ISSUES

Whether the appellant was entitled to an extension of time to complete the contract as of right?

Whether the respondent was entitled to special damages?

FACTS

The University, respondent in these proceedings, had engaged the services of the appellant for the construction of a laboratory building on its campus for an initial contract price of approximately N2.4 million, but by mutual agreement it was escalated to an eventual figure of N7.4 million.

The project was to be completed within 44 weeks, but at various stages the appellant requested extensions of this period via the consultant architect and this completion period was eventually adjusted to 139 weeks. Still battling to meet its new, extended deadline, the appellant in mid-1985 asked for a further extension of 67 weeks, but was only granted an additional 35 weeks.

However, the respondent conducted numerous physical inspections of the appellant's work and had, in writing, regularly complained to the appellant about shoddy and unprofessional workmanship.

When the appellant's application for a further 67 weeks was partly refused, it submitted a bill to the respondent for the sum of N100,000 in respect of a certain portion of completed work. In July 1985 it demanded payment of this amount, failing which it threatened to terminate the contract and whereupon the respondent determined the contract.

The appellant then instituted action in the High Court, claiming the sum of N100,000 in respect of the completed portion, as well as an order for an extension of the project's completion date by a further 67 weeks. The respondent counter-claimed for damages in the amount of N12.6 million being special damages resulting from the respondent's enforced cancellation of the contract. The High Court dismissed the appellant's claim and allowed the respondent's counter-claim.

On appeal, the Court of Appeal upheld the High Court's decision, but ordered that the amount of N100,000 be paid to the appellant upon completion of the work by another contractor. This was a further appeal to the Supreme Court against the ruling.

The appeal was allowed in part.

HELD

1.      On the claim for an extension of 67 weeks

The appellant enjoyed no right to an extension. It had literally been begging the respondent for extensions of time and nothing in these requests suggested that the appellant had a right to such extensions. This constituted a privilege, not a right. Per Pats-Acholonu, JSC at 45.

2.      On the respondent's cancellation of the contract without first giving notice in accordance with the contract

Where time is of the essence, this must be clearly stipulated as a fundamental term of the contract. Where the time aspect of a contract has been compromised, it may be seen to constitute a waiver. However, where a builder's general lack of diligence becomes unbearable - despite the waiver - and the builder then abandons the work, relying on a subterfuge of non-payment, the employer is entitled to cancel the contract forthwith under the common law. Per Pats-Acholonu, JSC at 45.

and

"No notice is needed to be given where there has been an effective abandonment". Per Pats-Acholonu, JSC at 45.

3.      On the respondent's counter-claim for special damages

Where a claim is for special damages, as was the case here, each and every item constituting the alleged special damages needs to be proved. Testimony is needed to tie each item to the evidence led to constitute such proof. That was not done in this case. Per Pats-Acholonu, JSC at 45.

The following cases were referred to in this judgment:

Nigeria

AG Leventis (Nigeria) Ltd v Akpu (2002) 1 LR (747) 182

Ajikawo v Ansaldo (Nigeria) Ltd (1991) 2 NWLR (Part 173)

Blackwood Hodge (Nigeria) Ltd v Omun Const. Co (2002) 12 NWLR (Part 782) 523

Joseph v Abubakar (2002) 5 NWLR (Part 759) 185

N.B.C.L. v Sparless Dry Cleaning (Nigeria) Ltd (1998) 13 NWLR (Part 580) 11

Shell Pet. Dev Co v Isaiah (1997) 6 NWLR (Part 508) 236

Yahaya v Oparinde (1997) 10 NWLR (Part 523) 126

Yusuf v Yetunde (1998) 12 NWLR (Part 579) 483

Foreign

Morgan v Birnie (1833) 9 Bing, 672

The following statute was referred to in this judgment:

Nigeria

Evidence Act: S 132(1)

The following book was referred to in this judgment:

Building and Engineering Contracts (10ed) Hudson Page 609, 611 and 612

Pats-Acholonu, JSC (Delivered the Leading Judgment):- The appellant a construction company had entered into a contract with the respondent to construct a laboratory building and what is described as the General Service and Supply Center at an initial price of N2,440,449 (two million four hundred and forty thousand four hundred and forty nine naira). The sum originally agreed to was later on revised upwards to N7,356,663.28 (seven million three hundred and fifty six thousand six hundred and sixty three naira twenty eight kobo). Some of the pertinent terms of the contract are:-

(a)     That the whole works should be completed within a period of 44 weeks.

