IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO - ABUJA

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1 IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO - ABUJA BEFORE: HON. JUSTICE O.C. AGBAZA COURT CLERKS: UKONU KALU & GODSPOWER EBAHOR COURT NO: 23 BETWEEN: 1 SUIT NO: FCT/HC/CV/1238/10 1. MESSRS BUBA ATIKU TOBI ENT LTD 2. ALHAJI AMINU BUHARI...PLAINTIFF AND 1. STANDARD CONSTRUCTION LTD 2. ALHAJI AMINU BUHARI (Sued as Managing Director Standard Construction Ltd)... DEFENDANTS JUDGMENT The Plaintiff commenced this suit by a Writ of Summons filed on 30/3/2010. The pleadings of the parties are:- (1) The Plaintiff s Amended Statement of Claim by order of court dated 1/6/2011. (2) The Defendant s Joint Statement of Defence and counter claim of 1 st, 2 nd Defendant dated 29/6/2010. (3) The Plaintiff s reply to the Joint Statement of Defence of 1 st & 2 nd Defendant dated 6/1/2011. In Paragraph 27 of the Amended Statement of Claim, the Plaintiff claims the following reliefs:-

2 (i) A liquidated sum of N4,687,965.70k (Four Million, Six Hundred and Eight Seven Thousand, Nine Hundred and Sixty Five Naira, Seventy kobo) only, being debit owed him for clearing 39,801 hectares of farmland at Yangoji Kwali in Kwali Area Council, Abuja. (ii) The sum equal to 21% interest on the outstanding contract sum calculated from 15 th July 2008 when the first 3 hectares became due for payment till 6 th November 2008 when he stopped work at the contract site. (iii) The sum equal to 15% interest on the outstanding contract sum calculated from the date of filing this suit to the date of judgment is entered on the same and thereafter, the sum equal to 10% interest on the outstanding contract sum to cover period from any such date of judgment in this suit to the date the judgment sum is liquidated. (iv) The sum of N1,000, (One Million Naira) only as general damages for breach of contract. (v) The cost of this suit assessed at N100, (One Hundred Thousand Naira) only. The Defendants counter-claimed against the Plaintiff s as follows:- (1) The sum of N5,000, (Five Million Naira) general damages for the breach of the contract by the Plaintiff. (2) Cost of proceedings. The Plaintiff testified through one witness and tendered exhibits, while the Defendants also called one witness in proof of their case. 2

3 The Plaintiff witness, Samuel Ojeka, the General Manager of the Plaintiff testified as PW1. He deposed to a 34 Paragraph Witness Statement on Oath dated 10/5/2009. The evidence of the PW1, is that the Plaintiff is a business concern registered with the Corporate Affairs Commission and, is in involved in general contracts that sometimes on the 18/10/2007, by a Letter of Contract Award with Reference No. SCA/4018/MD/KAI/10/2007, Exhibit A the 1 st Defendant through the 2 nd Defendant approved and signed the said contract to clear 10,000 hectares of farmland at the contract site. He said prior to this contract the Plaintiff has had dealings with the Defendants over clearing contract which was executed and paid for. He stated that the scope of work is to be determined by the expense of land covered and which must not be below 500 hectares. He stated in consideration for the work, the Plaintiff is to be paid N90, per every one hectare of land cleared and that payment shall be made upon completion of each 36 hectares covered out of 10,000 hectares farmland. He stated that at a meeting of the parties, it was agreed that the Plaintiff should also Windrow the cleared hectares of land for the sum of N35, (Thirty Five Thousand Naira) only per a Windrowed hectare of land, which resulted to a total sum of N125, (One Hundred and Twenty-Five Thousand naira) only. He stated that in compliance with the contract award valuation certificate was issued by the Defendants site engineer for work completed. The job valuation certificates are dated 10/4/2008, 7 th May 2008 and July 2008 as Exhibit D 1 3, F He stated that the total work done was 39,837 hectares out of 10,000 hectares which Amount to N4,979, at the contract rate of N125, per hectare. He stated after several demands, the Defendant paid the sum of N291,659.30, which is not up to 10% of the total amount owned. He stated that despite repeated demands for payment based on the joint valuation of work done, the Defendant still refused to pay the outstanding balance due. He stated that they are not aware of any valuation committee set up by the Defendant and were never invited by the committee for any verification. He stated that it was a result of the failure of the Defendant to pay in line with the contract award letter Exhibit A, which made them to pull out of the site. He stated that the Defendant have still refused to pay the outstanding despite repeated demands and visit to their office. 3

4 The Plaintiff witness tendered the following documents in evidence. (1) A letter Titled Contract for the clearing of 10,000 hectare farmland at Kwali dated 18/10/2007 as Exhibit A. (2) A photocopy of a cheque issued in favour of the Plaintiff for N1.155 Million and dated 15/3/2008 marked Tendered but rejected. (3) Certificate of Registration of Business Name and form CAC/BN/A1 as Exhibit B & C. (4) Valuation Report Titled Prime soil Farmland and Development Project, Daily Production Chart, Valuation No. 2 as Exhibit D 1-3 (5) A copy of Bank PHB cheque dated 13/3/2009 for the sum of N291,659.30k in favour of the Plaintiff as Exhibit E. (6) A copy of Letter Titled Submission of Valuation Certificate No. 2 dated 18/6/2009 as Exhibit F Under cross-examination, the witness admitted the existence of Exhibit A and that it is the binding document between the parties. He maintained that the Exhibit A terms includes clearing, Ploughing and Harrowing. He admitted that there was no agreement for 21% - 15% charge in the Exhibit A. On Exhibits D and F, he stated that the work was completed before the valuation certificate was issued. He maintained that the valuation certificate was issued by the Defendant s Site Engineer. He maintained that the valuation certificate Exhibit D 1-3, F 1-15 were not fabricated or unreliable. The Defendants testified through Banjo S. Olukayode, Deputy Manager, Contract Admin Department and stated that a contract for clearing was awarded to the Plaintiff through Exhibit A and based solely on the Terms of the said contract. He stated that it was agreed by the Terms, that payments was on weekly basis upon the clearing of 12 Hectares and 4

