Robinet Nigeria Limited V. Shell Nigeria Gas Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Lagos State delivered by Oyebanji J. on 26-5-2009 in suit No LD/1007/2009 wherein the claimant’s (now appellant) Suit was dismissed.

The appellant had as a claimant commenced a suit against the defendant (now Respondent) by filing a writ of summons dated 6-5-2004 and a statement of claim dated 5-5-2004.

In paragraph 25 of the said statement of claim the claimant claimed the following reliefs against Respondent:-

(a) “An order of this Honourable court, directing the defendant to forthwith pay to the plaintiff, the outstanding sum of N6,928,681.40 (six million, nine hundred and twenty-eight thousand, six hundred and eighty-one naira, forty kobo) being outstanding sum from the total contract sum, the 60% some for additional work and interest on the borrowed sum as at date and interest at the rate of 21% p.a. from 30th May 2002 till judgment and final liquidation.

(b) 40 million naira being general damages arising from business instability and loss suffered by the plaintiff as a result of the defendants unilateral breach of the contract agreement executed in March 2002.”

The facts of the case in a nutshell is that on or about the 18-3-2002 the Respondent awarded to the appellant, a contract for the supply, installation and service/maintenance of two sets of generators and tanks at the Respondents sites at Ota and Aba.

The contract was to be performed in two phases, to wit:- (a) Supply, fabrication and commissioning of the two generators sets and (b) Servicing and maintenance of the two generator sets for the first 5000 running hours.

It was also the terms of the contract that payments thereon shall be in two installments. The first installment of N5,064,969.00 representing the total amount for the first phase of the contract, shall be payable within 30 days of completion and acceptance of the work by the Respondent. The second installment being N1,076,80 for the second phase of the contract i.e. service and maintenance. The completion date was to be May 2002 but the final commissioning of the first phase was done in September 2002 after some adjustments were made in the work done.

The Appellant was subsequently not allowed to continue with the second phase of the contract inspite of all efforts to do so. The Respondent eventually terminated the contract vide a letter dated 1/12/2003. The appellants grouse was that the respondent delayed payment for the first phase of the contract, refused to pay for additional work done outside the contract but with the knowledge of the respondent’s site engineer and also the unilateral termination of the contract by the Respondent.

Hence it commenced a, suit in the Lagos Division of the High Court of Lagos State. The Appellants statement of claim is dated 5/5/2004. The Respondent as defendant also filed a statement of defence dated 22-10-2004. The claimants reply to the statement of defence is dated 11/5/2005.

At the trial, the Appellant called 1 witness and tendered 34 exhibits in evidence. The Respondent also called one witness and tendered 15 exhibits. Written addresses were also filed and exchanged by counsel for the Parties. In a judgment delivered on 26-5-2009 the appellants claim was dismissed.

Being aggrieved and dissatisfied with the said judgment the appellant filed a notice of appeal dated 21-8-2009 and filed on 26-10-2009. The said notice of appeal contains 3 grounds which shorn of their particulars reads as follows:-

GROUND 1