(b)     That the appellant if occasion so demands may apply for extension of time to complete the job.

(c)     That the architect's certificate is a condition precedent for payment.

The construction work was not completed within the due date agreed but the parties after several meetings agreed that the completion work be extended to 139 weeks.

As late as the middle of 1985, the appellant applied for further extension of total of 67 weeks. According to the appellant, the consultant architect approved only for an extension of 35 weeks in spite of the protestation of the appellant. The appellant was equally piqued further in this seemingly jaundiced state of affair by the refusal or failure of the respondent to pay its entitlement to Certificate No 35 of the sum of N102,743.73. Subsequently, the two parties each determined the contract. Feeling sorely about such a development the appellant instituted an action in the High Court.

The respondent on the other hand denied all liabilities and maintained that the unenviable situation was caused by the incompetence of the appellant in not putting the best men on duty and this resulted in perennial requests for extension of time which delayed the work and in turn had the resultant effect of escalating costs. With this in mind, the respondent then counter-claimed for damages for a sum of N12,746,616.54 (twelve million seven hundred and forty six thousand six hundred and sixteen naira fifty four kobo).

At the High Court the suit of the appellant was dismissed while the counter-claim succeeded. The award of damages was somewhat bizarre in the language it was given. I shall come to this later. An appeal to the Court of Appeal was dismissed hence a final appeal to this Court.

From the dizzying great number of grounds of appeal the appellant formulated 6 (six) issues for determination. They are as follows:-

1.      Whether the lower court was correct in upholding the learned trial Judge's decision that the appellant was not entitled to the extension of time sought? Grounds 1, 2, 3, and 5.

2.      Whether the appellant was, in the circumstance and having regard to the contract entitled to any sums of money due in consequence of the extension of 67 weeks sought by it but which the respondent neither formally granted nor refused? Ground 4.

3.      Whether the two lower courts did not so misconstrue the first relief sought by the appellant as to occasion a serious miscarriage of justice? Ground 17.

4.      Which of the parties, having regard to the contract validly determined the contract or were the two lower courts right in holding that the respondent validly determined the contract? Grounds 6, 7, 8, 9, 10, 11, 13, 14, 15.

5.      Whether the respondent was entitled to the measure of damages as stipulated under the contract especially in the light of the holding of the court that the respondent did not determine the contract in accordance with the contract document - Exhibit 'P2', but under the common law? Ground 16.

6.      Were reliefs granted in the counter-claim proper in the circumstances? Ground 18.

The respondent on its own adopted the issues framed by the appellant and argued its case based on the manner argued by the appellant.

The appellant's grouse against the judgment of the Court of Appeal is in the lower court's affirmation of the decision of the trial court. The High Court after dismissing the case of the appellant in particular stated as follows in that Judgment:-

"As to the plaintiff's claims in paragraph 26 and 27 of his further amended Statement of Claim, their success depend strongly on Section 25(3)(a) of Exhibit 'P2' the return of the equipment, tools and materials will wait until the whole project is finally and satisfactorily completed by another contractor. The defendants will then have the responsibility to return whatever remains of the equipment to the plaintiffs.

The counter-claims also succeed but they cannot take effect until after the successful completion of the project. Section 25(3)(d) which is quoted above supply the full answer.

For the benefit of doubt, I make the following orders:-

On the plaintiff's claims:-

1.      Relief 1 fails. There is no basis whereby I can grant any extension of time, how much more of 67 weeks extension. The declaration is refused.

2.      Relief 2 also fails with the exception of the sum of N102,743.73k on Certificate No 35 which is already due to the plaintiff. The payment of this sum of N102,743.73k by the defendant to the plaintiff shall be deferred till when the project is finally completed by another contractor and accounts are taken by both parties under Section 25(3)(a) and (3)(d) of Bills of Quantities (Exhibit 'P2').

3.      Relief 3 also fails as the plaintiff was in breach of the contract.

4.      Reliefs 4 and 5 are to be treated in accordance with the provisions of Clause 25 (3)(a) of the Bills of Quantities -Exhibit 'P2'.