5 with a valuation report jointly signed and endorsed by the parties. He stated that the Plaintiff did not commenced work until 9/3/2008, five (5) months after acceptance. He stated that the amount of work quoted for the Hectare cleared at N90, (Ninety Thousand Naira) is not correct, rather was inflated, through collusion with the ad-hoc staff of the Defendants. He denied the existence of any joint endorsement of the valuation or completion of certificate issued. He stated that a committee was set up by the Defendants to verify the work. He stated that the sum of N291, (Two Hundred and Ninety One Thousand Six Hundred and Fifty Nine Naira Thirty Kobo) was paid in the face of the dispute over the exact hectares executed and that the Plaintiff never made any further request for payment nor continued work. He stated that it was the Plaintiff that breaches the contract. Under cross-examination, stated that the 2 nd Defendants is the M.D of the 1 st Defendant. He agreed that he is aware of the contract. He admitted that the contract was drawn at their Abuja office. He admitted that it was the duty of the site engineer to present a jointly endorsed valuation certificate and forward same to their Head-office for further action. He admitted that this processes were followed. He admitted that it is expected that a minimum of 12 Hectares must be cleared. He admits that job was done at the site by the Plaintiff. He maintained that there was no joint valuation. At the close of trial, learned counsel for the Defendant, Abdul-hamid Mohammed filed a Final Written Address on 10/8/2012 and formulated three (3) issues for determination, namely:- (1) Whether the Plaintiff is competent to sue the 1 st, 2 nd Defendants being agents of a disclosed principal. (2) Whether the Plaintiff has proved his case against the Defendants. (3) Whether the Defendants established or proved their counter-claim against the 5

6 Plaintiffs, And upon receipt of the Plaintiff Final Address, filed reply on point of law, dated 23/10/2012. Eyare J. Ogar, learned counsel for the Plaintiff, filed a final written address on 20/9/2012 and formulated 3 (three) issued for determination, namely:- (i) Whether the Defendant contracted the Plaintiff to clear and windrow Hectares of cleared farmland at Yangoji in Kwali Area Council, Abuja. (ii) Whether in considering the circumstances of the case, the Plaintiff is entitled to the reliefs sought and contained in the Statement of Claim. (iii) Whether given the circumstances surrounding the case, the Defendant is entitled to the relief sought per his counter-claim. Having carefully considered the pleadings, evidence and the submission of both counsel, it is the finding of the court that there are four issues for determination namely:- (1) Whether or not it is competent for the Plaintiff to sue the 1 st, 2 nd Defendants in the instant suit. (2) Whether there was a binding contract agreement between the parties. (3) Whether the Plaintiff in the face of the evidence is entitled to any of the reliefs based on the contract. (4) Whether or not the Defendant has made out a case entitling them to the reliefs sought in their counter-claim 6

7 On issue 1, it is the evidence of the Defendant at Para 5 of the Witness Statement on Oath, that the contract was sub-contracted to the Plaintiff s by the Defendant, the main contractor being Prime Soil Ltd. On the other hand the Plaintiff by their Para 3 of Amended Statement of Claim acknowledged that they are contractors to the 1 st Defendant, subcontracted by the 2 nd Defendant on behalf of the 1 st Defendant. In line with this piece of evidence, the Defendant counsel, submits that this is sufficient information to the Plaintiff that the Defendant were merely an agent to a disclosed principal, therefore not the proper parties to be sued relying on the principle of law that an agent acting on behalf of a disclosed principal is not liable for his acts of agency, that only the Principal should be liable. Referred the court to the cases of Atuguba Co Vs Gura Nigeria Ltd 21 NSCQR, 720 and Vassiler Vs PAAS Industries Nigeria Ltd & ors (2000) 12 NWLR (PT. Pg 347. The Plaintiff counsel in line with the evidence of the PW1, submits that the assertions of the Defendant was not supported by any evidence nor lay any proof of this facts in its averments before the court. That it is trite that he who asserts must prove, this the Defendant have failed to do. Further, that the Exhibit A, the contract award were expressly headed with the name of the Defendant and that it is the binding document between the parties and never expressed any third party interest. Therefore, is not an occasion that the law of principal and agent would apply? Also, submits that the payment of the sum N291, (Two Hundred and Ninety One Thousand, Six Hundred and Fifty Nine Naira Thirty kobo) was made by the Defendant and not on behalf of a third party. Granted that it is trite law that an agent acting on behalf of a disclosed principal is not liable for his acts of agency. That party alleging, has a duty to discharge that burden. It is trite that he who access must prove see section 132 of Evidence Act and the case of NWAWU & Ors Vs Okoye & or (2008) 7 12 SC. Clearly from the evidence of both DW1 and PW1, does not reveal any disclosure to the knowledge of the Plaintiff that the Defendants were acting for a third party, is a disclosed principal. It is further noted that the Exhibit A, the contract of award, which is the operating document upon which the parties rely on for the basis of the contractual agreement, did not state the position alleged 7

