Aqua Limited V. Ondo State Sports Council (1988)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

The germane point raised in this appeal is the exercise of right of appeal under the provisions of Sections 220(1)(a) and (b), 221(1), 222 and 213 of the 1979 Constitution.

The facts of the case involved in the appeal can be briefly stated as follows:-

By a Writ of Summons issued out in the High Court of Justice. Ondo State, Akure Judicial Division, Akure, the plaintiff, Aqua Limited claimed against Ondo State Sports Council as follows:-

“The plaintiff’s claim is for the sum of N68,357.94 being money owing and due from the defendant to the plaintiff under a contract dated 4th May, 1978, between the plaintiff and the defendant in connection with the construction of Akure Stadium swimming pool.”

Pleadings were ordered and exchanged and issues joined. The plaintiff called one witness while the Defendant called three. The learned trial Judge after considering and evaluating the evidence adduced by the parties concluded that –

“Having regard to the reasons given above, I hold that the plaintiff’s claim for the sum of N68,357.94 being money owing and due from the defendant to the plaintiff under the said contract succeeds.”

The defendant was not satisfied with the trial Court’s decision and so it appealed against the same to the Court of Appeal. In that Court, the defendant filed the following grounds of appeal along with the Notice of Appeal-

“i. The Learned trial Judge misdirected himself on facts and came to a wrong decision when he held that the plaintiff had completed the stage one of the contract and that from the evidence before him, the plaintiff was due for the payment of the sum of N68,357.96 being 30% of the contract sum of N227 ,859.82 at the time of demand and that the defendant’s refusal to pay that sum was not justified and was contrary to the stipulations in the agreement.

Particulars of Misdirection

(a) There was evidence before the learned trial Judge that the defendant was not satisfied that the value of work performed by the plaintiff justified its demand for the second stage payment as per the terms of the contract agreement.

(b) There was evidence before the learned trial Judge that the 1st stage payment was effected only after the plaintiff had presented to the defendant a Performance Bond (Exhibit D) and not after the performance of any stage of the contract.

(c) There was evidence before the Learned trial Judge that the defendant’s refusal to pay the plaintiff the amount claimed was based on the advice of its Consultant who was employed to the knowledge of the plaintiff to supervise the plaintiff’s job and it was not alleged or proved that the defendant could not rely on the advice of its Consultant given and received bona fide.

(c) There was evidence before the Learned trial Judge that stage 2 payment was to be made “after installation of all inset concrete equipment” and Exhibit H showed that concreting was still going on months after the plaintiff had put in its claim for the said stage 2 payment.