judgment in mohammed bello usman vs cmd building … · judgment in mohammed bello usman vs. cmd...
TRANSCRIPT
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 1
IN THE HIGH COURT OF JUSTICE OF THE F.C.T.
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT KUBWA, ABUJA
ON FRIDAY, THE 12TH DAY OF MAY, 2017
BEFORE HIS LORDSHIP: HON. JUSTICE K. N. OGBONNAYA
JUDGE
SUIT NO.: FCT/HC/CV//15
BETWEEN:
MOHAMMED BELLO USMAN PLAINTIFF
AND
CMD BUILDING MAINTENANCE & INVEST. CO LTD. DEFENDANT
JUDGMENT
This matter is between Mohammed Bello Usman as Plaintiff and CMD
Building Maintenance Investment Company Ltd as the Defendant. The
Plaintiff sued through his Lawful Attorney Alhaji Bilya Bala.
The Writ of Summons is for the following claims:-
1. A Declaration that the Defendant’s Letter of 17TH September, 2014 to
the Plaintiff requesting for a new completion date of development for
April, 2015 in place of the agreed date of 21st September, 2014 in
respect of the Plaintiff’s landed property known, being, lying and
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 2
situate at Plot 523 Cadastral Zone B19 Katampe Extension Abuja,
more particularly delineated in Survey Plan No/FCT/B219/PB/9809
measuring 4,732 SqM subject of the Contract Agreement, is unlawful,
irregular, null and void and a breach of the Contract Agreement
between the parties contained in the Developer’s Deed executed by
both parties.
2. A Declaration that the Defendant is in breach of the contract between
the parties especially Clause (I) relating to architectural pattern and
specifications and Clause 4 of the Developer’s Deed relating to time,
that is, “This construction shall not exceed a twenty-four(24) month
period after all statutory and government approvals have been
secured for the development” of the Plaintiff’s said Plot 523 Cadastral
Zone B19 Katampe Extension Abuja, more particularly delineated in
Survey Plan No. FCT/B219/PB/9809 measuring 4,732 SqM subject of
the Contract Agreement.
3. N500, 000, 000.00 (Five Hundred Million Only) as general damages
for breach of contract.
4. N8, 000, 000.00 (Eight Million only) as specific damages for breach
of contract.
PARTICULARS OF THE SPECIFIC DAMAGES
a. N5, 000,000.00 (Five Million Naira Only) being (lost rent proceeds)
compensation for non-performance at N2,000,000.00 (Two Million
Naira Only) by five (5) flats at monthly rate per flat N166,666 (one
Hundred and Sixty-Six Thousand Naira Six Hundred and Sixty-
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 3
Six Naira) only for six (6) months beginning from 22nd September,
2014 to 22nd March, 2015.
b. N166,666.00 (One Hundred and Sixty Six Thousand Six Hundred
and Sixty-Six Naira) only per flat per month from 22/4/15 until works
are completed.
c. N3,000,000.00 (Three Million Naira Only) from 22nd September,
2015 being compensation for rent renewal of the Plaintiff’s rented
premises of 47 Lake Chad Crescent, Maitama, Abuja.
5. 21% Interest rate on reliefs 3 and 4 from the 22nd day of September,
2014 till Judgment.
6. 10% Post-Judgment Interest rate until the Judgment sum is
liquidated.
7. Cost of this suit as shall be assesses at the end of trial.
ALTERNATIVELY
1. An Order commanding the Defendant to pay over to the Plaintiff the
current market value (to be determined by a Court appointed Valuer)
the monthly rental value of the completed buildings contained in
Clause 5(a) and (b) of the Developer’s Deed from 22nd day of
September, 2014 until Judgment is given in this suit by this
Honourable Court.
2. N100,000,000.00 (One Hundred Million Naira Only) as general
damages for breach of contract.
3. N8,000,000.00 (Eight Million Naira only) as specific damages for
the breach of contract.
PARTICULARS OF SPECIFIC DAMAGES
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 4
i. N5,000,000.00 (Five Million Naira Only) being (lost rent
proceeds) compensation for non-performance at N2,000,000.00
(Two Million Naira Only) by five (5) flats at monthly rate per flat at
N166,666.00 (One Hundred and Sixty-Six Thousand, Six
Hundred and Sixty-Six Naira only) for six months beginning from
22nd September, 2014 to 22nd March, 2014.
ii. N166,666.00 (One Hundred and Sixty-Six Thousand Six One
Hundred and Sixty-Six Naira only) per flat per month from 22nd
April, 2015 until the works are completed.
iii. N3,000,000.00 (Three Million Naira Only) from 22nd day of
September, 2015 being compensation for rent renewal of the
Plaintiff’s rented premises at Plot 47 Lake Chad Crescent ,
Maitama, Abuja.
4. 21% interest rate on Reliefs 3 and 4 from 22nd day of September,
2014 till Judgment.
5. 21% interest rate from 22nd day of September, 2015 till Judgment.
