ADAE v. EYIAH [1972] 2 GLR 358
HIGH COURT, ACCRA
18 July 1972
ABBAN J
CASES REFERRED TO
(1) Manu v. Emeruwa [1971] 1 G.L.R. 442.
(2) Dua v. Afriyie [1971] 1 G.L.R. 260, C.A.
(3) Appleby v. Myers (1867) L.R. 2 C.P. 651; 36 L.J.C.P. 331; 16 L.T. 669; [1861-1873] All E.R. Rep.452.
(4) Forman & Co., Proprietary, Ltd. v. The Liddersdale [1900] A.C. 190; 82 L.T. 331; 9 Asp.M.L.C.
45; 69 L.J.P.C. 44, P.C.
(5) Wheeler v. Stratton (1911) 105 L.T. 786.
(6) Sumpter v. Hedges [1898] 1 Q.B. 673; 67 L.J.Q.B. 545; 78 L.T. 378; 46 W.R. 454, C.A.
(7) H. Dakin & Co., Ltd. v. Lee [1916] 1 K.B. 566; 84 L.J.K.B. 2031; 113 L.T. 903; 59 S.J. 650, C.A.
(8) Hoenig v. Isaacs [1952] 2 All E.R. 176; [1952] 1 T.L.R. 1360, C.A.
NATURE OF PROCEEDINGS
ACTION for damages for the breach of a building contract by the defendant. The facts are fully set out in
the judgment.
COUNSEL
Kofi Acquaah for the plaintiff.
Dr. Ekow Daniels for the defendant.
JUDGMENT OF ABBAN J.
In this action the plaintiff claims from the defendant the sum of ¢10,000.00 being special and general damages for breach of contract, or for negligence in carrying out the terms of the said contract. The plaintiff, in her paragraph (9) of the statement of claim, gave particulars of the ¢10,000.00 damages. She contended that the amount of ¢6,000.00 is the advance which she paid to the defendant in pursuance of the said contract, and the sum of ¢1,800.00 represents the expenses which she would incur in demolishing the constructional work so far done by the defendant on her land. It is therefore obvious that the remaining amount of ¢2,200.00 represents general damages.
The case arose out of a building contract by which the defendant agreed to build for the plaintiff a house, on the plaintiff’s plot of land situated at Abetifi, for the lump sum of £G4,600. The construction was to be completed within six months from the date of the contract. The terms of the contract were embodied in a written agreement, exhibit A, and it was dated 1 February 1965. The plaintiff in her evidence alleged that in accordance with the terms of the agreement she advanced to the defendant various sums of money. In addition, she gave to the defendant ten packets of iron sheets. The value of those iron sheets together with the sums of money paid to the defendant amounted to £G3,000. The plaintiff said the building was to be constructed according to a certain building plan which was tendered in evidence as exhibit [p.362] of [1972] 2 GLR 358 C. The building plan was made in the name of the plaintiff’s daughter, and the house to be built was to contain twenty rooms, ten rooms on the ground floor and ten rooms on the first floor. The plaintiff said the defendant did not construct the building according to the said building plan, exhibit C. The building constructed by the defendant contained only ten rooms, five rooms on each floor, and the constructional work was carried out so badly that the defendant was ordered by the building inspector at Nkawkaw to discontinue the work. The plaintiff then summoned the defendant to a meeting at which a Mr. Dodd and one Kofi Safo were present. At this meeting, the defendant was asked to construct the building properly but he refused to do so.Long before hearing of the case commenced, the district superintendent in charge of the maintenance section of the former G.N.C.C., a Mr. Osei, was on the application of the plaintiff appointed by this court to inspect the building and to submit his findings to the court in the form of a report. The said report was tendered in evidence as exhibit X. Mr. Osei did his inspection in the presence of the parties and their respective lawyers. He said he was never shown the approved building plan of the house in dispute. Neither was he shown any “specifications” of the building, such as the number of iron rods to be put in a column, lintols, beams, floors and the general composition of aggregate (the mixture of sand, cement and stones). These “specifications” should have been embodied in a separate document. In the absence of these “specifications,” Mr. Osei had to assess his findings in accordance with the accepted building regulations; and his report covered the physical aspect of the building as it stood at the time of the said inspection.