8 by the Defendant. This court on the basis of these facts is not persuaded by the submission of the Defendant to the fact that they acted as Agents to a disclosed principal. Accordingly, unable to find that indeed the Defendants are agents to a disclosed principal, therefore not the proper party to be sued, this issue 1, therefore fails and is resolved against the Defendants. On issue II, whether there is a binding contract between the parties. It is the evidence of both the PW1 and the DW1, by Para 8 10 of the PW1 s deposition and Para 5 of the DW1, deposition, that the relationship of the parties is found on an award of contract letter dated 18 th October 2007, for clearing of farmland at Yangoji, in Kwali Area Council, Abuja. The said contract award letter was received in evidence as Exhibit A. This document is the basis of the contractual agreement between the parties and the ground upon which this suit is hinged on. The existence of the Exhibit A as the basis of their contractual relationship was never disputed, in effect admitted by both parties in this suit. It is trite law that facts admitted need no further proof. ALLI VS ALBASAHIR (2008) ALL FWLR (PT. 415) P What is in dispute is the performance of the terms of the contract as contained in Exhibit A. This led me to the issue 3, for consideration. On issue 3, whether the Plaintiff in the face of the evidence is entitled to any of the reliefs based on the contract. It is the evidence of the PW1,that upon the grant of Exhibit A Contract Award Letter No: SCA/4018/MD/KAI/10/07 dated 18/10/2007, Titled Contract for the clearing of 10,000 Hectares of Farmland at Kwali, they entered the site with their workmen and equipments and started work and that payment was to made upon completion of each 36 Hectares covered out of the 10,000 Hectares at the agreed sum of N90, after three weeks, subject to valuation and endorsement of same by the Defendants. The PW1 contended that they had series of meeting for increase of the contract sum from N90, and as a result was increased to N125, PW1 stated that in 8

9 performance of the contract, executed a total of hectares and the Defendant issued job satisfaction certificate, Exhibit D 1 3 and F And consequent upon demand, the Defendants paid the sum of N291, (Two Hundred and Ninety One Thousand Six Hundred and Thirty Nine Naira Thirty kobo) only, an amount which was less than 10% of the contract sum. Finally that consequent upon the failure to pay the outstanding in accordance with the terms of the contract and after several visit to the Defendant office, pulled out of the site on 6/11/2008. PW1 contained that the total sum of the work done at Hectares is N4,979, (Four Million, Nine Hundred and Seventy Nine Thousand, Six Hundred and Twenty-Five Naira Seventy Kobo) at the rate of N125, and after deduction of the N291, (Two Hundred and Ninety One Thousand Six Hundred and Fifty Nine Naira Thirty Kobo), the amount owed to the Plaintiff by the Defendants is N4,687, (Four Million, Six Hundred and Eighty Seven Thousand, Nine Hundred and Sixty Five Naira, Seventy kobo). In line with the evidence of PW1, learned counsel for the Plaintiff, contend in his submission that the Plaintiff had carried out their part of the contract in accordance with the Exhibit A, which includes harrowing and ploughing, which the Defendant alleged is not part of the contract. It is the submission of counsel that the Plaintiff has proved their case on the balance of probabilities both under examination in-chief and cross examination, to the extent that the Defendant paid the sum of N291, (Two Hundred and Ninety One Thousand Six Hundred and Thirty Nine Naira Thirty kobo) for work done in respect of 39,837 Hectares cleared. Further, that the act of payment by the Defendants is not in accordance with the contract agreement Exhibit A and therefore are in breach of the agreement. On the issue of interest cleared, submits that the transaction being one of commercial nature, the Plaintiff is entitled to the interest claimed on the outstandings on 21% and 15% respectively. Referred to court to the case of Kano Textile Printers Plc Vs Tukur (1999) 2 NWLR (PT. 589) 84. 9

10 On the issue of damages, submits that consequent upon the breach of contract by the Defendant, the Plaintiff is entitled to damages. Referred to Nadaim Chagoury & 1 Vs Ibrahim Yakubu (2006) 3 NWLR (PT. 966) Pg 143. The Defendant through DW1, contend in evidence, that the Plaintiff did not comply with the terms of contract in its performance, therefore is in breach of the terms of the contract. The Defendant denied issuing any certificate for jobs competition to the Plaintiff. DW1, contend that the amount paid to the Plaintiff was in error, because upon verification, it was discovered that the Plaintiff is not entitled to the amount. In line with this evidence, Defendant counsel submits that the Plaintiff has failed to proffer credible evidence to entitled them to judgment in line with the provisions of Section (1) of the Evidence Act 2011 that the terms and conditions of the contract are clear and unambiguous and that the Plaintiff have failed to comply with the terms. That parties are bound by the terms of their contract. Further submits, that the Plaintiff failed to show evidence of variation of the contract sum as alleged by them either by oral evidence or documentary evidence. Referred the court to the following authorities Kayode Ventures Ltd Vs Min FCT (2010) 7 NWLR (PT. Pg 176; Obajimi Vs Adediji (2008) 3 NWLR (PT. Pg 4, Jolasun Vs Bamboye ( NWLR (PT. 1225) Pg 293; Mobil Production (Nig) Unlimited Vs Umenweke (2002) 9 NWLR (PT On the issue of interest submits that the Plaintiff is not entitled, especially as it is not based on the terms of the contract and referred the court to the following authorities. DANIEL HOLDINGS VS UBA (2006) 133 LRCN Pg 161; NIGERIAN DYNAMIC LTD Vs IBRAHIM (2002) 8 NWLR PT.768 Pg 96 P.P. Madus Nigeria Limited Vs Roads Nigeria Plc (2011) 2 NWLR (PT. (PT. 1230) Pg 91. On the issue of damages, submits that the claim must flow from the consequence of the act complained of. Referred to U.A.C. Nig. PLC Vs Madam Irole (2002) FWLR (PT. 113) and Yahaya Vs Chukwura (2002) FWLR (PT. 87)

