(2016) LPELR-41308(CA)

Transcription

1 MALIK v. KADURA FURNITURE & CARPETS CO. LTD CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna ISAIAH OLUFEMI AKEJU IBRAHIM SHATA BDLIYA ON FRIDAY, 3RD JUNE, 2016 Suit No: CA/K/409/2014 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU Between A. A. MALIK - Appellant(s) And KADURA FURNITURE & CARPETS COMPANY LIMITED Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal RATIO DECIDENDI - Respondent(s)

2 1. ACTION - PLEADINGS: Effect of admission in pleadings "...where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleading agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted - Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at B-A, andakande Vs Adisa (2012) 15 NWLR (Pt 1324) 538, Ignobis Hotels Ltd Vs Bentec Electrical Ltd (2015) 1 NWLR (Pt.1441) 504. This point was succinctly explained by Oputa, JSC in Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397 thus: "An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiffs claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings. Looking at the pleadings of the parties in the instant case, it was an agreed fact that the Appellant contracted the Respondent to make or produce doors and door frames of various types, wardrobes and kitchen cabinets and to affix same in his building at NITR Site and Service Scheme in Ungwa Rimi, Kaduna and that the Respondent issued him with two quotations dated the 28th of August, 2011 and 21st of February, 2012 for the items in the total sum of N7,170,060.35k and that the Appellant paid the entire sum to the Respondent in installments. It was an agreed fact that the request of the Appellant only became a confirmed order on the completion of payment of the 100% of the quoted price and that the Appellant completed the 100% payment on the 5th of March, It was an agreed fact that as at the date of commencement of the action in the lower Court, i.e. on the 22nd of April, 2013, the Respondent was yet to fully deliver the items ordered by the Appellant. These facts are deemed established and required no further proof - Osuma Vs Joinery Crafts and Moulding Nig Ltd (2014) 6 NWLR (Pt 1402) 17, United Bank for Africa Plc Vs Ibachem (Ibafon Chemicals) Ltd (2014) 6 NWLR (Pt.1402) 125."Per ABIRU, J.C.A. (Pp , Paras. E-A) - read in context

3 2. ACTION - PLEADINGS: Nature of pleadings "It is settled that the starting point for determining the correctness of the judgment of a lower Court in an action commenced by pleadings is the pleadings of the parties.?the Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them - Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G."Per ABIRU, J.C.A. (Pp , Paras. E-D) - read in context 3. CONTRACT - FRUSTRATION: What the doctrine of frustration means "Now, frustration of a contract is the premature determination of an agreement between parties lawfully entered into and in the course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement - Mazim Engineering Ltd Vs Tower Aluminum (Nig) Ltd (1993) 5 NWLR (Pt 295) 526, NBCI Vs Standard (Nig) Engineering Co. Ltd (2002) 8 NWLR (Pt 768) 104, Union Bank of Nigeria Plc Vs Omni Products (Nig) Ltd (2006) 15 NWLR (Pt 1003) 660. The doctrine of frustration was evolved to mitigate the rigour of the common law's insistence on literal performance of absolute promises so as to give effect to the demands of justice, to achieve a just and reasonable result, to do what is reasonable and fair, as an expedient to escape from injustice where such would result from the enforcement of a contract in its literal terms after a significant change in the circumstances -National Carriers Ltd Vs Panalpina (Northern) Ltd (1981) 1 All ER 161 at 176 andj Lauritzen AS Vs Wijsmuller BV, The Super Servant Two (1990) 1 Lloyd's Rep 1 at 8."Per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context