6. 10% Post-Judgment interest rate until the Judgment debt is liquidated
fully.
7. Cost of the suit to be assessed at the end of the trial.
ALTERNATIVELY
1. An Order of this Honourable Court in lieu of the main reliefs and first
alternative relief above, granting leave to the Plaintiff to purchase all
uncompleted buildings by the Defendant falling within Clause 5B of
the Developer’s Deed known and more particularly described as
eleven (11) units of three-bedroom apartment with one (1) boy’s
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 5
quarters each at the current market value based on the valuation of a
professional and independent valuer/s.
2. N150,000,000.00 (One Hundred and Fifty Million Naira) only as
specific and general damages for breach of contract.
3. Cost of the suit to be assessed at the end of the trial.
He attached ten (10) exhibits to support his claims.
The Defendants were duly served. They entered appearance late after the
Court granted them leave. Both parties opened and closed their respective
cases after calling evidence, filed their Final Written Addresses and the
Court reserved for Judgment. Note that the Defendant filed a Counter-
Claim along with the Statement of Defence.
In the Counter-Claim, the Defendant/Counter-Claimant claims the
following:-
1. An Order of Specific Performance of the Agreement to convey eleven
(11) apartments, each comprising a three-bedroom flat and Boy’s
Quarters to the Defendant/Counter-Claimant as provided for in the
Developer’s Deed executed between the parties.
2. Damages in the sum of N160,000,000.00(One Hundred and Sixty
Million Naira Only) for unduly prolonged delay by the
Plaintiff/Defendant to the Counter-Claim in executing relevant
instruments conveying the eleven (11) apartments to the
Defendant/Counter-Claimant.
IN THE ALTERNATIVE
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 6
3. An Order directing the Plaintiff/Defendant to Counter-Claim to pay
over to the Defendant/Counter-Claimant the accruable rent due from
eleven (11) apartments which are due the Defendant/Counter-
Claimant at the rate of N11,500,000.00(Eleven Million Five
Hundred Thousand Naira Only) per annum from 22nd of
September, 2014 till the Plaintiff/Defendant to Counter-Claim
executes and lawfully conveys title to the said eleven (11) apartments
to the Defendant/Counter-Claimant.
4. Interest on the amount claimed in paragraph (3) above at the rate of
21% per annum from 22nd September, 2014 till the
Plaintiff/Defendant to the Counter-Claim legally conveys the eleven
(11) apartments referred to in paragraph (3), to the
Defendant/Counter-Claimant.
The Plaintiff opened and closed its case in 2015. The Defendant applied for
leave to recall the Plaintiff’s witness. The Court in the interest of justice
granted that. Both parties filed their respective Final Written Addresses and
Reply as applicable after the close of their cases.
The Court earlier dismissed the Preliminary Objection filed by the
Defendant to stay the proceeding pending the outcome of the arbitration
because the parties had taken steps, not just steps, but bold and
remarkable steps in the litigation before the application for stay came up
among other reasons.
It is important to note that though the Defendant filed a Counter-Claim, it
neither pursued nor addressed the Court on the said Counter-Claim. It
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 7
equally did not lead any evidence to prove any of the averments touching
on the Counter-Claim either.
The main crux of the Plaintiff’s case is that the Defendant did not complete
the work as within the timeline as contained in the Agreement – EXH 1.
Again, that the Defendant did not reply to the letter written by the Plaintiff
on the condition precedent for the extension of time sought by the
Defendant.
Again, that the Defendant failed to use the required quality material as
clearly stated in the Agreement to build the finishings of the building
particularly as regards the door; using inferior materials to construct the
door and rooftop covers were not in tandem with the architectural design as
agreed between the parties.
Most importantly is that the Defendant, according to the Plaintiff,
“Unilaterally decided to increase, by adding from the Plaintiff’s land to the
portion surrendered to them (the Defendant), which is not part of the
contract, embarrassing act of illegal encroachment that the Plaintiff
complained of through his Solicitors by the Letter of 21/01/14 which the
Defendant replied to on 12/03/14.”
The said document was admitted in evidence as EXH. 2.
The Defendant confirmed that time was of the essence in the Agreement.
On the part of the Defendant, their anger was that the Plaintiff was
supposed to give them their documents of title to the eleven flats within
three months of executing the Agreement.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 8
Again, the financing of the project was to be raised by the Developer
through their financiers who shall create a legal mortgage over the
Developer’s title in favour of the financiers. According to the Defendant, the
condition precedent to the funding of the project was the vesting of the
Defendant’s said eleven (11) flats in the Defendant by the Plaintiff within
three months of the execution of the Agreement.
Meanwhile, the Agreement was entered into in 2011. The timeline for
completion was within two years after all the necessary approvals were
obtained. Meanwhile, the final approval was obtained on 21/09/12.
