Adela v. Vaati (1987)

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Adeka v. Vaatia
2 March 1987

       1.
A. J. ADEKA

       2.
A. J. ADEKA (NIGERIA) LTD.

V.

M. A. VAATIA

COURT OF APPEAL

(JOS DIVISION)

CA/J/76/85

ABDUL GANIYU OLATUNJI AGBAJE, J.C.A. (Presided and Read the Lead Judgment)

UMARU ABDULLAHI, J.C A.

REIDER JOE JACKS, J.C .A.

WEDNESDAY, 24TH SEPTEMBER, 1986

APPEALS – Briefs – Where parties have filed briefs – Failure of counsel to party to appear for oral argument – Whether such failure precludes hearing of appeal.

EVIDENCE – Hearsay evidence – Whether admissible.

EVIDENCE – Section 131(1) of the Evidence Act – Effect.

LEGAL PRACTITIONERS – Where firm of solicitors is engaged by litigant – Failure of member of firm to appear for litigant – Whether adjournment can be granted.

PRACTICE AND PROCEDURE – Pleadings – Effect.

Issues:

1.
Whether the plaintiff was entitled to the sum of N40,163.12k as special damages for breach of contract between him and the defendant.

2.
Whether judgment can be based on evidence at variance with pleading.

3.
Whether the trial Judge was right in dismissing the counter claim of the defendants/appellants.

Facts:

The plaintiff/respondent claimed against the defendant/appellant at the trial court the sum of N54,300.00 as special damages for breach of building contract between the plaintiff and the defendant. The plaintiff

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claimed that the defendant was awarded contract for the construction of two 4 bedroom flats and four 3 Bedroom flats plus 6 boys Quarters. The defendant then sub-awarded the contract to the plaintiff. Plaintiff claimed that there was an agreement between him and the defendant that every 20% of every payment made after the presentation of valuation certificate should be paid to the defendants and 80% to the plaintiff. Plaintiff further claimed that there have been several payments made to the defendant to total of N121,000.00 out of which only N42,500 was paid to the plaintiff. Plaintiff claimed that by the mode of payment agreed upon by him and the defendant he was still entitled to sum of N54,300 due to him from the defendant.

While the plaintiff pleaded “a schedule” attached to the letter of award of contract to him, which schedule describes the mode of payment, the schedule was not produced in evidence but the plaintiff adduced oral evidence as to the mode of payment. No oral agreement as to mode of payment was pleaded by the plaintiff.

The defendants denied that there was such agreement between them and the plaintiff as to the payment of any percentage of the money collected under the main contract to the defendants, and claimed that they agreed to pay to the plaintiff total sum of N60,000 when the plaintiff reached the roofing stages of the buildings. Defendants also claimed that the plaintiff has been paid total sum of N57,880.00. Defendants contended that the plaintiff did not complete the buildings within the stipulated time and rather unilaterally abandoned them.

The defendants’ letter of award to the plaintiff stipulated N1,000 per week as penalty to the plaintiff should he fail to complete the buildings within time. The defendants counter-claimed for the sum of N33.000 as damages. N13,000 as special damages and N20,000 as general damages. At the conclusion of trial, the learned trial Judge found for the plaintiff; held that the plaintiff was entitled to the sum of N40,163.12k as special damages for the breach of the terms of the contract the plaintiff complained of. The counter-claim of the defendants was dismissed on the ground that the plaintiff could not complete the contract within time due to frustration.

The defendants appealed against the judgment in favour of the plaintiff and the dismissal of counter-claim.

Held [Unanimously allowing the Appeal in Part]:

1.
If any member of firm of Solicitor acting for litigant is unable for any reason to appear in court for the litigant, any other member of the firm should be able to represent the litigant.

2.
Where the parties to an appeal have filed briefs of argument, the court can proceed to hear the appeal despite the absence of counsel to one of the parties.

3.
Under Section 131(1) of the Evidence Act when the terms of any contract have been reduced to form of document no evidence can be given of the tennis of the contract except the document itself or secondary evidence of its contents.

4.
In the instant case, the plaintiff failed to prove his case by his failure to produce the schedule of payment attached to Exhibit 1 or by adducing secondary evidence of its contents.

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5.
Parties are bound by their pleadings and no party will be allowed to make out case different from the one pleaded by him.

