JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD. Page 1 IN THE HIGH COURT OF JUSTICE OF THE F.C.T. IN THE ABUJA JUDICIAL DIVISION HOLDEN AT KUBWA, ABUJA ON FRIDAY, THE 12 TH 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 17 TH September, 2014 to the Plaintiff requesting for a new completion date of development for April, 2015 in place of the agreed date of 21 st September, 2014 in respect of the Plaintiff’s landed property known, being, lying and
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JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 1
IN THE HIGH COURT OF JUSTICE OF THE F.C.T.
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT KUBWA, ABUJA
ON FRIDAY, THE 12TH DAY OF MAY, 2017
BEFORE HIS LORDSHIP: HON. JUSTICE K. N. OGBONNAYA
JUDGE
SUIT NO.: FCT/HC/CV//15
BETWEEN:
MOHAMMED BELLO USMAN PLAINTIFF
AND
CMD BUILDING MAINTENANCE & INVEST. CO LTD. DEFENDANT
JUDGMENT
This matter is between Mohammed Bello Usman as Plaintiff and CMD
Building Maintenance Investment Company Ltd as the Defendant. The
Plaintiff sued through his Lawful Attorney Alhaji Bilya Bala.
The Writ of Summons is for the following claims:-
1. A Declaration that the Defendant’s Letter of 17TH September, 2014 to
the Plaintiff requesting for a new completion date of development for
April, 2015 in place of the agreed date of 21st September, 2014 in
respect of the Plaintiff’s landed property known, being, lying and
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 2
situate at Plot 523 Cadastral Zone B19 Katampe Extension Abuja,
more particularly delineated in Survey Plan No/FCT/B219/PB/9809
measuring 4,732 SqM subject of the Contract Agreement, is unlawful,
irregular, null and void and a breach of the Contract Agreement
between the parties contained in the Developer’s Deed executed by
both parties.
2. A Declaration that the Defendant is in breach of the contract between
the parties especially Clause (I) relating to architectural pattern and
specifications and Clause 4 of the Developer’s Deed relating to time,
that is, “This construction shall not exceed a twenty-four(24) month
period after all statutory and government approvals have been
secured for the development” of the Plaintiff’s said Plot 523 Cadastral
Zone B19 Katampe Extension Abuja, more particularly delineated in
Survey Plan No. FCT/B219/PB/9809 measuring 4,732 SqM subject of
the Contract Agreement.
3. N500, 000, 000.00 (Five Hundred Million Only) as general damages
for breach of contract.
4. N8, 000, 000.00 (Eight Million only) as specific damages for breach
of contract.
PARTICULARS OF THE SPECIFIC DAMAGES
a. N5, 000,000.00 (Five Million Naira Only) being (lost rent proceeds)
compensation for non-performance at N2,000,000.00 (Two Million
Naira Only) by five (5) flats at monthly rate per flat N166,666 (one
Hundred and Sixty-Six Thousand Naira Six Hundred and Sixty-
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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Six Naira) only for six (6) months beginning from 22nd September,
2014 to 22nd March, 2015.
b. N166,666.00 (One Hundred and Sixty Six Thousand Six Hundred
and Sixty-Six Naira) only per flat per month from 22/4/15 until works
are completed.
c. N3,000,000.00 (Three Million Naira Only) from 22nd September,
2015 being compensation for rent renewal of the Plaintiff’s rented
premises of 47 Lake Chad Crescent, Maitama, Abuja.
5. 21% Interest rate on reliefs 3 and 4 from the 22nd day of September,
2014 till Judgment.
6. 10% Post-Judgment Interest rate until the Judgment sum is
liquidated.
7. Cost of this suit as shall be assesses at the end of trial.
ALTERNATIVELY
1. An Order commanding the Defendant to pay over to the Plaintiff the
current market value (to be determined by a Court appointed Valuer)
the monthly rental value of the completed buildings contained in
Clause 5(a) and (b) of the Developer’s Deed from 22nd day of
September, 2014 until Judgment is given in this suit by this
Honourable Court.
2. N100,000,000.00 (One Hundred Million Naira Only) as general
damages for breach of contract.
3. N8,000,000.00 (Eight Million Naira only) as specific damages for
the breach of contract.
PARTICULARS OF SPECIFIC DAMAGES
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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i. N5,000,000.00 (Five Million Naira Only) being (lost rent
proceeds) compensation for non-performance at N2,000,000.00
(Two Million Naira Only) by five (5) flats at monthly rate per flat at
N166,666.00 (One Hundred and Sixty-Six Thousand, Six
Hundred and Sixty-Six Naira only) for six months beginning from
22nd September, 2014 to 22nd March, 2014.
ii. N166,666.00 (One Hundred and Sixty-Six Thousand Six One
Hundred and Sixty-Six Naira only) per flat per month from 22nd
April, 2015 until the works are completed.
iii. N3,000,000.00 (Three Million Naira Only) from 22nd day of
September, 2015 being compensation for rent renewal of the
Plaintiff’s rented premises at Plot 47 Lake Chad Crescent ,
Maitama, Abuja.
4. 21% interest rate on Reliefs 3 and 4 from 22nd day of September,
2014 till Judgment.
5. 21% interest rate from 22nd day of September, 2015 till Judgment.
6. 10% Post-Judgment interest rate until the Judgment debt is liquidated
fully.
