MR OLAGOKE AKINSULIE & ANOR. V. MR MICHAEL OGUNYANJU
(2011)LCN/4356(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/B/252/2004
RATIO
REMEDIES IN BREACH OF CONTRACT: REMEDIES AVAILABLE TO A PARTY WHO HAS PARTLY PERFORMED A CONTRACT AND WAS, BY THE ACT OF THE OTHER PARTY, PREVENTED FROM PROCEEDING FURTHER WITH HIS PERFORMANCE
In the case of Olaopa V. O.A.U Ile-Ife (Supra) the Supreme Court per Ogundare J.S.C observed: “The principle of law is that a party to an entire contract partly performed by him and was, by the act of the other party, prevented from proceeding further with performance, the law entitles him to be paid for the fruits of the labour he has already rendered. In a situation like this, two alternative remedies are open to him:- (a) Damages for breach of contract (b) Reasonable remuneration in quantum meruit for work already done. PER CHINWE IYIZOBA, J.C.A.
CLAIM ON QUANTUM MERUIT: WHETHER A CLAIM ON QUANTUM MERUIT CAN ARISE WHERE THERE IS AN EXISTING CONTRACT FOR THE PAYMENT OF AN AGREED SUM
….A claim on quantum meruit cannot even arise where there is an existing contract for the payment of an agreed sum…” PER CHINWE IYIZOBA, J.C.A.
AVERMENT OF FACTS: EFFECTS OF UNDENIED AVERMENTS IN PLEADINGS
A plaintiff’s averment of facts must be met by the Defendant frontally and categorically. Once a traverse is not met categorically, the Defendant is taken to have admitted it. See Owosho v. Adebodele Dada (1984) 7 SC 149. Even if the Defendant made a general traverse, but gave copious evidence in support of their rebuttal, it would be sufficient. A Defendant’s general traverse is not sufficient to contradict a plaintiff’s pleadings and evidence on oath. Where there is undenied averments in pleadings evidence offered in support of it must be believed. Ezulumeri Ohiaeri v. Akabeze (1992) SCNJ 76. Where the Defendant in this case fails to join issues on averment in the Statement of Claim, such averment is deemed admitted by the defendants and the plaintiff bears no burden of proof in such circumstances. Honika Sawmill Ltd. V. Mary Okojie-Hoff (1994) 2 SCNJ 86. PER CHINWE IYIZOBA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR OLAGOKE AKINSULIE
2. MRS AKINSULIE Appellant(s)
AND
MR MICHAEL OGUNYANJU Respondent(s)
CHINWE IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ogunwumiju J of the Ondo State Judiciary (as he then was) sitting at Ondo delivered on the 31st day of May, 2004 in which judgment was given in favour of the Respondent for damages for breach of contract.
The facts of the case are that the respondent as the plaintiff sued the appellants claiming N2.5 million naira general and specific damages for breach of the contract agreement entered into by the parties. One Ademola Akinsulie, the son of the Appellants resident in the United States decided to finance the construction of a duplex house for his parents, the appellants. Ademola and the respondent discussed and agreed on the terms of the building agreement. Ademola then stepped aside and left his parents to sign the contract agreement with the respondent. The 1st appellant and the respondent thereupon executed the contract agreement admitted in evidence as Exhibit P4. Although the name of the 2nd appellant appeared in the agreement as a party, she did not sign the agreement. By the contract agreement the sum payable to the respondent by the appellants for the job is N2,668,065.00 (Two Million, Six Hundred and Sixty-Eight Thousand, Sixty-Five Naira). This amount covered both building materials and the respondent’s workmanship. By clause 8 of the agreement, the amount was to be paid to the respondent in three installments of One Million Naira, One Million Naira and Six Hundred and Sixty- Eight Thousand, Sixty-Five Naira respectively.
From the very beginning, the appellants breached the terms of the agreement by failing to pay to the Respondent the installments as agreed. Later, they committed further breaches of the agreement by unilaterally purchasing materials for the job, unilaterally subcontracting plumbing, electrical and aluminum works of the building project to other people. The appellants ignored the protests of the respondent. When, finally the respondent got his solicitor to write a letter to the appellants and followed it up by serving them the writ of summons in this case, the appellants chased the respondent away from the building site when according to the respondent the job was 98% completed. The respondent further claimed that during the period of the contract, there was another oral agreement (which the appellants did not deny in their pleading or evidence) to renovate the old building of the appellants at the cost of N146,908.00.