4 4. CONTRACT - FRUSTRATION: Events that constitute frustration "The events which have been listed by the Courts as constituting frustration are (i) subsequent legal changes or statutory impossibility; (ii) outbreak of war; (ii) destruction of the subject matter of the contract or literal impossibility; (iv) Government requisition of the subject matter of the contract; and (v) cancellation by an unexpected event -Davies Contractors Vs Fareham NDC (1956) AC 696, Akanmu Vs Olugbode (2001) 13 WRN 132, Diamond Bank Ltd Vs Ugochukwu (2008) 1 NWLR (Pt 1067) 1, Okereke Vs Aba North LGA (2014) LPELR-CA/PH/179/2004."Per ABIRU, J.C.A. (P. 20, Paras. C-E) - read in context 5. CONTRACT - FRUSTRATION: Whether a contract is said to be frustrated merely because its execution became more difficult or expensive "It is trite that a contract is not frustrated merely because its execution becomes more difficult or more expensive than either party originally anticipated and has to be carried out in a manner not envisaged at the time of negotiation of the contract - Revenue Mobilization, Allocation & Fiscal Commission Vs Units Environmental Sciences Ltd (2010) LPELR- CA/A/213/09 and Okereke Vs Aba North LGA supra."per ABIRU, J.C.A. (Pp , Paras. F-B) - read in context 6. CONTRACT - FRUSTRATION: Duty of a party who pleads frustration of contract "It trite law that the defence of frustration of contract, like other recognized defences, need not be specifically pleaded by using the word "frustration" and it is sufficient that the party raising it pleads facts alleging impossibility of performance of a contract and alleges the occurrence of one or more of the above mentioned events that the Courts have listed as constituting frustration - Pulseline Services Ltd Vs Equitorial Trust Bank Plc (2010) LPELR-CA/A/213/2008. Additionally, it is the duty of the Court to state whether and when frustration has occurred; it is the Court that determines the existence of frustration from the facts pleaded and evidence led by the parties - Attorney General, Cross River State Vs Attorney General of the Federation (2012) LPELR-SC.250/2009. Therefore, where a defendant pleads impossibility of performance of a contract and a trial Court surmises therefrom that a defence of frustration of contract is raised, it does not, and cannot, amount to the trial Court making out a different case for the defendant and/or raising an issue suo motu."per ABIRU, J.C.A. (Pp , Paras. B-A) - read in context

5 7. CONTRACT - BREACH OF CONTRACT: When a breach of contract will be said to have been committed "Now, a breach of contract is said to be committed when a party, without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or performs the obligation defectively or incapacitates himself from performing the contract or by wrongfully repudiating the contract - Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria Ltd (2000) 1 NWLR (Pt 642) 684, Kemtas Nigeria Ltd Vs Fab Anieh Nigeria Ltd (2007) All FWLR (Pt 384) 320, Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1."Per ABIRU, J.C.A. (Pp , Paras. F-B) - read in context 8. CONTRACT - PERFORMANCE OF CONTRACT: Position of the law where a contract is silent as to the time of its performance; what determines reasonable time "The law is that where a contract is silent as to time of performance of an obligation, it is implied that the obligation should be performed within a reasonable time - Niger Insurance Company Ltd Vs Abed Brothers Ltd (1976) 7 SC 35, Mazim Engineering Ltd Vs Tower Aluminum (Nig) Ltd supra, Nigerian Bank for Commerce & Industry Vs Integrated Gas (Nig) Ltd (2005) 1 SCNJ 104, Edem vs canon Balls Ltd (2005) 12 NWLR (Pt 938) 27. What is reasonable time to do some act depends on the facts and circumstances of each case - Abiegbe Vs Ugbodume (1973) 1 SC 103, Pam Vs Mohammed (2008) 5-6 SC (Pt.1) 83. It is a question of fact - Warner & Warner International Associates (Nig) Ltd Vs Federal Housing Authority (1993) 7 SCNJ 1."Per ABIRU, J.C.A. (Pp , Paras. F-D) - read in context 9. CONTRACT - PERFORMANCE OF CONTRACT: Options available to a party in a contract where the other defaults in performance of the contract "The law is that where there is a contract that is both valid and enforceable and one of the parties thereto defaults in the performance of the contract, the other party has one of two options opened to him and these are (i) to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or (ii) to regard the contract at an end and sue for damages for the breach of it - Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Liman vs Mohammed (1999) 9 NWLR (Pt 617) 116 and Mmegwa Vs Texaco (Nig) Ltd (2005) 18 NWLR (Pt 957) 279, Chabasaya Vs Anwasi (2010) 10 NWLR (Pt.1201) 163."Per ABIRU, J.C.A. (Pp , Paras. F-C) - read in context