6.
In the instant case, the case of the plaintiff as stated in his pleadings is that the terms of payment in the contract upon which he based his claim have been reduced into writing in schedule to Exhibit 1. It was not the plaintiff’s case that the terms of payment were contained in an oral agreement between him and the defendants.

7.
The trial Judge was wrong in granting the plaintiff’s claim on the plaintiff’s evidence that the terms of payment were based on an oral agreement between him and the defendant when this evidence goes to no issue on the state of pleading.

8.
Hearsay evidence is inadmissible and cannot form the basis of any judgment given by any court and it is immaterial whether the evidence was objected to or not at the trial court.

9.
The learned trial Judge was right in dismissing the appellants’ counter-claim on the ground that frustrating circumstances made it impossible for the plaintiff/respondent to complete the work within the stipulated time.

Nigerian Cases Referred to in the Judgment:

Abowaba v. Adeshina 12 WACA 18

Emegokwe v. Okadigbo (1970) 4 S.C. 113

Nigerian Statute Referred to in the Judgment:

Evidence Act, Cap. 62, Sections 96(l)(c); 131(1)

Appeal:

This was an appeal against the judgment of the High Court which granted the sum of N40,163.12k to the plaintiff/respondent as damages for breach of building contract between the plaintiff/respondent and defendant/ appellant. The Court of Appeal allowed the appeal, but dismissed the appeal on the defendant’s Counter-claim which was also dismissed by the trial court.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Jos.

Names of Justices that sat on the appeal: Abdul Ganiyu Olatunji Agbaje, J.C.A. (Presided and Delivered the Lead Judgment), Umaru Abdullahi, J.C.A., Reider Joe Jacks, J.C.A.

Appeal No.: CA/J/76/85

Date of Judgment: Wednesday, 24th September, 1986

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High Court:

Name of the High Court: Benue State High Court

Counsel:

J. A. Omakwu Esq. (with him, A. O. Onam Esq.) – for the Appellant

Respondent not Represented by Counsel

AGBAJE, J.C.A. (Presiding and Delivering the Lead Judgment): When this appeal came on for hearing on Monday, 30th June, 1986, letter from one, Gordon Esa, Esq., who described himself in it as an attorney-at-law, was brought to the notice of the court. In the letter, Mr. Esa who described himself, again as solicitor for the respondent asked for an adjournment of the case on the grounds that he was bereaved in that he had just lost an uncle of his who had since been buried. We discovered that the brief of arguments of the respondent on whose behalf Mr. Gordon Esa wrote for an adjournment, was settled by firm of solicitors who described themselves as Gordon Esa and Co. Solicitor, of 5, Otukpo Road, Makurdi. We refused to accede to Mr. Esa’s application for an adjournment for the reasons given in our ruling written in court on the day. The reasons briefly stated are that if any member of firm of solicitors acting for the litigant is unable, for one reason or another to appear, in court, any other member of the firm should be able to stand in for him. Again, we were of the view that since the respondent, in any case, has filed his brief of arguments in answer to the appellants’ brief of arguments, it cannot be said that in the consideration of the appeal now before us, we will only have the version of the appellants to go by. So, on 30th June, 1986, we had only oral arguments from the appellants’ counsel in addition to the arguments in the appellants’ brief before us. It is worthy of note that the oral arguments from counsel for the appellants were along the lines indicated in the appellants’ grounds of appeal and their brief of arguments. The background to this appeal is as follows:

The plaintiff, M.A. VAATIA, building engineer and civil engineering contractor sued the defendants, AJ. ADEKA and A.J. ADEKA (NIG.) LTD. in Benue State High Court. The first defendant is the Chairman and Managing Director of the second defendant company. It is the plaintiff’s claim as pleaded in paragraph 4 of his statement of claim that on 29th June, 1983, the defendants entered into contract with him for him to build two four bedroom flats and four three bedroom flats at the permanent site of the Federal University of Technology, North Bank Road, Makurdi, the aggregate contract price of all the buildings being N287,940.00. It was also the case of the plaintiff that the contract was awarded by the defendants to him by letter from the defendants to him dated 29th June, 1983 reference No. AJA/MH/SUB.l.83 headed “CONFIRMATION OF SUBCONTRACT AWARD: 2 NO. 4-BEDROOM AND NO. 3-BEDROOM”.

