3 of Exhibit ‘A’ is not a fundamental breach that goes to the root of the contract between the parties in this case.
2. Whether this suit is maintainable in law in view of the provisions of Section 4(1)(a) of the Limitation Law of Bendel State of Nigeria 1976 as applicable to Edo State.

ISSUE ONE
It was submitted that Exhibits ‘A’ and ‘B’ show clearly that a valid and binding contract existed between the parties in this case. It was submitted that all the essential elements of a valid contract were present in the transaction between the Appellant and the Respondents. Therefore there was a binding contract between the parties. Refer to the case of Union Bank V. Prof. Ozigi (1994) 3 NWLR (Pt. 333) 386; Akinyemi V. Odua Investment Co. Ltd (2012) 210 LRCN 180 at 203.

It was submitted that Exhibit ‘A’ before the trial Court was the contract agreement between the parties in this case, which binds the parties and guides the Court for the just determination of the appeal.

Respondents’ Counsel argued that the evidence of the Appellant and his submission on the fact that an interim certificate was issued and signed in favour of the Appellant was an extrinsic evidence which could not be allowed to vary or alter the content of Exhibit ‘A’. That there was nowhere in Exhibit ‘A’ it was contained that the Appellant will execute the said contract in bits or parts and pay instalmental. That Exhibit ‘A’ only approved and empowered the Appellant to draw a mobilization fee of 25% of the contract sum. He urged the Court to give effect to the content of Exhibit ‘A’ which is the contract between the parties.

It was submitted that it was the Appellant that breached terms and conditions of Exhibit ‘A’ particularly clause 3 which is in respect of entering into formal agreement with the Ministry and the production of a performance Bond.

It was submitted that there was no evidence before this Court that the Appellant had fulfilled these conditions precedent. That the Appellant breached the contract including failure to perform the contract within three months. He refer to the case Nwaolisa V. Nwabuifoh (2011) 199 LRCN page 21 in what constitutes breach of contract. That non-compliance with clause 3 of the contract has a fundamental breach.

It was the assertion of the Respondents’ Counsel that the Respondent’ did not in anyway breached the content of Exhibit ‘A’ by not paying the Appellant the sum of N32,136,343.30, this was because there was no clause in Exhibit ‘A’ to the effect that the Appellant will be paid instalmental for work done.

​That it was the Appellant that breached the terms and conditions of Exhibit ‘A’ clause 3 in particular. The Appellant failed to enter into formal agreement with the 1st Respondent, failed to produce a suitable performance bond and failed to execute and complete the contract within three months.

Concluding, Counsel urge this Court to hold that the breach of clause 3 of Exhibit ‘A’ by the Appellant constitute a breach of the fundamental terms in the contract between the Appellant and the Respondents. He urged the Court to affirm the judgment of the trial Court.

ISSUE TWO
It is whether the suit at the lower Court was maintainable in law in view of the provisions of Section 4(1)(a) of the Limitation Law of Bendel State 1976 as applicable to Edo State.

​It was submitted that this suit was statute barred and same was not maintainable in law in view of the provisions of Section 4(1)(a) of the Limitation Law of Bendel State 1976 as applicable to Edo State which provides:.
“4(1) “The following action shall not be brought after the expiration of six months of six years from the date on which the cause of action accrues, this to say
(a) Action founded on simple contract or tort
(b) Action to enforce a recognizance
(c) Action to enforce an award, where the submission is not by instrument under seal
(d) Action to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture of sum by way of penalty or forfeiture.

It was submitted that by Exhibit ‘A’ and ‘B’ the parties to this case entered into a contract between 11th day of August and 12th August 2008.

That by Exhibit ‘A’ clause 3 the contract was to be fully executed and completed within 3 months. That Exhibit ‘B’ shows that the Appellant agreed with the Respondent that the contract will be completed within three months.

