Nigercare Development Company Ltd. V. Adamawa State Water Board & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos Division (hereinafter called “the court below”) delivered on 10th July, 2002 dismissing the appeal by the appellants to it and affirming the judgment of the High Court Yola Judicial Division of Adamawa State holden at Yola. Dissatisfied with the said decision, the appellants have appealed to this Court on five (5) Grounds of Appeal.

The facts briefly stated, are that the appellant, has won the contract from the 1st and 2nd respondents for the rehabilitation of water treatment plants in Yola, Numan and Mubi in Adamawa State (i.e. the Adamawa State National Water Rehabilitation Project) which was sponsored by the World Bank. On 4th July, 1997, the Sole Administrator of the 1st defendant/respondent terminated/revoked the said contract No. AAD 01 ICB even when the period for the execution of the contract, had not elapsed. As a result of this revocation, the Appellant as Plaintiff, instituted the action leading to the instant appeal. It claimed/sought the following reliefs in paragraph 47 of its Amended Statement of Claim: (not very correctly reproduced in the both briefs of the parties).

(i) A declaration that the 1st defendant’s letter No. ASWB/AD/S/206111/529 dated 4/7/1997 signed by the Sole Administrator, Adamawa State Water Board on the subject of Water Rehabilitation Project No. AAD/-OI-ICB between the plaintiff and 1st defendant is against the provision of the law establishing the 1st defendant, ultra vires, illegal, null and void.

(ii) A declaration that 1st, 2nd and 3rd defendants failure or neglect to pay the 15% of the Contract sum to Plaintiff even after submission of Advance Security Guarantees is a breach of the Agreement between the parties.

(iii) A declaration that in the circumstances of this case, the National Water Rehabilitation Project Contract No. AAD 01 ICB is still valid (sic) (meaning valid) and subsisting.

(iv) An order of compensation in favour of the plaintiff against the 1st and 2nd defendants jointly and severally in the total sum of N53,640,335.00 in line with the contract agreement of 15-7-1996 but signed on 15-8-1996.

(v) The sum of $404,381.66 being 15% of the contract sum in foreign components due to the plaintiff as advance from 1st defendant.

(vi) The sum of N988,488.51 being 15% of the contract sum in local components due to the plaintiff as advance payment from the 1st and 2nd (sic) (meaning) 2nd defendants.

(vii). Payment for Job already executed: L.C. N622,556.00; F.C. 254.682 U.S.D.

(viii). Any further and better orders”

The 1st and 2nd defendants/respondents, counter-claimed. Pleadings were filed and exchanged. The case proceeded to trial with both parties calling witnesses and learned counsel for the parties addressing the court and the case was adjourned for judgment. It was while the parties, were awaiting the judgment, that the learned trial Judge – Banu, J. in the course of writing the Judgment, suo motu, invited the learned counsel for the parties, to address him on the legal effect of the provisions of Sections 51(1) and (2) of Adamawa State Water Board Edict No. 4 of 1996 (hereinafter called “the Edict/Law”) and the non-compliance with its provisions. Said he at page 168 of the Records inter alia, as follows:

“In the course of writing the Judgment, my attention was caught by the provisions of Section 51 of Adamawa State Water Board Edict No. 4 of 1996 which states:……….”It is my view that this provision is crucial as it affects the 1st defendant and I would like counsel to address me on whether or not the provision has been complied with,and if not, its consequence.”

I note that there was no objection from any of the learned counsel for the parties who in fact, addressed the court in respect of the said issue. Thereafter, His Lordship, stated at page 170 thereof, thus;