11 On the issue of cost of the action, submits that it is trite law that this claim for legal fees is unfounded in law. Referred to case of Christopher Nwanji Vs Coastal Service (Nig) Ltd (2004) 11 NWLR (PT. 855) Pg 552 and Guinness Plc Vs Emmanuel Nwoke (2001) 15 NWLR (PT. 689) Pg 135. For easy of reference, I have had to reproduce the deposition of both the PW1 and DW1. AMENDED WITNESS STATEMENT ON OATH OF MR. SAMUEL OJEKA, GENERAL MANAGER OF MESSRS BUBA ATIKU TOBI ENTERPRISES 1. Samuel Ojeka, Male, Adult, Christian, a Nigerian Citizen and General Manager of Messrs Buba Atiku Tobi Enterprise, opposite Town Hall Round about Suleja Niger State, do hereby make this Oath and state as follows:- (1) That I am the General Manager of MESSRS BUBA ATIKU TOBI ENTERPRISES (hereinafter referred to as the Plaintiff) in this suit. (2) That the Plaintiff is a Limited Liability Company registered with the Corporate Affairs Commission of Nigeria, and carries on the business of General contractor with its head office at Opposite Town Hall Round about Suleja Niger State. (3) That the Plaintiff is a contractor to the 1 st Defendant, sub-contracted by the 2 nd Defendant on behalf of the 1 st Defendant to clear 10,000 hectares of farmland in Yangoji, Kwali Area Council, Abuja. (4) That the 1 st Defendant is a Limited Liability Construction Company specialized in vertical and horizontal construction works with its Abuja office at Plot 766 Mubushi District (After V.I.O. Office) Abuja. (5) That the 1 st Defendant is the company which actually got the contract from Aso Savings & Loans and sub-contracted same to the Plaintiff amongst other contractors. (6) That the 2 nd Defendant is the Managing Director and alter ego of the 1 st Defendant whose duty includes taking major decisions on behalf of the 1 st Defendant, and who actually contracted the clearing work of Plaintiff on behalf of the 1 st Defendant. 11

12 (7) That the 2 nd Defendant at all material time to this transaction, dealt with the Plaintiff directly and acted on behalf of the 2 nd Defendant. (8) That the 2 nd Defendant approved and sign the Contract Award Letter issued to the Plaintiff by the 1 st Defendant. (9) That sometime in 2007, precisely on the 18 th day of October 2007, the 1 st Defendant subcontracted him (Plaintiff) to clear the farmland mentioned in Paragraph 3 above. (10) That further to paragraph 9 above, the 1 st Defendant issued him with a Contract Award Letter No. SCA/4018/MD/KAI/10/07 was issued to the Plaintiff on the 20 th May Attached as Exhibit BAT 1 is the Contract Award Letter. (11) That going by the spirit and intent of the Award Letter issued to him, he is to clear 10,000 hectares of farmland at the contract site to the satisfaction of the Defendants. (12) Plaintiff avers that prior to this contract (the subject matter of this suit). He had earlier executed a clearing contract on the same terms and at the same location with the present contract where he had been paid his complete contractual amount of N2,785, (Two Million, Seven Hundred and Eighty Five Thousand Eight Hundred and Sixty Naira) in two cheques. Attached as Exhibit BAT 2a and 2b are the Intercontinental Bank Plc cheque and Aso Savings and Loans Plc cheques. (13) That at the work site, there were other who were sub-contracted by the Defendants, but that the (Plaintiff s) operation was independent of others on site. (14) That going by the Award Letter, the scope of work was to be determined by ability to work and the level of mobilization or expenses of land covered of the 10,000 hectares farmland provided that the area cleared by him is not bellow 500 hectares. (15) That further to the spirit and intent of the Contract Award Letter, the (Plaintiff) was to provide all plants, equipment, lubricants, personnel and all other 12

13 preliminary items including security necessary for the performance of the contract work. (16) That in consideration for clearing the farmland, Plaintiff is to be paid the contract sum of N90, per every hectares of land cleared. (17) That although payment for every one hectares cleared is N90,000.00, It was agreed in the Contract Award Letter that payments for work done shall be made on the completion of each 36 hectares covered out of the hectares farmland. (18) That further to paragraph 16 above, payments for every 36 hectares cleared shall be made after three weeks following such completion and subject to valuation and endorsement of same by the Defendants. (19) That immediately he was issued with the Award Letter, and after indicating acceptance by signing the acceptance column of the Award letter, he swung into action by mobilizing all resources required and aggressively commenced work. (20) Plaintiff states that at the time he was offered the contract, he had several meetings with the Defendants to the effect that should increase the amount paid for the clearing of the farmland per hectare. As a result, the amount paid per hectare of cleared land was increased from N90, (Ninety Thousand Naira to N125, (One Hundred and Twenty Five Thousand Naira) only. (21) That he cleared out or executed the contract according to specification and that each Unit hectares (the number of hectares completed at any particular time) completed by him were valuated by the Defendants through their site agents and or Engineers and certificate of job satisfaction were issued to him accordingly. (22) That further to paragraph 19 above, valuation of job and issuance of job satisfaction certificates was perfected by the Defendants and issued to him at intervals indicating the size of hectares he had covered as follows:- (i) 13,586 hectares (clearing) issued on 10 th April 2008 to Messrs Buba Atiku Tobi Enterprises. 13

