Attorney-general Of Abia State V. Phoenix Environmental Services Nigeria Limited & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment)

At the High Court of the Federal Capital Territory, Abuja, in the Abuja Judicial Division, (“the trial court’) the 1st respondent as plaintiff took out a writ of summons endorsed with a statement of claim in suit No.FCT/HC/ABJ/2016/2011 against the appellant and 2nd respondent as 1st defendant and 2nd defendant, respectively, claiming as follows:

“1. A declaration that the failure of the 1st defendant to give the plaintiff six (6) months Notice of Intention to Terminate the Contract Agreement dated 19/8/2006 is a breach of the terms of the Contract Agreement dated 19/8/2006 entered into between the parties,

2. The sum of N26,133,334.00 (Twenty-Six Million, One Hundred and Thirty-Three Thousand Three Hundred and Thirty-Four Naira) being the balance of the sum of N274,400,000 (Two Hundred and Seventy Four Million, Four Hundred Thousand Naira) being due payment by the 2nd defendant to the plaintiff under Contract Agreement dated 19/8/2006 and Contract award dated 17/8/2006.
3. The sum of Euro 1,500,000.00 (One Million,

Five Hundred Thousand Euros) being the total value of deliveries

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to the plaintiff by S.I.R.A. GROUP as stated in Contract No. Pro 02/ngn – NIG 1207 in execution of contract Agreement dated 19/8/2005 terminated by the 1st defendant.

4. The sum of Euro 6,800,000,00 (Six Million, Eight Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A. GROUP in Contract Agreement dated 19/8/2006 by the 1st defendant.
5. The sum of Euro 9,800,000.00 (Nine Million Eight Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A. GROUP in Contract No.012/ngn – NIG 0808 due to the termination of Contract Agreement dated 19/8/2006 by the 2nd defendant.
6. The sum of Euro 1,900,000.00 (One Million, Nine Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A GROUP in Contract No. Inco. 002/ngn-NIG 080 due to the termination of Contract Agreement dated 19/8/2006 by the 2nd defendant.
7. The sum of 535,165,500 (Five Hundred and Thirty – Five Million, One Hundred and Sixty Five Thousand Five Hundred Naira) being the total value of the properties at the plaintiff Aba Project Site seized and handed over to third

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parties by the 1st defendant’s agents servants and privies.

8. The sum of N336,000,000.00 (Three Hundred and Thirty-Six Million Naira) being the unpaid monthly Solid Waste Collection and Disposal Subvention fee of 28,000,000.00 for one year.
9. The sum of N94,000,000.00 (Ninety – Four Million Naira) being the unpaid monthly Solid Waste Collection and Disposal Subvention fee for the month of September, October and November 2008 amounting to N84,000,000.00 August 2008, from the 2nd defendant to the plaintiff.
10. The sum of N47,840,600.00 (Forty-Seven Million, Eight Hundred and Forty Thousand Naira) being the unpaid Credit facility as at 3/8/2009 obtained by the plaintiff from FIRST INLAND BANK PLC in execution of Contract Agreement dated 19/8/2006 which was terminated by the 1st defendant.
11. Intrinsic Interest rate as shown in the First Inland Bank Plc Statement of Account of November and December 2008 on the said sum of N47,840,600.00 with effect from 31/12/2008 till date of judgment and thereafter from judgment date until full payment of the entire Credit Facility.
12. The sum of N90,142,500 (Ninety Million One Hundred and Forty-Two

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Thousand, Five Hundred Naira) and the accrued interest thereon as at 3/8/2009 being the unpaid Asset Finance Facility obtained by the plaintiff from FIRST BANK PLC in execution of Contract Agreement dated 19/8/2006 which was terminated by the 1st defendant.

13. Interest at the rate of 19% per annum on the said sum of N90,142,500.00 with effect from 9/8/2009 till the date of judgment and thereafter at the rate of 19% per annum from the date of judgment until full payment of the entire Asset/Finance Facility.”

After hearing evidence and taking the addresses of counsel, the trial court entered judgment in favour of the 1st respondent in terms of reliefs 1, 3, 10, 12 (without the accrued interest on the amount) and 13 (with post-judgment interest fixed at 10% per annum). The trial court refused to grant the other reliefs.

Aggrieved by the judgment the appellant has appealed to this court by way of a notice of appeal which was amended by the order of this court. The amended notice of appeal contains five grounds of appeal. The appellant was also granted leave to raise two issues on points of law that were not canvassed at the trial court.

4The facts of the case leading to this appeal may be summarized as follows: The parties entered into a tri – partite agreement dated 19/8/2006 for the 1st respondent to build, own and operate an integrated municipal waste management facility in Aba, Abia State. The terms of the contract were set out in the agreement and these included the provision of a compost plant, medical waste incineration, collection, recycling and management of solid waste generated within the city limits of Aba in Abia State.

There seemed to have been a less than cordial relationship between the appellant and the 1st respondent in respect of the transaction. On 11/12/2008, the appellant terminated the contract or discontinued the performance of its obligations in the contract.