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

Transcription

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: SUIT NO: FCT/HC/CV/1239/10 MESSRS DEMSKI NIGERIA LIMITED....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 Statement of Claim dated 30/3/2010 and Amended Witness Statement on Oath dated 19/7/2011. (2) The Defendant s Joint Statement of Defence and Counter-claim dated 23/9/2010. (3) The Plaintiff s Reply to Defendant s Joint Statement of Defence/Counter-Claim dated 6/1/2011. In Paragraph 27 of the Statement of Claim, the Plaintiff claims the following reliefs:- 1

2 (i) A liquidated sum of N2,420, (Two Million, Four Hundred and Twenty Thousand Two Hundred and Eighty Naira) only, being debt owed him for ploughing and harrowing hectares of cleared 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 10% interest on the outstanding contract sum calculated from the date of filing this suit to the date of judgment is entered on same and thereafter 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 of the judgment sum is liquidated. (iv) The sum of N1,000, (One Million Naira). (v) Cost of this suit assessed at N1,000, (One Million Naira) The Defendants counter-claimed against the Plaintiff as follows:- (a) The sum of N5,000, (Five Million Naira) only as general damages for breach of contract by the Plaintiff. (b) Cost of the proceedings. The Plaintiff testified through one witness and tendered documents as exhibits, while the Defendants called one witness. The Plaintiff witness, Lawrence Ajayi, the Managing Director of the Plaintiff testified as the PW1 Sole witness. He deposed to 34 paragraphs Witness Statement on Oath dated 19/7/2011 and filed same day. The evidence of the PW1, is that the Plaintiff a Limited 2

3 Liability Company registered with the C.A.C and whose business interest is in general contract, was by a letter dated 13/3/2008 with reference No: SCA/4106/M.D. KAI/03/08 from the 1 st Defendant to the Plaintiff award a contract to plough and harrow 10,000 hectares of farmland at Yangoji, Kwali Area Council, Abuja. He stated that upon the award of the contract, the Plaintiff mobilized his men to site. He stated that by the award letter, the scope of work to be covered out of the 10,000 hectares, must not be below 500 hectares. He stated that the consideration for the work, that is, ploughing and harrowing is N35, per every one hectare that payment shall be made upon completion of 36 hectares out of the 10,000 hectares of the farmland after three weeks, subject to a joint job certificate issued by both parties. He stated that upon commencement of work, the Plaintiff cleared 16:4881 hectares out of the 10,000 hectares and job certificate in satisfaction of the work done was issued to the Defendants. He stated that the job certificates of satisfaction issued by the Defendants are dated 13/6/2008, for hectares for cleared on 13/8/2008, for hectares for clearing and windrowing on 13/6/2008 for hectares for windrowing. He stated that the total amount for the work done at 16:4881 hectares out of the 10,000 hectares is N2,689, (Two Million, Six Hundred and Eighty Nine Thousand two Hundred naira) at the contract rate of N35,000 per hectares. He stated that upon several demands for payment, the Defendant paid the sum of N268, representing 10% of the amount due. He stated that the amount due less the amount paid by the Defendant for the work done, is N2,420, (Two Million Four Hundred and Twenty Thousand Two Hundred and Eighty Naira). He stated that they left the site on the 6/11/2009 due to non payment by the Defendant. He stated that there was no revaluation committee set up to their knowledge and were not invited to appear before it. He stated that the Plaintiff did not by their action cause any excessive or unreasonable delay on the execution of the contract that at all times in accordance with the contract. He stated that despite repeated demand and visit to the Defendant s office in Abuja, the Defendant refused to pay the amount owed to the Plaintiff. The Plaintiff in evidence tendered the following documents in Exhibits. 3

