Abdul Gafaru Yusuf & Company Ltd V. Kebbi State Government (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

This judgment is in respect of the appeal and cross appeal against the judgment of the Kebbi state High Court delivered on 6th January granting in part Appellant’s claim and dismissing in whole Respondent’s counter claim in Suit No.KB/HC/11/2005. The facts of the case that brought about the two appeals are hereunder supplied.

By paragraph 21 of its amended statement of claim, the Appellant as Plaintiff claimed against the Respondent, the defendant at the court below, as follows:-

a. “The sum of N138,452,926.56 (One Hundred and Thirty Eight Million, Four Hundred and Fifty Two Thousand Nine Hundred and Twenty six Naira Fifty Three Kobo only) being the amount due from the defendant to the plaintiff as final account plus accrued interest as at 31st July, 2005 in respect of the contract for the rehabilitation of specialist Hospital, Birnin Kebbi made up as follows:

i. N95,075,468.61 (Ninety Five Million and Seventy Five Thousand Four Hundred and Sixty Eight Naira Sixty one kobo) only being the amount due to the plaintiff as final account as certified by the architect in charge of the said project vide Certificate No. 13 (Serial KB 223R)Final dated 19/6/2003.

ii. N43,373,457.92 (Forty-Three Hundred and Seventy three Thousand Four Hundred and Fifty Seven Naira Ninety Two Kobo) only being accrued cumulative interest due on the final certificate/amount aforesaid (calculated at Central Bank of Nigeria’s approved rate of interest for commercial borrowing for the year 2003, 2004 and 2005) beginning from 28/7/2003 up to 31st July, 2005.

b. Interest on the said sum of N138,452,926.53 (One Hundred and Thirty Eight Million, Four Hundred and Fifty Two thousand Nine Hundred and Twenty six Naira Fifty three Kobo) only at the current approved rate of interest by Central Bank of Nigeria which is 17% (and as may be varied by the said Bank from time to time) beginning from 1st August, 2005 until the final liquidation of the amount.”

The Respondent not only denied the foregoing claim but by paragraph 20 (d) of her amended statement of defence and counter claim prayed against the Appellant an award for the sum of N5,768,891.01 Kobo being overpayment made to the latter in respect of the contract entered into by the two on 9th February 1998.

Pleadings were ordered, exchanged and settled. The Appellant called three witnesses through whom several Exhibits, including Exhibits A, B, C, C1, D, E, F, F1, G, H, HI H2, J, K and L were tendered and admitted in proof of its case. The Respondent did not call any witness to prove her case but tendered Exhibits M1-M24 from the bar.

At the conclusion of trial including addresses of counsel, the lower court entered judgment in favour of the Appellant for the sum of N10,326,149.00 and interest on the awarded sum. Defendant/Respondent’s counter-claim was dismissed for lack of merit. Both parties have, by their notices dated 6th February, 2006 and 4th April 2006 respectively, appealed against the judgment of the court.

Parties have filed and exchanged their briefs of argument. At paragraph 3.00 of the Appellant’s brief, a lone issue has been formulated for the determination of the appeal, the issue reads:-

“Whether the learned trial judge was right when he held that the Appellant is only entitled to be paid the sum of N10,326,149.00k as against the sum of N95,079,469.61k certified by the Architect as contained in valuation certificate No. 13R (Exhibit F)”

The unnecessarily windy issue distilled by the Respondent at paragraph 30 of her brief reads:-

“Whether having regard to the Agreement (Exhibit A) between in appellant and the Respondent under which various payments have been made relating to the Rehabilitation of the Specialist Hospital Birnin Kebbi which was the proof to the issuance we of Exhibit F by PW2 (the Architect) the trial court was right in isolating clauses 42.1 and 51 of Exhibit A even though it was quite clear on record that payments previously made to the appellant were in excess of the initial contract price and the Respondent’s contention was that the initial price was never raised in