5.      Relief No 6 fails in its entirety and it is hereby dismissed.

6.      Relief Nos 7, 8 and 9 also fail in their entirety and they are refused.

On the defendant's counter-claims

1.      On Reliefs 1 and 4 the defendant is entitled to extra expenses to be incurred in completing the project. The calculation of such extra expenses shall be in accordance with Clause 25(3)(d) of the Bills of Quantities - Exhibit 'P2'.

2.      The defendant is entitled to damages for non-completion of the work

3.      Reliefs 3 and 5 have been withdrawn and they are hereby dismissed."

The Court of Appeal after synthesising the whole judgment of the High Court and in particular the singular features of the award made by the High Court observed, and in the light of its comment, held as follows;

In awarding damages on the counter-claim the learned trial Judge found as follows:-

"1.     On Reliefs 1 and 4 the defendant is entitled to extra expenses to be incurred in completing the project. The calculation of such extra expenses shall be in accordance with Clause 25(3)(d) of the Bills of Quantities - Exhibit 'P2'.

2.      the defendant is entitled to damages for non-completion of the contract as to be calculated under Clause 22 of the same Bills of Quantities - Exhibit 'P2'.

3.      Reliefs 3 and 5 have been withdrawn and they are hereby dismissed."

According to the learned SAN the learned trial Judge has by implication refused to claims of the respondent but made his own orders. He has submitted that he cannot make an order which the respondent has not sought from him; and placed reliance on the cases of Ajikawo v Ansaldo Nigeria Ltd (1991) 2 NWLR (Part 173) page 303. I do not agree that the learned trial Judge refused the claims. He granted them alright but rather than confine himself to awarding the damages sought he went on to make an order that was not specific, and which after the calculation he has ordered may be in excess of the amounts claimed. By virtue of the settled law in this country a Judge in a litigation that involves a claim for damages must as much as it is possible tailor the amount he awards to the amount of damages claimed, but in this case the learned trial Judge had to resort to the relevant clause of the contract binding both parties for the purpose of the assessment.

And the issue formulated in this appeal having been discussed thoroughly in this judgment, for the foregoing reasoning, I find the grounds of appeal married to the issues have no merit and substance. All the grounds are therefore dismissed. The end result is that the appeal fails in its entirety. I hereby dismiss the appeal and affirm the judgment of Sijuade, J".

Taking Issues 1, 2, and 3, argued together, the learned Counsel for the appellant submitted as follows and I would here quote him in extenso:-

"It is also common grounds that at the time of terminating the contract in July 1985, the Architect had not communicated his approval or rejection of the extension of time sought. In substance, if not informed however, he had approved the extension."

This sort of inferential deduction is obtuse, skewed and incomprehensible. I find it difficult to hold that when the architect on application or request for extension of time though in principle sees nothing intrinsically wrong with such a request and evincing an intention to support it, but failed to communicate same to the appellant or is completely silent, it should be taken as amounting to an approval. The strange and sickening feature of this case is the incessant extensions which according to the appellant was caused by the respondent while the respondent laid the blame at the feet of the appellant who it accused of incompetence, inability to fully mobilise effectively, and needless delay. The submission of the appellant that an approval should be read in non communication of the state of mind of the architect, appears strange having regard to some averments of the appellant in its pleadings.

Paragraph 9:-

"Under the express terms of the contract the architects have responsibility for approving applications for extension of time."

Paragraph 12:-

"The architects supported the two applications for extension of time but the defendant at all material times prevented the architects from granting and or communicating to the plaintiff the grant of extension of time. The plaintiffs pleads letter dated 10 April 1984 and May 1985 and relevant minutes of the meetings."

Paragraph 13:-

"The plaintiff will at the trial contend that:-

(1)     The defendant prevented the architects from granting and/or communicating to the plaintiff the grant of extension of time applied for;

(2)     The architects failed to act as they should have done under the express terms of the Contract;

(3)     The architects delayed the plaintiff's application for extension of time for an unreasonable time; and

(4)     The architect failed to act impartially and independently and/or abused their powers and/or acted in excess of their jurisdiction in the handling of the plaintiff's applications for extension of time."

