The Delta State Oil Producing Areas Development Commission (DESOPADEC) has been dragged before the High Court in Warri over its failure to pay the contract sum of N9,950,531.17 for a completed project executed by Stecla Nigeria Limited since 2012.

The contract for the construction and equipping of a standard laboratory building at Eboh Grammar School, Eboh – Orogun in the Ughelli North Local Government Area, Delta State was allegedly awarded Stecla Nigeria Limited in October 2008 by DESOPADEC.

The case, which will be coming up at the High Court, Warri on 1st of April 2014 is predicated on DESOPADEC’s alleged refusal to make payments to the contractor after issuance of a Certificate of Completion and Payment Stecla Nigeria Limited in May 2012.

While also frowning at claims by the Commission that it has settled all outstanding contractual debts, a dependable source revealed to Blank NEWS Online that “the solicitor’s letter of petition written to the Commission was ignored and prompted us to go to court.”

A Press statement made available to Blank NEWS Online on Wednesday, March 19, 2014 by Barrister Cyril Ojiemen, counsel to Stecla
Nigeria Limited reads:

“I am Barrister Cyril Ojiemen, a human right activist with offices in Warri, Delta state and United Kingdom respectively. I am a Counsel to Stecla Nigeria Limited. The Company did a contract work for DESOPADEC and completed same in May 2012. The work was inspected by officials of
DESOPADEC for which they were very impressed and issued a Certificate of Completion / Payment in May 2012. Having issued the Certificate of Payment, DESOPADEC was supposed to pay its contractor the contract sum in no distant time but surprisingly, that has not been done till date.

“Rather, both the Chairman and Secretary of DESOPADEC went on Channels TV with their usual false propaganda that they pay all contractors promptly upon satisfactorily completion of jobs executed. This is misrepresentation to the public. As a consequence of this, we wrote a letter to both the Chairman and Secretary of DESOPADEC to pay our client its balance sum, yet they refused. My client has no option than to institute legal action in court. The case is before the Warri High Court 3 and its been fixed for 1st of April, 2014.”

The solicitors letter written to DESOPADEC which was allegedly ignored by the Chairman and Secretary of the Commission reads:

19 February 2014

Our Ref: CO/SNL/003/14

The Chairman
DESOPADEC
25, Warri Sapele Road
Warri.

Dear Sir,

RE: LETTER OF DEMAND FOR PAYMENT OF N9,950,531.17 BEING OUTSTANDING SUM DUE TO STECLA NIG LTD FOR THE CONSTRUCTION AND EQUIPPING OF A STANDARD SCIENCE LABORATORY BUILDING AT EBOH GRAMMAR SCHOOL EBOH – OROGUN IN THE UGHELLI NORTH LOCAL GOVERNMENT, DELTA STATE.

We have been consulted and our professional services retained by Stecla Nigeria Limited who shall hereinafter be referred to as our ‘client’.

It is our client’s instructions that sometime around October 2008, DESOPADEC who shall hereinafter be referred to as the ‘Commission’ awarded her a contract for the construction and equipping of a standard laboratory building at Eboh Grammar School, Eboh – Orogun in the Ughelli North Local Government Area, Delta State. Please find attached a copy of the Letter of Award as well as our client’s Letter of Acceptance.

Consequently, our client immediately commenced work on the above project and diligently completed same for which a Certificate of Payment was issued by the Commission since May 2012. Please see attached copy of the certificate of completion including some of the photographs of the completed work.

But surprisingly, no payment has been made to our client for the above sum by the Commission in spite of several demands made by our client. Please find attached one of the letters of demand by our client dated 22/11/2013. We also have in our possession a demand letter sent at an earlier date that was duly stamped as received by the Office of the Secretary.

The continued and deliberate refusal of the Commission to pay our client the above outstanding sum is contrary to the posture and image the Commission tried to portray to the public in its documentary programme on Channels Television on the 13th February, 2014 at about 8.50am.

