CASE: Adeka v Vaatia

Facts of the case:

The Plaintiff Respondent claimed against the defendants /appellant at the trial court the sum of N54,300 as special damages for breach of a building contract between the Plaintiff and the defendant.

The plaintiff claimed that the defendant was awarded a contract for the construction of 4 bedroom flats and 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 a 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 a 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 a 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.

SEE ALSO: CASE: Ania v Emodi

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 a total sum of N60,000 when the plaintiff reached the roofing stages of the buildings. Defendants also claimed that the plaintiff has been paid a 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 a firm of Solicitor acting for a 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 13 1 (1) of the Evidence Act when the terms of any contract have been reduced to a form of document no evidence can be given of the terms 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 I or by adducing secondary evidence of its dines and no party will be allowed to make out a case contents.

5. Parties are bound by their pleadings and no party will be allowed to make out a 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 a schedule to Exhibit I. It was not the Plaintiff’s case that the terms of payment were contained in an oral agreement between him and the defendants. The trial Judge was wrong in granting the Plaintiffs claim on the plaintiff’s evidence

7. 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. Heársay evidence is inadimissible and cannot form the basis of any judgement 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.