14 (ii) (iii) hectares (Clearing) issued on 7 th May, 2008 to Messrs Buba Atiku Tobi Enterprises hectares (Clearing) issued on July, 2008 to Messrs Buba Atiku Tobi Enterprises. Attached as Exhibits BAT 3a to c are the job satisfaction certificates. (23) That he has covered (satisfactorily completed cleared) hectares out of the 10, hectares contract farmland which amounts to the sum of N4,979, (Four Million, Nine Hundred and Seventy-Nine Thousand Six Hundred and Twenty- Five Naira) at the contract rate of N125, per hectare. (24) That upon several demands by him on the Defendants, he (Plaintiff) was paid only N291, which was not up to 10% of the total amount owed him. Attached as exhibit BAT 4 is the Bank PHB cheque for the payment. (25) That the sum of money being owed him by the Defendants for clearing 39,837 hectares is N4,979, (Four Million, Nine Hundred and Seventy-Nine Thousand, Six Hundred and Twenty Five Naira) and that when the sum of N291, is deducted the total contract sum now being owed him by the Defendants is N4, 687, (Four Million, Six Hundred and Eight- Seven Thousand Nine Hundred and Sixty Five Naira, Seventy Kobo) (26) That in order to facilitate the contract work, he had at the on set approached a Bank and secured some loan facilities from them, and that consequent upon the non payment of the contract sum, he has become grossly indebted to the said bank. (27) That though the Contract Award Letter provides that payment shall be made at the competition of each 36 hectares. The Defendants neither complied with the 36 hectares payment arrangement nor did they see fit to pay him on a cumulative stance. (28) That as a result of the blatant refused by the Defendants to pay him in accord with the Award agreement and gross failure to pay him on a cumulative stance, he (Plaintiff) had to stop work on the contract site on the 6 th day of November 2008 since no payment was forth coming. 14

15 (29) That since a year and six months now when the contract became due, he has been going to the Defendant s office in Abuja and demanding for payment of some to no avail. (30) That I depose to this Oath in good faith believing same to be true and correct and in accordance with the Oaths Act, WITNESS STATEMENT ON OATH OF BANJO. S. OLUKAYODE (1) That I, Banjo S. Olukayode Male, Adult, Nigerian citizen working as Assistance Manager Contracts with the 1 st Defendant of Plot 766 Mabushi behind V.I.O. Office, Mabushi Abuja do thereby make Oaths and state as follows:- (2) That the Plaintiff is a Limited Liability Company however, the Plaintiff is a registered business name and is trading under the name and style of the Plaintiff. (3) That the Plaintiff contract of clearing farmland of the Defendants site in Yangoji Kwali Area Council Abuja to subject to terms and conditions in the award letter. (4) That the 2 nd Defendant is not the alter ego making decisions for and on behalf of the 1 st Defendant. The Board of Directors of the 1 st Defendant took decision on behalf of the 1 st Defendant. I further states that the contract referred in paragraph 15 of the Plaintiff Statement of Claim was based on different terms and conditions and that the 1 st Defendant paid the Plaintiff because the Plaintiff had perform the contract in accordance with the terms and conditions of the earlier contract. (5) That though a contract of clearing was awarded to the Plaintiff, it was based on selection by the 1 st Defendant upon the application of the Plaintiff and the contract was solemnly based on terms and conditions as stipulated in the letter of award dated 18 th October The Defendants states that the contract which the Defendants sub-contracted to the Plaintiff was awarded to the Defendants by Prime Soil Limited worth Billions of Naira. The Defendants have been demanding for payment from Prime Soil Limited who refused to pay up till now. The letter of demand of the Defendants to Prime Soil Ltd dated 18 th June 2008 will be relied at the trial. 15

16 (6) That the clearing agreement was to be paid on weekly basis upon the Plaintiff clearing a minimum of 12 Hectares and of valuation made and jointly signed or endorsed by both parties i.e. Plaintiff and the Defendants staff (the contracts manager). (7) That the Plaintiff did not commenced work at the site until the 9 th day of March 2008 (Five) 5 months after the acceptance of the contract by the Plaintiff. (8) That once a contract is being carried out, as agreed, it is not the attitude of the Defendants to refuse nor delay payment of any valid executed contract by the 1 st Defendant sub-contractors. (9) That the Plaintiff did not complied with the terms and conditions of the contract award letter which seriously caused the Defendants loss and damages. That as a result of the non-performance according to specification and terms of the contract, the Defendants did not issue any certificate(s) of job completion to the Plaintiff. (10) That the sum calculated by the Plaintiff is not true figure/price for the Hectares at N90, (Ninety Thousand Naira only). That after the Plaintiff abandoned the site, the Defendants states that they were misled into paying the sum by the Plaintiff. Upon further verification of the total number of hectares carried out by the Plaintiff, the Defendants discovered that the Plaintiff was not entitled to such payment because: (a) (b) (c) (d) There was inflation of number of hectares carried out as shown in the valuation. There was collusion with the ad hoc staff of the Defendants to misrepresent or inflate the actual work That no joint endorsement of the valuation of the alleged work done on the site and no completion certificate issued. A committee was set up by the Defendants to verify the work done in the site and the valuation lacked any justification and the Defendants passed vote of no confidence on the valuation. 16