I really do not understand why we were referred to Exhibit 14 which was a minute of a meeting between both parties. I very much doubt if it is in the appellant's interest. Its main complaint in that meeting was the problem of obtaining some materials for construction of the structures as reflected in the minute of the meeting held on 10 April 1985. Part of it reads thus:-

"The Engineer said that if however there is evidence of problems in getting anything imported, the consultants could be informed so as to look into any of the contractors problem regarding the foregoing and the consultants may necessarily contact and get the assistance from the University or the Client by a (sic) way of writing letters to the Federal Authorities in granting necessary documents . . . The Engineer warned the contractors not to seize this opportunity in relaxing their duties of making all efforts to ensure that those required supplies are found delivered to the site of the project."

The message of the Engineer representing the University is that the respondent would not condone any tardiness or unnecessary delay which the contractors might latch upon by needless application for extension and therefore fail to complete the project in time. In Exhibit 17 the consultant Architect reminded the employers to ensure that a reply to two extensions applied for viz, first for 35 weeks and for 32 weeks was given prompt reply. It is the letter that the appellant has interpreted to mean that the architect was in support. There is indeed nothing in that document to show that the architect was for or against. It can hardly be contested that since the consultant architect was an employee of the respondent any likely extension must be well considered by referring any request or application to the respondent as he who pays the piper dictates the tune.

The appellant equally berated the High Court for holding that it was not within the competence of the court to grant extension of time thereby usurping the power of the Architect, stating that it never sought such relief. The claim for the declaration in respect of the extension is worded in this manner, that is to say:-

"(1)    Declaration that the plaintiff is entitled to 67 weeks' extension of time and any sum due in consequence thereof."

Analytically dissecting this claim which is couched in the present tense by use of the expression "is entitled" and "not was entitled", it denotes that it is the appellant's right still subsisting. It is a claim situate in the present and appearing to show that its grant would enure to the appellant in its future dealings with the respondent. Still on this the Court of Appeal in its consideration of the ramifications of the application referred to Exhibit 68 where the appellant now appealed direct to the respondent humbly pleading for extension of time. Implicit in this unusual request directed at the respondent and not the Architect who the appellant had said held all keys to the grant or disallowance of the application, was that the appellant was aware that it was the respondent that held the key to any extension. That is to say, that the appeal was made over and above the agent, and being made to the principal in a language that bespeaks of a grant of a benefit and not a right. It was couched in the words of supplication. The intended intervention would have the effect of overriding the words of the contract and if so granted, would undeniably and irresistibly affect the agreement whereby the architect might no longer be the person to grant or refuse any extension.

Let me compare the evidence of DW1 with that of DW2 on this matter. In his evidence in Chief the plaintiff's witness testified as follows in respect of the application for the 35 and 32 weeks respectively:-

"The plaintiff sought for extension of time in March 1984. This is a copy of our letter". Counsel seeks to tender it. "It was admitted and marked Exhibit 'P12' and was approved and 35 weeks extension was given to us. The approval was given at the site meeting to which we were invited by the architect."

"In November 1984 the plaintiff applied for extension of another 32 weeks to complete the Contract . . . No formal approval was communicated to us . . . The architect informed us that the defendant wanted to know the financial implication before a formal approval is given."

It is interesting that apart from the fact that notwithstanding that the appellant was given approval for 35 weeks extension they not only failed to complete the job within that period but cheekily applied for another 32 weeks extension. It is to be observed that it asked the High Court for declaration that it is entitled to 67 weeks which is the sum total of 35 + 32 weeks applied for. The first 35 weeks were in fact granted leaving only 32 weeks for which its financial implications were sought for. Besides having regard to the result of the intervention of the respondent in the matter the submission of the appellant that the Architect is solely responsible for extension of time can no longer hold. Then it would appear that to all intents and purposes that the implication of the ramifications of the duty and power of the architect is that they had been altered. To this let me restate the evidence of DW2:-

"The procedure in granting the extension is that the plaintiff applied to the architect for extension of time. A meeting of the consultants, the contractor and the client (defendant) where the issue of extension is discussed and a decision is taken. The architect only made recommendations to the defendants which will give final approval. The defendants had the discretion to grant or reject our recommendations."