Again, the Defendant sent a Power of Attorney which ordinarily is supposed
to be donated by the Plaintiff to the Defendant. The Defendant signed his
column but the Plaintiff did not sign his column. The question is, is there
any provision for the Power of Attorney to be donated by the Plaintiff in the
main Agreement? Does the non-signing of the Power of Attorney by the
Plaintiff make it authentic or otherwise? I do not think so.
The parties called one witness each to testify on their behalf respectively.
(PW 1 and DW 1)
On the 21/06/16, the Defendant filed its Final Written Address. In it the
Defendant raised two issues for determination which are:-
“1. Whether the Plaintiff is entitled to the equitable
discretionary remedy of the Declaration sought in the
circumstances of the case?
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 9
“2. Whether the Plaintiff is entitled to any award of
damages and interest on the various sums claimed or to
any consequential relief to the Declarations sought?”
The Defendant’s Counsel in answering Question No. 1 on whether the
Plaintiff is entitled to the equitable discretionary remedy of the declarations
sought submitted as follows:
Counsel argued that in any contract where “reasonable time of
performance is given, time becomes of the essence in the contract. He
cited the case of FHA VS. WARNER & WARNER INT. ASS NIG. LTD.
(1986) 5 NWLR (PT.42) 474.
He went on to say that time was of the essence in the Plaintiff conveying
the eleven (11) flats to the Defendant to enable the Defendant source for
funds to carry out the contract within time but the Plaintiff did not do so.
EXH 2 Clause 5(a) (b).
On the financing of the project, Counsel argued that it is a condition
precedent to first convey or vest title in the eleven (11) flats to the
Defendant by the Plaintiff via Mortgage before the Defendant can finance
the project and that parties are bound by the terms of the contract. He cited
the cases of COLLEGE OF MEDICINE UNIVERSITY OF LAGOS VS.
ADEGBITE (1973) SC 149; NTPC VS. NARUMEL LTD. (1986) 4 NWLR
(PT. 33) 117; SCOA LTD. VS. BAMDEX LTD. (1990) 1 NWLR (PT. 389);
BABA VS. NIGERIAN CIVIL AVIATIONTRAINING COLLEGE (1991) 5
NWLR 9PT. 192) 388 AT 413.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 10
It was the position of the Defendant that the Plaintiff was in clear breach of
that term of the contract by refusing to vest the document of title as agreed.
Further, it was argued that the Plaintiff has no cause of action to institute
this action because his right has not been infringed and there is no
infraction too. That once there is no cause of action disclosed as in this
case, the Court should strike out the claim and dismiss the action. He
urged the Court to so hold. He cited BOLAJI VS. BAMIGOSE (1986) 4
NWLR (PT. 37) 632.
Learned Counsel maintained that since the Declaration is an equitable
remedy, the equity maxim must apply. That the Plaintiff, having not done
equity before his action, is not “entitled to the equitable remedy of
Declaration because of his conduct in deliberately handicapping” the
Defendant by refusal to vest title in the Defendant. TIMOTHY OMOBARE
VS. NEW NIGERIAN BANK LTD (1986) 1 S.C. 77.
As to payment of damages to the Plaintiff, the Defendant’s Counsel
submitted that it is the Defendant that stands to lose if the project is not
completed within time, development not carried with decent and quality
materials and project not finished well. He urged the Court to draw
inference from the facts in this regard as a reasonable man would having
regard to the totality of the circumstances. AGBAMELO VS UNION BANK
(2000) 23 WRN 1 AT 13.
It was also argued for the Defendant that the Plaintiff refused to execute
the Power of Attorney which was prepared by the Defendant’s Counsel,
adding that the whole scenario shows that the Plaintiff has no right which
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 11
has been infringed and as such he is not entitled to any remedy. He urged
the Court to so hold.
According to the Defendant’s Counsel, since the Plaintiff did not file any
defence to the Counter-Claim, it means that they have no rebuttal and as
such, the Counter-Claim is deemed admitted and Judgment should
accordingly be entered on all the reliefs in the Counter-Claim. ANAEZE VS.
ANYASO (1993) 5 NWLR (PT. 291) 1 @ 26; SHETTIMA VS. NWOKOYE
(1991) 9 NWLR (PT. 213)60 @ 71.
He urged the Court to enter Judgment on the main reliefs of the Counter-
Claim based on the sustenance and success of the main reliefs which
obviates the need to consider the alternative reliefs.
On his own part, the Plaintiff’s Counsel raised two issues for determination
in his Written Address, namely:-
“1. Having regard to the pleading, the totality of the
evidence led and all the facts and circumstances of this
case, has the Plaintiff established his case on the balance
of probability to entitle him to Judgment?
“2. Whether the Defendant’s defence to the Plaintiff’s case
based upon which it has raised a Counter-Claim that the
Plaintiff contributed to the breaches he alleged by his
alleged failure to co-operate by premature conveying titles
that will enable it raise finances to fund the subject matter
contract on a true construction of Clauses 5(b) (b) of the
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 12
contract and all the facts and circumstances of the case, if
the Defence and the Counter-Claim are not misconceived.