17 (11) That the Plaintiff breached the terms of the contract awarded and abandoned the site after the work of 17 th day of June (12) That because of the dispute on the exact hectares executed the Defendants paid the sum of N291, to the Plaintiff. The Plaintiff has never continued the work nor demand for any payment further thereafter. The Plaintiff misled the Defendants into paying the N291, (13) That the suit of the Plaintiff is speculative abuse of court process lacking in reasonable cause of action and mischievous and ought to be dismissed with substantial cost. (1) That I hereby repeat all the evidence contained in paragraph 1 14 of the Joint Statement of Defence of the Defendants. (2) That the awarded contract which the Plaintiff accepted stipulated that, the Plaintiff shall clear a minimum of 12 hectares per week and also payments are on weekly basis coupled with a preparation of a jointly endorsed valuation by the parties, Plaintiff and the Defendant. (3) That the endorsed valuation of the Plaintiff are not in compliance with the terms of the contract awarded. (4) That since October 18, 2007 when the Plaintiff accepted the contract only worked for 3 three weeks at the site and abandoned the contract to the detriment and loss of the Defendants. The Plaintiff is therefore in breach of the contract. The particulars of breach are: PARTICULARS OF THE BREACH (a) (b) (c) The breach caused the Defendants to suffer excessive and unreasonable delay in carrying out the entire work assigned or awarded to them by Prime Soil Limited of No. 667, Umuozu Close Garki, Abuja Failure on the part of the Plaintiff, their agents or work men at repeated occasion to ensure that the sub-contract was completely carried out within the contract schedule. Failure of the Plaintiffs to adequately or at all on numerous occasion to 17

18 properly conducted the work at different stages thereby abandoning the site. (d) The breach of the sub-contract caused the Defendants lost of hours of work thereby making the major contractor (Prime Soil Ltd) to deny the Defendants payment for the project. WHEREOF THE DEFENDATS COUNTER CLAIM AGAINST THE PLAINTIFF AS FOLLOWS:- (a) (b) The sum of N5,000, (Five Million Naira) as General damages for the breach of the contract by the Plaintiff. Cost of Proceedings. (14) That I deposed to the Affidavit in good faith believing it content to be true and correct in accordance with the Oath Act In this instant case, it is in doubt that there is a binding contract agreement Exhibit A, the basis of this transaction. What is in dispute is whether the Plaintiff did comply with the terms and condition of the contract to entitle them to judgment. The starting point for me is to reproduced the Exhibit A herein for easy of reference. It is hereby reproduced as follows:- SCA/401B/MD/KAI/10/07 M/S Buba Atiku Tobi Enterprises Opp Town Hall Round About Suleja Niger State STANDARD CONSTRUCTION LIMITED 18 th October, 2007 Dear Sir, CONTRACT FOR THE CLEARING OF 10,000 HECTARES FARMLAND AT KWALI 18

19 I am directed to inform you that you have been selected as one of the clearing subcontractors at the above site. Your operation shall be independent of others on the site. Your entire scope of work shall be determined by your level of mobilization but subject to minimum of 200 hectares. This works involve the clearing of business including felling of all tress and grubbing up root excluding cutting of top soil. You are required to provide all plants, equipment, lubricants, personnel and any other preliminary items (security inclusive) necessary for the performance of this work. This shall also include mobilization/demobilization of all resources required by you on completion as necessary. You shall be entitled to a gross payment of N900, (Ninety Thousand Naira) as hectares cleared. Payments shall be made weekly subject to the clearing of minimum of 12 hectares and preparation of a jointly endorsed valuation by our both selves. You are expected to mobilize immediately to the site for commencement of the works. This award is NOT subject to litigation of any kind. If the above terms are acceptance to you kindly indicate by endorsing the duplicate copy of this letter within five (5) working days from the date of this letter. Accept our congratulations. Thank You. 19

20 Yours faithfully, Pp: STANDARD CONSTRUCTION LTD Alh. Aminu Buhari MANAGING DIRECTOR/CEO ACCEPTANCE FORM The above terms and conditions of the above contract are acceptable to us: SAKA IBRAHIM NAME:. BUBA ATIKU TOBI ENTERPRISES ORGANISATION:.. MANAGER DESIGNATION:.. SAKA IBRAHIM SAKA SIGNATURE/DATE:. The Exhibit A which is the basis of the contractual relationship is very clear and unambiguous. In simple terms, the contract is for clearing of 10,000 hectares of farmland at Kwali at the gross rate of N90, per hectare and payable weekly subject to a minimum of 12 hectares and a jointly endorsed valuation certificate. It is trite law that where parties are agreed to be bound by terms of their agreement, the court cannot work outside such agreements to include extraeonous materials in its interpretation. See DALEK (Nig) Ltd Vs OMPADEC (2007) 7 NWLR (PT. 1033) at Pg 402; In Adetoro Vs UBN PLC (2007) ALL FWLR (PT. 396) Pg 643 Para F-G; the Court of Appeal stated thus; Parties are bound by the terms of their agreement and the court will certainty not step into the arena to dictate new terms for them, instead 20