The respondent consequently claimed against the appellants jointly and severally as follows:-
1. A declaration that the contract agreement dated 1/11/99 entered into by the parties at Ondo town is valid and subsisting
2. 2.5 million Naira for general and specific damages suffered by the plaintiff due to the breach of the contract agreement entered into by the parties on the 1st day of November, 1999 at Ondo town The appellants denied breach of the agreement and alleged that it was the respondent who breached the contract by his refusal to pay workmen who worked on the site and his refusal to pay for materials purchased leading to complaints from the workmen and retailers of building materials. The appellants further alleged that the respondent waived his right to complain of any breach as he had condoned the purported breach.
In a well considered judgment, the trial court held that the respondent’s claim that he had completed up to 98% of the building construction was not controverted by the appellants and that the appellants did not give any cogent or legal reason for terminating the contract. He consequently found the appellants in breach of the contract between the parties, and the respondent entitled to damages in restitution. The trial court however held that the respondent’s claim under relief I cannot hold, in that since he alleged a breach of contract, the contract cannot at the same time be subsisting. The court also held that the claim for general and special damages under relief 2 is inappropriate in an action founded on contract as the only damage claimable is loss naturally flowing from the breach or loss that arose within the contemplation of the parties. The trial judge then awarded the respondent the sum of N1,681,846,7k damages for the breach of the contract agreement and the sum of N146,908.00 for the renovation of the appellant’s old building.
Dissatisfied with this judgment, the appellants filed a notice of appeal with two grounds of appeal. Later with the leave of the court, they amended their notice of appeal by adding 5 other grounds of appeal. From these 7 grounds of appeal, learned counsel for the appellants formulated seven issues for determination in his brief of argument. They are:-
Issue 1: Whether the trial court can award the respondent a relief of quantum meruit that was not claimed (Grounds 1)
Issue 2: Whether the trial court was right in awarding the sum of N146,908.00 to the respondent for the cost of renovation of added jobs not contained or mentioned in Exhibit P4, the executed contract agreement (Ground 2)
Issue 3: Whether the 2nd appellant can be held liable under the contract document she did not sign. (Ground 3)
Issue 4: Whether there was any breach of the building contract committed by the Appellants in view of the holding of the trial Court that the Respondents had waived the breach, if any of clauses 7 and 8 of the contract document Exhibit P4 (Ground 4)
Issue 5: Whether the Respondent has any standing in instituting this action in his personal name (Ground 5)
Issue 6: Whether Exhibit P4 is independent of Exhibit P3 which gives detailed analysis of the contract sum of N2,668,065.00 contained in Exhibit P4 (Ground 6)
Issue 7: Whether the trial court was right in granting the relief for breach of contract against the Appellants when the necessary party in the cause of action was not joined in the suit (Ground 8)
The Respondent in his own brief of argument formulated three issues which he said was sufficient for the determination of this appeal. The issues are:
1. Whether or not the trial judge was justified in entering judgment for the Plaintiff/Respondent based on his claim/relief after finding out that there was a valid contract between the parties: (Grounds 1 and 4 of the Appellant’s grounds of appeal)
2. Whether or not the trial judge was right when he held that the parties in this appeal are the proper parties to sue and be sued. (Ground 3, 5 and 8 of the Appellants grounds of Appeal)
3. Whether having regard to the evidence at the trial, the respondent is entitled to an award on quantum meruit as assessed by the trial judge for the damage occasioned by the breach of contract between the parties by the appellants (Grounds 2, 6 and 7 of the Appellants ground of appeal)
I agree with Mr. Oshodi for the Respondent that the three Issues he formulated are adequate for the determination of this appeal. They encompass completely the 7 Issues formulated by the appellant. I shall adopt the respondent’s three issues in determining this appeal.
