Ame Consulting Engineering Limited & Anor V. Mr. Babatunde Cole (2016)

LawGlobal-Hub Lead Judgment Report

UZO I. NDUKWE-ANYANWU, J.C.A. 

This is an appeal against the decision of the High Court of Lagos State delivered on the 21st day of October 2013 by Hon. Justice L. B. Lawal-Akapo.

By a Writ of Summons together with a Statement of Claim dated 22nd October 2007 the Claimant now Respondent claimed against the Defendant now Appellant as follows:
?a. The sum of N30 million (thirty million naira) being the amount due and payable to the Claimant in respect of the obligation to the Defendants arising from the deed of payment dated 8/8/2007, endorsed by the parties.
b. Interest at the rate of 21% per annum on the said sum of N30million (thirty million naira) from 31/8/2007 until the date of judgment, and interest at the rate of 15% per annum from the date of judgment until the judgment-debt is totally liquidated?

It is the case of the Respondent that he was engaged by the Appellants to facilitate the award of the Orile Tanker Terminal Contract from the Lagos State Government to the Appellants. He alleged that once the contract was awarded, the Appellants and the Respondent signed a deed of payment

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[Exhibit P2) wherein the Appellant agreed to pay the Respondent the sum of N30 Million as facilitator. However the Appellant refused to pay the money, despite several demands by the Respondent and his Counsel. Hence the Respondent commenced this action at the Court below.
The Appellant on the other hand in their Amended Statement of Defence, dated 30th June, 2008 denied engaging the Respondent as facilitator. They contended that they won the contract through a totally transparent process which included the submission of bid, interviews, provided technical justification and proof of financial capability. They also contended that the Respondent’s involvement in the project began when he showed interest as a potential investor at the stage the Appellants were preparing to submit their bid. They allowed him to co-sign the bid upon a condition that he would contribute an equity capital of N50 Million, which he agreed but failed to pay. The Appellants also alleged that they awarded to the Respondent a contract for the construction of a perimeter fence round the project site to which the Respondent collected the sum of N11 Million as mobilization fees from the

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Appellant but refused to perform the contract nor did he return the money. The said contract was then re-awarded to another person. They also alleged that the deed of payment [Exhibit P2] was executed under duress as the Respondent threatened to disrupt the commissioning of the first phase of the project.

In response to the Appellant’s Amended Statement of Defence, learned counsel for the Respondent filed a reply to the Amended Statement of Defence dated 17th September, 2009 pursuant to an order of Court.
In delivering its judgment the learned trial judge granted the relief as claimed by the Respondent.

Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal on 20th November, 2013 consisting of nine (9) grounds of appeal.

At the hearing of the appeal, learned counsel for the Appellant relied on the Appellant’s brief of argument which was filed on the 27th day of December, 2013 and the Appellant’s Reply brief which was filed on the 20th day of February, 2014 but was deemed properly filed on the 11th May 2015.

The Appellant in its brief of argument formulated three issues for determination viz:-
?2.1

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Whether the learned trial Judge was right to have relied on Exhibit PIB as the reply statement on oath of the Claimant/Respondent as against Exhibit P5 (Grounds 1 & 2)
2.2. Whether the learned trial Judge rightly evaluated the testimony of the Claimant/Respondent and that of the Defendants/Appellants before arriving at the judgment appeal against (Grounds 3, 4, 5 & 9)
2.3 Whether the deed of payment (Exhibit P2) is ex-facie illegal, immoral and contrary to public policy? (Ground 6)”