6 10. CONTRACT - SPECIFIC PERFORMANCE: Guiding principles on the grant of order of specific performance of contract "It is trite that a decree or an order of specific performance is a form of relief that is purely equitable in origin and the fundamental rule is that specific performance will not be ordered or decreed if there is an absolute remedy at law in answer to the claimant's claim, as, for instance, where the claimant would be adequately compensated by the common law remedy of damages. The jurisdiction in specific performance is therefore anchored on the inadequacy of the remedy of damages at law - Afrotec Technical Services (Nig) Ltd Vs MIA & Sons Ltd (2000) 15 NWLR (Pt.692) 730, Ezenwa Vs Oko (2008) 3 NWLR (Pt 1075) 610, Mustapha Vs Abubakar (2011) 3 NWLR (Pt 1233) 123."Per ABIRU, J.C.A. (Pp , Paras. D-A) - read in context 11. DAMAGES - ASSESSMENT OF DAMAGES: Principles guiding assessment of damages for breach of contract "It is settled law that assessment of damages for breach of contract is based on the doctrine of restitutio in integrum, meaning that in so far as the damages are not too remote, a claimant should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. It is in line with the above principle that award of damages in breach of contract cases should be such as (i) may fairly and reasonably be expected to arise naturally, i.e. according to the usual course of things from such breach of contract itself; or (ii) may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it - Okongwu Vs NNPC (1989) 4 NWLR (Pt 115) 296, Ativie Vs Kabel Metal (Nig) Ltd (2008) 10 NWLR (Pt 1095) 399, Agu Vs General Oil Ltd LPELR- SC.62/2005."Per ABIRU, J.C.A. (Pp , Paras. C-B) - read in context

7 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/388/2013 delivered by Honorable Justice Tanimu Zailani on the 11th of March, The Appellant commenced the action in the lower Court and its claims against the Respondent were for an order of specific performance directing the Respondent to within two weeks complete the contract by delivering and fixing all the doors, wardrobes and fully completing the kitchen cabinets in line with the contract specification and the cost of the action or alternatively damages in the sum of N10 Million in addition to returning the amount had and received under the contract. The case of the Appellant on pleadings was that sometime in August 2011, he commissioned the Respondent to make or produce doors and door frames of various types, wardrobes and kitchen cabinets and to affix same in his building at NITR Site and Service Scheme in Ungwa Rimi, Kaduna and that the Respondent issued him with two quotations dated the 28th of August, 2011, and 21st of February, 2012 for the items in the total sum of 1

8 N7,170,060.35k and that he paid the entire sum to the Respondent. It was his case that the Respondent represented to him that all the items will be delivered to the site within one month of his making payment, but that one year after payment the Respondent is yet to fulfill its obligation under the contract and had only installed the door frames and 80% of the kitchen cabinets despite repeated demands. It was his case that he completed the construction of the building in October, 2012 and he and his family were yet to move in and inhabit same because of the failure of the Respondent to fully discharge its obligation and that this has caused him and his family great loss, trauma and untold hardship that cannot be quantified. In its case in response, the Respondent admitted that it was commissioned by the Appellant to make and affix doors and door frames of various types, wardrobes and kitchen cabinets at his building but stated that the order only became confirmed on the completion of 100% payment which the Appellant did on the 5th of March, 2012 and that it never represented to the Appellant that it would deliver the items within one month. It was its 2

9 case that it gave a six months delivery deadline and that this delivery period was, by the terms of the quotations and conditions of sale, only an estimate, without any guarantees, and that it commenced the production and installation of the items immediately after the payments were made and that by twelve weeks it had completed and installed the door frames, 95% of the kitchen cabinets, 45% of the panel doors, but was unable to make the flush doors and wardrobes by reason of non-availability of raw materials. It was its case that its operations were also disturbed by a series of strikes embarked upon by its employees on dates itemized in the pleadings, a situation beyond its control, and this also affected the orders of some of its other customers and that it notified the Appellant of these problems by its letter of 31st of October, The matter proceeded to trial and in the course of which the Appellant testified as the sole plaintiff witness and tendered exhibits in proof of his case while the Respondent called two witnesses and it also tendered exhibits in proof of its defence. At the close of trial and after the rendering of final addresses by 3

10 the parties, the lower Court entered judgment dismissing the claims of the Appellant. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 24th of March, 2014 and containing five grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 16th of June, 2015, and the Counsel to the Respondent filed a brief of arguments dated the 12th of February, At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submissions in the appeal. Counsel to the Appellant formulated four issues for determination in the appeal and these were: i. Whether the learned trial Judge was right in refusing to make a finding on the last leg of the Appellant's claim for money had and received on the contract against the Respondent. ii. Whether the learned trial Judge can on his own bring and advance the defence of frustration for the Respondent and apply it as the basis for his decision when the defence presented were intermittent strike action and 4

11 non-availability of some of the materials needed for the completion of the contract and not frustration. iii. Whether the learned trial Judge was right to have held that the Respondent could not be ordered to specifically perform the contract as the Respondent's workers strike was out of the Respondent's control when there was no evidence of such before the Court. iv. Whether the learned trial Judge properly evaluated the evidence presented before him or went into speculations before arriving at his findings and judgment. In arguing the first issue for determination, Counsel stated that a Court is bound to make a finding on all the claims of a plaintiff unless earlier findings in the course of the judgment have taken care of the relief or claim and that in the instant case, part of the Appellant claims was a refund of the amount had and received under the contract and that the lower Court glossed over the claim and made no finding thereon. Counsel stated that the lower Court ought to have made a pronouncement on the claim after dismissing the claims for specific performance and damages and he referred to the case of Abdullahi Vs Katsina State 5