21 the court, as an impartial umpire, exist only to interpret strictly the terms of such agreement of the parties In this instant agreement, it the claim of the Plaintiff that the contract for clearing of farmland, includes harrowing and ploughing, and that payment was re-schedule at an agreed meeting from N90,000 to N125, and that payment shall be made 3 (Three) weeks for every 36 Hectares cleared and subject to valuation and endorsement by the Defendants. A clear reading of the Exhibit A show that the agreement is for clearing of 10,000 Hectares of farmland with the contract sum fixed for N90, (Ninety Thousand Naira) and payment to be made weekly subject to clearing of a minimum of 12 hectares and subject to joint endorsed valuation by both parties. The Plaintiff did not show evidence of the said variation of contract sum from N90, to N125, at the agreed meeting. The court cannot act on oral evidence not backed by documentary evidence. In my view the submission of counsel to the Plaintiff in support of this evidence goes to no issue. The terms of payment are clear on the Exhibit A and not in conformity with the evidence of the PW1 on how payment is to be made. This in my view is contrary to the terms of payment agreed by both parties in Exhibit A. There is before me evidence of joint valuation by both parties that is Exhibit D 1 3 and F In my view, the evidence of the DW1 that there was collusion between their staff and the Plaintiff in arriving at the actual number work done is not credible, having failed to show any supporting evidence. It is trite that he was assets must prove. See Section 135 (1) of Evidence Act and the case of NWAWU & ORS Vs Okoye & Ors (2007) S.C. 63, from all of these, it is apparent that; (1) The Exhibit A is the basis of the contractual agreement between the parties. (2) The contract sum of N90, and not N125, as claimed by the 21

22 Plaintiff. (3) The was a joint valuation certificate as evidence by Exhibit D 1 3 and F (4) That the agreement is for clearing and does not include express terms of harrowing and ploughing as alleged by the Plaintiff. (5) That the Plaintiff completed clearing of 39,837 Hectares of farmland out of the 10,000 Hectares contract farmland as per Exhibit A. The Plaintiff having failed to prove by credible evidence of the variation of contract sum from N90, to N125, I am unable to find that the contract sum is N125, The Defendant having failed to prove to the contrary that the Plaintiff did not perform the contract to specific as per Exhibit A, I am unable to find and hold that the Plaintiff did not perform the contract. It is therefore the court s findings that the Plaintiff having completed clearing of Hectares of the farmland is entitled to payment for the sum due at the rate of N90, per Hectares cleared in respect of relief 1. This brings the total sum of N3,585, (Three Million, Five Hundred and Eighty Five Thousand Naira, Three Hundred and Thirty Naira) only. The Defendant having paid the sum of N291, (Two Hundred and Ninety One Thousand Six Hundred and Fifty Nine Naira Thirty Kobo) only through Exhibit E. The sum due to the Plaintiff is N3,293, (Three Million, Two Hundred and Ninety Three Thousand, Six Hundred and Seventy Naira, Seventy Kobo) only. In respect of relief 2, it is the submission of Plaintiff counsel that they are entitled to the relief. The parties having agreed on exhibit A, which transaction is commercial in nature. Referred to the case of Kano Textile Printers Vs Tukur (1999) 2 NWLR (PT. 589) 84. On the other hand, the Defendant counsel contends that interest is not payable in the absence of express agreement between the parties. Referred to the cases Daniel Holding 22

23 Vs UBA (2006) 133 LRCN Pg 161; Nigeria Dynamic Ltd Vs Ibrahim (20023) 8 NWLR (PT. 768) Pg 96. P.P Madus Nig Ltd Vs Roads Nig Plc (2011) 2 NWLR (PT. 1230) Pg 91. After a careful perusal of the Exhibit A, the court is unable to find any express agreement by the parties that interest is payable in consonance with the custom or usage of the transaction. In the case of MTN Nig Communication Ltd Vs WIGATAR Trading and Investment, suit No. CA/L/372/07 delivered on 26 th April 2012 Ogunwumiju JCA stated the position of the law thus; That interest is not payable on debt or loan in the absence of any express agreement to that effect. Obligation to pay interest may however arise from the custom or usage of a particular trade or business. On a careful perusal of the Exhibit A, evidence and pleadings, the court cannot find any express agreement to that effect, neither any evidence of payment of interest on such transaction on custom or usage. I am in agreement with the submission of Defendant counsel on this point, relief 2 is hereby refused. On relief 3, on the reasoning of the court in relief 2 above, the Plaintiff is not entitled to the interest of 15% on the outstanding contract sum calculated from date of filing this suit to date of judgment. In respect of the 10% interest on the outstanding contract sum to cover period from date of judgment in this suit until it is liquidated. In Berlet (Nig) Ltd Vs Kachalla (1995) 9 NWLR (PT.420) 478, the difference between interest on prejudgment debt and post judgment was stated thus by Ogundare JSC. There is clearly a difference between award of interest prejudgment where Plaintiff must specifically claim such and prove it and the award of interest on a judgment debt which is purely statutory and can only be awarded if there is a provision to that effect in the law or Rules of Court. 23