That owing to the Appellant’s inability to execute and complete same within the period of three months, his six year period within which to institute action on same in any Court of law started running from the 13th day of November 2008 and ends May 2014.

​It was further submitted that from the endorsement on the writ of summon and the statement of claim, it was clear that this case was instituted on the 22nd December, 2015 a period of more than 6 years within which the Appellant may institute the action thereby making same to be statute barred. Cited the case Usman V. Baba (2005) 5 NWLR (Pt. 917) 113; Timipre Sylva V. INEC (2015) 16 EJSC 132.

Counsel urged the Court to hold that the action was statute barred, dismiss the appeal and affirm the judgment of the lower Court.

From the sum total of the issues distilled by the parties and submissions made thereof, this Court adopts the aforesaid issues as follows:
1. Whether the suit at the lower Court the subject matter of this appeal was statute barred.
2. Whether the trial Court was right to hold that the non-completion of the contract subject matter of this appeal within three (3) months as contained in the offer letter (Exhibit ‘A’) amount to a breach of the contract.

ISSUE NO.1
The starting point is to consider the issue as to whether the suit at the lower Court was statute-barred when it was instituted by the Appellant. This issue provokes two questions: what was the cause of action in the suit at the lower Court? When did the cause of action arise or accrue? The answers to these questions can only be determined from the pleading of the Claimant to wit the writ of summons and the statement of claim. Further, the answers will enable this Court resolve whether the cause of action and by extension the suit was instituted within time and not caught by the cobweb of the statute of Limitation or any Limitation Law. The writ of summons and the statement of claim are pertinent in this regard. This is against the backdrop of the decisions of the Appellate Court in a line of cases to the effect that in determining a cause of action or whether the Plaintiff’s action discloses any cause or the nature thereof, the Court will necessarily restrict itself to the Plaintiff’s statement of claim without reference to or recourse to the Defendant’s Statement of Defence. See Mulima V. Usman (2014) 16 NWLR (Pt. 1432) 160 at 199; Seven up Bottling Coy Ltd. V. Abiola & Sons (2001) 13 NWLR (Pt. 730) 469 at 495.

It is germane to consider first the claimant’s relief as contained in the writ of summon in pages 2 and 3 of the Record. The Claimant claimed against the Defendants as follows:
The payment of the sum of N32,136,343.30 (Thirty-Two Million, One Hundred and Thirty-Six Thousand, Three Hundred and Forty –Three Nair, Thirty Kobo) only, being the sum due the Claimant as payment for work done in respect of a contract for the construction of drains along 2nd East Circular Road, (from St. Paul’s Church to Sokponba Road) Benin City, given to the Claimant by the 2nd Defendant, through the 1st Defendant, as contained in the interim Certificate, since the 23rd of March 2010. The Defendant has failed, refused and/or neglected to pay the Claimant the above stated sum despite repeated demands by the Claimant.
WHEREOF THE CLAIMANT CLAIMS against the Defendant the sum of N32,136,343.30 (Thirty-Two Million, One Hundred and Thirty-Six Thousand, Three Hundred and Forty–Three Naira, Thirty Kobo) only, being the sum outstanding against the Defendants and an interest of 10% per month from the date of judgment and thereafter till final repayment thereon.

​Further to the above are the facts averred in the statement of claim.
1. The Claimant is a construction company with its registered head office at No. 13 Alohanoba Avenue, off Goodwill, off Ekenwan Road, Benin City, Edo State.
2. The 1st Defendant is a ministry under the 2nd Defendant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