12 Housing Authority (2000) FWLR (Pt 15) 2512 and he submitted further that the core principle of adjudication which is very fundamental to the administration of justice is that a Court is bound to consider every material aspect of a party's case properly put before it and he referred to the cases of Ito Vs Ekpe (2000) FWLR (Pt 6) 927 and Goldmark Nigeria Ltd Vs Ibafon Company Ltd Volume 49 (Pt 3) NSCQR 1763, amongst others. Counsel stated that the Appellant pleaded the claim for refund and led evidence thereon and the lower Court was in error when it ignored it. On the second and third issues for determination, Counsel stated that the lower Court was wrong in making out a defence of frustration for the Respondent when such a defence was not pleaded and canvassed in the statement of defence and he referred to the case of AG, Cross River State Vs AG of the Federation 52 NCQSR (Pt 1) 394. Counsel stated that it was trite that a Judge should not make a case for the parties different from what they have pleaded and led in evidence and that the lower Court failed in its primary duty in the instant case and he referred to the cases of Iheanacho Vs Chigere 6

13 (2004) All FWLR (Pt.220) 204 and Adeleke Vs Iyanda (2001) FWLR (Pt 100) 1580, amongst others. Counsel stated that the Respondent pleaded labour problems/continuous strike of its workers and the nonavailability of the materials as the reasons for its noncompletion of the contract and the defence witnesses testified in that direction and that these do not amount to frustration of contract as the strike action occurred for a few days in different months as averred in the statement of defence and work went on the other days that there was no strike and the management staff did not join the strike. Counsel stated that the Respondent being a limited liability company, did not suffer any disability by reason of the intermittent strike of its factory workers because its management staff and directors worked during the period and that the issue of strike was an internal affair of the Respondent which could have been conveniently dealt with. Counsel stated that the defence was an afterthought and was not capable of discharging the Respondent from its obligation of fulfilling its part of the contract, particularly as the Appellant completed payment of the contract 7

14 sum long before the workers strike commenced and that the issue of the strike did not amount to frustration as it was not an event outside the control of the Respondent and he referred to the case of Ahmed Vs Central Bank of Nigeria 51 NSCQR 398 and quoted from the book, Nigerian Law of Contract 2nd Ed by Professor Itse Sagay on what constitutes the defence of frustration. Counsel stated that the total of days that the Respondent lost to the strike action of its workers between 2010 and 2013, from the evidence of the defence witnesses and Exhibit D5, was fifty-six days, and which is negligible when considered against the number of days in the period in question and that therefore the conclusion of the lower Court validating the failure of the Respondent to perform the contract was not supported by the evidence on record and he referred to the case of Adeosun Vs Afolabi (2004) All FWLR (Pt.227) 590. On the fourth issue for determination, Counsel stated that the lower Court did not properly evaluate the evidence led by the parties and moved into the sphere of speculation in making its findings and that the law is that a trial Court must not base its 8

15 decision on speculations and extraneous matters as this leads to a miscarriage of justice and that every material finding in a matter ought to be supported by evidence on record and he referred to the cases of Onisaodu Vs Elewuju (2006) 3 FWLR (Pt.333) 5774 and Olaniyan Vs Fatoki 55 NSCQR 147. Counsel said that DW3 stated the delivery period on the contract was sixteen weeks from date of order and that the period that elapsed between when the Appellant made the final payment and when the action in the lower Court was commenced was over fiftythree weeks and that had the lower Court relied on the evidence led, it would have found that the Respondent was in breach of contract and it would have granted the claims of the Appellant. Counsel stated that the decision of the lower Court was thus perverse and it shut its eyes to the obvious evidence before it. Counsel concluded his arguments by urging this Court to set aside the judgment of the lower Court and to grant the appropriate remedy from amongst those sought by the Appellant based on a re-appraisal by this Court of the evidence led by the parties. On his part, Counsel to the Respondent distilled 9