The letter is Exhibit ‘1’ in this case and it reads as follows:

“CONFIRMATION OF SUB-CONTRACT AWARD: 2 NO. 4 BEDROOM AND 4 NO. 3 BEDROOM:

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I would like to confirm that I have awarded the above contract to you at the cost of N248,940.00. You will hand over the buildings fully completed on or before 12th October, 1983 which is the date for completion stipulated in the contract agreement I signed.

The penalty for failing to handover the buildings fully completed on or before the 12th October, 1983 is N1000.00 per week. This date line should be noted with every seriousness as I always adhere strictly to contract terms.

I would like to state that I am very pleased with the progress you have so far made at the site. If you do not slow down the tempo, I could see you finishing before October, ending.

Yours sincerely, 

(SGD.) A.J. ADEKA

Chairman/Managing Director”

Paragraph 4 of the plaintiff’s statement of claim referred to above is admitted by paragraph two (2) of the defendants’ amended statement of defence. It is clear from the last paragraph of Exhibit ‘1’ which says:

“I would like to state that I am very pleased with the progress you have so far made at the site. If you do not slow down the tempo, I could see you finishing before October, ending.”

that the building contract has been awarded by the defendants to the respondent/plaintiff before Exhibit ‘1’ was written and in fact, in the interim, the plaintiff had already begun to perform his own side of the contract even to the satisfaction of the defendants. So, it appears clear that originally there was only an oral building contract between the plaintiff and the defendants before the latter chose to reduce the terms of the contract into writing, as per Exhibit ‘1’. However, I do not think anything turns on this point in this appeal, since it is not the contention of the plaintiff that the terms of the agreement between him and the defendants were not all contained in Exhibit ‘1’. If I may put it in another way, it was not the plaintiffs case that Exhibit ’18’ left out any matters upon which the plaintiff and the defendants, most presumably, orally agreed and on the strength of which the plaintiff began work on the building contract, the subject matter of the appeal now before us. The point I have just made is borne out by the following paragraphs of the plaintiff’s statement of claim:

“5.      That the main contract was awarded to the defendants in the sum of N407.904.00 by the said University, and it was for the construction of the said 2 No. 4 Bedroom and 4 No. 3 Bedroom flats plus 6 Boys Quarters;

1.
That by the said sub-contract the plaintiff Was not responsible for the construction of the said Boys Quarters;

2.
That there was an agreement between the defendants and the plaintiff that 20% of every payment made after the presentation of valuation certificate should be paid to the defendants and 80% to be paid to the plaintiff; (the document containing this provision in the letter of award of the said contract will be founded upon at the hearing of this suit);

3.
That there have been several payments made to the defendants upon the presented (sic) of valuation certificates for work

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done on the said project by the plaintiff; (at the hearing of this suit, letter dated 23rd August, 1983, written by the plaintiff on behalf of the defendants to the Director of Physical Planning, Federal University of Technology, Makurdi, will be founded upon);

9.
That of the total sum of N121,000.00 paid to the defendants by the said University, only N42,500.00 has been paid to the plaintiff, leaving balance of N54,300.00 unpaid.

10.
In breach of the agreement the defendants have refused and still refuse to pay the plaintiff the balance of N54,300.00 in spite of repeated demands by the plaintiff to the defendants to do so; (at the hearing of this suit the following letters from the 1st defendant to the plaintiff will be founded.”

In this regard too, I will refer to the following evidence of the plaintiff before the court namely:

“The schedule we agreed upon was that for each cheque paid by the University I would receive 80% while defendants received 20%. This was written and attached to Exhibit “18”.

So, it is clear beyond peradventure that the plaintiffs claim is based on allegations by him that the terms of the contract between him and the defendants and upon which he was suing, had been reduced into writing.

By paragraph 12 of the plaintiff’s statement of claim, the plaintiff’s claim against the defendant was formulated as follows:

“12.
Whereof the plaintiff’s claim is for:

(i)
specific performance of the said sub-contract;

(ii)
N54,300.00 as money due to the plaintiff from the defendants on the said sub-contract;

(iii)
Further and/or in the alternative damages for breach of the said sub-contract.”

It is true that when counsel for the plaintiff was addressing the lower court on 21st June, 1985, he indicated that the claim for specific performance was abandoned by his client. Ordinarily, that should mean the end of any inquiry into the claim for specific performance. But I do not think that it will be right in this case not to look at what the plaintiff was asking the court to decree its specific performance. Otherwise, we would not know in respect of which breach of contract damages were awarded in lieu of an order for its specific performance. Head of claim No.2 is straightforward. It is claim for money due to the plaintiff from the defendants. It is claim in debt.