On that programme, both the Chairman and the Secretary of the Commission stated that Contractors who have completed their projects and who have been issued with a certificate of payment are paid promptly by the Commission. If that is the true position as portrayed by the Commission, we wonder why our client is an exception considering the fact that she has completed her contract since May 2012 which the Commission after inspection has officially handed it over to the School for use.

It is our client’s instruction to bring to the attention of the Commission that the company is currently facing financial difficulties as staff wages, office rent, interest on loans and other miscellaneous expenses have not been paid.

The above project which has been completed over a year and eight months, has also cost the company additional N3,000,000.00 being money paid out as ransom when the Project Director, Chief Peter Akpofure was kidnapped on site on 14th April, 2012 in the cause of executing the project. We understand this was also brought to the attention of the Commission and we have evidence of this being stated by our client in all the previous demand letters to the Commission.

It is very obvious that not only has the Commission failed to pay our client her outstanding certificate of completion since May 2012, it has also continued to delay the payment without considering the additional cost of N3,000,000.00 incurred by my client as ransom for the release of their Project Director.

The Commission has also not showed any compassion for the emotional trauma the Project Director went through during the ONE week of his captivity instead has caused him more pains as a result of increasing interests on loans used to execute the Project.

It is important to state that our Client has made us understand that he is a member of PDP and has made all efforts in the last ONE year and EIGHT months to resolve this matter without causing any embarrassment to the Commission and the PDP government.

He has held several meetings with the past and present Hon. Commissioner representing Ethiope East / Ughelli North on the Board about this matter. Unfortunately, none of these efforts or meetings has yielded any positive results and this has caused him so much frustration and pains.

It is unfortunate that Stecla Limited with all good purpose and intention has completed this project diligently to support His Excellency mission statement that he wants to complete most Projects by 2015 and also to make the Commission proud but instead of giving Contractors like our Client credit, she is being frustrated and treated unfairly.

The continued financial stress to the company has left our client with no other option than to engage our legal services to sort this matter on his behalf.

In light of the above and in view of the good relationship that exists between our client and the Commission, we have our client’s unequivocal instructions to demand that payment of the above sum be made within 14 days from the date of this letter.

Where this modest request is not complied with, we shall go to the press to debunk the impression the Commission has portrayed in its documentary programme as stated above, that it pays its contractors promptly upon completion of contract. We would not hesitate to make a copy of this letter and other documents relating to the above contract available to the same media.

Please TAKE FURTHER NOTICE that we also have the instructions of our Client to commence legal action to recover this money including all the additional costs incurred and compensation that the courts deem fit.

We remain hopeful that this matter will be resolved by the Commission to avoid any embarrassment and additional cost.

We thank you for your attention.

Yours faithfully,

Cyril Ojiemen, Esq.
(Principal Partner)
For: Cyril Ojiemen & Co. (Legal Practitioners)

Cc:

(i) His Excellency, Dr. Emmanuel Uduaghan
Governor of Delta state
Government House, Asaba.

(ii) The Secretary, DESOPADEC
25 Warri Sapele Road, Warri.

(iii) Hon. Commissioner for Special Project Monitoring
DESOPADEC
Government House,
Asaba, Delta State.

(iv). Hon. Commissioner,
Representing Ethiope East/Ughelli North
Desopadec, Swamp Road
Warri, Delta State.

The papers filed in court reads:

IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA
IN THE WARRI JUDICIAL DIVISION
HOLDEN AT WARRI

BETWEEN SUIT No.

STECLA NIGERIA LIMITED CLAIMANT/APPLICANT

AND

DELTA STATE OIL PRODUCING AREAS DEVELOPMENT COMMISSION (DESOPADEC)
DEFENDANT/RESPONDENT

MOTION ON NOTICE

BROUGHT PURSUANT TO ORDER 11 RULE 1 OF THE DELTA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2009 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on the 1st Day of April 2014 at the hour of 9’O clock in the afternoon or so soon thereafter as Counsel may be heard on behalf of the Claimant/Applicant praying for the following:

i. AN ORDER entering summary judgement against the Defendant/Respondent in the sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) only being outstanding sum owed and due to the Claimant for the construction and equipping of a standard science laboratory building at Eboh Grammar School, Eboh – Orogun in the Ughelli North Local Government Area, Delta State

ii. AN ORDER granting interest of 15% per annum on the said sum of
N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand,
Five Hundred and Thirty One Naira, Seventeen Kobo) from May 2012
until judgement is given and 10% thereafter until the debt is finally
liquidated by the Defendant.

iii. Cost of this action.

iv. AND such further Order(s) as this Honourable Court may deem fit to
make in the circumstance.

