[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
2 NWLR (Pt. 175) 590
ADENEKAN ADEMOLA, J.C.A. (Presided)
UMARU ATE KALGO. J.C.A. (Read the Leading Judgment)
NIKI TOBI. J.C.A.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
CONTRACT – Affirmation of contract – What is conduct amounting to.
CONTRACT – Breach of contract – Effect of- Conduct amounting to waiver of
CONTRACT – Breach of contract – Waiver of breach by innocent party – Effect of.
WAIVER – Affirmation of contract – What is conduct amounting to.
WORDS AND PHRASES – Affirmation’ of breach of contract – Meaning and effect.
A.O. Adefola, Esq. -for the Appellant.
S.A. Faboro, Esq.-for the Respondent.
KALGO, J.C.A. (Delivering the Leading Judgment): Tairu Bakare was the original and only plaintiff in this action in the Lagos High Court. While the case was going on, he died and the present appellants were substituted for, him. Tairu Bakare (now deceased) together with the 2nd, 3rd,4th, 5th and 6th Respondents jointly inherited the property at No.27, Evans Street, Okepopo Lagos, under Yoruba Native Law and Custom. With the concurrence of the 2nd to the 6th respondents, Tairu consulted the 1st respondent, a building contractor with a view to developing the family property into a modern building. They all then had a family meeting with the 1st respondent and the mechanics of the whole development was worked out. A formal contract agreement was prepared. It was signed by Tairu and the 2nd respondent on behalf of the Bakare family as “owners” and by the 1st respondent as the contractor, as “the builder.” The signatures were witnessed by a Magistrate. The contract agreement was admitted in evidence at the trial as Exhibit “D.”
Part of Exhibit’D’ which concerned this appeal reads:
“A. In consideration of the rent of the premises immediately upon completion for a period of seventeen (17) years the builder will
(i) enter and pull down all existing building in the premises and in their place and stead erect a two-storey building in accordance with approved plans and specifications with his own monies and from his own source and, in addition, erect on the Ground Floor (6) six extra bedrooms for the exclusive personal use of the owners.
(ii) will upon completion let the whole premises except the six (6) bedrooms on the Ground Floor and collect the rents accruing therefrom for a period of seventeen (17) years for the purpose of refunding and liquidating all costs and monies expended on both the demolition of the existing building and the erectiion of the above mentioned two storey buildings.
(iii) Will, out of the rents collected, pay the General Township or water rates assessed and charged upon the property of the Owner.
(iv) Will surrender and deliver to the owners the premises at the expiration of seventeen (17) years from the commencement of the letting and occupation of the completed premises and so inform the tenants to pay their future rents to the owners.
(i) Will give the builder, on the execution of this agreement quiet, undisturbed, and peaceful possession and enjoyment of the premises throughout the periods of erection of the building and the seventeen (17) years period of letting.
(ii) Will whenever the builder so desires and requests assist him to remove any impediment or obstruction that may delay the progress of the buildings.
The 1st Respondent then moved into the property at 27 Evans Street Lagos, demolished the old structure there and started to erect the building as agreed. He commenced the building in January 1980 and completed it in August, 1980. The completed building then comprised of two-storey building having on the first and second floors two-bedroom flat each and 3 shops and 6 rooms on the ground floor. The 1st Respondent then handed over to the Bakare family the 6 rooms on the ground floor and he himself retained the rest of the building on the property in accordance with Exhibit “D.” The building altogether cost the 1st Respondent *132,000.00 and that he obtained the approval for occupancy of the building from the Lagos Island Local Government. A certificate of occupancy was later issued to him and it was admitted at the trial as Exhibit “B.”
The Bakare family including Tairu (now deceased) were in possession of their 6 rooms on the ground floor by September 1980. In October 1980, the said Tairu filed this action; first against the 1st respondent alone but later on 23rd November, 1982, he was granted leave by the trial Court to join as Defendants, the 2nd to the 6th Respondents in this appeal who were coowners of the family property with him. The amended writ of summons against the defendant/respondent jointly and severally read as follows:
”(a) Return of the Deed of Grant dated 3rd February, 1970 and registered as No. 245 at page 245 in Volume 5 of the Registrar of Deeds Report in Lagos.
