Mantec Water Treatment Nig., Ltd. V. Petroleum (Special) Trust Fund (2007)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

The plaintiff in his amended Statement of Claim dated 9/2/2001, claimed against the defendant as follows:-

(i) A DECLARATION that by failing to pay to the plaintiff the sum of N416,166.00 due and owing to her for works properly carried out under the contract between the Defendant and the plaintiff, the Defendant is in breach of contract and the plaintiff is entitled to damages for loss of profit;

(ii) The sum of N5, 000.000, being general damages for breach of contract and loss of profit.

(iii) The sum of N416, 166.00 being outstanding sum due and payable to the plaintiff for work properly carried out and certified under the contract between the Defendant and the plaintiff.” See pages 35 – 37 of the Record.

The defendant filed its Statement of defence dated 28/6/2002 wherein he counter-claimed against the plaintiff as follows:-

“WHEREOF the Defendant counter-claims against the plaintiff the sum of N13, 089,349.69k, being the excess money paid by Defendant to the plaintiff over and above the value of Job done by the plaintiff”. See pp. 12 -14 for the Statement of defence and counter-claim of the Record.

As a result of the Counter-Claim, the plaintiff filed a reply to the Statement and defence to counter claim, dated 15/10/2002. Both parties thereafter called their respective witnesses.

Plaintiffs PW1, John Okulola Dairo, is the plaintiff’s Managing Director and he knows the Defendant who is a Statutory body who carries special project for the Federal Government. He stated that the Defendant awarded to the plaintiff rehabilitation of Old boreholes and construction of new ones in Kwara State, for a total sum of N53.8 Million, which was reviewed to N54.4m. The letter of the award of contract dated 4/5/98 between the plaintiff and the defendant was admitted in court as Exhibit 1.

The plaintiff moved to the site, which covered seven Local Governments, each having five (5) boreholes. The defendant engaged a Consultant who Counter-signed the pump-test carried out by the plaintiff. The file containing the pump test carried out was admitted as Exhibit 2.

PW 1 also stated that he is a registered Engineer. He testified that the total value of the work done was N39.8m. The Bills of quantity of the job done which was contained in a file was tendered as Exhibit 3.

The defendants paid a total N39.4m leaving a balance of N416, 000.00. In October 2001, the plaintiff received a letter alleging that she had been overpaid to the tune of N12m and asking for refund; which letter was sent to the plaintiff’s lawyer for reply. The reply was tendered in court as Exhibit 4. He denied that the plaintiff stopped work when the amount due was N26m.

Under cross examination he stated that plaintiff was incorporated in 1985. He also stated that Advance Payment is customary in it’s relation with the Defendant, and that the N39m paid the plaintiff was an advance payment, and that it was agreed that work would be done and Certificate would be raised while deducting money from the advance payment. He denied that evaluation of the job done was carried out.

The defendant called DW1, one Buba Bogama Godabe, and a Civil Servant who knows the plaintiff. He agreed that the defendant awarded the contract for sinking of boreholes to the plaintiff in 1988 and the total contract sum was N54, 413,127.45k and a total sum of N39, 433,124.69k was paid by the defendant to the plaintiff. This amount was paid in three installments as advances to tile plaintiff. Advances arc moneys released by the employer to the contractor to enable the contractor execute the jobs and in this case these moneys were released sequent to Certificate prepared based on input supplied by the contract. The Certificate raised with the Voucher of payment are admitted as Exhibits 7, 7A & 7B, and 8A and 8B respectively. Further payment has been stopped. P.T.F. was scrapped and all projects suspended and stopped. As at stoppage of work the total value of the work done by the plaintiff was N26, 365,775.00k that was covered by Certificate No.3 i.e. Exhibit 7C. The total value of work done was on Exhibit 7B. P.T.F. advances N39m and the plaintiff only justified N26m, and the balance outstanding in favour of the defendant is N13, 067,349.69k. He testified that Exhibit 3 was prepared by the plaintiff itself. Some of the items in Exhibit 2 were countersigned by the defendant’s Consultant while some were not signed particularly pages 133 – 142. He also stated that Certificate Exhibit 7B took care of all the aspects of the plaintiffs work.