The paragraphs of the statement of claim which I have copied above show clearly that what the plaintiff was complaining of in this case is that the defendants have failed to pay him the whole of the 80% of N121,000.00 paid under the main contract to the defendants, and which, according to the agreement between the plaintiff and the defendants, was to be paid to the plaintiff. So, in this case, the plaintiff was not suing in respect of the breach of the contract as whole. The plaintiff was seeking to enforce term, according to him, of the contract which stipulated that a certain percentage of the monies received by the defendants under the main contract should be paid to the plaintiff. The alternative claim for damages relates to the breach of this term of the said contract.

The defendants by paragraph 5 of their statement of defence denied paragraph 7 of the plaintiff’s statement of claim and maintained that there was no agreement between them and the plaintiff as to the payment to the latter

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of any percentage of the money collected under the main contract by the defendants.

By paragraph 5 of this statement of defence, the defendants relied on Exhibit ‘1’ as the document containing in part, the terms of the agreement between them and the plaintiff. With specific reference to the claim of the plaintiff, the defendants pleaded as follows in paragraph 6 of their statement of defence:-

“(a)
The defendants have been paid for some valuations by the Federal University of Technology, Makurdi.

(b)
That out of the said payments the plaintiff has so far been paid by the defendants total of N57,880.00;

(c)
That the plaintiff agreed orally with the defendants to be paid total sum of N60,000.00 by the defendants if and when he reached roofing stages in all the buildings.

(d)
That the plaintiff unilaterally abandoned the project and the site before February 14,1984 without ever reaching roofing stage in any of buildings.

(e)
The plaintiff is not entitled to be paid the amount of N54,300.00 claimed.

(f)
The plaintiff accepted the sub-contract confirmed by the said letter No. AJA/MH/SUB.1.83 dated June 29, 1983 on the condition to “handover the buildings fully completed on or before 12th October, 1983 which is the date for completion stipulated in the contract agreement” and “The penalty for failing to handover the building fully completed on or before the 12th October 1983 is N1,000.00 weekly.” 

     Because of the averment in paragraph 6(d) and (f) above, the defendants’ counterclaim – against the plaintiff was as follows:

“……The defendants counterclaim the plaintiff for N33,000.00 damages as follows:

i.
N13,000.00 special damages

ii.
N20,000.00 general damages for breach of contract

PARTICULARS OF SPECIAL DAMAGES

i.
Penalty for failing to handover the buildings fully completed on or before October 12, 1983 is N1,000 per week.

ii.
The plaintiff failed to complete and handover the buildings by February 14, 1984 when the defendants took aver following the plaintiff’s abandonment of the project and the site.

iii.
From October 12, 1983 to February, 14, 1983 is 13 weeks.”

The claim and the counter-claim proceeded to trial before Ogebe J. The plaintiff led evidence along the lines suggested by his pleadings. As I have shown above, it was the plaintiff’s claim that his claim against the defendants was based on written agreement between them. His claim was founded, according to his pleadings, on the schedule of payment attached to Exhibit ‘1’. Because of the provisions of Section 131(1) of the Evidence Act which say, inter alia, that when the terms of any contract have been

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reduced to form of document, no evidence will be given of the terms of the contract except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the law on the point, it must have dawned on counsel for the plaintiff that for him to prove the plaintiff’s case, he must either produce the schedule to Exhibit ‘ 1’ or give secondary evidence of its contents after having laid the proper foundation for such secondary evidence. This now takes me to the following evidence of the plaintiff in his examination in chief:

“He (the 1st defendant) told me that he misplaced his own copy of the agreement and wanted mine to photostat and return to me. I kept exhibit 1 but gave him (sic) the schedule attached to it to photostat and return to me and he never brought it back.”

