National Bank Of Nigeria Ltd. V. P.B. Olatunde & Co. Nigeria Ltd. (1994)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C.

The defendants awarded a building construction contract of their bank building at Ilorin, Kwara State to the plaintiffs for the sum of N451,857,22. The contract was stated to be in writing. By a letter dated 13th April, 1981 written by the agent of the defendants – Architects Co-design, the contract sum was revised from N451,857.22 to N1,047,637.06. There is the Bill of Quantities which was admitted in evidence as “Exhibit 4.”

The defendants paid the sum of N977,460.83 in respect of Valuation Certificates numbers 1 to 26. On the whole, Architects Co-design issued a total of 27 Valuation Certificates.

Clause II of Exhibit 4 (Bill of Quantities) provides that the defendants could alter and vary the contract and payments for work done under the contract was to be made upon the issuance of Valuation Certificates from time to time by the defendants’ Architects and Quantity Surveyor. The plaintiffs maintained that Valuation Certificate No. 27 issued to him was for N294,552.25 and that this amount had been paid. The defendants however, contended that although that amount is reflected on the Valuation Certificate No. 27, it was wrong because the authorised contract sum is N1,047,637.06 and the sum of N977,460.83 having been paid, the balance due to the plaintiffs is N70,176.25. This was the cause of action. The defendants therefore admitted liability in the sum of N70,176.25. Had the defendants paid the sum of N294,552.25 certified in Valuation Certificate No.27, they would have paid a total of N1,272,013.08 (N977,460.83 plus N294,552.25) as against the contract sum of N1,047,637.06.

The learned trial Judge in a reserved judgment held that the plaintiffs were only entitled to the sum of N70,176.25 as admitted by the defendants plus interest at 10% on the sum found due. The plaintiffs were dissatisfied with the judgment and appealed to the Court of Appeal Kaduna Judicial Division.

The court below held that neither the plaintiffs nor the defendants ought to be awarded judgment on the basis of the findings of the learned trial Judge. It set aside the decision of the trial Judge and made an order for a retrial.

The defendant appealed against the decision of the Court of Appeal and the plaintiffs also cross-appealed. I will from now refer to the defendants as defendants/appellants and the plaintiffs as plaintiffs/respondents in this judgment.

From the grounds of appeal filed by both parties, the appellants identified the following issues for determination at page 2 of their brief of argument filed on 15:12:88:

“(i) Could the Court of Appeal validly reverse the Ilorin High Court decision which was supported by evidence.

(ii) Was it proper of the Court of Appeal to have ordered a retrial when the Court of Appeal agreed that it appeared the balance due was N70,176.23.

(iii) Was it right to hold that the particulars of errors in issuance of certificate number 27 was not stated in the appellant’s (N.B.N. Ltd) pleading in view of paragraphs 2-6 of the statement of defence, and

(iv) Was the Court of Appeal right to hold that Exhibit 1A, tendered by the respondent herein (P.B. Olatunde & Co. (Nig.) Ltd.), did not bind the respondent herein.”

The plaintiffs/respondents on 6/12/88 filed a brief of argument in respect of their own appeal. At page one of the said brief, the only issue for determination is:

“Whether it is proper for the Court of Appeal to order a retrial in this case when the Court had held that variation was properly authorized and that Exhibit 7A (Certificate No. 27) was not faulted.”