24 Also, in Umo Vs Udonwa (2012 LPELR 2857 My Lord Ndukwe Anyanwu, JCA, stated thus; In regards to award of interest on judgment debt it needs to be specifically claimed before it can be awarded. The award is at the discretion of the court and it regulated Rules. This court having found that the Plaintiff is entitled to payment of amount due based on work done, by the provision of law and Rules of Court that is Order 39 Rule 7 this court can indeed make an award of interest not exceeding 10%. Accordingly, this relief succeeds to the extent that 10% interest is awarded on the outstanding contract sum from date of judgment until it is liquidated. On relief 4, it is the evidence of the Plaintiff that because of the breach of contract on the part of the Defendant, they suffered loss. See Para 23, of Statement of Claim and Para 26 of the Witness deposition. In line with the evidence, counsel submits that consequent upon the breach of contract by the defendant, the Plaintiff are entitled to damages, having failed to pay the outstanding sum due for work done in accordance with Exhibit A and referred to Chegoury & 1or Vs Ibrahim Yakubu (supra). On the other hand, the Defendant in evidence stated that it was the Plaintiff who are in breach, hence not liable to them. In line with the evidence, counsel to Defendant submits that general damages is not just for the asking, it must have direct consequence of the act complained of. Referred to the case of UAC Nig Plc Vs Madam Irole (Supra) and Yahaya Vs Chukwura (supra). To succeed under the head, it must be shown that there was a breach of contract. In the case of CAMEROON AIRLINES Vs OTUTUIZU (2011) 4 NWLR 512; Breach of Contract was defined To mean that the party has acted contrary to the terms of the contract in the instant case by performing a contract negligently and not in accordance with it terms The Plaintiff must establish not only that there was a breach, but fundamentally that there was in existence an enforceable contract which was breached see the case of Njikonye Vs MTN Nig Communication Ltd (2008) ALL FWLR (PT.413) 1364 Para D- E. 24

25 In this instant case, this court has found that there is a binding contract between the parties, and that the Plaintiff performed in accordance with the contract with the clearing of Hectares of farmland before it abandoned the site due to non-payment. The Defendant in the court s view failed to sufficiently controvert the evidence of the Plaintiff. Clearly, the failure to pay the outstanding is a factor that led to the pulling out of the site by the Plaintiff. Accordingly, I find that the Defendant are in breach and therefore, Plaintiff is entitled to this relief. In the award of damages, it must be such that it shall not be manifestly too high or manifestly too little or erroneously assessed. See M.N.T (Nig) Ltd Vs P.T.F (2007) 15 NWLR (PT. 1056) Para H A, Accordingly damages is assessed and fixed at N400, (Four Hundred Thousand naira only. On issue 4, whether or not the Defendant has made out case entitling them to the relief sought in their counter-claim? It is cardinal principle of law, that a counter-claim is entirely a different and independent action from the main claim. See Usman Vs Garba (2003) 14 NWLR (PT. 840) where Ejiwumi JSC (RTD) stated thus: A counter-claim is to all intent and purpose a separate action, although the Defendant, for convenience and speed, usually joins it with his defence where the court so grants leave. In deed not only can a defendant apply for summary judgment on his counter-claim but also a Plaintiff may counter claim on defendants counter-claim. Also in OOMF Ltd Vs NACB Ltd (2008) Vol. 44 WRN 178 lines 20 25, the Supreme Court, restated the position of the law, thus It is settled law that a counter-claim is a separate and independent action which has to be instituted in accordance with the Rules of the court. 25

26 The effect of this is that the defendant becomes Plaintiff and the Plaintiff becomes Defendant to the counter-claim. To succeed in the counter-claim, the onus is on the counter-claimant to discharge the burden in proof of his counter claim. The evidence of DW1 at Para 11 of his Witness Statement on oath is to the effect that the Plaintiff breached the terms of the contract agreement, Exhibit A, when they abandoned the site and as a result of this breach, the Defendant suffered excessive and unreasonable delay in carrying out the entire work assigned to them by Prime soil Ltd and also denying the Defendant the payment due to them from the said Prime soil Ltd. In line with the evidence, Defendant counsel submits that the failure of the Plaintiff to commence work until after 5 months and the fact that the valuation certificate was not jointly signed is a fundamental breach of terms of contract. And it is law that a breach of contract is committed when a party to the contract without lawful excuse fails neglects nor refuses to perform an obligation. Referred the case of Obajimi Vs Adedeji (Supra) and the case of Tariba Vs Adeyemo (2010) 13 NWLR (PT. 1211) & Pg 246. The Plaintiff in defence to the counter-claim. Relied on the evidence before this court to the effect that they performed in accordance with the terms of the contract and only abandoned the site after the Defendant failed to pay in accordance with the terms. In course of the judgment, this court has held that it is satisfied that the Plaintiff complied with the Exhibit A terms of the contract and held that Exhibit D 1-3 and F1 15 evidence that a joint valuation certificate was issued and to that extent the Plaintiff was not in breach of the terms. This court is not persuaded with the submission of Defendant counsel and the authority citied that the Plaintiff abandonment from the site of the contract amount to a breach of contract. In the court s view is not a case of neglect of the contract. In all of these, it is the finding of this court that the counter-claim of the Defendant fails. It is hereby refused. In conclusion, judgment is hereby entered as follows: 26

27 On the main claim of the Plaintiff; (1) Entitled to the sum of N3,293, (Three Million Two Hundred and Ninety Three Thousand Six Hundred and Seventy Naira Seventy Kobo) only, being amount due for clearing Hectares of farmland at Yangoji, Kwali in Kwali Area Council Abuja. (2) Entitled to the award of interest at 10% on the amount due from the date of judgment until liquidation. (3) The sum of N400, (Four Hundred Thousand Naira) only as damages for breach of contract on the counter-claim, Relief 1, 2 is fails and is hereby refused. (4) The parties are to bear their cost. This is the judgment of this court HONOURABLE JUSTICE O.C. AGBAZA (Presiding Judge) 18/1/2013 EYARE J. OGAR WITH HIM RITA NWAOKANYE (MISS) FOR THE PLAINTIFF. ABDULHAMID MOHAMMED WITH HIM AMAKA EKE (MISS) FOR THE DEFENDANTS 27