On Issue No. 1 on whether the Plaintiff has, by the totality of the facts and
evidence led, established his case on the balance of probability to entitle
him to Judgment, the learned Counsel for the Plaintiff submitted that he
has, in that the standard of proof in civil cases is on preponderance of
evidence which requires that he should adduce evidence which ought to be
reasonable to satisfy the Court that the fact sought to be proved is
established. UBN VS. NNOLI (1990) 4 NWLR (PT. 145) 530 @ 544; IKWU
VS. ANACHUNA (1996) 1 NWLR (PT. 424) 355 @ 363 – 369; MAGAJI
VS. ODOFIN (1978) 4 S.C. 91 @ 93 – 94.
He added that the Court in considering that must place the evidence
adduced by the Defendant which is used to rebut that of the Plaintiff on an
imaginary scale and whichever weighs heavier the Court should determine
in favour of that. He added that the Plaintiff who testified in person tendered
oral and documentary evidence as pleaded based on his personal
knowledge on the testimony, Statement of Claim, and Witness Statement
on Oath. On cross-examination, his answers further strengthened his
evidence.
It was further contended on behalf of the Plaintiff that in his oral and
documentary testimony and evidence, the Plaintiff clearly showed that the
Defendant was in breach of the terms of the Agreement EXH 2 – on
timeline within which to complete the project – two years.
Further, as at the time the suit was instituted, the furnishings of the rooftop
covers and doors were all not in tandem with the architectural design
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 13
agreed by the parties. They were made with materials of inferior qualities
which the Plaintiff pointed out to the Defendant in the letter of 19/05/14. He
added that the development is on only a portion of the land.
According to learned Counsel, a community reading and the combined
provisions of Clauses 5B(1) and 16(2) of the Deed Agreement, execution of
any Deed of title in favour of the Defendant by the Plaintiff is not
MANDATORY in respect of the eleven (11) flats for the Defendant to raise
finances for the project. In other words, giving of title is not a condition
precedent for the Defendant to meet up with the timeline for completion of
the Development by the Defendant. That by virtue of Clause 5B(1) the
Plaintiff is only to cooperate in making available the finished title documents
when requested to do so.
Clause C4 of EXH 2 made time a fundamental term of the contract. That
the Defendant’s failure to complete the project within the stipulated time as
agreed is a gross and fundamental breach of the key and crucial term of
the contract which has occasioned loss and damage to the Plaintiff.
LAWAL VS. UNION BANK PLC (1995) 2 NWLR (PT. 378) 407 @ 422.
He added that stipulations as to time in any contract agreement is a
condition precedent of the contract which must be strictly complied with.
That going by paragraphs 4, 5 and 8 of the Statement of Claims and
paragraph 1.2 of the Defendant’s Final Address, the res of the contract was
liable to fluctuation in value. That is why the parties on their own volition
decided to make time a condition precedent and of essence in the said
contract. STICNEY VS. KEEBLE (1915) A.C. 386; LOCK VS. BELL
(1930) CH. 35.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 14
That the Defendant is in breach of the terms especially Clause B5(b) of
EXH 2. It was on the basis of the Defendant’s referenced agreement,
evidence and submissions that the purported Counter-claim is founded.
On the Plaintiff’s non-execution of the Power of Attorney, the learned
Counsel for the Plaintiff submitted, while referring to and quoting from the
Letter of 19/05/14 – paragraphs 1 and 2 in P. 1 and the two last paragraphs
in P2.
He submitted that the Defendant did not address the issues raised within
the body of the said letter of 19/05/14 which is crystal clear. Again, that
from the above, it was clear that the Defendant was to clear the issues
raised in the letter of 19/5/14 before the Plaintiff can do the execution of the
further documents of title to the Defendant. But, the Defendant never
replied to the said letter – EXH. 2, 7 and 10.
Further, it was contended that the Plaintiff is not a party to any contract
which the Defendant has with their financiers.
Going by the Defendant’s letter of 12/11/13 which came up exactly one
year and two months after the contract was signed, it was obvious that the
Defendant will be unable to complete the project within the agreed timeline.
The Defendant’s performance within time was not tied to the fundamental
term of the contract.
Counsel pointed out that in paragraphs 4 -15 of the PW 1’s Statement on
Oath, the Plaintiff proved the consequences of the breach. That a Court is
entitled to rely on the evidence put forward by a Plaintiff in awarding
damages if the Defendant fails to adduce any evidence of value.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 15
Where oral evidence is given on items classified as special damages in line
with the pleadings and such evidence is unchallenged, those items are
deemed to have been proved because unchallenged evidence of special
damages can be accepted as proof of the claim. INCAR NIG. LTD. VS.
ADEGBOYE (1985) 2 NWLR (PT. 8) 453; AUDU VS. OKEKE (1998) 3
NWLR (PT. 542) 373 @ 383.
According to the Plaintiff’s Counsel, the evidence of the loss suffered by the
Plaintiff is as set out in the Witness Statement on Oath, exhibits tendered
and the receipts of rent and oral evidence under cross-examination which
was not challenged.