3. The 2nd Defendant is the Edo State Government and Principal of the 1st Defendant.
4. The 3rd Defendant is the law officer of the 2nd Defendant and has the constitutional responsibility to sue and be sued on behalf of the 1st and 2nd Defendant.
5. The Claimant avers that it bided for and was awarded the contract for the construction of Drains along 2nd East Circular Road (from St. Paul’s Anglican Church to Sokponba Road) Benin City, by the 1st Defendant/Respondent vide a letter dated 11th August 2008. The Claimant shall found and rely on the Defendant’s office letter at the trial of this suit.
6. The Claimant avers that it accepted the offer vide an acceptance letter dated 12th August 2008. The Claimant shall found and rely on the said acceptance letter at the trial of this suit.
7. The Claimant avers that upon the exchange of the above correspondences, the Claimant immediately swung into action to perform the terms of the contract and in furtherance of completing the job, the Claimant raised an interim certificate in the sum of N32,136,343.30 (Thirty-Two Million, One Hundred and Thirty-Six Thousand, Three Hundred and Forty –Three Naira, Thirty Kobo), since the 23rd of March 2010. The Claimant shall found and rely on the said interim certificate at the trial of this suit.
8. The Claimant avers that the interim certificate is in respect of the job done in the performance of the contract.
9. The Claimant avers that the said interim certificate contains the amount expended by the Claimant.
10. The Claimant avers that it wrote a letter of demand to the 1st Defendant dated 26th February 2010, for the payment in respect of work executed on the project attaching the said interim certificate. The claimant shall found and rely on the said letter of demand at the trial of this suit.
11. The Claimant further avers it wrote several demand notices to the 1st Defendant in respect of the above payment but unfortunately, the Claimant has not received any positive response from the 1st Defendant. The Claimant shall found and rely on the said letters of demand at the trial of this suit.
12. The Claimant avers that after the 1st Defendant’s inspection visit to the Claimant’s site in September 2010, the Claimant wrote a letter dated 4th October 2010 to the 1st Defendant informing the 1st Defendant of the completion of the desiltation of the balance 65 meters. The Claimant shall found and rely on the said letter at the trial of this suit.
13. The Claimant avers that it wrote the 1st Defendant a reminder letter dated 4th January 2011, requesting for feedback on the payment for the interim certificate and completion of the job. The Claimant shall found and rely on the said reminder letter at the trial of this suit.
14. The Claimant avers that it wrote the 1st Defendant a 2nd reminder letter dated 1st June 2011 requesting payment for the interim certificate. The Claimant shall found and rely on the said letter dated 1st June 2011 at the trial of this suit.
15. The Claimant avers that when the 1st Defendant refused, neglected and failed to pay the Claimant the above stated sum, the Claimant wrote a letter dated 20th May 2014 to the 2nd Defendant informing the 2nd Defendant of the delay in payment. The Claimant shall found any rely on the said letter at the trial of this suit.
16. The Claimant avers that when it did not receive any positive response from the Defendants despite repeated demands the Claimant wrote the 1st Defendant a pre-action notice through the Claimant’s solicitors vide a letter dated 5th October 2015. The Claimant shall found and rely on the said solicitor’s letter dated 5th October 2015 and the Courier waybill dated 6th October 2015 at the trial of this suit.
17. The Claimant avers that a copy of the solicitor’s letter was also served on the 2nd and 3rd Defendants respectively. The Claimant shall found and rely on the said solicitor’s letter dated 5th October 2015 and the Courier waybills dated 6th October 2015 at the trial of this suit.
18. The Claimant further avers that the 2nd Defendant acknowledged receipt of the said letter vide a letter dated 8th October 2015. The Claimant shall found and rely on the said letter at the trial of this suit.
19. The Claimant avers that it has suffered losses occasioned by the neglect and refusal of the Defendants to pay the Claimant the above stated sum as contained in the interim certificate, despite repeated demand notices.
20. The Claimant avers that it has virtually forfeited the collateral deposited with the bank, in view of the accumulated interest on the amount loaned to the Claimant to execute the contract.

