Alphounsus A. Udo V. Government Of Akwa Ibom State & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The appellant was the plaintiff in suit No. HU/342/2000 commenced at Uyo division of the High court of Akwa Ibom State through the writ of Summons filed on 13th October 2000. The Statement Claim filed on 29th January, 2001 was amended and further amended by the Further Amended statement of claim filed on 28th June, 2006 wherein the plaintiff set out his claim in paragraph 35 thus:

“i) A declaration that the unilateral determination of the contract by the 1st and 2nd defendants which was entered into between the plaintiff and 1st and 2nd defendants for construction of 1 No. Standard Health Clinic at Mbak Ekpe, Ibesikpo Asutan Local Government Area without following the terms of the contract is a breach by the 1st and 2nd defendants.

ii) An order that the 1st and 2nd defendants pay the sum of N2, 958,791.50 (Two Million, Nine Hundred and fifty-eight thousand seven hundred and ninety one naira, fifty kobo (quantum meruit) being money already spent in the construction of 1 No. standard and Health Centre at Mbak Ekpe.

iii) Interest on N2, 958,791.50 at the current central bank rate of 21% – N601, 711.21 per annum from 1995 until the judgment is delivered.

iv) An order that the 1st and 2nd defendants pay the plaintiff the sum of N5 million (five million naira) being general damages suffered by the plaintiff.

The defendants filed a statement of defence which was eventually amended by the Further Amended statement of Defence filed on 14th November, 2006.

The appellant entered into contract with the Government of the defunct Cross River State for the construction of 1 No. Standard Health Centre at Mbak Ekpe, Ibesikpo Asutan Local Government Area for a sum of N125, 000.00. The Agreement to that effect was made on 16th December, 1980. The construction work was to be carried out in stages with an Interim Payment Certificate (IPC) issued at the completion of each stage.

The plaintiff carried out four stages of the job and IPCs were issued for the four stages, but he received payment for only one of the stages leaving the amount of N71, 985.00 outstanding. The plaintiff then did not continue work on the project due to lack of fund.

The government of Akwa Ibom State represented, by the 1st and 2nd defendants being a successor to the old Cross River state Government in the matter of the contract, re-awarded the same project to the plaintiff for N2,872,557.00, payments were also not made but the contract was terminated by the government for lack of fund. The project was handed over to Ekpe Atai Local Government for completion by one Imaobong Missionary outreach from which the plaintiff received the sum of N200, 000.00 in connection with the contract.

At the hearing of the suit, the plaintiff testified as pw1 and called another witness who was pw2. The defendants defended the suit with the evidence of one witness who was DW1. For ease of reference, the following documents were received as exhibits it the trial.

Exhibit A – Copy of the Contract Agreement dated 16th December, 1980.

Exhibit B – Original Tax Clearance Certificate of the plaintiff.

Exhibit C – Copy of Contract Certificate of Insurance.