Tomtec Nigeria Ltd .v. Federal Housing Authority (2009)

LAWGLOBAL HUB Lead Judgment Report

S.N. ONNOGHEN, J.S.C

This is an appeal against the ruling of the Court of Appeal, Holden at Abuja in Appeal NO.CA/A/60/2002 delivered on the 11th day of November, 2004 relisting the appeal of the respondent earlier ‘withdrawn’ and consequently dismissed.

The facts of the case include the following:

By a letter dated 8th May, 1997, the appellant was awarded a contract valued at N66, 601,099.92 (sixty-six million, six hundred and. one thousand, ninety-nine naira, ninety-two kobo) to erect some buildings, which contract was terminated on the 12th day of July, 2000 on the ground that appellant abandoned the site. Appellant was not happy with the termination and instituted suit NO.FCT/HC/CV/715/2000 on the 21St day of September, 2000 at the High Court of the Federal Capital territory, Abuja claiming the following reliefs:

“(1) A declaration that having regard to the provisions of the Building Contract NO. GWA-0241 dated 23rd December, 1997, the level of construction attained by the plaintiff, the conduct of the parties since the commencement of the project, and all other surrounding circumstances of the case, the purported termination by the defendant of the said contract is an unjustifiable breach of contract and a. fraud on the plaintiff.

(2) The sum of N65, 000,000.00 (sixty-five million naira only) as general and aggravated damages for breach of contract.

(3) The sum of N3,438,141.20 (three million, four hundred and thirty-eight thousand, one hundred. and forty-one naira, twenty kobo only) being the outstanding balance of payment due on payment certificate N0.05 dated 28th September, 1998.

(4) The sum of N1,394,805.05 (one million, three hundred and ninety-four thousand, eight hundred and five naira, five kobo only) being amount due but held back by the defendant as “retention” under the contract.

(5) Interest, at Bank rate (i,e 30% [thirty percent) per annum) on all the above sums until final liquidation.

(6) (1a) special damages in the sum of:

N1,019,521.81 (one million arid nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) representing bank charges paid by the plaintiff on its loan/overdraft account with Inland Bank (Nig) Plc on this matter;

(b) alternatively, the said sum of N1,019,521.81 (one million and nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) as direct loss and/or expenses on financing charges under the parties building contract N0.GWA-085,as of the 9th August, 2000.

(2) Interest on the said sum of N1,019,521.81 (one million and nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) at the rate of 30% [thirty percent] per annum compounded monthly from the 12th July, 2000 until final liquidation thereof.

The sun of N500,000.00 (five hundred thousand naira only)being the value of the plaintiffs materials forcefully taken over by the defendant and the plaintiffs’ sites.