Chief S. O. Agbareh & Anor V. Dr. Anthony Mimra & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

The 2nd respondent-a German company, appointed the 2nd appellant, as its only agent for the purpose of procuring contracts for the installation of traffic lights in the Federal Capital Territory, Abuja (traffic light project). Both parties, entered into a written agreement dated 30th November, 1992 and 1st December, 1992 respectively. (See pages 111 to 115 and 116-119 of the records). The two agreements, provided for arbitration in respect of any dispute that may arise between the parties relating to the interpretation of the said agency agreements (see clause 18). By the two agreements, the 2nd respondent, agreed to pay the 2nd appellant, a remuneration of 35% (thirty-five percent) of the contract price procured by the 2nd appellant.

The 2nd appellant, procured contracts from the Federal Capital Development Authority (hereinafter called “the FCDA”) and especially, the contract for the installation of traffic lights at 64 junction, Abuja which was for the sum of N176,839,780.00 (One hundred and seventy six million, eight hundred and thirty-nine thousand, seven hundred and eighty naira) which was later reviewed upwards to N505.779,424.50 (Five hundred and five million, seven hundred and seventy-nine thousand, four hundred and twenty-four naira, fifty kobo) less withholding tax and vat. The FCDA, was to effect payment in four installments. The 1st installment of the sum of N70,735.912.00 (Seventy million, seven hundred and thirty-five thousand, nine hundred and twelve naira), was paid by the FCDA. In terms of or in compliance with the said agreements, the 2nd respondent, paid the 2nd appellant, the sum of N24,757,569.20 (Twenty-four million. seven hundred and fifty-seven thousand, five hundred and sixty-nine naira twenty kobo).

A dispute later arose between the patties as a result of concealing from the 2nd appellant of relevant documents and the payment by the FCDA of the pending sum of N439,090,342.80 (Four hundred and thirty-nine million, ninety thousand, three hundred and forty-two naira eighty kobo) viz AIE NO. BD/398/96. Clauses 3 and 4 respectively of the agreements, had provided thus:-

“The company (i.e. the 2nd respondent) shall give to the agent (i.e. the 2nd appellant) copy of every letter and or agreement in relation to any contract procured by the agent.”

In other words, the dispute was whether the 2nd appellant, was entitled to any further payments of the said agreed remuneration. The 2nd appellant, took out a suit at the High Court of Lagos in suit LD/2992/96 against the 1st and 2nd defendants and the Central Bank of Nigeria, claiming the following reliefs:

(1) Specific performance of the terms and conditions by the defendants of the agreement dated the 30th day of November, 1992 and the supplemental agreement dated the 1st day of December, 1992 between the plaintiffs and the defendants.

(2) An order for a clean account of contracts in respect of all the traffic lights contract at phase 1 and phase II, Abuja.

(3) Payment over to the plaintiff of all outstanding sums found due to the plaintiffs in accordance with the said agreement and INTEREST thereon at the current Central Bank of Nigeria rate per annum until the commission and remuneration due is fully paid up to the plaintiffs.

(4) An order directing the defendants to give to the plaintiffs a copy of every letter, agreement and document in relation to the contracts procured by the plaintiffs.

(5) INJUNCTION restraining the defendants by themselves, servants, agents, privies or any person by whatever name so called from disturbing, depleting and/or withdrawing any sum of money already collected or to be collected by the defendants from the Federal Capital Development Authority, Abuja in respect of Abuja traffic lights installations subject matter of this action and/or lodged in any of the bank accounts maintained or operated by the defendants without paying the commission due to the plaintiffs in accordance with the terms and conditions of the agreements between the parties dated 30/11/92 and 1/12/92 respectively.”

It need be stated that the 2nd respondent did not file any process, but agreed to settle the matter amicably out of court. In consequence, terms of settlement, were agreed upon, prepared and signed by the parties and their respective counsel and subsequently filed in court, consent judgment was entered by Famakinwa, J, for case of reference, the said judgment which appears at page 20 of the records, read inter alia, as follows:

“…By consent judgment is hereby entered in favour of the plaintiffs against the defendants (sic) in the following terms:-

(1) That the agreement dated the 30th day of November; 1992 and supplemental agreement dated 1st day of December, 1992 is between plaintiff and the 2nd defendant and are only binding on them.