ISSUE 1
Whether or not the trial court was justified in entering judgment for the plaintiff/respondent based on his claim/relief after finding out that there was a valid contract between the parties and that the defendants/appellants breached the contract.
The contention of Mr. Omotosho, of Counsel for the appellants on his issue no. 1, is that when the trial judge disagreed with the respondent that his contract was still subsisting as claimed in his relief 1, the trial judge should not have proceeded to award damages but should have simply dismissed that leg of the claim. Counsel further contended that the learned trial judge was wrong to have proceeded to award damages on quantum meruit after his finding that there is no such thing as a claim for special and general damages in contract under the respondent’s relief 2. Counsel argued that the trial judge should have again simply dismissed the second leg of the claim. Mr. Omotosho submitted that what the trial judge did was to make a case for the respondent different from the case he made for himself both in his pleadings and evidence, he also submitted that the learned trial Judge awarded the respondent a relief he did not ask for. Counsel relying on several authorities submitted that the trial judge was not competent to do any of the above.
On issue No 4 Mr. Omotosho contended that the main grouse of the respondent was that the appellants were in breach of clauses 7 and 8 of the agreement Exhibit P4, that is, that the appellants defaulted in making money available to him. Counsel argued that the trial judge found that regardless of this breach, the Respondent started and continued with the project up to 98% completion, the respondent had thereby waived his rights to complain of the breach. Counsel further argued that the trial judge erred when he held that the appellants were in breach of the contract agreement when the 1st appellant engaged subcontractors and embarked upon direct purchases of building materials when there was no express term in the contract agreement prohibiting the appellants from doing what they did. Counsel finally submitted that the respondent having waived his rights to complain of any breaches of clauses 7 and 8 of the contract agreement Exhibit P4, the appellants cannot be held liable for any breach of the contract agreement.
Mr. Oshodi for the respondent on his issue no. 1 defined claim as “The aggregate of operative facts giving rise to a right enforceable by a court” and relief as “the redress or benefit, especially equitable in nature, that a party asks of a court”. Counsel argued that in essence what the respondent prayed for from the court is damages suffered by him as a result of the breach of the contract agreement. That was exactly his evidence in court. Counsel submitted that the evidence was not controverted or rebutted by the Appellants either in their pleadings or evidence on Oath. The trial court cannot therefore be faulted for holding that the appellants did not give any cogent or legal reason for terminating the contract and finding them in breach of the contract or for holding the respondent to be entitled to damages in restitution.
Relying on Savannah Bank V Opanubi (2004) 19 NSCQR 295 @ 309 and other authorities Counsel submitted that the finding and conclusion of the learned trial judge is sound and right both in law and equity and ought not to be disturbed. Further, relying on the case of Craven Ellis Vs Cannus Ltd (1936) 2 KB 43 reported in Int’ l Niger Build Construction Co. Ltd Vs Giwa (2002) FWLR (Pt 107) 1312 @ 1348 – 1349. Counsel submitted that the fact that the trial judge held that the contract died when the defendants revoked it by chasing away the plaintiff from the site did not warrant an order of dismissal of that leg or the claim.
In response to the above submissions, the first question is: should the trial judge have dismissed relief 1 in the respondents claim after his finding that the contract died when the appellants revoked it by chasing the respondent away from the site?
In relief 1, the respondent prayed for a declaration that the contract agreement dated the 1st day of November, 1999 entered into by the parties at Ondo town is valid and subsisting.
The trial judge held at page 84 of the record of appeal:
“I disagree with Plaintiff’s Counsel that the contract was subsisting when the plaintiff came to court. I prefer the position taken by the Defendants’ Counsel that the contract cannot be alive. The plaintiff’s evidence does not support the legal position of his counsel. The contract died when the Defendant revoked it by chasing the plaintiff from the site.
It is my humble view that in the circumstances of this case, from the day the Defendant chased the plaintiff and his workers away from the site, the contract ceased to exist. I do not think the court can wake up a dead transaction. The only remedy open to the aggrieved party is to sue for damages for breach or reasonable remuneration for work already done. See Architect Olaopa V. O.A.U. Ile-Ife (1997) 6 SCNJ 46.
