⦿ CASE SUMMARY OF:
DALEK NIGERIA LIMITED v. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) – SC
⦿ LITE HOLDING
Where a court raises an issue suo moto, the court must give parties the opportunity to address it on such issue.
⦿AREA OF LAW
Admissibility of evidence
DALEK NIGERIA LIMITED
OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC)
(2007) JELR 48110 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
D. MUSDAPHER, J.S.C
* FOR THE APPELLANT
Chief Mike Ozekhome
* FOR THE RESPONDENT
C. O. Akpamgbo, Esq, SAN
⦿ FACT (as relating to the issues)
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.
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.”
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.
1. Was the Court of Appeal right to have held that exhibit “B” was a counter-offer, when the question of whether exhibit “B” was a counter-offer is a material and fundamental issue of fact and law that was never raised nor canvassed by any of the parties before the Court of Appeal, and, was exhibit “B” really a counter-offer of exhibit “A”.
2. From the totality of the evidence adduced before the trial court and the findings and conclusion of the learned trial Judge, was the Court of Appeal right to have rejected the appellant’s total claim in the sum of N229,304,760.26k.
3. Whether the Court of Appeal was right to have refused to attach any weight to exhibit “M”, having found that the respondent was duly “given the opportunity to cross examine on the documents”, and that “he also had the opportunity if he so wished to call further evidence in rebuttal of exhibit “M”, thus the principle of fair hearing was maintained. Exhibit “M” was therefore properly admitted.
1. Was the Court of Appeal right to have awarded the plaintiff/respondent the sum of N14,147,224.26 in the face of exhibit “L”?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: MAIN-APPEAL DISMISSED]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR 0F THE RESPONDENT.
i. Assuming for one moment that exhibits A and B formed a valid contract, it is clear from their terms that there must be an assignment of a particular project to the appellant. The appellant proved no particular assignment except the Omadino project. I am accordingly of the firm view that the issue of whether exhibit B was a counter offer to exhibit A or not, is not important or relevant, when the appellant has failed to show that it had been specifically assigned to any project. In appointing the appellant in general terms, exhibit A stated that the appellant’s professional fees for any assigned project would be 2% of the total cost of such project. At the time exhibit A was made no project of the respondent much less of the 192 projects assessed and inspected by the Presidential Monitoring Team was contemplated. The 192 projects cannot in any way be referable to exhibit A. Nor did exhibit A list any project assigned to the appellant. In respect of the Omadino Road Project, the respondent specifically by a letter dated 10/2/1997 assigned the project to the appellant. Under the circumstances whether exhibit B is a counter-offer to exhibit A is not important or relevant. The crucial issue is whether the appellant has proved the assignment of the 192 projects. I accordingly resolve issue one against the appellant.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In my view Engineer Uduehi was co-opted into the team in his own personal capacity and not as agent of the appellant. Exhibit C sets out the composition of the monitoring team and it said this about Engineer Uduehi:- ”To strengthen the professional membership of the Team considering the engineering content of the assessment, the Team co-opted a Civil Engineer, Engineer D. B. Uduehi, a one time Permanent Secretary/Director General in the defunct Bendel State and also a one time Chairman of the Nigerian Society of Engineers.” There is clearly no dispute whatever, that the appellant did not plead that Engineer Uduehi who signed exhibits C, D and E as co-opted member acted or operated as in agent of the appellant. It is also clear that the inspection of the 192 projects carried out by the team of which the appellant is claiming the sum of N211,157,560.00 were for completed projects not for new projects. In my view, the 192 projects were not “assigned” to the appellant, the projects were merely inspected by a team comprising of D. B. Uduehi who was specifically co-opted as a member of the team in his personal capacity and was remunerated for his services equally along with the other members of the team. The appellant is a separate legal entity from Engineer Uduehi. Exhibits A and B never referred to Engineer Uduehi as an individual but only to the appellant while exhibits C, D and E only referred to Engineer Uduehi as an individual in his personal capacity and not the appellant as a corporate personality.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Now, exhibit “M” was tendered and admitted in evidence after the close of the case of the appellant as the plaintiff. It is similar to exhibit 9, it contained a notice of demand of payment of fees of the 192 projects. The learned trial Judge in his judgment said:- [see page 123 of the record]: “Even if exhibit “M” is expunged, there exists exhibit “G” and the oral evidence of demand for payment which in my view, are enough to satisfy the burden of proof in civil matters based on the balance of probabilities.” Thus the learned trial Judge found other sufficient evidence both oral and documentary showing that the appellant gave the notice of its demand for its fees. Accordingly if the Court of Appeal held that it will attach no weight to exhibit “M”, such a statement would not occasion any miscarriage of justice. Apart from that, while dealing with issue 2 above, I have extensively discussed the issue of the non-involvement of the appellant with the services rendered by the Presidential Team which co-opted Engineer Uduehi in his personal capacity. I have resolved this issue also against the appellant, since the non-attachment of any evidential weight on exhibit “M” did not in any way affect the fullness of the case of the appellant.
**CROSS-APPEAL (CROSS-APPEAL WAS DISMISSED)
1. ISSUE 1 OF THE CROSS-APPEAL WAS ANSWERED AGAINST THE CROSS-APPELLANT: It is also not disputed that N4 million naira was paid as part payment. The simple question in this matter is what the total cost of the Omadino project was and what was 2% of the cost? 2% of the cost was N18,147,224.26k. If N4 million is deducted, the balance due to the cross-respondent would be N14,147,224.26k. In my view, the Court of Appeal acted rightly when it awarded the sum. Based on the undisputed facts, I find no merit in the cross-appeal, I dismiss it.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
It is very important to note that it is settled law that in an action based on pleadings issues are joined by the parties in their pleadings. It is also settled law that evidence on facts not pleaded ground to no issue. The existence or non-existence of fact is said to be in issue if the existence or non-existence of that fact is asserted by a party in his pleading and denied by the other party specifically, positively, and unequivocally. – Onnoghen JSC. Dalek v. OMPADEC (2007)
It is settled law that where a court raises an issue, suo motu it must afford the parties or their counsel the opportunity of addressing the court on the issue so raised so as to ensure that the rules of fair hearing are adhered to for the purpose of doing justice to the parties. – Onnoghen JSC. Dalek v. OMPADEC (2007)