There are two facts that I have found in this matter (a) Whenever any variation in whatever form inclusive of the extension of time is to be made all parties attended i.e. the respondent, its resident engineer, the architects and the appellants. Any extension of time does not depend on the architect alone having regard to possible financial implication and the informal manner parties had been using without the strict need for any variation being made in writing. (b) The appellant seemed to have recognised this in their suppliant letter to the respondent. I hold that when a claim of right metamorphoses into one of supplication, it ceases to wear the clothes of a right but a mere privilege. In this case the appellant was literally begging the respondent for mercies. I see nothing to vindicate a so called right of 67 weeks. Further to this the parties seemed to have waived the necessity for written approval in the strict sense since evidence shows that they opted for less formal way of communicating easily in this matter. By so doing they have varied or waived strict compliance with the dictates of the contract. See the operation of Section 132 of the Evidence Act:-

"132 (1)     When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered added to or varied by oral evidence:-

Provided that any of the following matters may be proved-

(a)     Fraud, intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence, or want or failure, of consideration; mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if approved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto;

(b)     The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them;

(c)     The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property;

(d)     The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property."

I do not see any merit in these three issues canvassed. To my mind they hold no water.

Issue 4 is asking the court to determine which party validly determined the contract Clause 26 of Exhibit 'P2' which is the Bill of Quantities and in which the agreement was embodied sets out the conditions under which the contract would stand determined. The appellant referred to the provisions in Clauses 25 and 26 of the contract Exhibit 'P2' and submitted that on 10 July 1985 it issued Exhibit 47 to the respondent giving it notice to pay the value on Certificate No 35 failing which, the contract would be determined as non payment within 14 days of non compliance would be a good ground for determining the contract. It argued that in response to the letter to the respondent to comply with the demand, the respondent instead determined the contract.

It is difficult to adequately and appropriately discuss which of the two parties validly determined the contract without equally delving into the causative factor that brought about the serious misunderstanding between the legal combatants. By this I mean that if as I have held that the appellant is not and was not, and should not be entitled to the 67 weeks it was claiming, the question of whose determination is valid intertwined, or is inextricably involved with the mess associated with the prolonged execution of the project. The appellant insists that with the respondent failing or refusing to honour Certificate No 35 in time, and was not paid even after 13 weeks of the demand, the lower court should not have held that the respondent's determination came first. The angst of the respondent has been the alleged tardiness on the part of the appellant; an attitude that seems to be redolent of indolent nonchalant attitude bordering on sheer levity to work. In other words it found itself in an uncomfortable position to readily accede to the payment even of the Certificate No 35. The respondent submitted that there is no way the subsequent events could not be traceable to the ungainly and squalid history of the contract execution which it alleged was hinged on the appellant's incompetence. The court below had held as follows:-

"In the instant case: it cannot be said that there was no evidence that most of the delays in the execution of the contract was caused by the appellant. There is certainly ample evidence by both sides to buttress the respondent's case that the delay was caused by the appellant."

Let me review in summary the evidence of the history of the performance of the contract as considered by the Court of Appeal. On 24 October 1983 Exhibit 'P94' was written to the appellant. It runs thus:-

"It is observed that some of the enclosing block walls for the above mentioned shafts are slanting and not at right angles, as specified in the architectural drawings. Consequently the Timber frames for the removable panels on the recess are also askew. Please ensure that necessary action is taken to rectify these defects without delay."

It was signed by the Resident Engineer. On 18 November 1983 and other subsequent dates several letters were addressed to the appellant in respect of complaint of a shoddy work. I shall set all of the letters in extenso:-

"Our Ref: REAS/IART/257/GEN

Date: 18 November 1983

Messrs Adecentro Nigeria Ltd,

University of Ife,

Ile-Ife.

Dear Sirs,

I.A.R. & T. Building Nos 2 and 3 - Unife Supply Pipes Shaft in Corridors - Recess for Electrical Board, Control Water Fountain etc.

Further to my letter ref. REAS/IART/241/GEN, dated 24 October 1983, on the above subject, please be reminded that all defected walls and frames should be made good before any capable trunking and associated wiring installation can commence.

With particular reference to Building 2, in which the above defects have not yet been made good, whilst cable trunking installations have already commenced, please ensure that these installations are removed and the defects corrected prior to any further trunking work.

Attached is a list of those walls and frames which require attention.

Please treat as urgent.

Yours faithfully,

A. Silberman Egboramy Resident Engineer

Cc The Clerk of Works Unife

Our Ref: RACT/IART/310/GEN

Date: 29 February 1984

Messrs Adecentro (Nigeria) Ltd University of Ife

Ile-Ife

Attention: Site Manager

Dear Sirs,

Re: I.A.R. & T. Buildings - Wall Tiles in Building No 2

During the inspection tour that took place on 23 February 1984, we noticed that the work applied on part of the wall tiles in Building No 2 was carried out not according to acceptable standard.