The purport of this evidence, as I conceive it, is to show that the plaintiff was contending that as far as he was concerned, the schedule to Exhibit ‘1’ was lost to him. This being so, according to him, because of the provisions” of Section 96(1)(c) of the Evidence Act, the necessary foundation bad been laid for the giving of the secondary evidence of the contents of the schedule to Exhibit ‘1’. But on this point relating to the basis for the reception of secondary evidence of the contents of the schedule to exhibit ‘1’, the learned trial Judge made the following findings:

“I find it difficult to believe this piece of evidence because if the 1st defendants asked for the letter confirming the award together with the schedule, why should the plaintiff give him only the schedule. The 1st defendant’s evidence on this point was that there was no schedule of payment at all and he denied ever taking away any written schedule from the plaintiff.”

By these findings, it is clear to me that the learned trial Judge has dashed the hopes of the plaintiff of proving the contents of the schedule to Exhibit ‘1’ by not producing the document himself but by giving secondary evidence of the It is to be noted however that the plaintiff did give the following evidence orally before the court:

“As at the time I brought action N122,000.00 had been paid to the defendants by the University and by our agreement 80% of it which came to about N96,000.00 was due to me but only N42,500.00 had been paid to me. In fact I followed up valuation and payment.”

The defendants gave oral evidence on the point too.

The 1st defendant gave evidence along the lines suggested in the defendants’ statement of defence. With particular reference to the plaintiff’s claim he testified as follows:

“The original sum was varied to N287,940.00. We agreed that on reaching roofing & 6 boy’s quarters the plaintiff would have been paid N60,000.00 and on roofing, ceiling glazing and flooring the plaintiff would have been paid N94,000.00 and the balance was to be paid on the handing over of the project. He stopped in the 3 bedroom houses at lintel level and in the 2 number 4 bedroom houses at window level (3 lines of block work). Plaintiff did nothing about the boy’s quarters. I paid him over N58,000.00 at the stage he stopped.”

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As regards the defendants’ counter-claim against the plaintiff, the relevant portion of the evidence of the 1st defendant is as follows:

“I received exhibit 8 on 30/1/84 and I replied in exhibit 9. I became worried as my company was being portrayed as inefficient. I started mobilising for the site and on 31/1/84 I got summons for this suit. I moved to site on 14/2/84 because plaintiff was no longer interested in the project, and the University threatened me. Exhibits 10-12 are extensions of contract period for me. I never saw these letters myself. Plaintiff collected them. I did not vary plaintiff’s sub-contract period. In spite of exhibit 9, plaintiff never came to the site to appraise the stage of the project for me to take over.

Plaintiff failed to comply with the completion date of the subcontract. I want the court to award me N1,000.00 per week for 13 weeks, starting from 12/10/83 to 14/2/84. I am asking for N20,000.00 general damages for inconvenience etc. I am not liable to plaintiff on the contract. The N20,000.00 I am claiming includes over-payment I made to plaintiff on the project which he never completed.”

Various other documents were tendered by both sides in this case. It is not necessary at this stage to refer to them specifically.

The learned trial Judge gave this judgment in the case on 15 th August, 1985. The relevant issues arising for consideration in this appeal relate primarily to the following findings of the learned trial Judge namely:

“P.W. 3 Edward Orshi Iyorkyaa, building engineer and friend of the plaintiff testified that… the plaintiff informed him that he was to build some 3-bedroom quarters with their boys’ quarters and he was to be paid 80% of each valuation. He also said that in building contract, there is always schedule of payment. The witness impressed me as witness of truth and I believe him. D.W. 4 Augustine Edache, an architect with the University who introduced the plaintiff to the 1st defendant before the subcontract was awarded said the plaintiff told him that he was to receive 80% of monies paid to the defendants while the defendants would keep 20%…. When the plaintiff told these witnesses the payment arrangement, no dispute had arisen between the parties and he must be telling them the true position between the parties. I, therefore, find as fact that the agreement between the plaintiff and the defendants was that the plaintiff would be paid 80% of the money due on each valuation certificate and the defendants would keep 20% thereof. As I found earlier, this arrangement was not reduced into writing as the plaintiff sought in vain to establish before me.”