4 (1) A Letter Titled Contract for the Clearing of 10,000 hectares farmland at Kwali as Exhibit A. (2) Prime soil farmland Development Project daily production chart valuation No. 3 as Exhibit B 1 3. (3) Photocopying of a cheque in favour of the Plaintiff for N268, as Exhibit D. (4) A Letter Titled Submission of Valuation/Certificate No. 2 dated 187/6/2008 as Exhibit E. Under cross-examination, the witness admitted that Exhibit A is the document that governs the relationship between the Plaintiff and the Defendants and any action outside the Exhibit A would be at variance with Exhibit A. He admitted that the contract Exhibit A does not include ploughing and harrowing. He also admitted that there is no documentary evidence, evidencing the payment of 21% interest. He stated that the Valuation Report was endorsed by both parties. He stated that one of the documents is for clearing and the other for windrowing, both signed and dated on the same day. The Defendant testified through Banjo.S. Olukayode, stated that the contract was awarded through Exhibit A by the 1 st Defendant and signed by the 2 nd Defendant to the Plaintiff, was for the clearing of farmland and based on the terms and conditions contained in the Exhibit A. He stated that the Plaintiff by the contract is entitled to a gross payment of N100, per hectares, subject to a minimum of 200 Hectares. He stated that payment shall be made subject to clearing/windrowing of minimum of 12 Hectares and backed by jointly endorsed valuation certificate by both parties. He stated that the Plaintiff abandoned the site shortly after work and that the Defendant was misled into paying the amount paid to the Plaintiff. That calculation of worked done was not proper, as it was as a result of collusion by the Ad-hoc staff of the Defendant. He stated that a Verification Committee was set up and found that the valuation lacked justification. He maintained 4

5 that no joint certificate was issued. He stated that the Plaintiff breached the contract by not complying with the contract terms. Under Cross-Examination by Plaintiff counsel. He stated that he is privy to the contract between the parties from the very beginning. He stated the contract is owned by the 1 st Defendant. He admitted knowing Prime Soil Limited who he described as clients to the Defendants. He admitted that Prime Soil are the main contractor, while the 1 st Defendant sub-contracted to the Plaintiff. He stated that the information about the activities at the site was given to him through a Report made to the office by the project coordinators at the site. He admitted that it is the duty of the Site Engineer to ensure proper conduct of work at the site. He admitted that the amount paid was as a result of the computation made by the Site Co-coordinator and presented to the Head office for action and payment. At the close of trial, learned counsel for the Defendant, AbdulHamid Mohammed filed the Defendants Final Written Address on 10/8/2012 and formulated three issued for determination. (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 Plaintiff? Upon receipt of the Plaintiff s Final Written Address, Defendant filed a Reply on point of law on 23/11/2012. Eyare J. Ogar, learned counsel for the Plaintiff, filed a Final Written Address of the Plaintiff on 20/9/2012 and formulated three issues for determinations:- (i) Whether the Defendants contracted the Plaintiff to clear and windrow Hectares of cleared farmland at Yangoji in Kawli Area Council Abuja. 5

6 (ii) Whether considering the circumstances of this 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 four (4) issues calls for determination in this suit. (i) Whether or not it is competent for the Plaintiff to sue the 1 st, 2 nd Defendants in the instant suit. (ii) Whether there was a binding contract agreement between the parties. (iii) Whether the Plaintiff in the face of the evidence is entitled to any of the reliefs based on the contract. (iv) Whether or not the Defendant has made out a case entitling them to the reliefs sought in their counter-claim. 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 piece of evidence, 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 6

7 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 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 was 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 N268, (Two Hundred and Sixty Eight Thousand, Nine Hundred and Twenty 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, a disclosed principal. It is further noted that the Exhibit A, the contract of award, which is the operating document upon which the parties relied on as the basis of the contractual agreement, and did not state the position alleged 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. 7

8 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 13 th March 2008, 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 leads 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 PW1, that upon the grant of the Exhibit A Contract Award Letter No: SCA/4106/MD/KAI/03/2008 dated 13 th March 2008 and Titled Contract for the clearing of 10,000 Hectares Farmland at Kwali; they mobilized to site and started work and that payment for every 36 Hectares ploughed and harrowed shall be made after three weeks following such completion, subject to a joint endorsement of completion certificate. That consequence upon the work started, they completed a total of 16,4881 hectares out of the hectares of the farmland for ploughing and harrowing. The said amount for work done is N2,689, (Three Million Six Hundred and Eighty Nine Thousand, Two Hundred Naira) only at the contract rate of N35, per hectares, and job satisfaction certificate was issued by the Defendant through Exhibit B 1 3 and E. That pursuant to demand, the Defendants paid the sum of N268, for the job done, through Exhibit D. Finally, that consequently upon the failure of the Defendant to pay the outstanding in accordance with the terms of contract and after several visit to the Defendant s office at Abuja, pulled out of the site on 6/11/