Considering the sum total of the reliefs claimed by the claimant in the statement and the averments in the statement of claim, particularly paragraph 7, the facts stated therein encapsulate the claimant’s cause of action which is the claim for the sum of N32,136,343.30 being the cost of the job done in respect of the construction of drains along 2nd East Circular Road (from St. Paul’s Anglican Church to Sakponba Road) Benin City since 23rd of March, 2010 which sum has remained unpaid in spite of repeated demands. Paragraph 7 of the statement of claim is to the effect that the claimant raised an Interim certificate in respect of the job done since 26th March 2010. The claimant averred that the claim for the construction of the drain remained unpaid which resorted to the institution of this action.

Without doubt, the Appellant’s statement of claim discloses a cause of action. This transports this Court to consider the contention of 1st–3rd Defendants in their joint Statement of Defence, as averred in paragraph 12.
12. The Defendants aver that they shall before the trial of this suit file a notice of preliminary objection against this suit for being statute barred.”

​Was the Appellant’s action at the lower Court statute barred? The lower Court in its judgment on the contention of the Respondent that the action before the trial Court was statute barred held as follows:
“On the issue of the action being statute barred contrary to Section 4(1)(a) of the Limitation Law of Bendel State, 1976 as applicable to Edo State, per Onu, JSC (p. 23, paragraphs D-F) in Julius Berger (Nig.) Plc V. Omogui (2001) 15 NWLR, (Pt. 736), page 420 stated that the time for an action in tort of this nature is to be brought within 6 years. In other words, if an action in tort is not commenced within the said 6 years, it is no longer maintainable.
I also find that the Claimant has exceeded the time frame within which to institute an action in respect of the contract against the Defendants and therefore his action is statute barred. See Adekoya V. FHA (2008) LPELR-105 SC where the Court held that “A cause of action is said to be stature barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Act or Law has elapsed – per Tobi JSC (p.16, paragraphs C-D). Osun State Govt. V. Dalami Nig. Ltd 2007 (vol. 148) LRCN, page 1313, paragraph F.
In the case of Alhaji Aliyu Ibrahim V. Judicial Service committee, Kaduna State & Anor (1998) 12 SCNJ, 255, per Iguh, JSC at pages 31–32 held thus:… the general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law.”

It is settled law that in determining whether a case is statute-barred, a Judge is limited to the Writ of Summons and Statement of Claim, without recourse to the Statement of Defence or any document or process – Mulima V. Usman (Supra) at 1999. Also, to determine whether or not an action is statute-barred the Court considers:
(a) When the cause of action accrued
(b) The date of the commencement of the suit as indicated in the writ of summons
(c) Period of time prescribed for bringing an action to be ascertained from the statute in question. Time begins to run for the purpose of the Limitation Law from the date the cause of action.
See Idachaba V. University of Agriculture Makurdi (2021) 11 NWLR (Pt. 1787) 209 at 225 per Abba-Aji JSC.

The cause of action in this case flows from the Statement of Claim of the Appellant (Claimant) as captured by paragraph 7 of the pleading. It was the claimant’s claim that the Respondents awarded him a contract to construct drainage along 2nd East Circular (from St. Paul’s Church to Sakponba Road). That in furtherance of the completion of the job, the claimant raised an interim certificate in the sum of N32,136,343.30 since 23rd March 2010. In other words, the Interim certificate for the payment of the above sum by the Respondents was raised by the Appellant since 23rd March 2010. Succinctly said, the cause of action accrued or arose when the interim certificate for the payment of this sum was issued on 23rd March 2010.

​The Appellant’s action was instituted at the High Court of Justice when it was filed at the Registry of the Court on 22-12-2015. Suffice to say, the matter was commenced after four years and nine months when the cause of action arose. Can it be said, the action is statute barred as held by the lower Court?
Section 4(1)(a) of the Limitation Law of Bendel State (supra) provides thus:
“4(1) The following shall not be brought after the expiration of six years from the date in which the cause of action arose.
(a) Action founded on simple contract or tort.
Against the background of the six years limitation period provided by the Limitation Law could it be said that this action commenced after four years and nine months of the accrual of the cause of action is statute barred? It is patently clear that this action was filed within the six years time frame provided by the Limitation Law.
​This action, contrary to the contention of the Respondents and the decision of the lower Court is not statute barred. The action is maintainable. It is valid and the lower has the requisite jurisdiction to entertain the suit. The action is still a live issue. It is not dead. The decision of the lower Court cannot stand in the circumstance. It is subject to being set aside on the issue when the action is statute barred.
The first issue is accordingly resolved in favour of the Appellant.