He went on to hold that the plaintiff had been paid total sum of N57,880.00 on the contract between him and the defendants and that the latter had collected 25% total sum of N122,553.91 on the main contract. So, the learned trial Judge held that the defendants were in breach of the contract between them and the plaintiff by not paying him 80% of N122,553.91 which came to N98,048.12 going by the calculation of the

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learned trial Judge. Having held as I have just stated that the defendants had paid the plaintiff total of N57,880.00, the learned trial Judge then awarded the plaintiff, against the defendant, N40,163.12 as special damages for the breach of the terms of the contract the plaintiff complained of. The counterclaim of the defendants against the plaintiff was dismissed by the learned trial Judge in the following words of his:

“I see no merit in it whatsoever. The defendants have not been able to prove that the plaintiff was in breach of the subcontract nor have they been able to prove that they suffered any damage in the delay of the plaintiff to complete the project before they took it over. There is evidence of D.W. 4, an architect to the University to the effect that apart from the defendants, none of the other contractors awarded contracts at the permanent site of the University had completed their projects because of other frustrating circumstances. The defendants have not shown that they suffered any loss to merit any damages whatsoever and the counterclaim is devoid of merit and it is hereby dismissed.”

The defendants have appealed to this court against the whole of the judgment of the lower court, that is to say, the judgment in favour of the plaintiff and the order dismissing their counter-claim.

As I said earlier in this judgment, briefs of arguments were filed on both sides. I do not consider it necessary to set down the grounds of appeal in this judgment. It is enough if I consider the issues arising from the grounds of appeal as put forward in the respective briefs of arguments of the parties before us. The issues for consideration in this appeal, according to the appellants’ brief of arguments are as follows:

“(i)         Is the respondent entitled to an order for N40,163.12 as special damages for     breach of contract having regard to the facts placed before the trial court.

(ii)
Is it competent for judge to raise and decide issues not pleaded or raised by the parties.

(iii)
Can Judge who has disbelieved the case of the plaintiff turn round to reconstruct the same case and give judgment for the plaintiff based on issues and reasoning which are at variance with the pleadings and evidence of plaintiff.

(iv)
If there was an obligation on the part of the plaintiff/respondent to be performed, will the fact that he not only failed to perform the obligation but also totally denied it, not be sufficient proof of breach of his contractual obligation to entitle the defendant to succeed on his counter-claim for breach of contract.”

According to the respondent’s brief, the issues for determination were as follows:

(i)
whether the appellants were in breach of contract;

(ii)
whether there was schedule or mode of payment in the subcontract?

      Counsel for the appellants both in the appellants’ brief of arguments and in his oral submissions to us put forward the contentions of the appellants precisely and succinctly as regards the appeal against the judgment in favour of the respondent on his claim as follows:-

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“…..the respondent, having failed to discharge the onus placed on him to prove that there was written agreement of schedule of payment which entitled him to 80% of every valuation certificate of the appellants’ original contract, the trial court was not entitled to reconstruct his case for him to say that the said agreement was oral and not written.”

In answer to this point, the respondent in his brief of arguments submitted as follows:-

       FIRST:  “We submit that the court’s findings that the arrangements as to the payment was not written is not fatal to the respondent’s case, rather it goes to show that as is usual in civil cases, one party is trying to establish his case. The crux of the matter is whether an arrangement for payment was agreed upon or not and if so what is the arrangement? We submit that even the appellants concede that fact of the existence of an oral arrangement as to payment.”

       NEXT: “We concede that the trial court disbelieved the respondent on the issue of written schedule of payment, but the court found other credible evidence of the existence of an oral arrangement in the testimonies of PW3 (on page 44 lines I to 15) and DW4 (on page 50 lines 20 to 30) and the 1st appellant’s testimony (on page 46 and in Exhibit 9 on page 90 to 93). We submit that the court’s findings on page 60 lines 21 to 26 was not re-construction of the respondent’s case, rather it was good example of diligent judge evaluating evidence.”

I am satisfied that determination by this court on the points raised above will settle the appeal against the judgment in favour of the respondent one way or other depending on which of the conflicting contentions is accepted by us. 

It is trite law that the parties are bound by their pleadings and that no party will be allowed to make out case different from the one pleaded by him. There are numerous authorities on this point. I need only refer to one of them just as an instance. So, see Emegolum v. Okadigbo (1973) 4 S.C. 113. The case of the plaintiff as pleaded in his statement of claim is that the terms as to payment in the contract upon which he based his claim against the defendants have been reduced into writing and that the written document containing the said terms is the schedule to Exhibit ‘1’ in these proceedings. It was not the plaintiff’s case in his pleadings that the terms of payment were contained in an oral agreement between him and the defendants. I have shown earlier on in this judgment how the plaintiff sought to lay the foundation to enable him to give secondary evidence on the contents of the schedule in question. I have also shown how the learned trial Judge has dashed the hopes of the plaintiff in this regard. It follows therefore in my view that for the plaintiff to succeed in any case in his claim against the defendants, the schedule to exhibit ‘1’ must be produced. The plaintiff did not produce the schedule. The position was in fact compounded for the plaintiff by the finding of the learned trial Judge.

