Solel Boneh Nigerial Limited V. Canitec International Coy. (2006)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

Solel Boneh (Nigeria) Ltd which is the Appellant and shall herein be so referred to is the main contractor to the University of

Port Harcourt Teaching Hospital Project. Canitec International Company Ltd is the Respondent and a subcontractor to the Appellant. The services of the Respondent were employed by the Appellant to execute the laying of terrazzo works and skirting works in “Block J” at the University of Port Harcourt. The said subcontract was settled at the rates of N1,400.00 (One thousand four hundred Naira) per square metre and N300.00 (three hundred Naira) per linear metre respectively. The terms of the subcontract were documented and executed as the subcontract Agreement as exhibited in “Exhibit. A” (pg 21-24 of the records for this appeal referred). The job was successfully executed and duly paid for in terms of “Exhibit A”.

The Appellant subsequently made another offer to the Respondent termed “an extension of the existing subcontract to cover the “Mortuary Block and Block H,” at the same rate with the earlier one which had been executed and concluded.

Expectedly, the Respondent made a counter offer of N3,500.00 (three thousand five hundred Naira) and N600.00 (six hundred Naira) respectively for the terrazzo works and the skirting works. There was no written response from the Appellant. It would appear then that the contract had been repudiated. Was it?

The letter of extension of the subcontract to cover the “Mortuary Block and Block H” is “Exhibit 8.” “Exhibit c” embodies the counter – offer made by the Respondent. Without responding to “Exhibit C”,

the Appellant sent “Exhibit D” to the Respondent which contents complaints of the failure of the Respondents to commence work as offered in ‘Exhibit B”. In “Exhibit E”, the Respondent requested a confirmation/acceptance of its counter offer at the reviewed rates for the extension, but received no response. The Respondent nonetheless mobilized to site.

From this point, the accounts of the facts by the Appellant vary from these by the Respondent.

While the Appellant purports that the agreement between the two parties were eventually ratified in an addendum to “Exhibit A” in a document marked “Exhibit M”, the Respondents refute this version and have its own story to tell.

It is the version of the Respondent that by several meetings with the Appellant’s then Project Manager Mr. Sergiu Mesesan, the parties verbally agreed to the upward review of the rates to N2,600.00 (two thousand six hundred Naira) per square metre for terrazzo and N500.00 (Five Hundred Naira) per linear metre for skirting for the “Mortuary Block and Block H”. Whereas nothing is said of the Appellant’s letter ratifying the said new rates, the Respondent cites “Exhibit F” as its acceptance of the reviewed rates!.

The bone of contention between the parties is thus the amount at which the extension to the “Mortuary Block and Block H” were executed, and the issue of the Retention fee.

The trial Court Coram – Ogbuji J. accepted the case made out by the Respondent. Accordingly, on the 24th day of March 2004, it entered judgment against the Appellant in the sum of N6, 923,750.00 Six million, nine hundred and twenty three thousand, seven hundred and fifty thousand Naira) in favour of the Respondent.

The Appellant seeks a reversal of the decision of the trial Court upon nine grounds of appeal to which a 10th ground was added by leave of this Court. Two issues were distilled for determination and these are:-

1. Whether the Plaintiff was entitled to any additional payment in respect of the sub contract (Grounds 1, 2, 3, 4, 5, 6, 7 and 9).
2. Whether the Plaintiff was entitled to payment of Retention fees under the sub contract (ground 10).

The Respondent also formulated two issues for determination as follows:-