(b) N50,000 special and/or general damages for breach of Agreement dated 13th November 1979 OR in the alternative for a Declaration that the said Agreement is null and void.
(c) Injunction restraining the 1st defendant and his servants/agents from letting and collecting rents due on the Ground Floor of 27, Evans Street, Lagos.
(d) Possession of the said Ground Floor Apartment.
(e) Partition of the house at 27, Evans Street, Lagos between the 3 branches of Bakare family.
Pleadings were filed and exchanged and the matter went to trial before Olusola Thomas J., who in a considered judgment delivered on 4th June 1985, dismissed the Plaintiff/Appellant’s case with costs. This appeal is against the dismissal and was brought on 3 grounds of appeal, which without particulars read as follows:
“(1) The learned trial Judge erred in law and misdirected himself on the facts in failing to hold that there was a breach of the Building Agreement on the part of the Respondent who failed to put up the building in compliance with the terms and conditions in the said Building Agreement and continue to reap income on 3 shops illegally erected on the Ground Floor of the Property in question at No. 27, Evans Street, Lagos.
(2) The learned trial Judge erred in law and misdirected himself on the facts when he failed to order that possession of the entire ground floor apartments of the house at No. 27, Evans Street be given to the Bakare Family who in any event are entitled to the same on which 6 rooms were to be erected by the Respondent. (3) The learned trial Judge erred in law and misdirected himself on the facts when he failed to order Release of the title Deed (Deed of Grant) dated 3rd February, 1970 and registered as No.245 at page 245 in Volume 5 of the Register of Deeds which in any event, is the property of the Bakare Family.”
Briefs of argument were filed in this court for the appellants and the respondents. The appellants set out 3 issues for determination in the appeal thus:
“4.1 Whether or not there was a breach of the Terms, expressed or implied, in the Building Agreement on the part of the 1st defendant who instead of putting up 6 rooms only erected 3 shops and 6 cloak rooms on the Ground Floor of No. 27, Evans Street, Lagos which according to the experts evidence of the Chief Town Planning Officer could not take more than 5 standard rooms.
4.2 If there was such a breach, whether the Bakare Family is entitled to claim the entire possession of the Ground Floor of No.27, Evans Street, Lagos on which not more than 5 standard rooms ought to have been erected for the exclusive use of Bakare Family.
4.3 Whether in view of the serious disagreements within the Bakare Family which include tacit denial of Tairu Bakare as the Family Head, introduction of non existent Ganiyu Eletu into Bakare Family and the implied acceptance of the 6 box rooms instead of 6 standard rooms to be erected on the Ground Floor of the Family House for the exclusive use of the Family Partition of the 3rd Floor of the Family House amongst the 3 Branches of the said Bakare Family should have been ordered by the Court.”
The respondents on the other hand identified the following issues:
”(1) Whether the expression in the Building Agreement between the parties the words in paragraph A “and, in addition, erect on the Ground floor (6) extra bedrooms for the exclusive personal use of the owners,” read with the preceding phrase “In consideration of the rent of the premises immediately upon completion for a period of seventeen (17) years,” means that the owners are entitled to possession of the entire Ground Floor to the exclusion of the 1st Defendant.
(2) Whether evidence of the Chief Town Planning Officer that the Ground Floor of No.27, Evans Street, Lagos could not take more than 5 standard rooms when the 1st defendant erected thereon 3 shops and 6 rooms should be taken to constitute a breach of the Terms of the Agreement.
(3) Whether assuming but not agreeing that the erection of 3 shops and letting of same was wrong the Appellant stood by while the erection was in progress and completed without objection, made merriment and received the keys to the 6 rooms for distribution to his family.
(4) Whether the introduction of “Ganiyu Bakare” on the Building Plan constitutes a breach of the Terms.
(5) Whether the Court can properly partition the 3 Floor Family House for the mere reason that all the other members of the Plaintiffs family are satisfied and happy with the 1st Defendant’s erection of the building and the rooms allocated to them as well as the 3 shops built and let by the 1st Defendant.
