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  • 2003-03-24
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Reynolds Construction Co. (Nig.) Ltd. vs. Edomwonyi

REYNOLDS CONSTRUCTION COMPANY (NIGERIA) LIMITED

V

S. I. EDOMWONYI

COURT OF APPEAL

( BENIN DIVISION )

RAPHAEL OLUFEMI ROWLAND, JCA ( Presided )

SAKA ADEYEMI IBIYEYE, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/258/98

WEDNESDAY, 19TH JUNE 2002

APPEAL - Findings of fact of trial court - Attitude of appellate court thereto

CONTRACT - Contract of which time is of essence - Failure to perform at the stipulated time - Effect

CONTRACT - Recission or breach of contract - Repayment of money had in event of - Grant of - Guiding principles - Position of party in default

CONTRACT - Written agreement not required under the law to be in writing -  Whether can be rescinded or varied orally

CONTRACT - Written contract - Oral agreement to modify same Admissibility of

DAMAGES - Claim for loss of earnings - Need to plead particulars of rate of earnings

DAMAGES - Special damages - Claim for special damages - Need for to be supported by evidence

DAMAGES - Strict proof of special damages - Meaning of

EVIDENCE - Evidence of witness - Proper time to cast aspersion thereon

EVIDENCE - Oral agreement to modify a written contract - Admissibility of

WORDS AND PHRASES - Strict proof of special damages - Meaning of

Issues:

1.            Whether there is evidence in support of the finding of the lower court that the appellant breached the contract.

2.            Whether there is evidence to justify the award of the claim for the sum of N90,000.00 in favour of the respondent.

3.            Whether the counter-claim was properly dismissed.

Facts:

The respondent, sometime in May 1991, entered into an agreement with the appellant in that the appellant would take sand, from the respondent’s burrow pit. It was part of the agreement that the said sand which covered two acres, would be cleared by the appellant who would in turn pay N4,000.00 on one of the two acres and he, the respondent, would take the other acre of cleared land. The agreement was signed on 4/5/91 by the respondent’s younger brother, John Enoma, because he (respondent) is completely blind. The appellant, told him that work would start on the agreed land at 9.00a.m. on 28/5/91. In view of this undertaking by the appellant, he told his customers not to go to the existing burrow pit to take sand. On 28/5/91, he went to the land in issue and waited till 10 a.m. without seeing any staff of the appellant. He thereafter went to the office of the appellant where he saw Samson who told him that an expatriate staff of the appellant told him to inspect another person’s land which is adjacent to his (respondent) own. On 30/5/91, the appellant went to the said neighbouring land and started doing the type of work that would have been done on the respondent’s land.

Meanwhile, at the time the agreement was entered into with the appellant, another company, Meemax Nigeria Ltd., offered to rent the two acres for N2m but the offer was turned down. On the respondent’s instruction, his lawyer gave the appellant an ultimatum of seven days to go to the site or pay compensation of N1,000,000.00. When nothing was done by the appellant, the respondent sued it at the lower court claiming special and general damages. The appellant counter-claimed.

At the conclusion of trial, the learned trial Judge partially allowed the respondent’s claim and dismissed the appellant’s counter-claim in its entirety.

Aggrieved, the appellant appealed to the Court of Appeal.