2ND ISSUE
The second issue is whether the trial Court was right to have held that the non-completion of the contract the subject matter of this appeal within three (3 months) as contained in Exhibit ‘A’ (offer letter) amount to a breach of the contract.
With regards to the above issue, it is important to refer to the decision of the lower Court where it held that the non-completion of the contract the subject matter of this appeal within Exhibits three months as contained in Exhibit ‘A’ (offer letter) amount to a breach of the contract. For a clear view of this decision and for the purpose of ease of reference, the pertinent holding is highlighted below.
“I have therefore considered Exhibit ‘A’, which appears to me to be the contract document and required for the determination of this case. I reproduce clause 3 hereunder. It reads thus: “Please, note that the contract is subject to your entering into a formal agreement with the Ministry and the production of a suitable Performance Bond from a reputable Insurance Company or Bank quoted in the Nigeria Stock Exchange. The completion period of this contract is three (3 No.) months.”
The portions highlighted by me are very crucial. The implication is that the contractor (the Claimant) has three (3) months within which to complete the contract failure of which will amount to a breach of contract. See Nwaolisah V. Nwabufoh SC (2011) 199 LRCN, page 21, per Adekeye JSC. (pp. 38–39, paragraphs G-B) defined a breach of contract as when a party has acted contrary to the terms of the contract either by not performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract, See also Pan Bisbilder (Nig.) Ltd V. FBN Ltd (2000) 1 NWLR, part 642, page 688 (pp 700-701, paragraphs H-A).
From the above, I find that the Claimant breached Clause 3 of the contract entered into with the Defendants”.

The 1st–3rd Respondents Counsel referred to Exhibits ‘A’ and ‘B’ and submitted that a valid and a binding contract existed between the parties in this case, that all the essential elements of a valid contract were present in the transaction between the Appellant and Respondents. He submitted that Exhibit ‘A’ before the trial Court was the contract agreement between the parties in this case. That Exhibit ‘A’ was mutually agreed on and signed by both parties.

In their statement of Defence, the 1st–3rd Defendants admitted paragraphs 2, 3, 4, 5 and of the Claimant’s Statement of Claim. In particular paragraphs 5 and 6 which are recapitulated below.
5. The claimant avers that it bidded for and was awarded the contract for the construction of drains along 2nd East Circular Road (from St. Paul’s Anglican Church to Sakponba Road) Benin City, by the 1st Defendant/Respondent vide a Letter dated 11th August 2008. The claimant shall found and rely on the Defendant’s offer letter at the trial of the suit.
6. The Defendant avers that it accepted the offer vide an acceptance letter dated 12th August 2008. The Defendant shall found and rely on the said acceptance letter at the trial of this suit.

​It is therefore settled that the 1st–3rd Respondents awarded a contract for the construction of drainage which offer the Appellant accepted.

The Appellant pleaded and testified that it performed the terms of the contract and in furtherance of completing the job, the claimant raised an interim certificate for the sum of N32,136,343.31. That the Interim Certificate was in respect of the job done in the performance of the contract.

The Respondent’s averred and testified to have mobilized the Appellant with 25% of the contract sum. The contract sum being N79,686,640.00.

The Defendant averred and testified that:
“The Defendants who had mobilized the Claimant with 25% of the contract sum, aver that they do not owe the claimant any financial responsibility, and more so the claimant did not complete the contract till date.”