7. Cost of the suit to be assessed at the end of the trial.
ALTERNATIVELY
1. An Order of this Honourable Court in lieu of the main reliefs and first
alternative relief above, granting leave to the Plaintiff to purchase all
uncompleted buildings by the Defendant falling within Clause 5B of
the Developer’s Deed known and more particularly described as
eleven (11) units of three-bedroom apartment with one (1) boy’s
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
Page 5
quarters each at the current market value based on the valuation of a
professional and independent valuer/s.
2. N150,000,000.00 (One Hundred and Fifty Million Naira) only as
specific and general damages for breach of contract.
3. Cost of the suit to be assessed at the end of the trial.
He attached ten (10) exhibits to support his claims.
The Defendants were duly served. They entered appearance late after the
Court granted them leave. Both parties opened and closed their respective
cases after calling evidence, filed their Final Written Addresses and the
Court reserved for Judgment. Note that the Defendant filed a Counter-
Claim along with the Statement of Defence.
In the Counter-Claim, the Defendant/Counter-Claimant claims the
following:-
1. An Order of Specific Performance of the Agreement to convey eleven
(11) apartments, each comprising a three-bedroom flat and Boy’s
Quarters to the Defendant/Counter-Claimant as provided for in the
Developer’s Deed executed between the parties.
2. Damages in the sum of N160,000,000.00(One Hundred and Sixty
Million Naira Only) for unduly prolonged delay by the
Plaintiff/Defendant to the Counter-Claim in executing relevant
instruments conveying the eleven (11) apartments to the
Defendant/Counter-Claimant.
IN THE ALTERNATIVE
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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3. An Order directing the Plaintiff/Defendant to Counter-Claim to pay
over to the Defendant/Counter-Claimant the accruable rent due from
eleven (11) apartments which are due the Defendant/Counter-
Claimant at the rate of N11,500,000.00(Eleven Million Five
Hundred Thousand Naira Only) per annum from 22nd of
September, 2014 till the Plaintiff/Defendant to Counter-Claim
executes and lawfully conveys title to the said eleven (11) apartments
to the Defendant/Counter-Claimant.
4. Interest on the amount claimed in paragraph (3) above at the rate of
21% per annum from 22nd September, 2014 till the
Plaintiff/Defendant to the Counter-Claim legally conveys the eleven
(11) apartments referred to in paragraph (3), to the
Defendant/Counter-Claimant.
The Plaintiff opened and closed its case in 2015. The Defendant applied for
leave to recall the Plaintiff’s witness. The Court in the interest of justice
granted that. Both parties filed their respective Final Written Addresses and
Reply as applicable after the close of their cases.
The Court earlier dismissed the Preliminary Objection filed by the
Defendant to stay the proceeding pending the outcome of the arbitration
because the parties had taken steps, not just steps, but bold and
remarkable steps in the litigation before the application for stay came up
among other reasons.
It is important to note that though the Defendant filed a Counter-Claim, it
neither pursued nor addressed the Court on the said Counter-Claim. It
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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equally did not lead any evidence to prove any of the averments touching
on the Counter-Claim either.
The main crux of the Plaintiff’s case is that the Defendant did not complete
the work as within the timeline as contained in the Agreement – EXH 1.
Again, that the Defendant did not reply to the letter written by the Plaintiff
on the condition precedent for the extension of time sought by the
Defendant.
Again, that the Defendant failed to use the required quality material as
clearly stated in the Agreement to build the finishings of the building
particularly as regards the door; using inferior materials to construct the
door and rooftop covers were not in tandem with the architectural design as
agreed between the parties.
Most importantly is that the Defendant, according to the Plaintiff,
“Unilaterally decided to increase, by adding from the Plaintiff’s land to the
portion surrendered to them (the Defendant), which is not part of the
contract, embarrassing act of illegal encroachment that the Plaintiff
complained of through his Solicitors by the Letter of 21/01/14 which the
Defendant replied to on 12/03/14.”
The said document was admitted in evidence as EXH. 2.
The Defendant confirmed that time was of the essence in the Agreement.
On the part of the Defendant, their anger was that the Plaintiff was
supposed to give them their documents of title to the eleven flats within
three months of executing the Agreement.
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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Again, the financing of the project was to be raised by the Developer
through their financiers who shall create a legal mortgage over the
Developer’s title in favour of the financiers. According to the Defendant, the
condition precedent to the funding of the project was the vesting of the
Defendant’s said eleven (11) flats in the Defendant by the Plaintiff within
three months of the execution of the Agreement.
Meanwhile, the Agreement was entered into in 2011. The timeline for
completion was within two years after all the necessary approvals were
obtained. Meanwhile, the final approval was obtained on 21/09/12.
Again, the Defendant sent a Power of Attorney which ordinarily is supposed
to be donated by the Plaintiff to the Defendant. The Defendant signed his
column but the Plaintiff did not sign his column. The question is, is there
any provision for the Power of Attorney to be donated by the Plaintiff in the
main Agreement? Does the non-signing of the Power of Attorney by the
Plaintiff make it authentic or otherwise? I do not think so.
The parties called one witness each to testify on their behalf respectively.
(PW 1 and DW 1)
On the 21/06/16, the Defendant filed its Final Written Address. In it the
Defendant raised two issues for determination which are:-
“1. Whether the Plaintiff is entitled to the equitable
discretionary remedy of the Declaration sought in the
circumstances of the case?
JUDGMENT IN MOHAMMED BELLO USMAN VS. CMD BUILDING MAINTENANCE & INV. CO. LTD.
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“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.