(6) Whether assuming the respondent is in breach of the Terms of the Agreement, which is denied, the appellant is entitled at all to damages of -*50,000.00 (which was not proved and not actioned for the Bakare family).
(7) Whether failure to obtain consent of the Lagos State Governor on the Agreement, which is not necessary, or failure to register the agreement in the Land Registry, which is also not necessary, constitute a breach of the Terms of Agreement.
(8) Whether the general ground of the Appeal is sustainable.”
The learned counsel for the parties adopted and relied upon their briefs of argument. The few issues they raised in explanation of the points in their brief in this Court did not improve upon what they have advanced in the trial Court.
In this appeal, I think the most important issue for determination, is that framed as number I by the Appellant, and it is whether or not there was a breach of the terms expressed or implied of the building agreement on the part of the 1st Defendant.
The evidence of P.W.1 Tairu (now dead) who invited the 1st respondent to negotiate the building agreement with the Bakare family on p.153 of the record of appeal reads:
“The arrangement as to the construction is that we the owners would take the ground floor and that the builder would take the top floor to offset the cost of building the house for 17 years. He was to build 6 rooms on the ground floor.”
The 1st respondents account of what happened was also stated by him in his evidence on p.157 of record of appeal thus:
“I told them that my conditions were 20 years of the repayment of the loan to be expended on the project and 6 extra room to be recovered on the ground floor for their own personal use. They pleaded that I reduced the number of years to 17 years. We all agreed that the building should be a 2 storey building in a way that would meet the conditions of 6 extra rooms at the back of the ground floor.”
According to the evidence at the trial, after the negotiations, the 1st respondent instructed his solicitor one Mr. M. A. Adewale to prepare the contract building agreement on the agreed terms. The agreement was prepared, read to the hearing and understanding of all the parties and was then signed before the Magistrate at Igbosere Court, Lagos on the 13th of November, 1979. The agreement was admitted at the trial as Exhibit “D.”
For clarity, I wish to reproduce clause 3 A of Exhibit “D” which reads:
”3. The builder has agreed with the owners to build the said house, a two storey-building with his own monies in the manner and upon the same terms, conditions and stipulations. Now this agreement witnessesseth that in pursuance of the said agreement and
The 1st respondent completed the building in August, 1980 and the property then consisted of two storey building containing 3 bed room flat on each floor and 3 shops and 6 rooms on the ground floor. The main compliant here therefore as was rightly observed by the learned trial Judge in his judgment on page 217 of the record of appeal is that the 1st respondent had built the 6 rooms on the ground floor below the standard size and that he should not have built any shop there at all. Surely, the provisions of Exhibit “D” quoted earlier in this judgment do not say anything about building a shop or shops in any of the floors of the house in question. Why then did the 1st Respondent build the 3 shops on the ground floor of the house? This is how he explained it in his evidence in chief on page 159 of the record of appeal:-
“I made it known to them no developer would release the ground floor to any family to such a job I offered to use the front case of the building for 3 shops and erect the extra six bedrooms at the back of the ground floor. They all agreed and work started in January, 1980.”
And in his cross-examination at the bottom of P.1G2 to 163 of the record of appeal, he said:
“It is not correct that at no meeting was I authorised to put up shops in front and box rooms house at the back. We agreed on these thing after Exhibit D was executed. We did not put them into writing.”
In short what the 1st Respondent was saying from the two pieces of evidence quoted above is that the Bakare family agreed at one of their meetings with him that he could build 3 shops in addition to the 6 rooms on the ground floor of the house. This was however according to him after Exhibit “D” was signed and no subsequent amendment was made to Exhibit “D” to incorporate this. Let us now see what the members of the Bakare family who were involved in the negotiations say about this if at all.
Tairu was the eldest member of the Bakare family though not the head. He was at the Head of the negotiations and was infact alleged to be the person who invited the 1st Respondent to the whole matter. He knew everything about the arrangements and must have attended all the family meetings with the 1st Respondent. But unfortunately throughout his evidence in chief he did not mention anything about the 1st Respondent’s demand or proposal to use the ground floor to build 3 shops in addition to the 6 rooms agreed upon earlier. He was also not asked any question about this in course of his being cross-examined by 1st Respondent’s counsel. Tairu however confirmed in his evidence in chief that the 1st Respondent was to build 6 rooms on the ground floor and no more. The 4th, 5th and 6th respondents also gave evidence at the trial. They all spoke about the 6 rooms for the Bakare family but none mentioned anything about any agreement to build shops in the ground floor or in the house at all.