16 two issues for determination in the appeal and these were: i. Whether or not the learned Chief Judge, the trial Judge, failed to make any finding on any leg of the Appellant's claim in his judgment. ii. Whether from the defence of the Respondent and the evidence before the Court, the learned trial Judge was wrong to hold that the contract was frustrated. In arguing the issues for determination, Counsel stated that it was obvious from the submissions of the Counsel to the Appellant in his address before the lower Court that the Appellant was aware that the Respondent relied on the defence of frustration of the contract occasioned by the labour strike and that it was incorrect that the lower Court imported the defence of frustration into the matter. Counsel stated that the finding of the lower Court that the Appellant "had no choice in the matter and cannot be ordered to specifically perform the contract" showed that the Appellant was unable to disprove the claim of the Respondent that the strike action of its workers was still on at the time of the hearing of the case and that having established the issue of the labour strike, the onus shifted to 10

17 the Appellant to disprove it and Appellant failed to do so and he referred to the case of Gamadi Vs Yohanna (2006) 2 NWLR (Pt 308) Counsel stated that after finding that there was frustration of the contract, the lower Court proceeded to consider whether the Respondent was in breach of contract and it found that the Respondent was not in breach of contract and it held that since there was not breach of contract, the Appellant's claim for damages must fail. Counsel stated that looking at the claims of the Appellant for damages, they were in two parts - general and specific in the alternative - and that the claim for refund of the cost of contract formed part of the claim for damages and that the lower Court thus considered both claims for damages in its judgment, contrary to the assertions of Counsel to the Appellant. Counsel concluded his arguments by urging this Court to affirm the judgment of the lower Court and to dismiss the appeal. Reading through the pleadings of the parties, the judgment of the lower Court and the arguments of Counsel in their respective briefs of arguments, it is the view of this Court that there is only one issue for 11

18 determination in this appeal and it is whether the lower Court was correct when it dismissed the claims of the Appellant in their entirety. This appeal will be resolved on this issue for determination and all the arguments of the Counsel will be considered and resolved there under. In dismissing the claims of the Appellant, the lower Court stated in the judgment thus: "The facts of this case are not in dispute. The defence put forward by the defendant is that of frustration because the defendant was unable to execute its part of the contract as a result of the strike embarked upon by its workers. It is settled law that where whole or part performance of an agreement becomes impossible by reason of some act which occurs after the formation of an agreement, the supervening impossibility will in most cases automatically bring the contract to an end as regards both parties and discharge parties of obligations thereunder. In other words, where a contract has been frustrated, the question of breach will not arise as none of the parties can be held responsible for what has happened. The defendant's workers strike is obviously an intervening act 12

19 unforeseen by both parties and out of the defendant's control. The defendant had no choice in the matter and cannot be ordered to specifically perform the contract. The performance may be impossible. And the order may not be effected. Generally, an order of specific performance may not be granted where a remedy in damages is adequate. And the basic object of damages in breach of contract is to put the plaintiff so far as money can do it in the same situation as if the contract had been performed. Where, in our circumstance, we find it inappropriate to order specific performance, can we order for damages as requested by the plaintiff? This question raises another to the effect that was there a breach of contract on the defendant's part?... no specific performance can be ordered. It is also not clear whether there has been a breach of the contract before the frustration. However, the exhibits tendered show the fact of the contract between the parties. Particularly, the plaintiff relies heavily on the quotation given to him which provide the terms of the contract to wit validity of the quotation is 14 days, payment of 100% with the order and delivery 13

20 period to be confirmed as the time of placing the order.... The dates of the quotation and date of payments made are very relevant. However, there is no evidence of the delivery period. Even exhibit D5 has not provided for the delivery date. It simply provides that 'a new delivery date will be rescheduled and communicated to you in due course.' It is generally difficult to determine time of contract and possible breach; if any. The plaintiff must prove the breach on the strength of his evidence. His claim for damages must be proved on the basis of his assertion - that there was a breach of contract. He has not proved that. The situation of this case shows more of frustration. Whichever way, the plaintiff has failed to prove his case on the preponderance of evidence. His case fails and is dismissed." It is settled that the starting point for determining the correctness of the judgment of a lower Court in an action commenced by pleadings is the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the 14

21 written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them - Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only 15

22 those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleading agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at B-A, andakande Vs Adisa (2012) 15 NWLR (Pt 1324) 538, Ignobis Hotels Ltd Vs Bentec Electrical Ltd (2015) 1 NWLR (Pt.1441) 504. This point was succinctly explained by Oputa, JSC in Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397 thus: "An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiffs claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus 16

