Hydro-tech Nigeria LTD & Anor V. Leadway Assurance Co. LTD & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Enugu Judicial Division delivered by Justice A. O. Faji, J. on the 2nd day of March, 2007. The suit was commenced vide Originating summons dated 24/06/2005, wherein the plaintiff/1st respondent, pursuant to the determination of questions raised and consequent upon the determination of the said questions, sought for the grant of specified reliefs or orders, against the 1st and 2nd defendants/1st and 2nd appellants herein. The reliefs and orders are reproduced below:

(a) A DECLARATION that the Claimant is entitled to receive from the Defendants jointly and severally payment of the sum of N9,079,295.50 (Nine Million and Seventy Nine Thousand, Two Hundred Nine and Five Naira Fifty Kobo) together with interest thereon as found by the Honourable Court from March 14, 2005 until repayment.

? (b) An ORDER of the Honourable Court entering judgment against the Defendants jointly and severally for the aforesaid such of (sic) N9,079,295.50 (Nine Million and Seventy Nine Thousand, Two Hundred Nine and Five Naira

Fifty Kobo) and interest thereon.

(c) An ORDER OF FORECLOSURE by the Honourable Court empowering the Claimant to sell off the Defendants’ landed property at Plot 5, Block 22, New Haven West, Enugu North L.G.A of Enugu State of Nigeria covered by Building Certificate of Occupancy deposited with the Plaintiff by the Defendant and registered as No. 86 at page 86 in Volume 1099 of the Lands Registry in the office at Enugu pursuant to Personal Indemnity executed by the 2nd Defendant and Indemnity Agreement executed by the 1st Defendant in favour of the Plaintiff in respect of N9,079,295.50 (Nine Million and Seventy Nine Thousand, Two Hundred Nine and Five Naira Fifty Kobo) which said sum constitutes counter-indemnity entered into by the Plaintiff on behalf of the 1st Defendant, in respect of FIXED SUM contract No. ST WSSE – KT/102/LOT6: Radda Town, Katsina State for Construction/Rehabilitation of Water Supply Scheme under the Small Towns Water Supply and Sanitation Programme, awarded to the Defendants and which contract was breached by the Defendants by renegotiating the contract sum, inspite of express stipulation in contract agreement (Exhibit A)

against renegotiation being a contract of fixed sum, and said sum called in and paid on their behalf by the Plaintiff;

3. Costs and Expenses of this action

(i) Payment of said indemnified sum and interest thereon;

(ii) Costs and Expenses of recovery of said sum including solicitor?s fees.”

The originating summons was accompanied by a thirty-seven (37) paragraph affidavit and exhibits.

Upon being served with the above stated processes, the appellants filed a thirty-five (35) Paragraph Counter-Affidavit together with exhibits in opposition to the originating summons. The appellants vide a motion on notice filed on 21/11/2005 sought and obtained the order of the lower Court to join the 3rd and 4th defendants (2nd and 3rd respondents, respectively) to the suit. While the 3rd respondent did not respond or file any process at the lower Court, the 2nd respondent filed a counter – affidavit on 5/04/2006 in opposition to the motion for joinder as well as the substantive suit. It is pertinent to observe here that, notwithstanding the fact that the appellants were the party who sought and obtained the order of the lower Court to join the

2nd respondent, however, they neither made any specific allegation against the said 2nd respondent nor contradict all the facts deposed to by the said 2nd respondent.

?After the close of pleadings, parties were ordered by the learned trial judge to file their respective written addresses, which they did. After the written addresses of the parties were adopted in addition to their oral submissions thereon, the learned trial Judge found, answered and concluded as follows;

“1. As regards question a, the answer is yes i.e. exhibit D has become enforceable.