AND TAKE FURTHER NOTICE that the ground upon which this application is brought is that the Defendant / Respondent has no defence whatsoever to this action.

DATED this…………..day of…………………………………2014

Cyril Ojiemen, Esq.
For: Cyril Ojiemen & Co.
Abisco Ekius House
16, Okumagba Avenue
Warri, Delta state.

FOR SERVICE ON THE DEFENDANT:
DESOPADEC
25, Warri Sapele Road,
Warri.
Delta State.

IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA
IN THE WARRI JUDICIAL DIVISION
HOLDEN AT WARRI

BETWEEN SUIT No.

STECLA NIGERIA LIMITED CLAIMANT/APPLICANT

AND

DELTA STATE OIL PRODUCING AREAS DEVELOPMENT COMMISSION (DESOPADEC)
DEFENDANT/RESPONDENT

AFFIDAVIT IN SUPPORT OF THE MOTION

I, Kate Tenumah, Female, Christian, Nigerian Citizen, Litigation Secretary of No. 16 Okumagba Avenue, Warri, Delta state do hereby make oath and state as follows:

1. That I am the Litigation Secretary in the Law Firm of Cyril Ojiemen & Co. Solicitors to the Applicant, by virtue whereof I am properly abreast with the facts of this case.

2. That I have the consent and authority of the Applicant as well as that of my Employers to depose to this affidavit.

3. That the Claimant is a limited liability company whose principal place of business is at No. 94 Airport Road, Effurun, Delta State and is duly registered under the laws of the Federal Republic of Nigeria and engages in building and civil construction works.

4. The Defendant which is the Delta State Oil Producing Areas Development Commission – DESOPADEC was set up in July 2007, to execute a clear and critical mandate; to rehabilitate, rejuvenate and resuscitate the peoples and communities of the oil producing areas of Delta State. This mandate is stated unequivocally in section 13(i) of the enabling law which set up DESOPADEC.

5. That sometime around the month of October 2008, the Defendant awarded a contract to the Claimant for the construction and equipping of a standard laboratory building at Eboh Grammar School, Eboh- Orogun in the Ughelli North Local Government Area of Delta State. A copy of the Letter of Award is attached and hereto marked as Exhibit A.

6. That on 26 October 2008, the Claimant indicated its acceptance of the award via a letter to the Defendant. A copy of the letter is attached and hereby marked as Exhibit B.

7. That upon acceptance of the contract of award, the Claimant immediately commenced work on the project and diligently completed same for which a certificate of Payment was issued by the Defendant since May 2012. Copies of the Certificate of Completion including some of the photographs of the completed work are attached and marked as Exhibits C-F

8. That the Defendant / Respondent has refused to make payment of the outstanding sum of sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) in spite of several demands made by the Claimant. Copies of the letters of demand dated 22/11/2013 and 19/2/2014 are attached and marked as Exhibits G-H.

9. That the Defendant/Respondent has no defence whatsoever to this action and that it will be most unjust to allow the Defendant to continue to withhold payment which is long overdue to the Claimant.

10. Whereof the Claimant’s claim against the Defendant/Respondent is as follows:

a. The sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) against the Defendant/Respondent;
b. An interest of 15% per annum on the said sum from May 2012 until judgement is given and 10% thereafter until the debt is finally liquidated by the Defendant/Respondent.

c. Cost of this action.

11. That I depose to this affidavit in good faith conscientiously believing same to be true and in accordance with the Oaths Act, 2004.
.
…………………….
DEPONENT

Sworn to at the High Court Registry
This………..day of March, 2014

BEFORE ME

COMMISSIONER FOR OATHS

IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA
IN THE WARRI JUDICIAL DIVISION
HOLDEN AT WARRI

BETWEEN SUIT No.