23 to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings." Looking at the pleadings of the parties in the instant case, it was an agreed fact that the Appellant contracted the Respondent to make or produce doors and door frames of various types, wardrobes and kitchen cabinets and to affix same in his building at NITR Site and Service Scheme in Ungwa Rimi, Kaduna and that the Respondent issued him with two quotations dated the 28th of August, 2011 and 21st of February, 2012 for the items in the total sum of N7,170,060.35k and that the Appellant paid the entire sum to the Respondent in installments. It was an agreed fact that the request of the Appellant only became a confirmed order on the completion of payment of the 100% of the quoted price and that the Appellant completed the 100% payment on the 5th of March, It was an agreed fact that as at the date of commencement of the action in the lower Court, i.e. on the 22nd of April, 2013, the Respondent was yet to fully deliver the items ordered by the Appellant. These facts are deemed 17

24 established and required no further proof - Osuma Vs Joinery Crafts and Moulding Nig Ltd (2014) 6 NWLR (Pt 1402) 17, United Bank for Africa Plc Vs Ibachem (Ibafon Chemicals) Ltd (2014) 6 NWLR (Pt.1402) 125. From the evidence led by the parties, particularly the terms of the quotation and the conditions of sale tendered by the Respondent as Exhibit D4, the delivery time for the items was said to be sixteen weeks from the date of the order and it was stated that delivery date was only an estimate and that the Respondent agreed to use reasonable efforts to deliver the goods on the delivery date but did not guarantee to do so. The agreed date of the order was 5th of March, 2012 when the Appellant completed the full payment for the items and the sixteen weeks estimated delivery time was 5th of August, It was agreed that as at the 22nd of April, 2013, the Respondent was yet to fully deliver the items ordered by the Appellant. It was the case of the Appellant that this amounted to a breach of contract. The case of the Respondent was that it was unable to deliver the items because of incessant strike action by its factory workers. The lower Court held that 18

25 the defence of the Respondent amounted to a plea of frustration and that the plea was available to the Respondent on the facts of this matter. Counsel to the Appellant has challenged these findings of the lower Court on the ground that Respondent did not plead frustration and that the plea was not available on the facts of the matter. Now, frustration of a contract is the premature determination of an agreement between parties lawfully entered into and in the course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement - Mazim Engineering Ltd Vs Tower Aluminum (Nig) Ltd (1993) 5 NWLR (Pt 295) 526, NBCI Vs Standard (Nig) Engineering Co. Ltd (2002) 8 NWLR (Pt 768) 104, Union Bank of Nigeria Plc Vs Omni Products (Nig) Ltd (2006) 15 NWLR (Pt 1003) 660. The doctrine of frustration was evolved to mitigate the rigour of the common law s insistence on literal performance of absolute promises so 19

26 as to give effect to the demands of justice, to achieve a just and reasonable result, to do what is reasonable and fair, as an expedient to escape from injustice where such would result from the enforcement of a contract in its literal terms after a significant change in the circumstances -National Carriers Ltd Vs Panalpina (Northern) Ltd (1981) 1 All ER 161 at 176 andj Lauritzen AS Vs Wijsmuller BV, The Super Servant Two (1990) 1 Lloyd's Rep 1 at 8. The events which have been listed by the Courts as constituting frustration are (i) subsequent legal changes or statutory impossibility; (ii) outbreak of war; (ii) destruction of the subject matter of the contract or literal impossibility; (iv) Government requisition of the subject matter of the contract; and (v) cancellation by an unexpected event - Davies Contractors Vs Fareham NDC (1956) AC 696, Akanmu Vs Olugbode (2001) 13 WRN 132, Diamond Bank Ltd Vs Ugochukwu (2008) 1 NWLR (Pt 1067) 1, Okereke Vs Aba North LGA (2014) LPELR- CA/PH/179/2004. It is trite that a contract is not frustrated merely because its execution becomes more difficult or more expensive than either party originally anticipated and has to 20

27 be carried out in a manner not envisaged at the time of negotiation of the contract - Revenue Mobilization, Allocation & Fiscal Commission Vs Units Environmental Sciences Ltd (2010) LPELR- CA/A/213/09 and Okereke Vs Aba North LGA supra. It trite law that the defence of frustration of contract, like other recognized defences, need not be specifically pleaded by using the word "frustration" and it is sufficient that the party raising it pleads facts alleging impossibility of performance of a contract and alleges the occurrence of one or more of the above mentioned events that the Courts have listed as constituting frustration - Pulseline Services Ltd Vs Equitorial Trust Bank Plc (2010) LPELR- CA/A/213/2008. Additionally, it is the duty of the Court to state whether and when frustration has occurred; it is the Court that determines the existence of frustration from the facts pleaded and evidence led by the parties - Attorney General, Cross River State Vs Attorney General of the Federation (2012) LPELR-SC.250/2009. Therefore, where a defendant pleads impossibility of performance of a contract and a trial Court surmises therefrom that a defence of frustration 21