The building inspector at Nkawkaw, in whose area of supervision the building in dispute is situated, said the building was not put up in accordance with exhibit C. It may be noted that the permit granted in respect of the building plan, exhibit C, expired on 25 October 1964, and this witness admitted that there is no record in his office showing that the said permit was renewed, or that the time within which the construction was to be completed, as indicated in the said permit, was ever extended. Furthermore, there is no record showing that the set-up of the building, the excavations and the concrete foundations were inspected and checked by any building inspector. The defendant admitted that he entered into a written agreement to build for the plaintiff on the plaintiff’s plot of land at Abetifi, in the Eastern Region. But he denied that he was to build according to exhibit C. The defendant’s case is that he was a building contractor living at Agona Swedru. At one time he erected a building in that town, and the plaintiff, who was at the material time his paramour, was impressed by that building. So she requested him to construct for her a building of that type. The defendant agreed and they entered into a written agreement, exhibit A. He said it was a two storey building [p.363] of [1972] 2 GLR 358 which was to be erected and was to consist of five rooms on each floor, plus an outhouse. Because they were friends, he agreed to charge the plaintiff £G4,600, and this amount covered building materials only, and did not include his labour costs and profits.
The advance agreed upon to be paid by the plaintiff was £G3,000 which the plaintiff paid in bits with the result that he could not make bulk purchases and was overtaken by the budget of 1965-66 which increased prices of building materials. In the circumstances the defendant said he approached the plaintiff and told her that the budget had increased the prices of materials and she should pay him part of the balance of £1,600 to enable him to complete the building. But the plaintiff refused to accede to this request and there was some delay in completing the work. Attempts were then made by a Mr. Preko, who was one of the former ministers of state in the Nkrumah regime, to settle the dispute. The plaintiff was asked by the saidMr. Preko to agree to the defendant’s request and to provide more funds, but the plaintiff still refused. The settlement had not been concluded when the coup d’etat of 1966 took place and Mr. Preko was never heard of again. The defendant admitted that certain parts of the building were not properly constructed. He attributed this to the nature of the sand available in Abetifi area and which was used in the construction. He does not, however, admit some of the defects stated in exhibit X, the report of Mr. Osei. He said when the defects were pointed out to him by the building inspector, he explained why those defects had come about, and he offered to make good all those defects at his own expense. But the plaintiff drove his workmen away from the building site, and took the building plans from his foreman who was in charge of the construction.
This was followed by a letter from the said building inspector at Nkawkaw, asking him to put an end tothe constructional work. The defendant therefore contends that he never committed any breach of contract.
The first issue as set out in the plaintiff’s summons for directions is whether the defendant built according to the “specifications and regulations in the building permit.” This issue gives the impression that the defendant was given “specifications” and was under an obligation to construct the building according to those “specifications.” But from the evidence, I find that exhibit C was not the building plan given to the defendant for the construction of the house in dispute. The permit attached to exhibit C was issued on 25 October 1962 and in that permit it was specifically stated that the plan was valid up to 25 October 1964. The plaintiff failed to renew the said building permit. So that on 1 February 1965 when the parties entered into the agreement, exhibit A, there was no valid permit in respect of the building plan, exhibit C. There is no evidence that the building inspector, the defendant’s first witness, who according to him was visiting the building site, ever queried the plaintiff or the defendant for putting up a building in accordance [p.364] of [1972] 2 GLR 358 with a building plan whose permit had long expired. One would have expected such a query if in fact exhibit C was the building plan used in the construction of the building. In any case, in all his so-called visits to the site, the building inspector never complained about the rooms not being in accordance with the number of rooms specified in exhibit C. All his complaints were directed to the constructional defects and not that the rooms were inadequate. I believe that exhibit C had nothing to do with the building in question, and that the building plans agreed upon and used by the defendant for the construction of the building were in fact collected by the plaintiff from the defendant’s foreman when
the dispute arose. I will therefore attach no weight whatsoever to exhibit C. I also find that from the time foundations of the building were dug, and throughout the construction of the building, the plaintiff was paying regular visits to the site and she never at any time complained about the number of rooms being contrary to what was agreed upon, because she herself knew perfectly that the number of rooms, so far as the main building was concerned, was to be ten and not twenty. The report of the district superintendent, Mr. Osei, shows that the realistic estimated cost of this building of ten rooms was £G6,290 17s. 6d. excluding an amount of £G726 which is the estimated cost of the outhouse. The plaintiff wants this court to believe that the defendant undertook to erect such a huge building consisting of twenty rooms and an outhouse for the meagre sum of £G4,600. The agreement, exhibit A, does not indicate the number of rooms which the building should contain. It merely stated that the defendant was “to erect or build a residential storey building with outrooms.” So that if the agreement, exhibit A, were to be construed strictly, and without admitting any extrinsic evidence, it could mean that it was only a one storey, and not a two storey building, which the defendant was required to erect. I do appreciate that in some respects the language used in the said agreement is vague and not explicit. The plaintiff is an illiterate and the defendant looks like a semi-literate. In such cases, it is better to get to the true intention of the parties, not by following strictly the language used in the document, but by looking at the evidence as a whole, the situation of the parties, and also the surrounding circumstances.
