Dalek Nigeria Limited V. Oil Mineral Producing Areas Development Commission (Ompadec) (2007)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the High Court of Justice of Delta State of Nigeria, Holden at Sapele and in suit No. S/78/98 the plaintiff by its writ of summons claimed against the defendant the following:”

(a) N211,157,536.00 being outstanding debt in respect of professional fees for engineering and management consultancy services for 192 projects, the first assignment.

(b) N18,147,224.26k being unpaid professional engineering and management consultancy services for the Omadino project and access roads.

(e) Interest to date with effect from 20th March, 1997 on the N211,157,536.00 being outstanding debt for the first assignment.

(f) Interest with effect from 5th October, 1997 on N18,147,224.26k being fees for Omadino project and access roads, the second assignment.”

By its pleadings, the plaintiff averred that it is a registered limited liability company comprising of a consortium of engineers, land surveys, architects and computer experts. By a letter of 12/4/ 1996, the defendant engaged the plaintiff to provide general engineering consultancy and technical services, general management consultancy and other relevant professional services and assignments. By a letter of acceptance dated the 15/4/1996, the plaintiff accepted the offer and immediately commenced professional services. The fees for any assigned project was fixed at the rate of 2% of the total cost of the project. Similarly, by a letter dated 10th February, 1997, the defendant appointed the plaintiff as engineering consultant for engineering and consultancy services in respect of Omadino Bridge Project at 2% of the estimated cost of the cost and also on the following terms of payment:

(i) 30% advance payment.

(ii) 40% on submission of draft report.

(iii) 30% on submission of a final report.The plaintiff further averred that it rendered professional services in respect of 192 projects in Edo, Ondo, Delta and Rivers States and that its 2% fee for the totaled cost of all projects was N229,304,760.26. The plaintiff averred that by several letters and personal calls it demanded the defendant to pay the fees to no avail, hence the plaintiff took this action.

The defendant admitted employing the plaintiff on the Omadino Bridge Project only and even at that, the plaintiff was paid N4 million, leaving a balance unpaid of only N8 million. On the question of the 192 projects, the defendant denied employing the plaintiff and averted no job was awarded to the plaintiff. The defendant further claimed that work on the 192 projects was carried out by the Presidential Monitoring Team of which one Mr. Uduehi the Managing Director of the plaintiff was co-opted in his personal capacity into the Presidential Monitoring Team. The said Mr. Uduehi was accommodated at Hotel Presidential free, he was given allowances like all other members of the Presidential Monitoring Team and at the end of the exercise he was paid an honorarium of N120,000.00 per week. It was also averred that the data with which the Presidential Monitoring Team performed its job was provided by the technical staff of the defendant and not the professional or engineering skill or expertise of the plaintiff. The defendant denied being liable to the plaintiff in the sum of N211,157,536.00 or any sum at all for the 192 projects. The defendant admitted owing only 8 million being the balance unpaid on Omadino project.

The trial commenced on 14/1/1999 with the evidence of the Managing Director of the plaintiff. In his evidence he tendered exhibits A and B letters dated 12/4/1996 and 15/4/1996 respectively being letters of offer and acceptance of consultancy services offered to the defendant by plaintiff. Exhibits C, D and E, three volumes of the report of the 192 projects inspected by Presidential Monitoring Team. Exhibit F is the assessment and evaluation of the Omadino project. The Managing Director of the plaintiff was the only witness who testified for the plaintiff. He also tendered other documents.

For the defence D.W.l and D.W.2 testified in line with the statement of defence, thus denying the claims of the plaintiff. After the address of counsel in his judgment delivered on 11/ 10/1999, the learned trial Judge found for the plaintiff and entered judgment in its favour in the total sum of N229,304,760.26 on the two assignments but dismissed the claims for interests. Aggrieved by the said judgment, the defendant appealed to the Court of Appeal. After its consideration of the issues as canvassed in the briefs, the Court of Appeal in its judgment delivered on the 10/12/2001, allowed the appeal of the defendant but granted the plaintiff the sum of

N14,147,224.26 being the amount unpaid on the Omadino project and dismissed the claim on the 192 projects. Both parties appear to be unhappy with the judgment and have now appealed and cross-appealed. I shall first deal with the appeal and later the cross-appeal.