It is noteworthy that at page 76 of the record of appeal, the appellants counsel in his address line 20 observed.
“The plaintiff did not plead any material facts nor lead evidence from which the court can infer the subsistence of such contract. Failure to give evidence on a relief or claim is tantamount to abandonment of such a relief and the court cannot make an award on same. Eboade V Atolesin (1977) 5 SCNJ 13 @ 20.
By not leading any evidence on subsistence of the contract, relief 1 is deemed to have been abandoned. Learned Counsel is therefore blowing hot and cold by now canvassing that the trial court should have dismissed the relief. At any rate, while the learned trial judge did not specifically use the word “dismissed” with respect to relief 1 of the claim, the declaration was not granted and by implication the relief was either deemed abandoned or dismissed. I think Mr. Oshodi for the respondent was right when he said that Learned Counsel for the appellant did not appreciate the nature of the claim and various pieces of evidence led by the respondent.
The Learned trial Judge cannot be said to have made a case for the respondent that what is open to him is a claim for damages for breach or reasonable remuneration for work already done. The court merely stated the position of the law as laid down in the case of Architect Olaopa V. O.A.U. Ile-Ife (Supra. Also reported in (1997) 7 NWLR (Pt 512) 204 @ 220 paras D – E.
It is not in doubt that from the pleadings and evidence led by the respondent; he clearly made out a case for damages for breach of the contract. The Learned trial judge did not make the case for him.
The same goes in respect of the contention of Appellants’ Counsel that the trial judge should have dismissed the respondent’s claim when he held that there is no such thing as a claim for special and general damages in contract; instead of going ahead to talk about the plaintiff’s entitlement on a quantum meruit; thereby making a case for him. There is no question of the learned trial judge making a case for the respondent when in his evidence in chief at page 69 of the record of appeal he had testified thus:
“I claim the following sums:
1. the sum of N1,935,208.00 as outstanding fee from the Defendants due to me by the time I was driven away from the site.
2. I have also due to me the sum of N667,016.25K representing 25% variation costs arising from non-compliance to payment schedule as stated in the agreement.
3. the sum of N146,908.00 also the costs of the comprehensive renovation carried out on Defendant’s old building”.
The respondent in his evidence clearly established his entitlement to damages for breach of contract as per the contract agreement Exhibit P4 and the oral agreement for renovation of the old building and not necessary on quantum meruit.
In the case of Olaopa V. O.A.U Ile-Ife (Supra) the Supreme Court per Ogundare J.S.C observed:
“The principle of law is that a party to an entire contract partly performed by him and was, by the act of the other party, prevented from proceeding further with performance, the law entitles him to be paid for the fruits of the labour he has already rendered. In a situation like this, two alternative remedies are open to him:-
(a) Damages for breach of contract
(b) Reasonable remuneration in quantum meruit for work already done.
….A claim on quantum meruit cannot even arise where there is an existing contract for the payment of an agreed sum…”
Notwithstanding the use of the words “quantum meruit” in certain parts of his judgment, what the trial judge did at the end was to grant the respondent damages for breach of the contract in accordance with the terms of the written and oral agreements as claimed by the respondent. The respondent made no claims on quantum meruit and the award by the trial judge was not necessarily on quantum meruit. The amount due to the respondent was calculated based on the terms agreed in the contract agreement Exhibit P4. The submission by Learned Counsel that the trial judge “fashioned” out the quantum meruit claim suo motu is not supported by the facts of the case or the judgment of the trial judge. It is true as held by the trial judge that the respondent at the point the appellants breached the terms of the agreement by failing to pay the money instalmentally as agreed waived the breach by continuing with the building construction. However, failure to pay as agreed was not the only breach the respondent complained about. What broke the Carmel’s back were the unilateral purchase of materials by the appellants and the unilateral subcontracting of the plumbing, electrical and aluminum works of the building project to other people. It is clearly wrong of the appellant to argue that there was no express term in the contract agreement prohibiting those actions. The contract sum of N2,668,065.00 covered all of these plumbing electrical and aluminum works. If the appellants had paid the respondent the sum agreed in the contract agreement, he would not of course quarrel about the unilateral subcontracting of the jobs to other people. The appellants were definitely in breach of the contract agreement by subcontracting the jobs unilaterally to other people and not paying the respondent the amount agreed upon under the contract. This issue is resolved in favour of the respondent.
