Ebla Construction Ltd V. Costain (West Africa) Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE ADAMU JAURO, J.C.A. (Delivered the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State, per Y.O. Idowu J, delivered on 8th December 2006. By the said judgment, the claims of the claimant now respondent against the defendant now appellant were granted as per writ of summons dated 7th November, 2000 to the tune of N7,533,735.00 with 21% interest from 18/11/97 until date of judgment and 6% until judgment sum is liquidated.

The facts giving rise to this appeal are as follows. The respondent’s case is that by virtue of a subcontract agreement, it awarded the Ogunpa Channelisation Project at the Ibadan Storm Drainage and Flood Control Works Phase 1 to the Appellant. The total contract sum was N97,797.275.00 (Ninety Seven Million, Seven Hundred and Ninety Seven Thousand Two Hundred and Seventy Five Naira). The terms of the subcontract were contained in a letter dated 19th December 1996 and the appellant signed an acceptance slip dated 20th December, 1996.

The sum of N9,400,025.00 (Nine Million, Four Hundred Thousand and twenty Five Naira) was paid to the appellant as advance payment. A further payment of N2,320,455.00 was made to the appellant to cover costs of work done on certificate of imput No. 008184. The appellant abandoned site, hence respondent instituted the action claiming balance of money for work not done. The appellant on its part, filed its statement of defence and incorporated a counterclaim to the tune of N16,773,599.00 (Sixteen Million Seven Hundred and Seventy Three Thousand Five Hundred and Ninety Nine Naira). Upon the conclusion of trial judgment was given in favour of the respondent per its writ of summons.

Dissatisfied with the judgment, the appellant appealed against same vide its notice of appeal dated and filed 2nd February, 2007. The notice of appeal was anchored on four grounds and the grounds shorn of their particulars are hereby reproduced thus:

“GROUND 1

The learned trial Judge erred in law when he held that there was a valid contract by basing his decision on the terms of a letter of intent tendered and admitted as Exhibit “A” which was made subject to the execution of a subcontract Agreement between the parties.

GROUND 2

The entire Judgment is against the weight of evidence as the learned trial Judge misdirected himself by failing to make a proper evaluation of the evidence adduced by PW1 in arriving at his findings or Judgment.

GROUND 3

The learned trial Judge erred in law and facts when it failed to address, consider and evaluate the 2nd but fundamental issue raised by the Defendant in its written address dated 9/06/06 as to “whether the evidence and testimonies of the Claimant are credible and sufficient enough to sustain its (Claimant’s) claim” in the face of the glaring contradictory evidence, thereby occasioning a miscarriage of justice.

GROUND 4

The learned trial Judge misdirected himself by giving Judgment in favour of the Claimant in the entire sum of N7,533,735.00 by relying on the case of NWANKWO VS. NWANKWO without properly evaluating the rational for determining the quantity and measurement of work done by the Defendant and further proceeded to dismiss the Defendant’s Counter claim in its entirety.”

In compliance with the Rules of court, parties filed and exchanged their respective briefs of argument. The appellant’s brief was dated and filed on 10th March, 2010 while the reply brief was dated 8th April, 2010 and filed on 9th April, 2010. The respondent’s brief was dated and filed on 19th March, 2010. Mr. B. Dambo for the appellant adopted and relied on the appellant’s brief and the reply brief in urging this court to allow the appeal.