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Suntai vs. Tukur

DANBABA D. SUNTAI

BALI LOCAL GOVERNMENT

V

BABANGIDA UMAR TUKUR

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/10/2000

MONDAY, 13TH JANUARY, 2003

APPEAL - Findings of trial court - Special circumstances which may compel appellate court to reverse

APPEAL - Ground of appeal - Issue not derived therefrom - Effect

APPEAL - Trial court - Judgment of trial court - Every error therein Whether leads to its being set aside - When appellate court may reverse

APPEAL - Trial court - Where admitted inadmissible evidence - Attitude of appellate court thereto

CONTRACT - Terms of contract - The rule that written terms of contract cannot be varied or contradicted by extrinsic evidence - Exception thereto

CONTRACT - Written terms of contract - Whether can be varied or contradicted by extrinsic evidence

COURT - Judgment of trial court - Every error therein - Whether leads to its being set aside - When appellate court may reverse

COURT - Trial court - Evidence placed before trial court - Duty of prior to making its findings therein

COURT - Trial court - Findings of trial court - Special circumstances which may compel appellate court to reverse

EVIDENCE - Admissibility - Evidence of result of valuation of a quantity surveyor - Whether will be rendered inadmissible by his nonparticipation in the physical construction of the building

EVIDENCE - Contract - Written terms of contract - Whether can be varied or contradicted by extrinsic evidence

EVIDENCE - Evidence placed before trial court - Duty of prior to making its findings therein

EVIDENCE - Hearsay evidence - Evidence of statement made by a person not called as a witness - When will not amount to hearsay

EVIDENCE - Hearsay evidence - Meaning of

EVIDENCE - Hearsay evidence - What constitutes

EVIDENCE - Inadmissible evidence - Where admitted by trial court Attitude of appellate court thereto

EVIDENCE - Inadmissible evidence - Where wrongly admitted by trial court - Duty of to expunge in its judgment

EVIDENCE - Terms of contract - The rule that written terms of contract cannot be varied or contradicted by extrinsic evidence - Exception thereto

JUDGMENT AND ORDERS - Judgment of trial court - Every error therein -  Whether leads to its being set aside - When appellate court may reverse

PLEADINGS - Admission - Whether the plaintiff not replying to an averment in a statement of defence implies admission - Exception thereto

PLEADINGS - Essence of - Whether every evidence emerging in the course of proceedings is expected to be pleaded

PRACTICE AND PROCEDURE - Party benefiting from his own default -

Whether permissible

Issues:

1.            Whether or not the learned trial Chief Judge was right in law when he held that exhibit ‘J’ the substratum of the respondent’s case, formed the basis upon which he awarded the sum of N811,000.00 as outstanding amount due and unpaid for value of work executed and N200,000.00 as loss of profit against the appellants was not founded on hearsay evidence to warrant its rejection or it’s being expunged from the records in his judgment.

2.            Whether the learned trial Judge was justified in law in holding that time was not of the essence in the execution of the contract between the appellants and the respondent as testified by DW1 but, rather that it was the appellants that were in breach of clause 30(1) of exhibit ‘A’ the contract agreement which led to the suspension of the works by the respondent.

3.            Whether or not exhibit ‘N’, photocopy of the 7 uncompleted buildings out of the ten (10) blocks contracted to the respondent by the appellants constitutes evidence of 75% completion of the whole contract awarded in exhibit ‘A’ as held by the trial Judge.

4.            Was the learned trial Judge correct in law when he dismissed the appellants’ counter claim of N11,753,545.00 despite DW1’s uncontradicted and accepted evidence against the respondent at the trial.

Facts:

The respondent entered into a written contract with the 2nd appellant for the construction of 10 blocks being buildings for a motel for the 2nd appellant Bali Local Government Council in Taraba State. The contract sum under the agreement was initially N2,611,708. Parties later agreed to a variation which increased the contract sum to about N3,544,631.00. The appellants had at some point revoked the contract, this they later withdrew. Again they revoked it, asking the respondent to submit his claim. The claim of the respondent was later submitted which was not paid. Subsequently, the respondent as plaintiff at the High Court claimed from the appellants as defendants the sum of N1,075,657.00 being outstanding sum payable to him for work done pursuant to the said contract, N300,000 being for variation agreed by parties and further damages of N2,990,572.00. On being served the writ and statement of claim, the appellants in their statement of defence denied the claim and also counter-claimed, stating that it was because of poor work on the part of the respondent that the contract had to be terminated. It was re-awarded to another contractor who completed same in the sum of N15,000,000. The foregoing formed the basis for the appellants’ counterclaim. The counter-claim was to recover the difference between this new sum and the contract sum for the contract awarded the respondent. At the conclusion of trial, the learned trial Chief Judge found for the respondent and awarded him a total sum of N1,011,000.00 made up of N811,000.00 being outstanding sum due for unpaid value of work executed and N200,000 for loss of profit.

The appellants’ counter-claim was dismissed. Dissatisfied, the appellants appealed to the Court of Appeal.