28 of contract is raised, it does not, and cannot, amount to the trial Court making out a different case for the defendant and/or raising an issue suo motu. The Respondent pleaded in the instant case that it was unable to perform the contract because of the intermittent strike action embarked upon by its factory workers and the lower Court treated the assertion under the doctrine of frustration of contract. This did not amount to the lower Court making a case different from that put forward by the Respondent, as alleged by the Counsel to the Appellant. The next question is whether the lower Court was correct when it held that the facts and evidence sustained the defence of frustration. In answering this question, the first step must be to determine whether the Appellant made out a case of breach of contract against the Respondent and from there resolve whether the doctrine of frustration absolved the Respondent of all liabilities for the alleged breach of contract. Now, a breach of contract is said to be committed when a party, without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or performs 22

29 the obligation defectively or incapacitates himself from performing the contract or by wrongfully repudiating the contract - Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria Ltd (2000) 1 NWLR (Pt 642) 684, Kemtas Nigeria Ltd Vs Fab Anieh Nigeria Ltd (2007) All FWLR (Pt 384) 320, Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1. As stated earlier, the order of the Appellant to the Respondent was consummated on the 5th of March, 2012 when the Appellant completed 100% of the contract sum. By the terms of the contract, delivery time was stated to be sixteen weeks from date of consummation of the contract and, by ordinary calculation, this meant that delivery of the items was to have been done by the 5th of August, It is correct that the contract terms stated that delivery date was only an estimate and that the Respondent agreed to use reasonable efforts to deliver the goods on the delivery date but did not guarantee to do so. This provision nullified a rigid interpretation of the delivery period, but it, however, did not leave the issue of time of delivery openended at the pleasure of the Respondent. The law is that where a contract is silent as to time 23

30 of performance of an obligation, it is implied that the obligation should be performed within a reasonable time - Niger Insurance Company Ltd Vs Abed Brothers Ltd (1976) 7 SC 35, Mazim Engineering Ltd Vs Tower Aluminum (Nig) Ltd supra, Nigerian Bank for Commerce & Industry Vs Integrated Gas (Nig) Ltd (2005) 1 SCNJ 104, Edem vs canon Balls Ltd (2005) 12 NWLR (Pt 938) 27. What is reasonable time to do some act depends on the facts and circumstances of each case - Abiegbe Vs Ugbodume (1973) 1 SC 103, Pam Vs Mohammed (2008) 5-6 SC (Pt.1) 83. It is a question of fact - Warner & Warner International Associates (Nig) Ltd Vs Federal Housing Authority (1993) 7 SCNJ 1. As stated earlier, a period of over one year elapsed between when the Appellant confirmed his order to the Respondent and the time of commencement of this case. Looking at the facts of this case, it cannot be contested that a period of over one year to deliver the items of furniture ordered by the Appellant was more than adequate reasonable time for the Respondent to perform. The failure of the Respondent to deliver the items within this period thus gave credence to the case of the Appellant 24

31 on breach of contract. The case of the Respondent was that it was handicapped in making the delivery by the intermittent strike action embarked upon by its factory workers during the period and because of unavailability of some of the materials needed. The defence witnesses testified on these facts and they tendered the internal memo and the strike action report prepared by the Respondent itself as Exhibit D3. In the report, it was obvious that there was no strike action between the 5th of March, 2012, when the Appellant completed his payments, and the end of July The records also show that between 5th of March, 2012 and 22nd of April 2013, when the Appellant commenced this action in the lower Court, a period of about four hundred days, the workers of the Respondent were on strike for a total of thirty five days. The Respondent offered no explanation for the other over three hundred and sixty five days or fifty two weeks that the workers were not on strike. Further, the Respondent wrote a letter dated the 31st of October, 2012, Exhibit D5, to the Appellant wherein it apologized for the delay in the delivery of the furniture items and it 25

32 affirmed that the strike action was over and that its workers were back to work. Between that time and the time of commencement of the action in the lower Court, a period of over one hundred and sixty days or twenty three weeks elapsed and the Respondent offered no explanation for its failure to fully fulfill its obligation under the contract within the period. The strike action of the Respondent's workers cannot thus be said to have constituted such a debilitating factor as to make it impossible for the Respondent to perform its obligation under the contract. The finding of the lower Court that the strike action of the workers of the Respondent constituted a sufficient intervening event frustrating the contract of supply of items of furniture to the Appellant was not supported by the evidence led on record by the parties. The finding was thus perverse and it is hereby set aside. This Court finds and holds that the Appellant made out a good and credible case of breach of contract against the Respondent. The law is that where there is a contract that is both valid and enforceable and one of the parties thereto defaults in the performance of the 26