STECLA NIGERIA LIMITED CLAIMANT

AND

DELTA STATE OIL PRODUCING AREAS DEVELOPMENT COMMISSION (DESOPADEC)
DEFENDANT/RESPONDENT

STATEMENT OF CLAIM

1. The Claimant is a limited liability company whose principal place of business is at No. 94 Airport Road, Effurun, Delta State and is duly registered under the laws of the Federal Republic of Nigeria and engages in building and civil construction works.

2. The Defendant which is the Delta State Oil Producing Areas Development Commission – DESOPADEC was set up in July 2007, to execute a clear and critical mandate; to rehabilitate, rejuvenate and resuscitate the peoples and communities of the oil producing areas of Delta State. This mandate is stated unequivocally in section 13(i) of the enabling law which set up DESOPADEC.

3. Claimant avers that sometime around the month of October 2008, the Defendant awarded a contract to her for the construction and equipping of a standard laboratory building at Eboh Grammar School, Eboh- Orogun in the Ughelli North Local Government Area of Delta State. On the 26 October 2008, the Claimant indicated its acceptance of the award via a letter to the Defendant. The Claimant pleads and would rely on the Contract of Award Letter as well as her Letter of Acceptance.

4. Claimant avers that upon her acceptance of the contract of award, she immediately commenced work on the project and diligently completed same for which a Certificate of Payment was issued by the Defendant since May 2012. Claimant shall rely on copies of the Certificate of Completion including some of the photographs of the completed work at the trial.

5. Claimant states that the Defendant / Respondent has refused to make payment of the outstanding sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) in spite of several demands made by her. Claimant shall rely on copies of the letters of demand dated 22/11/2013 and 19/2/2014 respectively at the trial.

6. Claimant further avers that the project has been completed well over a year and eight months ago and that the project has also cost her an additional N3,000,000.00 (Three Million Naira) being money paid out as ransom when its Project Director, Chief Peter Akpofure was kidnapped on site on 14th April 2012 in the cause of executing the project.

7. Claimant avers that the Defendant’s failure or refusal to pay its outstanding contract sum has caused him grave hardship as the Defendant is denying him the fruit of his labour.

8. That the Defendant/Respondent has no defence whatsoever to this claim and that the Defendant is able to pay the said amount of money to the Claimant having regard to its billions of Naira as monthly / yearly allocation. Thus, it will be most unjust to allow the Defendant to continue to withhold payment which is long overdue to the Claimant.

9. Whereof the Claimant’s claim against the Defendant/Respondent is as follows:

a. The sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) against the Defendant/Respondent;
b. An interest of 15% per annum on the said sum from May 2012 until judgement is given and 10% thereafter until the debt is finally liquidated by the Defendant.
c. Cost of this action.

DATED this…………………..day of………………………….2014

Cyril Ojiemen, Esq.
For: Cyril Ojiemen & Co.
Abisco Ekius House
16, Okumagba Avenue
Warri, Delta state.

FOR SERVICE ON THE DEFENDANT:
DESOPADEC
25, Warri Sapele Road,
Warri.
Delta State

IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA
IN THE WARRI JUDICIAL DIVISION
HOLDEN AT WARRI

BETWEEN SUIT No.

STECLA NIGERIA LIMITED CLAIMANT/APPLICANT

AND

DELTA STATE OIL PRODUCING AREAS DEVELOPMENT COMMISSION (DESOPADEC)
DEFENDANT

WRITTEN ADDRESS IN SUPPORT OF APPLICATION FOR SUMMARY JUDGEMENT

1.0 INTRODUCTION

1.1 By a Writ of Summons and Statement of Claim dated 7th day of March 2014, the Claimant instituted this action against the Defendant for the sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) and interest thereof. This action is premised on the failure of the Defendant to pay the Claimant the above sum which is the outstanding balance of a contract work duly executed and completed by the Claimant to the satisfaction of the Defendant.