In Manu v. Emeruwa [1971] 1 G.L.R. 442 at p. 445 it was held, inter alia, that: “Where all the parties to the agreement are illiterate, the court should not restrict itself to the words used in the document to determine the true nature of the transaction intended by the parties. It is the substance of the transaction, and not the form, which must be looked at. The oral evidence and the circumstances surrounding the agreement must also be considered so far as they tend to disclose the actual intention of the parties.”[p.365] of [1972] 2 GLR 358 Thus, considering the oral evidence side by side with the agreement, exhibit A, I find that it was intended that the defendant should construct a two storey building of ten rooms plus an outhouse, and I reject the plaintiff’s version that the building agreed upon was to contain twenty rooms. I now come to the question of “specifications.” It does appear that, hitherto, the defendant was not asked to build according to any “specifications.” The agreement does not make any such “specifications.” There is no evidence as to the type of building materials agreed upon to be used in the construction of the building. In fact, no evidence was led as to the constructional details, such as the type or the description of the walls, floors and so on. Mr. Osei, the maintenance officer of the defunct G.N.C.C., never based his report on any “specifications” which formed part of the agreement. It must be observed that counsel for the plaintiff on 23 June 1966 filed a document headed “plaintiff’s particulars of inspection of the building.” This document contains “specifications” and was filed in pursuance of the court’s order appointing Mr. Osei to inspect the building. However, the sources from which learned counsel for the plaintiff obtained those “specifications” were not disclosed in the evidence; and it will be most improper for the court to assume that the “specifications” as filed by counsel were the “specifications” the parties agreed upon. In the circumstances, I hold that the parties never agreed upon any “specifications.” It cannot therefore be said that the defendant erected a building contrary to any agreed “specifications.” My view of the matter is that the constructional details and the materials to be used were all left to the good sense and judgment of the defendant; and this is why I am inclined to believe the evidence of the defendant that the plaintiff agreed to have the type of building which the defendant had erected at Agona Swedru and which had impressed her so much. But, again there is no evidence as to the “specifications” used for the construction of that particular building at Agona Swedru, and it is therefore difficult to say that the defendant built contrary to those “specifications.”
The next issue is whether the defendant committed any breach of contract. It is worthy to note that right from the beginning the plaintiff herself did not intend to adhere strictly to the terms and the conditions stipulated in the agreement, exhibit A. One of the conditions of the agreement was that the plaintiff was to pay to the defendant a lump sum of £G3,000 as an advance. But the plaintiff chose to pay this amount in bits and over a period of about two months. She first paid £G1,500. Some time later she paid £G500. At another time she paid £G500 and at some other time she paid the remaining £G500. I think the manner in which she paid the £G3,000 was quite contrary to the terms and the spirit of the agreement. The defendant, according to exhibit A, was to complete the construction of the building [p.366] of [1972] 2 GLR 358 within six months from 1 February 1965. Yet payment of the advance, which was to be used, partly in paying labourers and partly in purchasing building materials to enable the construction of the building to start, was completed when two months out of the agreed six months had already elapsed. I therefore hold that the way the plaintiff paid the advance constituted a breach of contract on her part. She should have realised that the work was likely to be delayed if she delayed in the payment of the £G3,000. Having failed to perform her part of the contract in strict conformity with the terms of the agreement, it was inequitable on her part to expect the defendant to complete the building within the stipulated six months; and I have no doubt in my mind that the delay in paying the full advance of £G3,000 prevented the defendant from making bulk purchases before the reading of the 1965-66 budget, and which budget did increase the prices of building materials.It must then be considered whether it was reasonable for the defendant to demand from the plaintiff further sums of money after the plaintiff had paid the advance of £G3,000 and when the construction had not been completed. The plaintiff, in her reply paragraph (3), admits that the total cost of £G4,600, charged by the defendant for the whole building, did not include the contractor’s profits. In other words, the defendant was to erect the building for the plaintiff without gaining anything from the whole transaction. The said paragraph (3) of the reply reads as follows:
