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

LAWGLOBAL HUB Lead Judgment Report

DAHIRU 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.

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

(d) 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 surveyors, 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 totalled cost of all projects was N229,304,760.26. The plaintiff averred that by several letters and personal calls 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 averred no job was awarded to the plaintiff. The defendant further claimed that work on the 192 project 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 DW.I 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 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.

APPEAL The plaintiff hereinafter referred to as the appellant filed a Notice of Appeal against the decision of the Court of Appeal. In his brief for the appellant, the learned counsel has identified, formulated and submitted three issues arising for the determination of the appeal.

The issues read:

“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 principal (sic) of fair hearing was maintained. Exhibit “M” was therefore properly admitted.”

The learned counsel for the respondent on the other hand has identified and submitted the following 3 issues as arising for the determination of the appeal:

“i. Did the Court of Appeal go outside the issues submitted to it for adjudication when it held that Exhibit B amounted to counter offer and was it right in so holding

ii. From the totality of evidence oral and documentary, was the Court of Appeal right in setting aside the award of N211,157,536 in favour of the Appellant on the ground that the 192 projects were not awarded to it.

iii. Was the Court of Appeal right in attaching no weight to Exhibit M in consequence of the finding that 192 projects were not awarded to the Appellant?”

The issues formulated are not dissimilar in meaning, I shall, however, in this judgment discuss the appeal on the basis of the issues as submitted by the appellant.

ISSUE ONE This deals with the holding by the Court of Appeal that Exhibit B was a counter-offer. It is submitted that whether Exhibit B was a counter-offer or not it was not an issue joined by the parties for the determination of the appeal before the Court of Appeal. It is further argued that through out the pleadings of either party the question whether Exhibit B was a counter offer was never raised. It is further argued that there was no dispute whatever, the parties have created a valid contract between themselves, what the Court of Appeal did with reference to Exhibit B was to introduce a new issue not canvassed by either party, thereby occasioning miscarriage of justice on the appellant who had no opportunity of responding to the question. It is further argued that Exhibit “B” was infact not a counter offer of Exhibit “A”.

It is said to be “a clear categorical and unambiguous” acceptance of the terms contained in Exhibit A. It is further added that Exhibit A was not exhaustive and was predicated on the appellant’s “proposals and application for appointment as engineering and management consultants. It is submitted that Exhibits A and B constitute proper offer and acceptance which created a valid contract between the parties. In Exhibit “B” the appellant did not make a counter offer, but it merely highlighted the points of agreement during negotiations. Learned Counsel referred to the cases of Orient Bank (Nig) Plc v. Bilante International [1997] 8 PAGE| 11 NWLR (Pt 515) P. 37.

Major-General George Innih (Rtd) & Others v. Ferado Agro and Consortium Ltd [1990] 5 NWLR (Pt 152) 604. The learned counsel for the respondent on the other hand argued that the Court of Appeal clearly dealt with the issue as raised by the appellant in his issues for determination [Respondent herein], to wit.

“Whether by virtue of exhibits A,B,C,D,E,F and G, the respondent [appellant herein] was entitled to the judgment in the sum of N229,304,706.26.” It was while examining the exhibits that the Court of Appeal came to the conclusion that Exhibit B was a counter-offer to Exhibit A and thus there was no contract for which the respondent herein was liable to the appellant for the total sum of N229,304,706.26. In arriving at his decision, the trial judge held that the offer in Exhibit A was accepted in Exhibit B. In its consideration of the exhibits the Court of Appeal came to the conclusion that Exhibit B was a counter offer and not an acceptance of the offer in Exhibit “A”.

It is further argued, that the issue did not relate to a finding of facts based on the testimony of witnesses but merely on the interpretation of the documentary evidence put in by the appellant to prove the existence of a contract to entitle him to damages for its breach. It is thus submitted that the Court of Appeal did not go outside the issues which the parties have submitted for the determination of the appeal. It is further argued that Exhibit B was challenged as incapable of founding the judgment of the trial court. On the secondary issue whether infact Exhibit B was a counter offer to Exhibit A, the learned counsel for the respondent submitted that (a) An acceptance of offer must correspond to the terms of the offer vide Hyde v. Wrench [1840] Bea334. (b) A counter offer is when the offeree attempts to accept the offer on new terms not contained in the offer. Learned counsel referred to the case of Council of Yaba College of Technology v. Niger Lee Contractors Ltd [1989] 1 NWLR (Pt 95) 99, Orient Bank (Nig.) Plc v. Bilante Intl. Ltd [1997] 8 NWLR (Pt 515) 37, Uba Ltd v. Tejumola & Sons Ltd [1988] 2 NWLR (Pt 79) 662 at 700. It is again added that on looking at Exhibits A and B, it becomes clear that Exhibit B was indeed a counter offer.