9 In line with the evidence of PW1, learned counsel for the Plaintiff contends in his submission that the Plaintiff had carried out their part of the contract in accordance with the Exhibit A, which includes ploughing and harrowing, 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 cross-examination in-chief and crossexamination to the extent that the Defendants paid the sum of N268, for work done in respect of hectares cleared and windrowed. Further that the payment made by the defendants is not in accord with the terms of the contract Exhibit A, therefore in breach of the contract. On the issue of interest claimed, submits that the transaction being one of commercial nature, the Plaintiff is entitled to the interest claimed on the outstanding on 21% and 15% respectively. Referred to court to the case of Kano Textile Printers Plc Vs Tukur (1999) 2 NWLR (PT. 589) 84. On the issue of damages, submits that consequent upon the breach of contract by the Defendant, the Plaintiff is entitled to damages. Referred to Nadeim 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 is its performance, therefore is in breach of the terms of the contract. The Defendant denied issuing any certificate for job completion to the Plaintiff. DW1, contend that the amount paid to the Plaintiff was in error, because upon verification, it was discovered that the Plaintiff was not entitled to the amount. In line with this evidence, Defendant counsel submits that the Plaintiff has failed to proffer credible evidence to entitle them to judgment in line with the provisions of Section (1) of the Evidence Act 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. 9

10 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) 749. 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. 1. Lawrence Ajayi, Male, Adult, Christian, a Nigerian Citizen and Managing Director of Demski Nigeria Limited, behind Area 8 Mosque, Garki Abuja, do hereby make this Oath and state as follows:- (1) That I am the Managing Director (MD) of Demski Nigeria Limited (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 the head office at behind Area Mosque, Garki Abuja. (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 plough and harrow 10,000 hectares of cleared farmland at Yangoji, Kwali Area Council, Abuja. 10

11 (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 ploughing and harrowing work to Plaintiff on behalf of the 1 st Defendant. (7) That the 2 nd Defendant at all materials 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 signed the Contract Award Letter issued to the Plaintiff by the Defendant. (9) That sometime in 2008, precisely on the 13 th day of March 2008, the 1 st Defendant sub-contracted him (Plaintiff) to plough and harrow 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/4106/MD/KAI/03/08 on the 13 th March Attached and Exhibit as DNL 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, fell trees, grub up root, plough and harrow 10,000 hectares of farmland at the contract site to the satisfaction of the Defendants. (12) That at the work site, there were others who were subcontracted by the Defendant, but that his (plaintiff) operations were independent of others on site. (13) That going by the Award Letter, the scope of work was to be determined by ability to work and the level of mobilization and expenses of land covered of 11

12 the 10,000 hectares farmland provided that the area ploughed and harrow by him is not below 500 hectares. (14) That further to the spirit and intent of the Contract Award Letter, he (plaintiff) was provide all plants, equipments, lubricants, personnel and all other preliminary items including security necessary for the performance of the contract work. (15) That in consideration for ploughing and harrowing of the cleared farmland, Plaintiff is to be paid the contract sum of N35, per every one hectares plough and harrowed. (16) That although payment for every hectares ploughed and harrowed is N35,000.00, It was agreed in the Contract Award Letter that payments for work done shack be made on the completion of each 36 hectares covered our of the 10,000 hectares farmland. (17) That further to paragraph 16 above, payment for every 36 hectares ploughed, harrowed shall be made after three weeks following such completion and subject to valuation and endorsement of same by the Defendants. (18) 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. (19) That he carried 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 evaluated by the Defendants through their site agents and or Engineers and certificates of job satisfaction were issued to him accordingly. (20) That further to paragraph 19 above, valuation of job and issuance of job satisfaction certificates were perfected by the Defendants and issued to him at intervals indicating the size of hectares he had covered as follows: a hectares (clearing only) issued on 13 th of June, 2008 to DEMSKI NIGERIA LIMITED. Attached and marked as Exhibit DNL 2 is the job satisfaction certificate. 12

