JUDGMENT IN MOHAMMED BELLO USMAN VS CMD BUILDING … · judgment in mohammed bello usman vs. cmd...

JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.

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


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-


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


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


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


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


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.


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?


“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.


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


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


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


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.


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.


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


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.


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.


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.


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.


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.


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)


“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


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


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


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.


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


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.


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


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

JUDGMENT IN MOHAMMED BELLO USMAN VS CMD BUILDING … · judgment in mohammed bello usman vs. cmd...

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