Issue No 2
Whether or not the trial Judge was right when he held that the parties in this appeal are the proper parties to sue and be sued.
Learned counsel for the appellants on their issue 3, contended that the 2nd appellant did not sign the contract agreement Exhibit P4, it was thereof unenforceable against her. Under their issue 5, he also contended that the respondent lacked locus standi to institute the action because from the quotation papers Exhibit P3 and the receipts Exhibits P1, P8 – P8k, P9 – P9A, Master Strike Consultants Ltd, a registered company featured prominently. In addition the respondent testified in his evidence in chief that he carried out the construction in the name of Master Strike Consultants. Counsel then submitted that the suit should have been instituted in the corporate name instead of in the personal name of the respondent. Learned Counsel contended that locus standi is an issue of law, that needs not be pleaded and that since it is a matter that touches on the jurisdiction of the court, the trial court was wrong in holding that since the appellants did not plead the issue of lack of Respondent’s locus standi, the evidence led on it went to no issue.
On issue No 7, appellants’ Counsel contended that Ademola Akinsulie, the son of the appellants played a major role in the negotiations leading to the execution of the contract agreement Exhibit P4 and should have been made a party to the suit. Counsel argued that the failure to join him rendered the suit incompetent and deprived the lower court of the jurisdiction to adjudicate the suit.
In his own submissions on his issue No 2, Learned Counsel for the respondents submitted that the learned trial judge was right when he held that the parties in the appeal are the proper parties to sue and be sued and that the Respondent had the locus standi to bring the action.
I do not agree with counsel for the respondent that the 2nd appellant was a party to the agreement, even though she did not execute it. Notwithstanding that she was present throughout the trial and participated in all the activities leading to the execution of the contract agreement, Exhibit P4 and as testified by the respondent in his evidence, all monies disbursed to him by the 1st appellant were in the presence of the 2nd appellant, in so far as she did not execute the agreement, she is not a party to it. The 2nd appellant is hereby struck out as a party to the suit.
I agree with Learned Counsel for the respondent that there is no basis for the contention that Ademola Akinsulie should have been a party in the suit. The learned trial judge was right in holding that “Ademola conceded the conclusion of the terms and execution of the contract to his father and stepped aside” Ademola Akinsulie was clearly not a party to the contract agreement Exhibit P4, notwithstanding that he participated in the negotiations.
In respect of the locus standi of the respondent, the learned trial judge was right in holding that “lack of plaintiff’s locus was not pleaded by the defendants and therefore evidence from both parties is not relevant once it is not pleaded.”
The parties in Exhibit P4 are the parties sued. Master Strike Consultants Ltd is not a party to the contract notwithstanding that the name appeared in Exhibit P3 and the receipts. It is quite unarguable that the respondent lacked locus standi to institute the action. He clearly established his legal right to sue in relation to the subject matter of the suit in his statement of claim. Issue 2 is resolved in favour of the respondent.
Issue No 3
Whether having regard to the evidence at the trial, the respondent is entitled to an award on quantum meruit as assessed by the trial judge for the damage occasioned by the breach of contract.
The appellants’ contention is that the trial judge having tenaciously held that Exhibit P4 was the only binding contract between the parties, which cannot in any way be varied, added to or subtracted from, the trial judge was wrong to have held that there was a subsequent oral contract between the parties on renovation when the respondent neither pleaded nor adduced any evidence in proof of the alleged oral contract for the renovation.
Counsel argued that the claim of renovation cost is in the nature of special damages which needed to be particularized and strictly proved. Counsel further argued that since the respondent failed to give such particulars, his claim of N146,908 was vague and speculative and should not have been awarded.
It was further argued for the appellants that the learned trial judge in working out the amount due to the respondent in damages should have referred to Exhibit P3 which is the quotation for the building project detailing the stages of work to be done with corresponding costs and fees. Rather, the trial judge held that even though Exhibit P3 was a break down analysis of how the total figure in exhibit P4 was arrived at, it could not supersede or interpret Exhibit P4.