​The above is to the effect that the Appellant was mobilized with 25% of the contract sum. The Appellant admitted this in his evidence under cross-examination. The Respondents’ evidence also reveal that the Appellant did not complete the contract which is suggestive, indicative, and conclusive that the Appellant performed part of the contract. This confirms paragraph 7 of the claimant’s statement of claim and evidence that upon the exchange of Exhibits ‘A’ and ‘B’ – offer letter and acceptance letter – the Appellant swung into action to perform the terms of the contract and raised interim certificate for the work done which was N32,136,343.30 which the 1st–3rd Respondents had since failed to honour that is, failed to pay.

It is clearly shown that the Appellant performed part of the contract he was awarded and upon which he raised an interim certificate for the sum of N32,136,343.30. However, it is the contention of the 1st Respondent that the Appellant was not entitled to this sum for failure to comply with paragraphs 3 of Exhibit ‘A’; and also because there is no clause in Exhibit ‘A’ to the effect that the Appellant will be paid instalmentally for work done.

I have considered the evidence placed before the lower Court to the effect that the Appellant was contracted by the 1st–3rd Respondents to construct drainage at 2nd East Circular road (from St. Paul’s church to Sakponba). Evidence was also led by the Appellant that he performed part of the contract consequent upon which he raised an interim certificate for the sum of N32,136,343.30 which sum was not paid by the 1st Respondents on the ground that the Appellant failed to meet the conditions in Exhibit ‘A’ clauses 2 and 3.

Having established by evidence that the Appellant performed part of the contract which he was not paid inspite of demands made for payment, the law is settled that if a party has rendered services (or has supplied goods under a contract which has not been fully performed and which has been determined by him because of the Defendant’s repudiatory breach of contract, he may sue for damages arising from the breach of contract or being a restitutionary claim to recover the value of the services rendered and the good supplied, to recover the value of the services rendered or the goods supplied on a quantum meruit or quantum valebat bat, see SBN Plc V. Opanubi (2004) LPELR-3023 (SC).
In De Benardy V. Harding (1853) 3 Exch. 822, 824 (1853) 155 ER 1586, 1587 Alderson B observed thus:
“Where one party has absolutely refused to perform or has rendered himself incapable of performing his part of the contract, he puts himself in the power of the other party either to sue for breach of it, or to rescind the contract and sue on quantum meruit for the work actually done.”
Payment of quantum meruit will arise if one person has expressly or impliedly required another to render him a service or execute a piece of work specifying any remuneration but the circumstances of the request imply that the service is to be paid for or if a person by the terms of the contract is to do a certain piece of work for a lump sum, and he does only a part of the work, he may be able to claim on a quantum meruit if completion of the works has been prevented by the act of the other person Adio JSC the case Olaopa V. OAU Ile –Ife (1997) LPELR-2571(SC).
In the case CGC (Nig.) Ltd V. Yusuf (20160 LPELR-41569 (CA) this Court pronounced thus:
“I agree with learned Counsel for the Respondent, that quantum meruit principle needs not be specifically pleaded before evidence is led and a claim made once the facts tending to show that the claimant had partly performed or had supplied material, had been pleaded, then evidence can be led in them and if there is proof, the Court would make the award, to compensate the claimant for service rendered or materials supplied in case of a breach of contract. A specific plea of quantum meruit is not mandatory since it is a wrong that is righted.
In Savannah Bank V. Opanubi it was held “…where the contract is divisible or severable whether by way of work done, goods supplied or services rendered the claimant should find no difficulty in stating the particulars and leading evidence to show that it is entitled to recover payment for the obligations the performance of which he had completed.”
It is the law that imposes the obligation to pay a reasonable sum on the basis of quantum meruit, and it is a common law remedy. See Olaopa V. OAU Ile-Ife (Supra).