Now, in its judgment the Court of Appeal held at page 408 of the record thus:- “In his judgment the learned trial judge found that Exhibit B was received by the appellant. He also held at page 94 of the record of appeal that Exhibits “A” and “B” constitute offer and acceptance which is a binding contract and the terms of the contract created by Exhibits A and B include the contract sum, payment terms and conditions of the contract. He also found that the projects were never in doubt in the Exhibits and actions creating and constituting the contract. Although he stated later in the judgment at page 95 that the assigned projects as shown in Exhibit “M” were not specifically named in Exhibit “A” but held that the combined effects of Exhibits A,B,C,D,E,F and M and their annexure eloquently confirm and link the work assigned and performed by the plaintiff MD/Chairman and agent as shown in Exhibits M,C,D,E as the actual projects that were eventually assigned to the plaintiff under the contract created by Exhibit “A” and “B”.(sic) The reasoning and conclusion of the learned trial judge is a little bit complicated but I will try to untangle the cobwebs. I do not agree with the statement that Exhibits A and B constitute offer and acceptance which is a binding contract. Although Exhibit “A” is an offer, Exhibit “B” does not constitute an unqualified acceptance of the offer in Exhibit “A”.

The position of the law on acceptance is very clear. The intention to accept an offer must be conclusive if it is to constitute a valid acceptance. Council of Yaba College of Technology v. Nigerle Contractors Limited (1989) 11 NWLR (Pt. 95) 99 at 107; Bioku Investment Property Co. Ltd v. Light Machine Industry Nigeria Ltd [1986] 5 NWLR (Pt. 39) 42. Where in an attempt to accept an offer, the offeree varies the terms of the offer or, as in the instant case, introduces an entirely new term, it is not an acceptance and cannot result in a contract crystallizing. See: Orient Bank Nig. Plc v. Bilante Intl. Ltd [1997] 8 NWLR (Pt. 515) 37; Jackson v. Turquand [1869] L.R. 4 H.L. 305; Jones v. Daniel [1804] 2 Ch. 332. As Nnaemeka-Agu J.S.C. put it in U.B.A. v. Tejumola & Sons Ltd [1988] 2 NWLR (Pt. 79) 662 at 700:

“It is a Counter-offer which is not only an acceptance of the offer but amounts to a rejection of the original offer, with the result that even if that original offer is subsequently accepted, its acceptance does not result in a contract between the parties – Hyde v. Wrench [1840] 3 Beav. 334.” I find Exhibit “B” to be a Counter-offer and I so hold.”

The Court of Appeal further in its judgment while discussing whether the appellant was entitled to the claim under the exhibits tendered and whether a contract had been entered had this to say at page 412: “a proper evaluation of the evidence especially exhibit C would have made the learned trial judge to conclude P. W 1 was co opted into the Presidential Monitoring Team because of his special qualification as an engineer and not on account of his being an agent of the respondent [appellant herein] and neither were the over 2000 projects of the commission which were at different stages of completion assigned to the respondent [appellant herein]. If the projects were assigned to the respondent [appellant herein] there would have been no need for the committee to recommend at page X of exhibit C to the Commission to engage the services of experienced and independent/consultants to critically measure assess and evaluate the work already done, and this is exactly the work the respondent [appellant herein] did when the Omadino Road Project was assigned to it.” In other words, the award of N229,304,706.26 could not be justified on the grounds of any contract founded on Exhibits A and B. 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 PAGE| 14 made no project of the respondent much less of the 192 project assessed and inspected by the Presidential Monitoring Team was contemplated. The 192 project 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.

ISSUE 2

Now, this issue is concerned with whether the Court of Appeal was right in rejecting the claims of the appellant when it claimed the sum of N211,157,536 in relation to the 192 projects. The trial court held that the disputed 192 projects were linked to Exhibits “A” and “B” and therefore formed contract voluntarily entered into by the parties. In his judgment, the learned trial judge held at page 98:

“The Chairman/Managing Director of the plaintiff company served in the Presidential Monitoring Team as I have found in this judgment not as Engineer D.B. Uduehi but as agent in a representative capacity of the plaintiff company of which he is the Managing Director, his company having duly assigned the projects under the provisions of Exhibit “A” sub – section C.” Thus the trial court found the acceptance of P.W 1, Engineer Uduehi to serve in the Presidential Monitoring Team, was the “assignment” of the projects to be inspected in the terms of Exhibit A offered to the appellant. And that Engineer Uduehi did not serve in the committee in his personal capacity, but as agent of the appellant. The Court of Appeal in its judgment at page 412 of the record stated:- “I hold the view that the learned trial judge was wrong when he said that the assigned projects even though not specifically named in Exhibit “A” are those shown in Exhibit “M”. Exhibit “M” was made by the respondent. No where did the appellant [respondent herein] agree to the projects which the respondent [appellant herein] said it was handling on behalf of the appellant [respon-dent herein]. Even in the so called acceptance of offer which the learned trial judge held Exhibit B to be the projects were not enumerated. P.W 1 under cross examination agreed that he signed Exhibits C, D and E as co-opted member of the team. He also agreed that Exhibits C, D and E are joint reports of all the members of the team. Even if P.W. 1 maintained that he operated on behalf of the company [the appellant herein] when he joined the Presidential Monitoring Team to inspect, identify and assess the OMPADEC projects which led the respondent [appellant herein] writing demand letters dated 25/5/96, 10/10/96, 20/3/97, 16/6/97 15/10/97 and 2/5/98 which are tendered as exhibits J,M,G,K,I and H respectively, a proper evaluation of the evidence especially exhibit C would have made the learned trial judge to conclude that P.W. 1 was co-opted into the Presidential Monitoring Team because of his special qualifications as an engineer and not on account of his being an agent of the respondent [appellant herein]”