13 b hectares (clearing and windrowing) issued on 13 th August 2008 to DEMSKI NIGERIA LIMITED. Attached as Exhibit DNL 3 is the job satisfaction certificate. c hectares (windrowing) issued on the 13 th June, 2008 to DEMSKI NIGERIA LIMITED. Attached as Exhibit DNL 4 is the job satisfaction certificate. (21) That he covered (satisfactorily completed ploughing and harrowing) hectares out of the 10,000 hectares contract farmland which amounts to the sum of N2,689, (Two Million, Six Hundred and Eighty-Nine Thousand, Two Hundred Naira) at the contract rate of N35, (Thirty Five Thousand Naira) per hectares. (22) That upon several demands by him on the Defendants, he (Plaintiff) was paid 10% of N2,689, which amounts to the sum of N268, attached as exhibit DNL 5 is the photocopy of the cheque. (23) That the sum of money being owed him by the Defendants for ploughing and harrowing hectares is N2,689, (Two Million, Six Hundred and Eighty-Nine Thousand, Two Hundred Naira) and that when the N2,689,200.00, being the 10% of it is deducted, the total contract sum now being owed him by the Defendants is N2,420, (Two Million, Four Hundred and twenty Thousand, Two Hundred and Eighty Naira). (24) That due to the enormous pressure mounted by me on behalf of the Plaintiff, the Defendants through its contracts Manager (K.A. Isuku) wrote a letter to Prime Soil demanding to be paid, so as to enable it pay Plaintiff. (25) That the said letter with Ref. No. SCA/4186/CM/KAI/06/08 was written on 18 th day of June, 2008, wherein it attached all necessary documents like valuation certificate No. 2, bills of quantities, payment on Account Certificates etc, where Defendants detailed how much is due to the Plaintiff as monies owed it. Attached and marked as Exhibit DNL 6 is the letter and its accompaniment. 13

14 (26) That Plaintiff did not abandon the site on the 11 th day of May, 2009 but left the site on the 6 th of November, 2008, it did not inflate the number of hectares and windrowing by it as the number of hectares cleared and windrowed by Plaintiff tallied with the number submitted by Defendants to Prime Soil Limited. (27) That there was no revaluation committee set up by the Defendants to revaluate the work done by it and if there was any, Plaintiff was not invited to appear before it. [ (28) That it did not cause Prime Soil Limited or any other person whatsoever named any excessive or unreasonable delay in executing the contract and neither did the Plaintiff nor its agents or workmen refuse to carry out their contractual duties as and at when due. (29) That the Plaintiff at all times properly conducted its workmen and worked at all different stages of the execution of the contract. (30) That in order to facilitate the contract work, he has 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. (31) That though the contract award letter provides that payment shall be made at the completion of each 36 hectares payment arrangement nor did they deem fit to pay him on a cumulative stance. (32) That as a result of the blatant refusal 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 November, 2008 since no payment was forth coming. (33) That since a year and six months now when the contract sum became due, he has been going to the Defendant s office in Abuja and demanding for the payment of same to no avail. (34) That I deposed to the Oath in good faith believing same to be true and in accordance with the Oath Acts,

15 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 Defendants awarded a subcontract to the Plaintiff as per the subcontract letter of the Defendant dated 13 th March, (3) That the 2nd Defendant is the Managing Director/CEO of the 1 st Defendant and actually signed the contract award letter to the Plaintiff but denies being the alter ego and that the 2 nd Defendant s duty does not include taking major decision for and on behalf of the 1 st Defendant but through the Board of Directors of the 1 st Defendant. (4) That though a contract of clearing was awarded to the Plaintiff on the 13 th March 2008, it was based upon the selection made by the 1 st Defendant pursuant to the application of the Plaintiff dated 10 th Feb 2008 introducing itself as a contractor. The contract awarded to the Plaintiff was also based on terms and conditions therein contained in the letter of award of 13 th March, The subcontract is for clearing only. (5) That the Plaintiff s scope of work shall be determined by the level of mobilization made by the Plaintiff but subject to a minimum of 200 hectares and was entitled to a gross payment of N100, (One Hundred Thousand) Naira per hectares. That the contract which the Defendants subcontracted 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. (6) That payment shall be made to the Plaintiff subject to the clearing/windrowing of minimum of 12 hectares and the preparation of a jointly endorsed valuation by both parties. AFTER THREE WEEKS of this work, the Plaintiff abandoned the work and the site. 15