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which is not challenged in this appeal, that the terms of payment in the contract between the plaintiff and the defendants were not reduced into writing. This to my mind means that the plaintiff had not proved his case going by his pleadings. This being so, it appears to me that there is no legal basis upon which he could have expected judgment on his claim against the defendants.

I am of the clear view that counsel for the plaintiff/respondent was wrong in the arguments put forward in the respondent’s brief of arguments to the effect that all the court was concerned with was whether there was schedule or mode of payment in the contract between the respondent and the appellant. To my mind, what the court was concerned with is whether there was schedule of payment as pleaded by the plaintiff, that is to say, whether the terms of payment have been reduced to writing and are contained in the schedule to Exhibit ‘1’. It is true as stated in the respondent’s brief of arguments that the appellants conceded it that there was an oral arrangement as to the mode of payment. The 1st defendant in fact gave evidence as to the mode of payment. But the learned trial Judge rejected that evidence. So, to all intents and purposes, the learned trial Judge did not base his judgment in favour of the plaintiff/respondent on the evidence adduced by the defendants. Perhaps, if he had done so, another matter for consideration might arise. Since this is mere speculation now, I need not pursue the point any further.

What I have just said above is enough for me to come to the conclusion that there was no legal basis upon which the learned trial Judge could have found for the plaintiff on his claim against the defendants. But I think I should also comment on the points made in the respondent’s brief of arguments to the effect that although the trial court did not believe the respondent on the issues of written schedule of payment, yet it found, on other credible evidence the existence of an oral agreement as to the terms of payment in the contract between the plaintiff and the defendants. I have taken the trouble to put down earlier on in this judgment, the portions of the judgment of the learned trial Judge dealing with the point I am about to consider. A most cursory examination of the evidence of P.W.3 and D.W. 4, relied upon by the learned trial Judge in this regard will show that the evidence was hearsay evidence. It is clear that both PW 3 and DW4 were only repeating to the court what the plaintiff told either of them as to the terms of payment in the building contract between the plaintiff and the defendants. Neither of them was talking of his personal knowledge on the point in question. That type of evidence is inadmissible per se and can never form the basis of any judgment given by any court. It is immaterial whether objection or no objection was taken to the admissibility of the evidence in the lower court. See Abowaba v. Adeshina 12 WACA 18 at 20 where the West African Court of Appeal said as follows:

“There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for decision, and objection to them may be taken at any stage of trial or on appeal.”

I am therefore in no doubt that the learned trial Judge was clearly in error in holding that on the evidence of PW3 and DW4 before him, there was an oral agreement between the plaintiff and the defendants to the

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effect that the former will be paid by the latter, 80% of the money due on each valuation certificate of the main contract and that the latter would keep 20% thereof. So, even if it were permissible to view the plaintiff’s case in the light of an oral agreement as to the terms of payment in the building contract, the subject matter of this appeal, which, in my view, it is not permissible, the evidence upon which the learned trial Judge relied in finding for the plaintiff on the point was clearly inadmissible in law and judgment for the plaintiff on the point on that evidence cannot be allowed to stand.

I have said enough to show that the defendants’ appeal from the judgment in favour of the plaintiff against them will succeed. I will now turn to the consideration of the appeal in respect of the counterclaim. The thrust of the complaint of the appellants against the judgment of the learned trial Judge dismissing their counter-claim is based on the provisions in Exhibit ‘1’ as to the date for the completion of the contract to which it relates. It will appear that Exhibit ‘1’ makes time an essence of the contract. The learned trial Judge found that the plaintiff could not complete the contract by the time provided in Exhibit ‘1’ because of frustrating circumstances for which the plaintiff was not to blame. There was before the court, Exhibit ‘1’ letter from the Federal University of Technology, Makurdi, party to the main contract between the defendants and the University extending the time for the completion of the contract, the subject matter of Exhibit ‘1’, till 31st December, 1983. Paragraph 2 of the letter says:

“This extension of time is being given in view of the fact that there has been delays in the regular progress of work on site caused by the villagers.” 

