China Geo Engineering Co. (Ccg) V. Simon Nambativ (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

The fact that led to this appeal are as stated below in some detail, for purposes of clarity:- The defendant/appellant was awarded contract by Taraba State Water Agency to drill boreholes and lay pipes in Takum. That by an agreement dated 25/7/96, (Exhibit ‘A’), the defendant sub-contracted to the plaintiff the digging of channel for water pipes at the rate of N250.00 per meter at rock section, and N90.00 per metre at other sections. That the contract consisted of two phases: phase one was from Taraba State Water Board Tank to Tampa II, and phase two was for the internal network in Tampa II. That phase one covered 4536 metres of rock section, and 909 metres of other section, while phase two covered 675 metres of rock section and 1067 metres of other section; and the total distance for both phases was 5209 metres of rock section and 1976 metres of other section; and that the whole distance was 7185 metres, and the amount payable to the plaintiff is as follows:-

1. Rock section – 5,209 at N250.00 per metre = N1,302,250.00
2. Other section- 1,976 atN90.00 per metre = N 177,840.00

Which gave the total of =N1,480,090.00

That after the plaintiff had excavated 6,000 metres, a joint assessment/inspection team of the Consultant engineer, Taraba State Government engineer, defendant’s site manager and the plaintiff, went to ascertain which of the distance covered was rock and which was other section. That the interim report shows that 4,150 metres of rock section, and 1,850 metres of other section had at that time been excavated by the plaintiff. This joint team report is exhibited as Exhibit ‘2’ before that court. That the joint team was unanimous that the work done by the plaintiff met the required standard of specification given to the plaintiff. That the defendant had already laid pipes in the channel and covered them. That the defendant was paid the sum of N3,593,090.00 for the work done at the rate of 514.00 per metre. Copy of the Taraba State bill of quantities is Exhibit ‘3’. That out of the N1 ,480,090.00, the defendant paid the plaintiff N966,650.00 and inspite of repeated demands, the defendant till then had not paid the plaintiff the remaining balance of N613,440.00 which plaintiff now claims from the defendant. Plaintiff also claims from the defendant 21% interest on the balance which the plaintiff said in his further affidavit, that it is the rate which his bank charged him when he took overdraft facilities to complete the work. He also claims 10% interest from date of judgment until final payment of the sum.

That the defendant refused to pay the plaintiff the balance because according to the defendant, Taraba State Government refused the defendant’s demand for variation on the contract. Plaintiff said that Taraba State Government paid the defendant N514.00 per metre, while the defendant paid the plaintiff N250.00 per metre for rock section, and N90.00 per metre for ordinary section. Plaintiff further said that if the defendant paid him the above money, he is demanding, that would not reverse his loss he suffered due to accrued interest chargeable.

The claim of the plaintiff was as in paragraph 10 of the plaintiff’s particulars of claim as set out below which was placed on the undefended list:-

WHEREFORE the plaintiff is aggrieved and claims from the defendant the liquidated sum of N513,440,00 (Five hundred and thirteen thousand, four hundred and forty Naira) only plus interest at the rate of 21% from the date of completion of contract till judgment and then 10% from judgment till final liquidation. The relevant paragraphs of the plaintiff’s affidavit are set out below:-

“(a) That the defendant was awarded a contract for the drilling of boreholes and laying of pipes at Takum by Taraba State Water Agency under the National Water Rehabilitation Project for a duration ending in May, 1997.

(b) That by an agreement dated 25/7/96 but executed on 3/8/96 the defendant sub-contracted the digging of the channel for water pipe to the plaintiff at the price of N250.00 (Two hundred and fifty Naira) only per metre at rock section and N90.00 (Ninety Naira) only per metre at other section. A copy of the said agreement is hereto annexed as Exhibit 1.

(c) That the contract in Exhibit 1 consisted of two phases. Phase 1 was from the Taraba State Water Board Tank to Tampa II and phase 2 was the internal network in Tampa II.

(d) That phase 1 covered 4,536 metres of rock section and 909 metres of other section while phase 2 covered 675 metres of rock section and 1,067 metres of other section.

(e) That the total distance for the two phases was 5,209 metres for the rock section and 1,976 metres for other section, making the total distance 7,185 metres.

(f) That he started work in August, 1,996 and completed same on 21/1/97 covering the total distance of 7,185 metres and was therefore entitled to the following payment:

(i) Rock section – 5209mx N250 = N1,302,250