The respondent, under a written agreement, awarded to the appellant (a contractor) a contract to build eighteen bungalows in Makurdi, Benue State, for a sum of N=1, 181,609.81. The appellant commend the building operation but, at a certain stage, the agreement was determined by the respondent as a result of the default in the execution of the work on the part of the appellant. The contract was re-awarded to other contraction who, immediately, took over the construction of the houses and completed them. The appellant instituted an action in the High Court of Benue State against the respondent in which it claimed, inter alia, a declaration that the purpose termination of the contract by the respondent was wrongful and therefore null and void and of no effect whatsoever it also claimed for an order decreeing the specific performance of the contract by the respondent, to alternatively an order directing the respondent to pay the appellant the sum of N=80, 000 which was increased, in the statement of claim, to N=343,414.12k. The claim for declaration and the claim for specific performance were abandoned during the proceedings.

The parties, by consent tendered certain document as exhibits. Some of the aforesaid documents related to the history of how the contract was awarded to the appellant, its terms, how execution was suspended at a certain stage at the instance of the respondent, how the appellant was allowed to resume work on it and some of them constituted correspondence between the appellant and the respondent. Each of the parities called one witness. The documents tendered by the appellant concerned his alleged efforts in connection with the execution of the contract and a valuation report, prepared at its instance, but without consultation with the respondent. The appellant’s only witness who was a quantity surveyor identified Exhibit “P.9” as the valuation report prepared by the him at the instance of the appellant and testified in relation to certain aspects of the contents of the said valuation report. The documents tendered by the respondent ,were inter alia, to show that despite the efforts made by the respondent and the indulgence granted to the appellant to make appellant perform the contract, the appellant failed or the neglected to perform diligently or at all. The respondent’s witness identified one of the document as the report which he wrote about the meager work done by the appellant. After consideration of the evidence before him and the submissions of the learned counsel for the parties, the learned trial Judge found that the appellant did not lead any evidence on the nature and quantum of the work allegedly done by it to entitle it to the amount of money being claimed by it or nay part thereof. he also found that the respondent admitted that the appellant did some work for which payment should be made. He concluded that the proper order to make was one non-suiting the appellant.

The appellant was non-suited by the learned trial Judge. Dissatisfied with the judgment, the appellant has appealed to this court.