16 (7) That the Plaintiff breached the substantial terms of the contract by not commencing work at the site within five (5) days from the sate of the award of the contract. (8) That the Plaintiff did not carried out the contract to the satisfaction of the Defendants for it only worked at the site on the 15/4/2008, 18/4/2008 to 10/5/2008 and on 11/5/2008 contrary to the terms of a minimum of 12 hectares, three weeks (3) after the date of award of the contract, as indicated in the award letter dated 13 th March That there is duplication of valuation report of 15/4/2008 to 16/4/2008. (9) That the sum calculated by the Plaintiff is not true figure or price for the purported hectares claimed to have been cleared at N100, gross total. (10) That the Plaintiff breached the contract, abandoned the site after its work on the 11/5/2008 thereof, the Defendants were misled by the Plaintiff into paying the sum of N268, having not carried out the contract as agreed in the award letter of 13/3/2008. That upon further verification of the bit of work the Defendants discovered that the Plaintiff was not entitled to the 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 adhoc 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. (11) That after the payment of the Plaintiff sometimes in June 2008 for abandoning the site, the Plaintiff has never visited nor demand for any further payment thereafter. 16

17 (12) 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 12 of the Joint Statement of Defence of the Defendants. (2) That the awarded contract to the Plaintiff dated 13/3/2008 accepted by the Plaintiff stipulated that the Plaintiff shall clear a minimum of 12 hectares three weeks after the award and to commenced worked at the site (5) five days from the date of the award. (3) That the endorsed valuation of the Plaintiff is not in compliance with the terms of the contract awarded. (4) That since March 13/3/2008 when the Plaintiff accepted the contract, only work on 15/4/2004 and 11/5/2008 making the total period of 25 days at the site and abandoned the contract. The Plaintiff is therefore in breach of the contract. The particulars of breach are: PARTICULARS OF THE BREACH (a) (b) (c) (d) 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 properly conducted the work at different stages thereby abandoning the site. 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:- 17

18 (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. (13) 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/4106/MD/KAI/03/08 M/S Demski Nigeria Limited Behind Area 8 Mosque P.O.Box 5007, Garki - Abuja STANDARD CONSTRUCTION LIMITED 13 th March, 2008 Dear Sir, CONTRACT FOR THE CLEARING OF 10,000 HECTARES FARMLAND AT KWALI 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: 18

19 (i) (ii) The clearing of bushes including felling of all trees and grubbing up root excluding cutting of top soil. Windrowing at hectarage perimeter on two sides only. 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 N100, (One Hundred Thousand Naira) per hectares cleared. Payments shall be made subject to the clearing/windrowing of minimum of 12 hectares and preparation of a jointly endorsed valuation by our both selves after three weeks of this works. You are expected to mobilize to the site for commencement of the works within five (5) days from the date of this award 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 three (3) working days from the date of this letter. Accept our congratulations. Thank You. Yours faithfully, Pp: STANDARD CONSTRUCTION LTD 19

20 Alh. Aminu Buhari MANAGING DIRECTOR/CEO ACCEPTANCE FORM The above terms and conditions of the above contract are acceptable to us: SAKA IBRAHIM NAME:. DEMSKI NIG LTD ORGANISATION:.. MANAGER DESIGNATION:.. SIGNED 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 N100,000 per hectare and payable weekly subject to a minimum of 12 hectares and a jointly endorsed valuation certificate. It is trite law that where parts 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 certainly 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 is the claim of the Plaintiff that the contract for clearing/windrowing of farmland, includes harrowing and ploughing, and that payment shall be made 3 (Three) weeks for a minimum of every 12 Hectares cleared and subject to valuation and endorsement by the Defendants. A clear reading of the Exhibit A shows that the agreement is for clearing/windrowing of 10,000 Hectares of farmland with the contract sum fixed for N100, (On Hundred Thousand Naira) gross rate and payment to be made after 3 (Three) weeks, subject to clearing of a minimum of 12 hectares and subject to joint endorsed valuation by both parties. The terms of payment is 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 B 1 3 and E. 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 It is noted that the claim of the Plaintiff as per his relief 1, is for a liquidated sum of N2,420, (Two Million, Four Hundred and Twenty Thousand, Two Hundred and Eighty Naira) only being debt owed him for clearing and windrowing of hectares of farmland at Yangoji, Kwali Area Council, Abuja. By the Exhibit A the contract agreement. It was clearly stated that the contract is for; Para 3, 1 reproduced. This work involve:- (1) The clearing of bushes including felling of all trees and grubbing up root 21