On the Counter-Claim, learned Counsel submitted that where a Counter-
Claim is filed and not pursued, it is dead on arrival and the Court will deem
it abandoned. He added that since the Defendant gave no evidence to
prove its Counter-Claim through its witness and did not make any serious
contention in its address regarding the ground of the Counter-Claim, it is
obvious that it abandoned same. LAWANSON VS. AFARI
CONSTRUCTION CO. LTD. (2002) 2 NWLR (PT. 752) 585 @ 662 – 663.
He added that it is not true that in the cross-examination, the Plaintiff’s
conduct in instituting this action was impugned as alleged. Again, that it is
equally not true and a gross misconception of the law as contained in
paragraph 3.11 of the Defendant’s Final Written Address – pages 12 – 13 –
and that because no Defence to Counter-Claim, no evidence led to rebut
same, the Counter-Claim is deemed admitted. That what the Defendant did
under cross-examination made it needless to file any defence to the
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 16
speculative Counter-Claim. OKENE VS. ORIANWO (1998) 9 NWLR (PT.
566) 408.
He added that the Plaintiff’s failure to file a defence to the Counter-Claim
will not mar his case since he has by his evidence, testimonies and exhibits
been able to establish and prove his claims. USMAN VS. GARLIE (1999) 1
NWLR (PT. 587) 466 @ 487; OGBONNA VS. A-G. IMO STATE (1992) 1
NWLR (PT. 220) 547 @ 698.
He urged the Court to hold that the Counter-Claim is frivolous and was not
pursued by the Defendant and as such does not exist and that even if it
existed, the facts and the totality of the evidence before the Court are so
interwoven that filing a defence by the Plaintiff is not necessary.
He added that going by paragraph 4, the Defendant waived its right under
Clause B5(b) of EXH 2 both in conduct and in writing. So, also in paragraph
1.4 of the Defendant’s Written Address. UDE VS. NWAKA (1993) 2 NWLR
(PT. 278) 662; ADECENTI NIG. LTD. VS. OBAFEMI AWOLOWO
UNIVERSITY (2005) 15 NWLR (PT. 948) 313.
Under EXH. 2 – Clause 5B, the Plaintiff is by Clause 7 to cooperate in
relation to Clause 5(b). He is not immediately bound. Further, That the
wordings of Clause 7 of EXH 2 is construed as a promissory condition
because it represents the consideration moving from the Promissor.
EASTHAM VS. LEIGH LONDON PROVINCIAL PROPERTY LTD. (1971)
CH. 871.
He urged the Court to dismiss the Counter-Claim.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 17
On the Defendant’s failure to prove its case, he submitted that even if the
Plaintiff did not file a defence to the Counter-Claim, that the Defendant
must still satisfy the Court that he is entitled to the declaration sought.
P.M.B. VS. M.I.B. (2000) 6 NWLR (PT. 661) 524 @ 529; KWASS AFFA
VS. BON LTD (1999) 1 NWLR (PT. 587) 423.
He added that it was needless to file a defence to Counter-Claim because it
has been traversed by implication in the Plaintiff’s Statement of Claim
because it is premised on EXH 2. UNIPETROL VS. BUKAR, Supra.
On EXH 12, the Plaintiff’s Counsel submitted that it did not comply with
section 84 of the Evidence Act 2011. Again, that it was made while the suit
had already been instituted for the purpose of this proceeding. According to
the Plaintiff’s Counsel, EXH 12 are irrelevant to the case because it tried to
establish the position of the parties after this matter was already in Court.
He also pointed out that EXH 17 referred to in paragraph 4 of the
Statement of Defence and paragraph 17 of the Witness Statement on Oath
is irrelevant because it is not executed. It therefore does not evidence any
valid existing agreement. FARO BOTTLING CO. LTD. VS. OSUJI (2002) 1
NWLR (PT. 748) 311; AG ABIA STATE VS. AGHARANYA (1991) 6
NWLR (PT. 607) 371.
He urged the Court to accord no probative value to the EXH 17 as the
Plaintiff cannot be bound by its content. There is also no credible and
cogent evidence to prove the facts alleged in paragraph 4 of the Statement
of Defence and paragraph 17 of the Statement on Oath of DW1.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 18
Referring to paragraphs 3, 5, 6 and 7 of the Counter-Claim and paragraphs
16 – 18 and 19 of the Witness Statement on Oath, Counsel to the Plaintiff
submitted that the reliefs/damages sought by the Defendant are
speculative and presumptuous and that the Defendant did not prove such
loss of profit as required. BOSHALI VS. ACE LTD (1957) FSC DIGEST
122.
He urged the Court to dismiss the case of the Defendant and grant their
reliefs and enter Judgment in their favour.