“In further answer to paragraph (2) (b) the plaintiff avers that the contract price of four thousand six hundred Ghana pounds (£G4,600) represents costs of materials and labour.” Having regard to this paragraph of the reply, and in view of the evidence, it appears to me that it was the intention of the parties that the plaintiff was to reimburse the defendant for any extra cost of building materials. This is more so when one considers that the plaintiff, on her own showing, knew that the whole contract price of £G4,600 agreed upon was to be used in purchasing building materials and in paying for the cost of labour, and no part thereof was to go to the defendant as profits. If this was not the understanding, it would have meant that the defendant, apart from charging nothing for his workmanship and gaining no profit whatsoever from the venture, was expected, on top of it all, to meet from his own pocket any increases in the prices of building materials during the construction. I therefore accept the evidence of the defendant that the intention of the parties was that the cost of any extra building materials was to be borne by the plaintiff and not by the defendant.
Of course, I am not unaware that the written agreement, exhibit A, did not contain any stipulation as to the party who was to bear the said extra costs. But I think this is one of the cases where extrinsic [p.367] of [1972] 2 GLR 358 evidence ought to be accepted in order to get to the true intention of the parties, and to the real terms of the agreement, especially as the plaintiff herein never objected to the said evidence when it was being led.
In Dua v. Afriyie [1971] 1 G.L.R. 260, C.A., it was argued, among other things, that the trial judge was wrong in admitting oral evidence of the actual sum lent as that evidence contradicted what was embodied in a document executed by the parties. Apaloo J.A. (as he then was) who read the judgment of the Court of Appeal said at p. 264 that:
“This contention is founded on no more than the trite rule of the law of evidence that, when a transaction has been reduced to or recorded in writing, either by requirement of law, or agreement of the parties, extrinsic evidence is, in general, inadmissible to contradict, vary, add to or substract from the terms of the document. But this well-known rule is subject to a number of exceptions. One such exception noted at p. 731, para. 1798 of Phipson on Evidence (10th ed.) is: ‘Extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document or entitles a party to any relief in respect thereof, notwithstanding that such evidence tends to vary, add to or, in some cases, contradict the writing . . . ‘ In this case, the respondents cannot avail themselves of the relief provided them either by the Loans Recovery Ordinance, (supra) or the Moneylenders Ordinance, (supra) unless they satisfied the court of the actual sum lent and the true interest charged. They did so by oral evidence to which no objection was taken or could have been validly taken. In my judgment, the parol evidence led, contradictory of the document, was legally admissible as an exception to the ‘extrinsic evidence rule.”
I am therefore of the opinion that, in the circumstances of this case, the oral evidence of the defendant that the plaintiff was intended to be responsible for the payment of any extra cost of building materials is admissible as an exception to the extrinsic evidence rule. So that when the prices of the building materials
were increased without the fault of the defendant, and the defendant asked for further advance, the plaintiff ought to have acceded to that request. Indeed, her refusal to pay the defendant part of the said balance of £G1,600 and her insistance that the defendant should complete the whole building with the£G3,000 was, to my mind, most unreasonable. I find it difficult to understand the conduct of the plaintiff, especially when the defendant was even prepared, not to charge extra but to bear himself the increase in the prices of building materials brought about by the said budget, and had at that time spent about £G500 over and above the £G3,000 which the plaintiff had paid.