You were verbally instructed to take off these tiles and you promised to do so.

We expect you to finish this work as soon as possible and according to good standard.

Your co-operation is appreciated.

Yours faithfully

On Tammuz Resident Architect

For Egboramy Company Ltd

Cc Clerk of works.

Our Ref: RACT/IART/351/GEN Date: 28 April 1984

Adecentro Nigeria Limited, University of Ife,

Ile-Ife

Dear Sirs,

Re: I.A.R. & T. Project

After an inspection tour to the I.A.R. & T. Buildings Nos 2 & 3, we would like to draw your attention to some repairs that has (sic) to be done:-

1)      You have to execute the work mentioned in site instruction No 27 (9 March 1982) in Building No 2 & 3 before starting any work on the roofing felt.

2)      Building No 2, Annex 2 - you have to chisel the curve in the external southern wall between the Annex and the building before applying the combed Tyrolean.

3)      Building No 3, Annex 1 - you have to finish the chiselling of the inner side of the eastern wall before applying the plaster on it.

4)      The black terrasso coping on the roofs parapet is not finished. You have to grind and level it as it has to be done in the inner corridors.

5)      There are still some repairs that has to be done on the retaining wall. The upper stones have to be replaced as you did in few places. We will instruct you on site.

6)      Many wooden frames need repairs and some have to be completely replaced. A special inspection tour for this issue will take place on Monday morning at 11:00am on 30 April 1984.

7)      In some places, the paint you applied on the walls and ceilings inside the rooms is pilling off. You have to rub it and repaint the place before applying the second coat. We shall show you the exact places during the inspection tour mentioned in Clause 6.

Your action on the above is needed as soon as possible.

Thank you for your co-operation.

Yours faithfully

On Tammuz Resident Architect

For Egboramy Company Ltd

Cc Clerk of Works

Cc Kofo Popoola & Partners

RACT/IART/372/GEN 21 May 1984

Adecentro Nigeria Limited, University of Ife,

Ile-Ife

Dear Sirs,

Re: I.A.R & T. Project - Connecting Bridge

Please be informed that the formwork you are carrying out for the connecting bridge between Building No 2 and No 3 is not acceptable and will not be approved. The horizontal soffit of the bridge slab is fair faced concrete and the formwork for it must be done of undamaged clean and smooth plywood and not of the broken plates you are using.

We would like to remind you that before you cast any part in the building you have to get our engineer's approval for the formwork and the reinforcement, a practice which you did not always follow in the past.

Your co-operation will be appreciated.

Yours faithfully

On Tammuz Resident Architect

For Egboramy Company Limited

Cc Director of Physical Planning Cc Clerk of Works

Cc Kofo Popoola & Partners"

PW1 received these letters. In his evidence during the cross examination he said:-

"All Exhibits 'P94-P96(2)' relate to the defective work we did on the project. It is not true that it was in the process of correcting the defects that we changed the terasso. The Architect was complaining about the peeling of the paint of the wall and not change of colour of the paint in other places which caused the delay in the work."

In fact the employer was complaining of many defects.

It is difficult not to associate the delays and defective shoddy work to the incompetence in the civil work. With the plethora of complaints about abysmal work being done, it was even a surprise that the work was not terminated earlier by the respondent.

There is a complaint that the respondent did not give notice before the termination. In the circumstance of the case need it do so if it felt that the work had been abandoned. There are facts found by two lower courts that the appellant was responsible for the abandonment disguised as a determination of the contract on the euphemism of non compliance with the dictates of the contract. I believe that in such circumstances the respondent felt that, the only reasonable thing to do was termination based on the circumstance that presented itself and not necessarily on the prescription of the contract. Abandonment denotes animus non furandi i.e. no intention of going back. Relating to a situation such as this L.N Duncan Wallace in his "Building and Civil Engineering Standard" (a commentary on the 4 principal R.I.B.A., F.A.S.S and I.C.E. Contract) states at P 117 after detailing the failings on the part of the contractor that would impel the Employer to determine the contract.

"This clause (i.e. R.I.B.A. Conditions Clauses 24, 25(1) gives a contract right to the employer to determine the contract in certain defined circumstances since it is expressed to be without prejudice to other rights and remedies, it is beyond any doubt additional to and not substitution to further common Law right to rescind a contract for fundamental breach."