In reply to the Plaintiff’s Final Written Address, the Defendant’s Counsel
submitted that on the allegation that none of the two blocks have been
roofed at the time of the suit was filed, at paragraph 7.3, the Defendant’s
Counsel referred to paragraph 9 of the Witness Statement on Oath where
the PW1 stated that the rooftop and doors were done with inferior
materials. He urged the Court to hold that the PW1 is not a witness of truth.
ANYAWALE VS. ATANDA (1988) 1 NWLR (PT. 68) 22 @ 24.
On the submission that the execution of the Deed for the Defendant is not
mandatory, the Defendant’s Counsel submitted that the use of ‘shall’ in
Clause B(5) means that preemptory mandate is enjoined. OSIGWE VS.
UNIPETROL (2005) WRN 97 @ 114; ACHINEKU VS. ISHAGU (1988) 4
NWLR (189) 411; BANAIYI VS. AG FEDERATION (2001) 38 WRN 1 @ 23
– 24; OBALOGU VS. SHELL (2013) 45 WRN 1.
He added that Clause B(5)(b) of EXH 2 makes it mandatory to convey title
to the Defendant within three months of executing the Agreement.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 19
On the relief, that failure of the Plaintiff to discharge his obligation under
Clause B(5)(6) of EXH 2 makes it impossible for the Plaintiff to succeed
because he has not done his own obligation to be entitled to damages.
BALOGUN VS. ALAOWEI (2000) 3 NWLR (PT. 649) 478 2 482.
On special damages, he submitted that the Plaintiff did not lead evidence to
establish special damages and as such the pleading are therefore deemed
to be abandoned. He urged the Court to resolve the issues against him.
EZEAMAH VS. ALH. ATTAH (2004) 7 NWLR (PT. 873) 468;
GOODNEWS AGBI & ANOR VS. CHIEF AUDU OGBE& OTHERS (2007)
10 WRN 144 @ 205.
On the Counter-Claim, he submitted that the Counter-Claim were pleaded
and evidence in support are contained in the Witness Statement on Oath of
DW 1 but were not controverted. He added that the Defendant is claiming
that could have been made had the contract been totally executed and that
anticipated profit in the form of damages which when proved, particularized
and evidence led, ought to be awarded.
On whether the Plaintiff can rely on estoppels, he submitted that the
Plaintiff did not plead it and therefore he urged the Court to disregard
same.
On EXH 12 – pictures – to be expunged, the Defendant’s Counsel
submitted that the pictures – exhibits - do not fall within the documents
mentioned in the content of section 84 of the Evidence Act. It is not
produced by a computer.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 20
On making the picture during proceeding, the Counsel submitted that they
were made to show the state of the project which confirmed the averment
in paragraph 19 of the Statement of Claim. KADUNA TEXTILE VS. UMAR
(1994) 1 NWLR (PT. 319) 143 @ 156.
That the exhibit was not challenged, was uncontroverted by other evidence
and should therefore be accepted as exhibited as it is credible. ONWUKA
VS. OMAGUI (1992) NWLR (PT. 230) 593; NZELIBE VS DOVE ENG. CO.
LTD. (1994) 8 NWLR (PT. 361) 124.
That the facts in the Counter-Claim were never traversed and not put in
issue contrary to the decision of the Supreme Court in the case of
ALADEGBAMI VS. FASANMADE (1988) 3 NWLR (PT. 81) 129. That
evidence of special damages is uncontroverted and amounts to proof of it.
WEST AFRICAN SHIPPING CO. VS. KALLA (1978) 3 S.C. 21;
OLAGUNJU VS. RAJI (1986) 5 NWLR (PT. 42) 40.
He urged the Court to dismiss the main suit in its entirety and grant the
reliefs sought in the Counter-Claim.
COURT
On the part of the Plaintiff, the issues are based on the allegation that the
Defendant did not complete the project within the time frame on or before
21/09/14. The Defendant also used inferior materials for the doors and roof.
On the part of the Defendant, the Plaintiff rather failed to give the title of the
eleven (11) flats allotted to the Defendant as agreed within ninety (90) days
pursuant to Clause B5B. The above is basically what the dispute is all
about.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 21
Going by the provisions of the terms as spelt out in the Developers deed,
can it be said that the Defendant is in breach of the condition set out in the
said Deed which caused the failure to complete the work at the stipulated
period? Again, is the provision in Clause B5B condition precedent for the
timely completion of the project?
For clarity, and ease of reference, it is pertinent to quote verbatim the
relevant clauses in the Developer’s Deed:
CLAUSE B5B
“That the eleven (11) units of three-bedroom apartment with one
Boys’ Quarters each would be assigned t the Developer to cover the
total cost of development and profit and the said title to these units
shall be executed or made available by the owner within three months
of executing this Agreement.”
CLAUSE D2
“To vest the remaining title of his residue in the demised premised by
virtue of A1 of this deed in the Developer at the point of receipt of the
keys to his allocated flats under Clause B59a) of this Deed.”
CLAUSE C4
“The construction shall not exceed twenty-four (24) months period
after all statutory and government approval have been secured for the
Developer.”