Now, there is no dispute whatever, that the appellant was appointed as a company of engineering and consultancy services to render such technical services to the respondent for a consideration of 2% of the total cost of any assigned project as per Exhibit A. This letter was written to the appellant and was a follow up by an earlier letter by the appellant company soliciting for engagement. In the purported letter of acceptance Exhibit “B”, the appellant accepted the fees for any “assigned commission’s project or projects.” The question is; are the 192 projects inspected by the Presidential Monitoring Team in which Engineer Uduehi was co-opted, “assigned projects” to be inspected by the appellant. In Exhibit “B” the letter of acceptance, the appellant undertook to provide services as engineering and management consultancy and technical services and advices not in a team but as a sole consultant. The respondent always maintained, that the only engineering consultancy “assigned” to the appellant was the Omadino project which was awarded on the 10/2/1997.

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 an 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 project were not “assigned” to the appellant, the projects were merely inspected by a team comprising of Engineer 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. Indeed Engineer Uduehi signed Exhibits C, D and E in his personal capacity and not as agent or representative of the appellant. I accordingly agree with the decision of the court below that under the undoubted facts of this case, a contract for the 192 projects cannot be inferred as the trial court did. Based on the undoubted facts, there was not contract for the 192 projects which involved the appellant. Having so found, I do not think it will serve any useful purpose for me to consider all the arguments of counsel for the appellant stretching from page 12-31 of the appellant’s brief. The fundamental issue is that, the appellant has failed to establish any assignment to it as per exhibits “A” and “B”.

I am satisfied, based on the facts, that the appellant was assigned the Omadino project only. The co-option of Engineer Uduehi in the Presidential Team for the assessment of completed projects did not in any way involve the appellant. Engineer Uduehi was nominated and co-opted into the team in his personal capacity. The “assignment to projects” as contemplated in Exhibits “A” and “B” did not include assignment to the team who submitted joint reports in Exhibit C, D and E. It is noteworthy that Engineer Uduehi who was involved in the 192 projects was at the end of the day paid for his services like all the other members of the team. So from the totality of the evidence adduced before the trial court and the findings and the conclusions of the learned trial judge, the Court of Appeal was right to have rejected the appellant’s claim in the sum of N215,157,260 since the finding of the existence of the contract by the learned trial judge was perverse and not supported by any credible evidence. I accordingly resolve issue 2 against the appellant.

ISSUE 3 This is concerned with the refusal of the Court of Appeal to attach any weight to Exhibit “M”. 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 it 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 fortunes of the case of the appellant. Issue 3 is resolved against the appellant. In the result the appeal of the appellant is rejected by me since all the issues formulated are resolved against the appellant. The Cross – appeal One issue has been formulated and submitted by the respondent/cross-appellant [hereinafter referred as to the cross-appellant and the appellant/cross respondent, the cross respondent]. The issue is:

“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” It is submitted by the learned counsel for the cross-appellant that by paragraph 8 of the Statement of Claim, the cross respondent claimed N215,157,536.00 for engineering and management services rendered. Also in paragraph 13, it claimed N211,157,536.00 being fees for the 1st first assignment and N18,147,224.26k for the Omadino project, thus totaling N229,304.760.26k. It is further submitted that the cross-appellant claimed to have paid N4 million as part payment of the Omadino project and this was admitted by the cross-respondent. It is further submitted that what was owed in the Omadino project was only N8,982,199.52k. These conflicts were not resolved by the trial court or the Court of Appeal and yet the Court of Appeal awarded N14,147.224.26k to the cross-respondent on the Omadino project. Now, I have no doubt and it is not disputed that there were two claims by the cross-respondent, claim No. 1 on the 192 projects and claim No. 2 on the Omadino project. The cross-appellant is not disputing the Omadino project and that the cross-respondent was entitled to 2% of the total cost of the project. It is also not disputed that N4 million naira was paid as part payment. The simple question in this matter is what was the total cost of the Omadino project 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. In the end both the appeal and the cross appeal are dismissed by me, I make no order as to costs. Appeal and cross-appeal are both dismissed.

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SC. 74/2002