There is also Exhibit ’12’ from the same source on the same point extending the time for the completion of the contract till 29th February, 1983. I think this is mistake, 29th February, 1983 should read 29th February, 1984. The letter itself was written on 17th December 1983. Paragraph 3 of the letter says:

“This is taking into cognizance of the fact that the job was disturbed by the Villagers for period of about ninety (90) working days and the normal Christmas break ahead.”

The argument of the appellants in their brief of arguments is to the effect that these letters have nothing to do with the plaintiff since the latter was not party to or privy to party to the main contract and that any correspondence between the main contractor and the defendants on the contract on the point as to extension of time has nothing to do with the plaintiff. In way it is correct to say that the plaintiff was not party to or privy to party in the main contract between the University and the defendants since the latter had not assigned the contract to the plaintiff and there was only subcontract of the main contract to the plaintiff. However, the submissions of the counsel for the defendants/appellants which I have just stated in their brief of arguments are clearly, in my view, misconceived. The submissions fail to take cognizance of the evidence of the plaintiff as to why he could not complete the contract job at the time stipulated in Exhibit ‘1’. In this regard, the plaintiff gave evidence as follows:

“The contract was not completed in October, 1983 because villagers whose compensation was not paid by the University disallowed work on the site. 1st defendant was aware,

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likewise the University which wrote extending the time of completing up to February, 1984. Here is one of such letters.

Mr. Esa: I tender it.

Mr. Eke: No objection. 

Court: The letter is admitted as exhibit 10. Here is another letter extending the time.

Mr. Esa: I tender it.

Mr. Eko: No objection.

Court: the letter is admitted as exhibit 11. Here is another such letter.

Mr. Esa: I tender it.

Mr. Eko: No objection.

Court: The letter is admitted as exhibit 12″.

The relevant exhibits, that is letters from the main contractor, the Federal University of Technology to the defendants were put in evidence by the plaintiff to support his evidence that it was because the villagers disturbed him in the performance of his work on the contract that he could not complete the contract on the date specified in exhibit “1”. I am satisfied that the learned trial Judge was right in taking cognizance of the facts stated in the letters referred to by the plaintiff. So, in my judgment, the learned trial Judge was right in coming to the conclusion that the plaintiff was not to blame for the reasons the learned trial Judge gave for not completing the contract at the time stipulated in Exhibit “1”. Since the counterclaim was based wholly and solely on the facts alleged by the defendants to the effect that the plaintiff failed to finish the contract job at the time provided for in Exhibit “l” I cannot say that the learned trial Judge was wrong in dismissing the counterclaim. I have reproduced above the evidence for the defendants touching the counter claim which for ease of reference, I reproduce again. It is as follows:

“Plaintiff failed to comply with the completion date of the subcontract. I want the court to award me N1,000.00 per week for 13 weeks, starting from 12/10/83 to 14/2/84.”

In effect, I agree with the submissions in the respondent’s brief of arguments that the appellants’ appeal on the counter-claim was frivolous.

In the result, the appellants’ appeal against the judgment in favour of the respondent’s is allowed. The appellants’ appeal from the judgment dismissing their counter-claim is dismissed.

In my judgment, the judgment of the learned trial Judge awarding the respondent N40,163.12 is hereby set aside by me. In its place, I enter an order dismissing the respondent’s claim. I affirm the judgment of the learned trial Judge dismissing the appellants’ counter-claim against the respondent. Since the appeal has succeeded only in part, it is my order that there will be no order as to costs in this court. For the avoidance of doubt, I hereby set aside the order for costs made against the appellants in the lower court. In its place, I hereby order that each party should also bear his costs in the lower court.

ABDULLAHI, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Agbaje, J.C.A. I entirely agree with his reasoning and the conclusions reached by him. I also subscribe to all the consequential orders made by him.

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JACKS, J.C.A.: I have had the advantage of reading the draft of the judgment now delivered by my learned brother, A.G.O. Agbaje, J.C.A. I entirely agree with his conclusions. I too will set aside the judgment of the learned trial Judge awarding the respondent the sum of N40,163.12. In its place, I enter an order dismissing respondent’s claim. The judgment of the learned trial Judge in dismissing the appellants’ counter-claim is hereby confirmed by me also. I also agree with the orders in respect of costs.

Appeal allowed in part.

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