22 excluding cutting top soil. (2) Windrowing at hectarage perimeter on two sides only. And the contract sum is stated thus. reproduced. You shall be entitled to a gross payment of N100, (One Hundred Thousand Naira) per hectare cleared The evidence of PW1, at Para 15 of his deposition on Oath, stated that the contract sum for ploughing and harrowing of cleared farmland in N35, per every one hectare ploughed and harrowed. At Para 21, 23 of the deposition, stated that the Plaintiff completed ploughing and harrowing of hectares out of 10,000 hectares which amounts to the sum of N2,689, and when the N261, is deducted, leaves is balance due at N2,420, at the contract rate of N35, per hectare. On the other hand, the DW1 at Para 5 of his deposition agreed that the contract rate is N100, (One Hundred Thousand Naira) gross, and Para 9, stated that the sum calculated by the Plaintiff is not the true figure or price for the purported hectares clamed by the Plaintiff to have cleared. This fact was never controverted by the Plaintiff. Under cross-examination, the PW1, admitted that anything done outside the Exhibit A, is not within the contract terms. Also admitted that ploughing and harrowing are not contained in the Exhibit A as part of the terms of the contract. This leaves this court with the following question to answer. (1) Where did the Plaintiff get the contract sum of N35, (Thirty Five Thousand) Naira per hectare as the contract sum. (2) The claim for ploughing and harrowing, is it part of the contract? (3) Can the court find on a claim outside the agreed term by the parties as this case Exhibit A. 22

23 On the first question, the contract award which is Exhibit A, which is the basis of the contractual agreement, is clear and unambiguous. The contract sum is clearly stated N100, per hectare of farmland cleared, there is no where on the Exhibit A, did it state N35, (Thirty Five Thousand) per hectare. It is trite law that the court cannot write or re-write terms of contract for the parties as parties are clearly bound by their contract terms. See Adetoro Vs UBN PLC (Supra) ; Obajimi Vs Adedeji (Supra) cited by Defendant counsel. Further it is noted that pleadings as contained in the Statement of Claim and the evidence of PW1 on the contract sum is at Variance with each other. The claim of the Plaintiff at Para 12 of the Statement of Claim states that the contract sum for Ploughing and harrowing is N35, (Thirty-Five Thousand Naira) and the gross payment is N100, (One Hundred Thousand Naira per hectares cleared. In the witness deposition at Para 15, 16 and 21 is claimed that the contract sum of N35, per hectare. This clearly in my view is at variance with the pleadings. The evidence of the PW1, does not support the pleadings before the court. It is trite that evidence which is not founded on any facts pleaded goes to no issue. See Olaniyi Vs Elero (2008) AL FWLR (PT. 411) Pg 987 Para E- G. On the 2 nd question, whether the claim for ploughing and harrowing is part of the contract as per Exhibit A. The basis of this contract between the parties is founded on Exhibit A. Again, on a clear reading of the Exhibit A, the court cannot find that Ploughing and harrowing is part of the contract. This again is clearly at variance with the evidence led by PW1. And it is not the law that court should re-write the contract of the parties, parties are bound by their terms of the contract. On the 3 rd question, can the court find on a claim outside the agreed terms of the contract. This court has stated in course of this judgment that parties are bound by their terms of contract, in this case, Exhibit A from the evidence before this court, both In-Chief and under cross-examination, shows clearly that while the Plaintiff is claiming sums at rate of 23