The 1st Respondent did not call any witness to substantiate the fact that the Bakare family agreed that he could put up 3 shops in the face of the house in addition to the 6 rooms on the ground floor. He tendered no building plan to support him either; rather he agreed that he did not build according to the building plan Exhibit “A” although Exhibit “A” was approved on 5th December, 1977 and the agreement Exhibit “D” was signed on 13th November, 1979. He also said that he submitted a sketch plan for the revised building plan to the Works and Planning section of the Lagos Island Local Government Council which they approved and authorised him to proceed with the building. After he finished the building, the completion certificate, Exhibit ‘B’ was given to him on the new plan and not on Exhibit ‘A’. But with all these interactions, the 1st Respondent failed to call any person to prove even the building plan he used in building the house at 27 Evans Street. Considering all these, I seem to agree with the observation of the learned trial Judge in his judgment (page 212 of the record) that the 1st respondent and indeed all the Respondents who gave evidence before him have not spoken the whole truth in this matter. I cannot agree with him more, and it is very clear to me from the totality of the evidence at the trial, that the 1st Respondent failed to comply with the express terms of the building agreement Exhibit
The learned trial Judge, in trying to cover the 1st Respondent found on page 218 of the record of appeal that the 1st Respondent had compiled with the terms of the agreement by completing the erection of two storey building and reserving 6 rooms for the Bakare family. He went on to say on same page ….
“The Agreement does not specify the size of the rooms and does not say that the six rooms and none other are to be on the ground floor, The 1st defendant therefore correctly gave the answer to this complaint in paragraph 14 of his Statement of Defence that there was nothing in the agreement entitling the the plaintiff to the entire possession of the ground floor and there is nothing limiting his use of the remaining portion of the ground floor.”
With due respect to the views of the learned trial Judge on this, I do not agree that just because the agreement did not provide that the six rooms and none other are to be built on the ground floor, that is a license for the 1st respondent to build anything he wanted in addition to the 6 rooms. If this were to be so, the 1st respondent could also have built other things in the 1st and 2nd floors of the house as well. I do not agree and find that it is wrong to suggest that by paragraph 14 of the Statement of Defence the 1st Respondent has unlimited use of the ground floor after the 6 rooms. I however entirely agree that according to the first part of clause 3A(i) of Exhibit ‘D’ the two storey building must be “in accordance with approved plans and specifications”; the 2nd part merely provides that the 1st respondent should “erect on the ground floor six extra bedrooms” without specifying the sizes or in accordance with any specifications. In that case, the 1st respondent can build them in any size he considered reasonable but that did not in my judgment give an open ticket to build something else on the ground floor in addition to the 6 rooms. There is no provision for them and nowhere in the agreement can it be implied or inferred. And the use of the words “in addition,” “extra bedrooms” and “for exclusive personal use” in subclause (i) of Clause 3A of Exhibit “D” can in my view only be interpreted to mean that the 6 rooms on the ground floor are extra and in addition to the 2 storey-building in the house and are to be used exclusively by the Bakare Family. This means that they are the only rooms to be built on the ground floor and no more. Any more building on the ground floor is not in accordance with the provisions of Exhibit “D.” The 1st respondent has also admitted in his evidence in the trial Court that the building was not done in conformity with the building plan Exhibit ‘A’. That being so, there is in my view, a breach of the contract agreement Exhibit “D” by the 1st respondent.