33 contract, the other party has one of two options opened to him and these are (i) to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or (ii) to regard the contract at an end and sue for damages for the breach of it - Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Liman vs Mohammed (1999) 9 NWLR (Pt 617) 116 and Mmegwa Vs Texaco (Nig) Ltd (2005) 18 NWLR (Pt 957) 279, Chabasaya Vs Anwasi (2010) 10 NWLR (Pt.1201) 163. The Appellant, in the instant case, sued for specific performance and, in the alternative, damages for breach of contract. It is trite that a decree or an order of specific performance is a form of relief that is purely equitable in origin and the fundamental rule is that specific performance will not be ordered or decreed if there is an absolute remedy at law in answer to the claimant's claim, as, for instance, where the claimant would be adequately compensated by the common law remedy of damages. The jurisdiction in specific performance is therefore anchored on the inadequacy of the remedy of damages at law - Afrotec Technical Services (Nig) Ltd 27

34 Vs MIA & Sons Ltd (2000) 15 NWLR (Pt.692) 730, Ezenwa Vs Oko (2008) 3 NWLR (Pt 1075) 610, Mustapha Vs Abubakar (2011) 3 NWLR (Pt 1233) 123. Looking at the facts of this case, and taking into cognizance the period of time that has elapsed since the said breach of the contract, it is the view of this Court that an award of damages will adequately compensate the Appellant for the breach of contract. The Appellant claimed for the sum of N10 Million as damages for breach of contract or in the alternative for the refund of the monies paid under the contract. It is settled law that assessment of damages for breach of contract is based on the doctrine of restitutio in integrum, meaning that in so far as the damages are not too remote, a claimant should be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred. It is in line with the above principle that award of damages in breach of contract cases should be such as (i) may fairly and reasonably be expected to arise naturally, i.e. according to the usual course of things from such breach of contract itself; or (ii) may reasonably be supposed to have 28

35 been in contemplation of both parties at the time they made the contract as the probable result of the breach of it - Okongwu Vs NNPC (1989) 4 NWLR (Pt 115) 296, Ativie Vs Kabel Metal (Nig) Ltd (2008) 10 NWLR (Pt 1095) 399, Agu Vs General Oil Ltd LPELR-SC.62/2005. The evidence before the lower Court was that the Appellant paid the Respondent the total sum of N7,170,060.35k on the contract for the supply of doors and door frames of various types, wardrobes and kitchen cabinets. It was in evidence that the Respondent part performed the contract and while it was the case of the Appellant that the Respondent only installed the door frames and 80% of the kitchen cabinets despite repeated demands, it was the case of the Respondent that it had completed and installed the door frames, 95% of the kitchen cabinets, 45% of the panel doors. In the course of his testimony before the lower Court, the first defence witness, the production manager of the Respondent, stated under cross-examination that they had only done about 50% of the contract. By this admission, it is the view of this Court that the Appellant is entitled to a refund of 50% of the sum of money 29

36 paid under the contract as damages. The Appellant is also entitled to post judgment interest on this sum because he had been kept out of this money by the Respondent for no just cause. In conclusion, this Court finds merit in this appeal and it is hereby allowed. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/388/2013 delivered by Honorable Justice Tanimu Zailani on the 11th of March, 2014 is hereby set aside. This Court finds and holds that the Respondent was guilty of breach of contract and the Appellant is awarded damages in the sum of N3,585,030.17k, being a refund of 50% of sum paid by the Appellant under the contract. The Appellant is awarded interest on this sum at the rate of 10% per annum from the date judgment was entered in the lower Court, i.e. 11th of March, 2014, until final liquidation. The Appellant is also entitled to the costs of the appeal assessed at N50, These shall be the orders of this Court ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning and the 30

37 conclusion of my learned brother. I find merit in the appeal and I allow it. I abide by the consequential order. IBRAHIM SHATA BDLIYA, J.C.A.: Having had the advantage of reading in draft the leading judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru JCA, just delivered, I cannot but to concur with the erudite judgment wherein all the issues raised in the appeal have been extensively and exhaustively considered and resolved. I have nothing useful to add, other than to adopt my lord's reasoning and conclusion, in dismissing the appeal for lacking in merit. I dismiss the appeal. I endorse the order made on costs. 31