24 N35, for ploughing and harrowing which from the Exhibit A is not part of the terms, the Defendant on the other hand, maintain that the contract terms is for N100, and for clearing and windrowing. From all of these, it is clear that the claim of the Plaintiff before this court is totally different from what was agreed upon by the parties. A court cannot make any pronouncement when the party seeking that relief has not clearly made out their claim based on the agreement entered by them. To do otherwise, will amount to resolving the issue based on a totally different claim before the court and has no support of the evidence before the court. It is therefore the finding of this court that this relief 1 of the Plaintiff s claim should fail and is hereby refused. Having found that reliefs 1 fails, reliefs 2, 3, 4 also fails the consideration of them is of no moment and are hereby refused. On issue 4, whether or not the Defendant has made out a case entitling them to the relief sought in their counter claim? It is a 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. Indeed not only can a Defendant apply for summary judgment on his counter claim but also a Plaintiff may counterclaim 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:- 24

25 It is settled law that a counter-claim is a separate and independent action which has to institute in accordance with the Rules of the court. The effect of this is that the Defendant becomes Plaintiff and the Plaintiff become 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. In this instant case, it is the evidence of the DW1, that the Plaintiff did not comply with the terms of the contract, Exhibit A as agreed by both parties. See Para 11 of the DW1 deposition. It is the evidence of the DW1 that the work done by the Plaintiff was not to the satisfaction or inconformity with the contract. See Para 8. Also abandonment of the contract site, and that they suffered excessive and unreasonable delay in carrying out the entire work assigned to them by the prime Soil Ltd. In line with the evidence, the Defendant counsel submits that the failure of the Plaintiff to comply with the terms of the contract, abandonment of the project site and the fact that there was no jointly endorsed valuation certificate, are a fundamental breach of the terms of the contract. Referred to the case of Obajimi Vs Adedeji (Supra) and Teriba Vs Adeyemo (1010) 13 NWLR (PT. Pg 246. The Plaintiff in defence to the counter-claim, relied on the evidence before the court to the effect that they performed the contract in accordance with the terms as contained in Exhibit A, only abandoned the site when payment was not forthcoming from the Defendant. It is trite law that a breach of contract can arise; 25

26 When a party to the contract without lawful exercise, facts, neglects or refuses to perform an obligation he undertook in the contract or either perform an obligation defectively or incapacitates himself from performing the contract Per Fabiyi JCA (As then was) Obajimi Vs Adedeji (2007) ALL FWLR (PT. 394) Para D E. Also in the case of PAN BISBILDER NIG LTD Vs FBN LTD (2000) 1 NWLR (PT.642) 684; Ayoola JSC(RTD) had this to say; A breach of contract connotes that the party in breach had acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordance with its terms or by a wrongly repudiation of the contract. A party who had performed the contract in consonance with the terms cannot be said to be breach thereof. In this instant case, based on the evidence before the court, there is a contract for clearing/windrowing by Exhibit A. There is evidence before the court that the Plaintiff did not clear and windrow hectares of the farmland. The contention of the Defendant against this evidence is that the Plaintiff did not perform according to the contract. In course of this judgment, this court found that work was done, but that the contract sum upon which the amount claimed was based, is not in tandem with the contract sum as agreed hence the refusal of the claim of the Plaintiff in the reliefs sought. From the above, it is clear that the Plaintiff did do same work and were prevented from further work due to non payment by the Defendant. Based on the evidence before this court, the court holds that the Plaintiff has indeed done some work in performance of the contract, therefore cannot be said to be breach of the contract term, the failure of their claim notwithstanding. Accordingly, the Defendant s counter-claim fails and hereby refused in its entirety. From all of these, both the claim of the Plaintiff and the Defendant s counter claim fails and are hereby refused. This is the judgment of the court. Parties to bear their cost. 26

27 HONOURABLE JUSTICE O.C. AGBAZA (Presiding Judge) 25/1/2013 EYARE J. OGAR WITH HIM RITA NWAOKANYE (MISS) FOR THE PLAINTIFF. ABDULHAMID MOHAMMED WITH HIM AMAKA EKE (MISS) FOR THE DEFENDANTS 27