CLAUSE 3(D)
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 22
“To proceed in a workmanlike manner using materials and goods
which are of good quality.”
CLAUSE 3(E)
“And comply with architectural and structural specifications.”
The Plaintiff accused the Defendant of using inferior material in the roofing
and doors used in the construction of his own flats contrary to the Clause
3(d)9e) of the said Deed. Again, he accused the Developer of not meeting
up with the timeline of twenty-four (24) months within which to take delivery
of the portion as contained in Clause C4. It is based on the above that the
Plaintiff sought redress claiming some damages particularly for the said
delays.
It is a clear provision of the terms of the Deed that the construction project
shall not exceed twenty-four (24) months. The only exception is if any of
the conditions set out in Clause 6 happens. There is no evidence that any
of the conditions – force majeure – caused the inability of the Defendant to
meet up with that clause.
Again, EXH 4 – letter dated 28/10/13 was written by the Plaintiff’s Solicitors
to the Defendant notifying the Defendant about the delay which the Plaintiff
felt may occasion the slow pace of the work. In the said letter the Plaintiff’s
Solicitor wrote:
“Our Client has asked us to draw your attention urgent to the
fact, that he is apprehensive that the slow rate at which work on
site are going presently might occasion an unreasonable delay
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 23
and a breach of Clause 4 of the Deed having regard to the date
of approval of the building design dated 21st September, 2012.”
Though in the reply by the Defendant dated 12/11/13, the Defendant made
mention of the fact that they were yet to obtain title to its portion of the
property, they did not state that not getting the title was the sole cause of
delay. Rather, that it only contributed to the delay.
Again, in the beginning of the third paragraph of the said letter, the
Defendant had stated that
“Kindly note that the form of delay that could have
necessitated your client’s apprehension on the completion
of the project has since been addressed and we can assure
you that we are still within time stipulated for completing
the project.”
Also important is the closing paragraph 4 where the Defendant stated that
“. . . We by this letter reiterate our commitment to honour
the contract and ensure project completion as agreed.”
From the foregoing, it is clear and unambiguous that at no time was the
non-giving of the title documents a condition precedent for the completion
of the project as stipulated in the Deed. The contents of the letters as cited
above are very clear.
The parties, particularly the Defendant knows that completion of the project
within twenty-four (24) months is sacrosanct. That Clause stands on its
own. It has little or nothing to do with the giving of title documents for the
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 24
remaining eleven (11) flats allocated to the Defendant. So, requesting for a
new date for completion of the project as contained in the letter dated
17/09/14 with a few days before the agreed completion date of 21/09/14 is
an afterthought, unlawful, null, void, irregular and a breach of one of the
most important clauses in the Developer Deed. So this Court holds. It is
trite that parties are bound by the terms of the contract they entered into.
Again, any extension of period as stipulated in clause C4 is only possible
where the delay is as a result of any event in Clause 6 – Force majeure.
There is nowhere in the contract where the Defendant can apply for
extension of time based on any other reason apart from what is listed in
Clause C6. So, the Defendant’s letter for extension of timeline from
21/09/14 to April, 2015 is not in line with the terms of the said Deed. It is
alien to the terms of the Developer Deed which the parties voluntarily
entered into. It is therefore null and void and a breach of the said
Agreement. If actually the parties wanted an extension of time outside what
is contained in Clause C6, they would have stated that. There is no doubt
that the writing of the letter is an afterthought. That must have been why it
came four days before the expiration of the agreed time for completion of
the project. That is why the Defendant stated
“We . . . reiterate our commitment to honour the contract
and ensure that project completion as agreed.”
There is no evidence to show that any of the events –natural disasters
occurred to warrant the extension of time which the Defendant sought for in
the letter of 17/09/14. Therefore, the content of the letter is not in line with
the terms of the agreement of the parties. It cannot therefore legitimize the
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 25
delay in completion of the contract. The Court therefore dismisses the
submissions of the Defendant.
In Clause C1 of the Developer’s Deed, the parties agreed that the
Developer/Defendant agreed to construct the flats in accordance with
architectural and structural specifications.
Again, in Clause C3(d) (e), the Defendant agreed to “comply with
architectural and structural specifications.” Also, “to use material and goods
which are of good quality.” It is important to note that the Plaintiff pointed
this out to the Defendant in the letter of 19/05/14. The Defendant violated
the terms of the contract.
It is unfortunate that the Defendant failed to do so. That also is a gross
breach of the said terms of the Developer’s Deed especially Clause C1 and
C4 as well as Clause C3(d) and (e) and the letter of 19/05/14.
Again, it is not the intendment of the parties that giving title documents
should necessitate the completion of the project within the timeline. It is
therefore not a condition precedent as the Defendant is claiming.
Going by the content of Clause B5B which the Defendant’s Counsel heavily
anchored his argument on, it is clear that title will be given ninety days after
execution of the project.