Counsel finally on this issue submitted that the sum of N1,681,846.7k awarded the respondent was not the actual damage naturally resulting from the alleged breach or within the contemplation of the parties and urged us to set aside the judgment of the trial court as the appellants have suffered a miscarriage of justice.
At page 92 of the record of appeal, the learned trial judge observed that “the next issue now is the question of how much the plaintiff is entitled to on a quantum meruit.” This, apparently is what gave rise to the view of both counsel that the damages awarded was on quantum meruit.
See Olaopa v. O.A.U Ile-Ife (1997) 7 NWLR (Pt 512) 204 @, 225 per Iguh JSC
“The relief on quantum meruit strictly speaking is different from remedies in contract or tort and falls within the common law remedy of quasi-contract. And so, in a contract for work done or services rendered, where no scale of remuneration is fixed or agreed upon, the law imposes an obligation to pay a reasonable sum on the basis of quantum meruit…….. ……”
Notwithstanding the use of the word quantum meruit in this case, the trial judge assessed the amount of damages on the basis of agreement reached in the contract Exhibit P4 where a specific amount was agreed upon as the contract sum. I believe the trial judge used the word in the sense of calculation of the amount due on the basis that 98% of the work had been completed and nothing more.
Learned counsel for the appellant complained bitterly on how the trial judge arrived at the figure of N1,681,846.7K as the amount due to the respondent. The truth is, and I agree with Mr Oshodi for the respondent that the trial judge can only work with the parties’ pleadings and evidence presented to him. The appellants ought to have pleaded in their statement of defence and led evidence on necessary facts that would have enabled the judge come to a different conclusion. I think it will be helpful here to reproduce copiously part of the judgment of the trial court on this point from page 111 of the record of appeal:
“The Plaintiff swore that he had completed the decking of the house and that it was 98% completed before he was chased away and the contract terminated. The Plaintiff pleaded this in paragraph 35 of his Statement of Claim. Nowhere in the Statement of Defence was there a specific traverse of the Plaintiff’s claim that the work was 98% completed. Nowhere during his evidence on Oath did the 1st Defendant deny that the building was nearly completed before he terminated the contract. In paragraph 17 of the Statement of Defence the Defendants denied paragraph 37 of the Statement of Claim but did not state how much they had paid the plaintiff. The 1st Defendant’s only evidence in regard to the quantity of job done by the Plaintiff was that “The Plaintiff started working on the construction but did not finish it”
The above evidence of the 1st Defendant to my mind does not sufficiently answer the Plaintiffs claim that he had already finished the job. The onus was on the Defendant to state precisely how far the Plaintiff had gone to enable me weigh both evidence on a balance of probabilities and make a finding depending on whose evidence is credible.
On the amount of money paid by the Defendants to the Plaintiff before the contract was terminated he had this to say:
“The house was to be built for N2.6million. My son paid the Plaintiff money, plenty of it. My son was issued with receipts. I also paid the Plaintiff personally. I paid up to N200,000.00 installmentally twice. When I paid, the Plaintiff also gave me receipts…. .Ademola and myself paid in all over N1 million to the Plaintiff. I had said in my evidence that I paid directly N200,000.00 to the Plaintiff…….”
The 1st Defendant under cross-examination refused or was unable to give an exact figure of how much had been paid to the Plaintiff.
The 1st Defendant’s demeanour and answers under cross-examination showed a marked lack of interest in the significance of the plaint against him and the possible outcome of a finding against him. He was indifferent and evasive to say the least to pointed questions put to him under cross-examination when he had the opportunity to clear the air.
In the absence of a contrary figure, I am obliged to make a finding from the exhibits before me. Exhibit P8-P8K show that the Plaintiff has been given the sum of N932,857.00 for purchase of materials, construction and workmanship leaving a balance of N1,735,208.00 to be paid from the total contract. I am constrained to disagree with Defendants Counsel’s arithmetic regarding the quantum of monetary award to which the Plaintiff is entitled. The Plaintiff gave evidence that it was a composite contract. Even though Exh. P3 was a breakdown analysis of how the total figures in Exh. P4 was arrived at, it cannot be used to supersede or interpret Ex. P4. See Ozigi V. Union Bank (1994) 3 SCNJ Pg. 42. Defendants’ Counsel cannot start deducting or adding items of breakdown of expenditure in Exh. P3 to arrive at a just figure or to say the Plaintiff is no more entitled to anything. One part of the contract cannot be removed from the other. Exh. P4 did not give the impression that building materials, construction or workmanship are different heads of transaction.