In the case before the lower Court and on appeal before this Court, the 1st–3rd Respondents never disputed the amount claimed by the Appellant as being the cost of the work done. The case of the 1st–3rd Respondents was the breach of the terms of the contract – clause 3 of Exhibit ‘A’ by the Appellant. On the basis of this contention and in view of the part payment by the Appellant of the contract and on the authority of the above decision, this Court is strongly of the view that the Appellant is entitled to judgment on the basis of quantum meruit which is asserted on the basis of the amount claimed by the Appellant as per its writ of summon and statement of claim, being the value of services rendered by the Appellant.

The failure to complete the contract within three months as stated in Exhibit ‘A’ could not be laid at the feet of the Appellant against the background of the failure of the Respondent to pay for the interim certificate raised in respect of the job done.

​The failure to satisfy some of the administrative conditions contained in Exhibit ‘A’ like procurement of performance bond and signing of a final agreement cannot be said to be a breach of the contract since the Appellant had commenced the performance of the contract that is the construction of drainages at 2nd East Circular Road (from St. Paul’s Anglican Church to Sakponba) Benin City. In essence, the Appellant performed part of the contract. Evidence reveal that the Appellant could not proceed further to completion of the contract due to the 1st–3rd Respondents’ failure to perform their own part of the obligation, that is payment for work done.

Consequently, and flowing from these premises, the lower Court’s holding that the non-completion of the contract the subject matter of the appeal within three months as contained in Exhibit ‘A’ amount to a breach of contract cannot be sustained in the circumstance. The non-completion within 3 months was due to the failure of the 1st–3rd Respondents to perform their own responsibility in the contract, not as a result of any breach of Exhibit ‘A’ by the Appellant.
In the light of the foregoing, issue No.2 is accordingly resolved in favour of the Appellant.

​In conclusion, this appeal succeeds. The action instituted by the Appellant at the lower Court in Suit No. B/360/2015 is not statute-barred. Further, the Appellant is not responsible for the failure to complete the project within three months as provided in clause 3 of Exhibit ‘A’ the letter of offer. The judgment of the lower Court is accordingly set aside in the light of the foregoing.

The claim of the Appellant at the lower Court succeeds. He is accordingly awarded the sum of N32,136,343.30 (Thirty two million, one hundred and thirty-six thousand, three hundred and forty-three naira, thirty kobo) only being the sum due to the Appellant as payment for work done in respect of a contract for the construction of drain along 2nd East Circular Road (from St. Paul’s Anglican Church to Sakponba Road) Benin City given to the Appellant by the 2nd Respondent through the 1st Respondent as contained in the interim certificate since the 23rd of March 2010 which sum the 1st–3rd Respondents have failed, refused and/or neglected to pay to the Appellant despite repeated demand by the Appellant.
Parties to bear their respective costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had the preview of the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA.

​I adopt the reasoning and conclusion reached in allowing the appeal. I too allow this appeal and set aside the judgment of the High Court of Edo state delivered on 20th April, 2018 by E. F. Ikponwen, J. in suit NO. B/360/2015.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft, the judgment delivered by my learned brother, Samuel Ademola Bola, JCA.

The judgment of the lower Court against the Appellant was decidedly on two principal issues, viz; that the Appellant’s claim was statute-barred, and that the Appellant was in breach of the contract between it and the 1st Respondent, and by extension, 2nd and 3rd respondents. Both issues were subjected to proper factual and legal scrutiny in the leading judgment culminating in the resolution of both in favour of the Appellant, which I find no reason to fault but to adopt same as if it was reached by me.

Therefore, for me too, this appeal is meritorious and is hereby allowed. In consequence, the judgment of the lower Court is set aside, and in place of the same, judgment is entered for the Appellant.
No order as to costs.

Appearances:

MARTIN OMOZOGIE IGHEKPE, Esq. with him, D. COKOH, Esq. For Appellant(s)

AKHIMIE EMMANUEL E. Esq. For Respondent(s)