In Hudson's Building and Engineering Contracts (10ed) at page 609, 611 and 612 the learned Author states as follows:-

"A further consideration in the case of building contracts is that, even were time to be of the essence, it would afford a building owner little practical relief against a recalcitrant builder. In most building contracts the contract period is comparatively lengthy, and long before it has expired the owner or his architect will know that the builder is in default on his programme and that completion by the stipulated time is for all practical purpose impossible. Nevertheless, no right to terminate on this ground could arise until the completion date, while the obligation in most building contracts to make interim periodic payments will continue, in spite of the mounting probability of the employer incurring substantial damage. In addition, if he allows the completion date to pass and acquiesces in work continuing under the contract, the employer will be held to have waived compliance with the original date for this particular purpose."

It is essential that stipulation that time is of essence must be shown clearly in the contract agreement as a fundamental term. Where time element is seriously compromised it is a waiver. However where notwithstanding the waiver, the builder's lackadaisical attitude to work and lack of due diligence become suffocating and unbearable and the builder due to his incompetence sought to rely on one subterfuge or the other to suspend or abandon the work evincing the intention not to continue, the employer could forthwith terminate the contract under the common law. Continuing the learned author says:-

"The implication of a fundamental term requiring due diligence by the builder is more essential to the employer in comparatively lengthy contracts for work done such as building contracts, rather than a doctrine which has largely been evolved to suit the requirements of contracts for the sale of land or goods. It is submitted that in most building contracts this term is necessary to give the contract business efficacy, and that where a builder persists in a rate of progress bearing no relation to a specified or reasonable date of completion, and the employer gives him notice requiring a reasonable rate of progress, if he then fails to proceed at a reasonable rate he will be evincing an intention no longer to be bound by the contract and his dismissal would be justified notwithstanding the absence of any express term empowering the employer to determine."

What ever might have been any dereliction on the part of the respondent in this matter (if there is any) paled into insignificance when regard is had to the monumental deficiencies that generally characterised the nature of the appellant's work. No notice needed to be given where there has been an effective abandonment. In my view the determination by the respondent is valid.

I find it utterly indefensible that the appellant should abandon its work on the excuse that Certificate 35 was not paid which is indeed a paltry sum compared to sum of N7 million odd and when the respondent has been lenient by bending backwards to accommodate the appellant on several occasions and when they had not settled down to discuss the matter as has been the practice all along. When a contractor has been guilty of inordinate delay occasioned by late mobilisation, indolence, lack of seriousness, persistent shoddy work and in the same vein under a pretence that the employer should have paid him the sum in respect of a certificate for a miserly sum of money vis-à-vis the sum total, and purported to terminate the contract, the court should ignore the pretences and repudiate the so called determination and in its stead affirm a termination made by the employer on the basis of the contractors abandonment of work.

In respect of Issue 5, the appellant said that the question for determination is really whether or not the appellant did not do the work covered by Valuation 36. I think this is a simple question. The respondent through DW1 in his evidence testified as follows:-

"The last application submitted by the plaintiff was Valuation No 36 - Exhibit 43. We (Quantity Surveyors) were more than half way through in the approval exercise before the notice of termination by the contractors was received."

The appellant argued strongly that as the court found out that some work was done in respect of Valuation 36, there ought to be payment for it. On this point the respondent replicando drew the attention of the court to terms of payment, to wit, that there should be a valuation certificate by the quantity surveyors on the basis of which the architect would issue the certificate. The resolution of this matter is not much of a thorny one seeing that DW1 has testified that they the quantity surveyors were half way in the approval exercise in respect of Valuation 36 before the termination by the appellant. To my mind the ipse dixit of DW shows that the quantity surveyors had evinced the intention to approve. That being the case not - withstanding that all procedures were not completed, I am of the view that the appellant is entitled to equity in this case as the justice of the situation ought to make the respondent pay for the service rendered and appropriated here. It is my view therefore that the appellant is entitled to the sum of N47,696.03 in respect of the valuation. This is a case where equity should be used to temper rigours of the law.

I now discuss the arguments of both parties in respect to Issue No 6.