The Plaintiff claimed the sum of N1,935,208.00 as outstanding fee from the Defendants due to him from the time he was driven from the site. I find that the P4 is entitled to collect as compensation in quantum meruit the sum which is the equivalent of 98% of the total contract sum minus the amount already collected by him. This amounts to N1,681,846/7k (One Million, Six Hundred and Eighty One Thousand, Eight Hundred and Forty-Six Naira Seven Kobo).”
I hold that the learned trial judge was right when he proceeded to use the material presented before him to find that the respondent was entitled to the amount awarded.
With respect to the award of N146,908.00, the trial judge had this to say:
“The Plaintiff swore that he carried out extensive renovation on the Defendants’ old building. This was based on a subsequent oral contract between the parties. The Plaintiff claimed in Paragraph 36 of his Statement of Claim and particularly in his evidence on oath for the sum of N146,908.00 for the costs of comprehensive renovation of the Defendants’ old building.
The Defendants on this point made a general traverse in Paragraph 2 of their Statement of Defence. There was no denial on oath made to contradict the Plaintiff’s evidence on oath. A plaintiff’s averment of facts must be met by the Defendant frontally and categorically. Once a traverse is not met categorically, the Defendant is taken to have admitted it. See Owosho v. Adebodele Dada (1984) 7 SC 149. Even if the Defendant made a general traverse, but gave copious evidence in support of their rebuttal, it would be sufficient. A Defendant’s general traverse is not sufficient to contradict a plaintiff’s pleadings and evidence on oath.
Where there is undenied averments in pleadings evidence offered in support of it must be believed. Ezulumeri Ohiaeri v. Akabeze (1992) SCNJ 76. Where the Defendant in this case fails to join issues on averment in the Statement of Claim, such averment is deemed admitted by the defendants and the plaintiff bears no burden of proof in such circumstances. Honika Sawmill Ltd. V. Mary Okojie-Hoff (1994) 2 SCNJ 86.
In view of the decision and law cited above, I am obliged to believe and thus to find that indeed the Defendant owe the plaintiff the sum of N146,908.00 for renovation costs of their old building. I do so hold.”
I agree with Mr Oshodi that the learned trial judge was right in awarding the sum of N146,908.00 since the court is entitled to accept and use evidence not effectively countered. Nigerian Maritime Services Ltd v. A. Folabi (1978) 2 SC 79 Odulaja v. Hadded (1973) 11 SC 357.
In view of the above, the appellant is wrong in his contention that the respondent neither pleaded nor adduced any evidence in proof of the subsequent oral agreement for the renovation. On the contrary it is the appellant that failed to adduce evidence in rebuttal.
In the final analysis, this appeal succeeds in part. The judgment against the 2nd appellant is set aside. In its place her name is hereby struck out as a party to the suit. The appeal of the 1st appellant lacks merit. It is hereby dismissed. The judgment of the High Court of Ondo State delivered on 31st day of May 2004 is affirmed against the 1st appellant only. Costs assessed and fixed at N30,000 against the 1st appellant.
NWALI SYLVESTER NGWUTA, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother Iyizoba JCA.
I entirely agree with the resolution of the issues presented by the parties, and consequently I also dismiss the appeal as devoid of merit. I adopt the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in advance the judgment of my learned brother – CHINWE IYIZOBA, JCA. I agree with my learned brother that the appeal by the 1st appellant ought to be disallowed and, accordingly, it is hereby dismissed. I also agree that the judgment against the 2nd appellant be set aside and it is hereby set aside.
I abide with the order as to costs against the 1st appellant in favour of the respondent.
Appearances
Wale F. Omotosho Esq.For Appellant
AND
Yomi Oshodi Esq.For Respondent