According to the evidence and as found by the learned trial Judge, the 1st respondent built 6 rooms in the ground floor which he handed over to the Bakare Family. The sizes of the rooms were not stated and Exhibit ‘D’ did not provide the sizes. It did not state whether the rooms shall be “standard” or “normal” or “regular.” Therefore the 1st respondent was free to build the rooms in any size he wished. To that extent, the evidence of P. W. 1, Chief Town Planning Officer, Lagos State, did not advance the appellant’s case any further. There is evidence which the learned trial Judge accepted that the appellant took 2 out of the six rooms built on the ground floor and distributed the rest to the 2nd to the 6th respondents, and that soon after the completion of the building there was a get-together of the Bakare Family and the 1st respondent in the completed house where they all ate and drank. There was no suggestion that the appellant refused to accept his rooms. It was also abundantly clear on the evidence that the 1st respondent, after completion of the building took the appellant and the 2nd to 6th respondents on inspection round the building and they were all satisfied with it. This was confirmed by 4th, 5th and 6th respondents in their evidence in the trial Court. This conduct of the appellant would tend to show that the appellant has waived the breach and for all intents and purposes the contract remains valid and subsisting between the parties.
In Chilly on Contracts, 24th Edition page 683, in the Chapter on Discharge by Breach, paragraph 1472, the learned author had this to say:
“It should be noted, however, that an innocent party is not ordinarily bound to treat the contract as discharged. He may, at his option, elect either to treat the contract as a continuing contract, or to say that the breach by the other party has discharged his liability. If he chooses the former course, he can still sue for damages for any loss sustained as a result of the breach. But the contract, with all its terms and conditions, remains alive for the benefit of the wrongdoer as well as of himself.” (See Lakshmijit v. Sherani(1974) A.C.605)
In paragraph 1473, the learned author continued:
“Where the innocent party elects to treat the contract as continuing, he is usually said to have “affirmed” the contract. Affirmation may be express or implied. It will be implied if, with knowledge of the breach, he does some act from which it may be inferred that he recognizes the continued existence of the Contract. Affirmation must be total: the innocent party cannot approbate and reprobate by affirming part of the contract and disaffirming the rest, for that would be to make a new contract.
The effect of affirmation should be carefully distinguished from that of forbearance, or a concession made by one party to the other that he will not insist on the precise mode or time of performance stipulated for in the contract. Forbearance may only be temporary or partial, and will preclude the party making the concession from relying on the strict terms of the agreement. But affirmation, once made, will be permanent and it does not preclude the- innocent party from claiming damages for breach of contract.” (See Hain S.S. Co. v. Tate & Lyle (1936) 2 All E.R.597).
Therefore by accepting the 6 rooms after inspection of the building, sharing them among members of the Family, celebrating the completion of the building with the 1st respondent, the appellant has impliedly affirmed the contract as performed. But as the learned author of Chitty on Contracts said above, it does not preclude the appellant from claiming damages for breach of the contract.
The appellant claimed;N50,000.00 as general and or special damages for breach of contract and in the alternative for declaration that the contract is null and void. From my findings above, I said that the contract is still binding and subsisting from the conduct of the parties. As for the issue of damages the appellant has not proved at the trial that he suffered any loss or damage as a result of the three shops that have been built by the 1st respondent. The 1st respondent has spent N132,000.00 of his own to put up the whole building and was given the right under Exhibit ‘D’ to give out the whole premises, save the 6 rooms on the ground floor on rent for 17 years to recover his money from the rents. In the circumstances of this case, the appellant had not suffered any damage and has not proved any, by the breach. This head of claim must therefore fail. For the same reasons, he would not be entitled to grant of an injunction to restrain the 1st respondent from letting out and collecting rents on the 3 shops on the ground floor. The balance of convenience is more on the side of the 1st respondent than the appellant for now, since the whole building under Exhibit ‘D’ would revert to the appellant and his nephews and niece after 17 years.
On the issue of the return of the Deed of Grant (Exhibit ‘C’) to the appellant in respect of 27, Evans Street, Lagos, and the claim of ground floor of the said property including the partition thereof, I entirely agree with the findings of the learned trial Judge on them, based on the evidence before him. I therefore affirm those findings accordingly.
For the reasons stated above, I find that this appeal lacks merit and it is accordingly dismissed. The judgment of the learned trial Judge Olushola Thomas, J., made on the 4th of June, 1985 is hereby affirmed. I make no order as to costs.
ADEMOLA, J.C.A.: 1 have read the judgment just delivered. I have nothing to add.
TOBI, J.C.A.: 1 agree with the judgment just delivered by my learned brother, Kalgo. I have nothing to add.