Be that as it may, I find that despite the financial difficulties and the plaintiff’s unreasonable conduct, the defendant did not abandon [p.368] of [1972] 2 GLR 358 the construction of the building. He did not refuse to continue working on the building. It was rather the plaintiff who in fact drove the defendant’s workmen from the building site and collected the building plans from the defendant’s foreman. This was a clear indication or notice to the defendant that she did not want the defendant to continue the work. In building contracts, such as the one under consideration, the contractor is entitled to uninterrupted possession of the site for the purpose of carrying out the works in the contract: See Halsbury’s Laws of England (3rd ed.), Vol. 3, p. 442, para. 836. Thus, the driving away of the workmen of the defendant from the building site amounted to a repudiation of the whole contract by the plaintiff, and the defendant, in those circumstances, was entitled to treat the contract as discharged by the said breach.
It was after the workmen had been forced to go away from the site that the letter, exhibit D, dated 11 May 1966 was written to the defendant by the district superintendent of G.N.C.C., disrecommending the continuation of the construction. I am therefore of the view that failure to complete the building was not due to the default of the defendant. It was rather the plaintiff who made it impossible for the defendant to complete the work; and the defendant was therefore excused from the consequences of not completing the building. Since the defendant cannot be held to have breached any of the conditions of the agreement, the plaintiff is not entitled to the rescission of the contract. Her claim for the recovery of the sum of ¢6,000.00 must therefore fail.
It seems that the substantial part of the house had been constructed at the time the defendant was driven away from the building site; and according to the report, exhibit X, submitted by Mr. Osei, there were certain parts of the building which were defective. But I think those defects amounted only to negligent performance of the contract. That is, the existence of those defects did not amount to abandonment or a refusal by the defendant to perform his part of the contract. It simply showed negligence in the way in which he did the work. Some of those defects may seem serious, but it was stated in the report, exhibit X, that they could be rectified. Mr. Osei made it abundantly clear that there is no necessity to pull down the building. He summarised his conclusions in the manner as follows: “If the contractor can replace the balcony including the columns and recast the floor above instal lintols above every door and window and put in a binding course it will make the building good and sound for habitation.”
In the course of his evidence under cross-examination, Mr. Osei said he stood by what he said in his report, exhibit X. He again emphasized that the defects which he found could be corrected. He said, “The defects which I saw on the building could easily be corrected; and I stand by everything I said in my report. I should remark that [p.369] of [1972] 2 GLR 358 it is over six years since the building was constructed, and after all these years, the building is still standing, despite those defects. This by itself is, indeed, an eloquent testimony that the defects can be rectified, and the question of demolition cannot arise. I therefore hold that the claim for the ¢1,800.00,being the so called estimated cost for demolition, is also misconceived.
The plaintiff, however, is entitled to general damages for the defendant’s negligence in carrying out the work, and the measure should be the amount which the plaintiff will incur in rectifying the said defects.
Nevertheless, I am of the view that the said amount should be assessed as at the time the plaintiff unlawfully terminated the agreement. It was her own fault that the defendant could not correct those defects in 1966. What is more, the plaintiff, after driving away the defendant from the site, should have set to work on the building within a reasonable time and in a reasonable manner, and to put aright an those defects. I do not think the plaintiff was entitled to delay for all these years, watching prices of building materials go up, and then charge the defendant with the increased prices.
Unfortunately, however, there is no evidence as to how much it would have cost in 1966 to rectify the defects. The plaintiff claimed ¢2,200.00 as general damages, and having regard to the circumstances of this case, I think the ¢2,200.00 should be a fair and reasonable amount to compensate the plaintiff for the cost of correcting the said defects.
I will now deal with the defendant’s counterclaim. According to the defendant, the value of work he had done at the time he was compelled to leave the building site was £G4,380, and he is therefore counterclaiming the sum of £1,380, being the difference between the advance of £G3,000 and the said £G4,380. But exhibit 1, tendered in support of his counterclaim, showed that the total value of the work executed by him was £G4,075 4s 0d. and not £G4,380. No evidence was led to explain this apparent conflict. There is no doubt that the person who inspected the building and made exhibit 1 is a highly qualified quantity surveyor. But, unlike Mr. Osei, that quantity surveyor was not called as a witness in order to throw more light on the contents of exhibit 1 and also to give opportunity to the plaintiff to cross-examine him on the said exhibit 1. Again, there is no evidence that the said quantity surveyor conducted his inspection of the building in the presence of the plaintiff, or that he prepared exhibit 1 with the consent of both parties, as in the case of exhibit X.