In the sixth issue the appellant's complaint is on the relief granted to the respondent in its counter-claim. The appellant took issue on this matter and argued that the lower court made an award that was not pleaded and cited N.B.C.L. v Sparless Dry Cleaning Nigeria Ltd (1998) 13 NWLR (Part 580) 11, 21 and Yusuf v Yetunde (1998) 12 NWLR (Part 579) 483 at 493. It further submitted that it is a sommersault for the lower court to condemn the trial court for making an order not sought for, and turning round to make the same order that it frowned at and disavowed. The learned Counsel for the appellant further submitted that the claim as contained in the counter-claim being the specie of special damages must be specifically proved as each of the claims is itemised and the learned Counsel cited Shell Pet. Dev Co v Isaiah (1997) 6 NWLR (Part 508) 236; Yahaya v Oparinde (1997) 10 NWLR (Part 523) 126 and Morgan v Birnie (1833) 9 Bing, 672.

The respondent in turn submitted that no ground of appeal raised the issue on this part and therefore the court should ignore the argument on this point. I am amazed at the argument of the respondent on this matter. It is certainly not correct to say that the appellant did not raise the question canvassed under this issue. To waive the arguments proffered on this issue as non event amounts to an over simplification of a complex matter.

Ground 18 of the amended notice of appeal reads thus:-

"18     The Court of Appeal erred in law by granting to the respondent based on its counter-claim reliefs which were not sought, nor specific and supported by evidence.

Particulars:

(i) The respondent having failed to adduce evidence in proof of its counter-claim, the reliefs therein were wrongly granted.

(ii) The court lacks the power to make an order that was not specific to grant a relief not sought to or award more than is claimed by a party."

It is evident that Ground 18 is the cornerstone of the argument canvassed under Issue No 6.

The learned Court of Appeal though agreeing that the trial court awarded the claims made nevertheless held that the trial court "went to make an order that was not specific and which after the calculation he has ordered may be in excess of the amounts claimed."

The Court of Appeal went on:-

"By virtue of the settled law in this country, a Judge in a litigation that involves a claim for damages must as much as it is possible tailor the amount he awards to the amount of damages claimed. But in this case the learned trial Judge had to resort to the relevant clause of the contract building of both parties for the purpose of assessment."

It cannot be doubted that the award made by the trial court which came under hammer of the Court of Appeal was ungainly, inelegant, woolly, nebulous, frosty and difficult to discern. Besides I fail to see the evidence led where the items specified in the counter-claims were proved. Every item contained in the claim of special damage must be specifically proved and such a proof must be characterised by testimony that ties each item with the proof proffered i.e. the evidence led. This elementary, see AG Leventis (Nigeria) Ltd v Akpu (2002) 1 LR (747) 182; Joseph v Abubakar (2002) 5 NWLR (Part 759) 185 CA and Blackwood Hodge (Nigeria) Ltd v Omun Const. Co (2002) 12 NWLR (Part 782) 523 CA.

The lower court did not make matters easier by its own quibbling and indulging in equivocation. To my mind this counterclaim was not in the least proved. Even the nonchalant opposition of the respondent in this issue shows its unseriousness to contest the argument of the appellant. In my view the claim on the counter-claim not having been proved and the respondent failing or refusing to oppose it by forensic advocacy cannot be sustained. Issue No 6 has merit.

In the final analysis the appeal is only partially successful to the extent that Issues Nos 5 and 6 are allowed and the rest fail.

I make no order as to costs. I set aside the judgment of the lower court in respect of payment to Valuation No 36 (Exhibit 43) and the counter-claim. The judgment is confirmed in all other respects.

Kutigi, JSC:- I have had the privilege of reading in advance the judgment just delivered by my learned brother Pats-Acholonu, JSC. I agree with his reasoning and conclusions. He has adequately dealt with all the issues canvassed before us. The appeal therefore succeeds in part only as follows -

1.      The plaintiff/appellant is entitled to the sum of N47,696.03 in respect of Valuation No 36 (Exhibit 43).

2.      The awards or orders made in respect of the defendant/respondent's counter-claims are set aside. The counter-claims are dismissed.

3.      The appeal is dismissed in all other respects.

I also make no order as to costs.

Ejiwunmi, JSC:- As I have had the privilege of reading before now the judgment just delivered by my learned brother, Pats-Acholonu, JSC, I find myself in agreement with his reasoning leading to the conclusion in the said judgment.