I totally disagree with the submission of the Defendant’s Counsel on this. A
closer look at Clause D2 shows that the ownership of the portion can only
be given to the Developer at the point of receipt of the keys to his(Plaintiff)
allocated flats under Clause b5(a) of this Deed.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 26
A community reading of Clause B5b and D2 shows that title can only be
given/passed at the point of receipt of the keys to the flats allocated after
execution.
Again, Clause b5B only stated “ninety (90) days after execution.”
Blacks law Dictionary 9th edition page 650,
Execution means
“Act of carrying out or putting into effect. . .”
It also means
“validation of a written instrument . . . such as a contract by fulfilling all
necessary legal requirements. . . completing the contract execution etc.”
The clause “ninety (90) days after execution” as contained in the Contract
Agreement Clause B5B does not mean ninety (90) days after the contract
was signed. If it so, then Clause D2 will not be there or it will be
meaningless.
It is obvious that the Defendant’s Counsel abandoned the Counter-Claim.
The Defendant did not lead any evidence in support of his Counter-Claim
contrary to his submission. But since the Court has the discretion to look at
every process filed before it, it is pertinent to make a cursory determination
of the issue raised therein.
To start with, the Defendant’s Counsel relied on the same averments in its
Statement of Defence. The main gravamen of the Counter-Claim is that the
refusal of the Plaintiff/Defendant to execute and convey title to the
Defendant three months after the contract – Developer’s Deed – was
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 27
signed denied the Defendant the opportunity to raise the necessary fund for
completion of the project.
It is important to note that the reasoning of the Court on this has completely
determined this issue. The combined provisions of Clause B5B and Clause
D2 has properly taken care of that in that it is the intendment of the parties
that ninety (90) days after the execution of the contract – that means ninety
(90) days after the contract is completed and not ninety (90) days after the
signing of the contract.
Again, even the Defendant did not emphasise in their letter for extension of
time of 17/09/14 that lack of fund was the cause of the delay in violating a
key and fundamental term of the contract which required the Defendant to
complete the project by 21/09/14. It is very obvious that the intendment of
the parties was for the Defendant to hand over the keys of the completed
project latest by 21/09/14 as contained in Clause D2. The Defendant
writing to the Plaintiff only five days before they were to hand over the
completed project for extension of time is wrong. It has invariably
occasioned loss of profit and caused hardship on the Plaintiff. I find it
difficult to believe that it was only by 17/09/14 that the Defendant realized
they could not complete the project and needed extra time.
The claim of the Defendant in that regard is unmeritorious and is therefore
dismissed.
Power of Attorney is a document given to a Donee by a Donor and not by a
Donee to a Donor. In this case, the Defendant raised the issue that they
executed a draft Power of Attorney and the Plaintiff refused to execute
same. This sounds absurd. It is equally unethical.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 28
It is for the Plaintiff to donate because he is the person who has something
to donate. Indicting the Plaintiff for not donating the Power of Attorney is an
overreach. The Defendant signing a column of the Power of Attorney has
no meaning. It will not lead them anywhere. The Plaintiff executing a Power
of Attorney is not a term in the Developer’s Deed.
Handing over of the eleven (11) units of three-bedroom apartment and the
title deeds thereto were to be done as spelt out in Clause D2 where it was
stated that
“The vesting of the remaining title of his residue in the demised
premises by virtue of Clause A1 of this Deed in the Developer is at the
point of receipt of the keys to the allocated flats under Clause B5(a) of
this deed.”
The above need no further explanation because it is what the parties
agreed in the Developer’s Deed. The Counter-Claim is therefore dismissed.
From all the above, it is very clear and the considered view of this Court
that the Defendants grossly breached the key and fundamental terms of the
contract by not completing the project as agreed which occasioned loss of
revenue to the Plaintiff.
The Plaintiff has through the Statement of Claim, testimony of the witness
and documents exhibited in detail proved and established his case and is
thereof entitled to Judgment in his favour.
The letter of 17/09/14 requesting for extension of time is irregular, unlawful,
a breach of the terms of the Contract as contained in the Developer’s
Deed. The Defendant is in breach of the said contract especially Clause C1
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 29
and C4 as regards the architectural pattern and specification and failure to
complete the project within the timeline of twenty-four (24) months.
Having suffered as a result of the delay and breach of the contract, the
Plaintiff is entitled to general damages. The Defendant shall pay to the
Plaintiff the sum of N25Million as general damages and N3Million as
special damages.
10% of interest rate on the Judgment sum from the 22/09/14 till today
12/05/17 and 10% interest rate from today 12/05/17 till Judgment sum is
fully liquidated.
The Defendant was not able to rebut the claim of the Plaintiff. They are in
breach.
They abandoned their Counter-Claim. But, if the Counter-Claim is anything
to go by, it failed and is therefore dismissed.
This is the Judgment of the Court delivered today the 12th day of May,
2017 by me.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ HON. JUSTICE K. N. OGBONNAYA JUDGE, FCT HIGH COURT 12/05/2017