I will not therefore attach any weight to exhibit 1. I prefer the estimate made by Mr. Osei who was appointed by the court on the application of the plaintiff and with the consent of the defendant. Consequently, I accept also the portion of exhibit X which shows that the value of the work which the defendant spent over and above what the plaintiff advanced to him was £G500. [p. 370] of [1972] 2 GLR 358
The present Case is a contract to build for a lump sum of £G4,600. The building was not completed. But in view of my finding that non-completion was due to the plaintiff’s own default and to her undue interference, is the defendant entitled to recover this £G500, despite his negligence in carrying out the constructional work on certain parts of the building? The fact that the building owner has received something almost as good as what he bargained for will not entitle the contractor to recover the contract price, if the completion of the entire contract is a condition precedent to the right to payment, except where there has been a waiver or where there has been acceptance by the building owner of a new contract to pay for the work actually executed. In Appleby v. Myers [1861-1873] All E.R. Rep. 452 at p. 455 Blackburn J. said:
The opinions of the greatest lawyers collected in the Digest afford us very great assistance in tracing out any question of doubtful principle, but they do not bind us, and we think that, on the principles of English law laid down in Cutter v. Powell (1795) 6 T.R. 320, Jesse v. Roy (1834) 1 Cr.N. & R. 316, Munro v. Butt (1858) 8 E. & B. 738, Sinclair v. Bowles (1829) 9 B. & C. 92, and other cases, the plaintiff, having contracted to do an entire work for a specific sum, can receive nothing unless the work be done, or it can be shown that it was the defendant’s fault that the work was incomplete, or that there is something to justify the conclusion that the parties have entered into a fresh contract.” The case of Forman & Co., Proprietary, Ltd. v. The Liddersdale [1900] A.C. 190, P.C. may here be mentioned. In that case Lord Hob-house reading his judgment in the Privy Council observed at p. 202 that:
“In the case of Appleby v. Myers L.R. 2 C.P. 651 Lord Blackburn mentions two conditions under which a contractor for a lump sum who has not performed the stipulated work can recover something under his contract. He can do so if he has been prevented by the defendant from performing his work, or if a new contract has been made that he shall be paid for the work he has actually done.”
See also the case of Wheeler v. Stratton (1911) 105 L.T. 786 and the instructive judgment of Collins L.J. in Sumpter v. Hedges [1898] 1 Q.B. 673, C.A. I am therefore of the opinion that where complete performance of the building contract was impossible owing to the default of the building owner, the contractor will be entitled to recover, at least, what he has spent on the building over and above the amount which the building owner has paid to him. In the instant case, it was the conduct of the plaintiff that made complete performance of the contract impossible, and the defendant is entitled, under the circumstances, to claim from the plaintiff the said ¢1,000.00 subject, of course, to deduction for reasonable cost of making the work perfect. [p.371] of [1972] 2 GLR 358
In H. Dakin & Co. Ltd. v. Lee (1916) 84 L.J.K.B. 2031 at pp. 2034-2035, Cozens-Harding M.R. in the course of his judgment had this to say:
“But to say that a builder cannot recover from a building owner merely because some item of the work has been done negligently or inefficiently, or improperly, is a proposition which I certainly should not be prepared to listen to for a moment, unless I was compelled to do so by a decision of the House of Lords. I regard the present case as one of negligence and bad workmanship, and not as a case where there has been an omission of any one of the items in the specification …and I suppose the defects are due to carelessness on the part of some of the workmen or of the foreman; but the existence of these defects does not amount to a refusal by them to perform part of the contract; it simply shows negligence in the way in which they have done the work.”
The Court of Appeal then came to the unanimous conclusion that the defendant in that case was bound to pay for the work done by the building contractors less the cost of putting right the defects. This case of H. Dakin & Co. Ltd. (supra) was referred to with approval in the case of Hoenig v. Isaacs [1952] 2 All E.R.176, C.A.
However, since in the present case, I have already held that the plaintiff is entitled to general damages of¢2,200, which I think should be adequate compensation for the said defects, the defendant should recover the whole of the £G500 (¢1,000.00). In the result, judgment will be entered for the plaintiff for the sum of ¢2,200 with costs of ¢400.00. On the counterclaim, the defendant will be entitled to judgment for ¢1,000.00 as against the plaintiff with costs assessed at ¢100.00.
DECISION
Judgment for the plaintiff in part.
Judgment for the defendant on the counterclaim.
- O.
