Kano State Urban Dev. Board Vs Fanz Construction Co. Ltd. (1990)

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ABDUL GANIYU OLATUNJI AGBAJE, J.S.C. 

The plaintiff company Fanz Construction Company Ltd., sued the defendant Board, Kano State Urban Development Board, in a Kano High Court claiming against it a total of N6,922,742.00 being damages for a breach of an agreement in writing dated 16th July, 1975 entered into between the plaintiff and the defendant. According to the claim the plaintiff in consideration of the sum of N11,368,652.02 agreed in the agreement to build 840 units of dwelling houses including infrastructures at Kundida Housing Estate Zaria Road, Kano, according to the specifications supplied by the defendant. The contract price of the buildings, according to the plaintiff and to the agreement was to be settled by instalments and by reference to the work completed on the building contract, payment being made upon presentation to the defendant by the plaintiff of certificate or certificates of completion of work issued by the appropriate body.

What gave rise to this action, according to the plaintiff, was the non-payment by the defendant of the sum of money due on certificates of completion of work Nos. 30 and 31 duly issued by the plaintiff to the defendant and also the non-payment of the fluctuation and variation claims made by the plaintiff against the defendant in accordance with the contract agreement between them.

In the plaintiff’s claim it is expressly stated as follows:-

“Clause 31 of the said agreement empowers the parties to refer any dispute arising from the said contract to a single arbitrator appointed jointly by the parties failing which either party can apply to the High Court. By a letter dated August 10th, 1979 the plaintiff invited the defendant to agree to the appointment of an arbitrator in accordance with the said clause 31 of the agreement. The defendant turned this request down by its letter to the plaintiff dated 24th August, 1979.”

Then it would appear the plaintiff sued the defendant in the Kano High Court on the contract agreement.

On 8/10/79, the case came on in court. On that day, on the application of counsel for the defendant pleadings were ordered by Aikawa, J., as he then was, and the case was adjourned till 7/1/80 for mention.

We are not told what happened on that day perhaps because nothing turned on it in this appeal.

The case came on again before Aikawa, J. on 22/1/80. Counsel for the plaintiff Mr. Nnadi, on that day intimated the court of his intention to apply to the High Court under the relevant provisions of the High Court Law applicable in Kano State to refer the trial of the case to an arbitrator because, according to him, of the failure of the parties to do so as provided for in the contract agreement sued upon. The learned trial Judge then referred the case to the Chief Judge, Kano State Hon. Justice D. Mustapher, who then became seised of this case. For the purposes of the appeal in hand, I need only to refer to the following aspects of the proceedings in this case before him on 4/2/80:-

“Mr. Nnadi for the plaintiff/respondent.

Mr. Tijani Ahmed state counsel for plaintiff/applicant.

MR. TIJANI: I have filed a motion for the striking out of the case.

MR. NNADI: I have a preliminary objection to raise.

COURT: What is your objection.