1.2 Whereas the Defendant having issued the Certificate of Payment upon satisfactory completion of the work by the Claimant ought to pay the balance contract sum as stated above to the Claimant. It is this total disregard by the Defendant to pay the above sum in spite of several demands made by the Claimant to do so that has necessitated this suit.

2 BRIEF STATEMENT OF FACTS

2.1 The facts of this case are as averred in the affidavit in support of this application for Summary Judgement. Sometime around the month of October 2008, the Defendant awarded a contract to the Claimant/Applicant for the construction and equipping of a standard laboratory building at Eboh Grammar School, Eboh- Orogun in the Ughelli North Local Government Area of Delta State. On the 26 October 2008, the Claimant/Applicant indicated its acceptance of the award via a letter to the Defendant.

2.2 Upon her acceptance of the contract of award, Claimant/Applicant immediately commenced work on the project and diligently completed same for which a Certificate of Payment was issued by the Defendant since May 2012. Having issued the Certificate of Payment, the Defendant has refused to make payment of the outstanding sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) in spite of several demands made by the Claimant/Applicant.

2.3 The project has been completed well over a year and eight months ago and has cost the Claimant/Applicant an additional N3,000,000.00 (Three Million Naira) being money paid out as ransom when its Project Director, Chief Peter Akpofure was kidnapped on site on 14th April 2012 in the cause of executing the project.

3 ISSUE FOR DETERMINATION

It is humbly submitted that the only issue that arises for determination in this application is whether the Claimant / Applicant is entitled to judgement having regard to the circumstances of this case.

4. ARGUMENT

4.1 It is submitted that an application for Summary Judgment is resorted to by a Claimant where the Defendant obviously has no defence to the action. By Order 11 Rule 1 of the High Court of Delta State (Civil Procedure) Rules 2009, it is provided as follows:

‘Where a Claimant believes that there is no defence to his claim, he
shall file with his originating process the Statement of Claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof’.

From the above provisions of the Rules, what the Claimant needs to prove in order to be entitled to final judgment upon this application are as follows:

i. That the Claimant believes that the Defendant has no defence to the action;

ii. That the Claimant has filed an application for judgment supported by an affidavit stating the grounds upon which his belief is founded as well as stating that the Defendant has no defence to the suit.

4.2 It is submitted with respect that an application of this kind serves to dispose with dispatch, cases which are almost uncontested or cases where there can be no reasonable doubt that a Claimant is entitled to judgment and it is inexpedient to allow a defendant to defend for the mere purpose of delay. On this, we refer my Lord to the following cases: AMH Continuation Ltd v. C.A.P. Ltd (2005) 1 NWLR Pt 908 p.441, 448; Woodgrant Ltd v Skye Bank Plc (2011) All FWLR Pt. 601 pg.1516, pg.1533 para C-D; Thor Ltd v FCMB Ltd (2005) 14 NWLR Pt. 946 pg.696, pgs 710-711

Having placed reliance on all the paragraphs of the supporting affidavit and the exhibits attached thereto, we submit that in an application of this nature what the court concerns itself with is whether the case as presented by the Claimant is patently clear and unassailable, and whether the defence put up by the Defendant can actually avail the Defendant.

4.3 It is submitted further that a party who is indebted to another ought to pay the debt and the summary judgment procedure is designed to obviate the need for all the rigorous procedure of the ordinary civil action where the case is for debt and the Defendant does not have any defence or where his defence is a mere sham. The object of the summary judgment procedure is to prevent a defendant from using the process of Court as a means of depriving an aggrieved party of judgment to a sum of money which he is legitimately entitled. On this, we humbly refer my Lord to the case of Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (1989) 5 NWLR (Pt 123) p.523.

4.4 It is further submitted with the greatest respect that from the affidavit evidence placed before this Honourable Court, the case as canvassed by the Claimant is patently clear, unambiguous and unassailable and by virtue of Order 11(1) of the Delta State High Court (Civil Procedure Rules) 2009, there is every indication that the Defendant has no defence to the action and this we submit with respect, entitles the Claimant to a Summary Judgment.

SUMMARY OF POINTS RAISED

1. Having regard to the facts relied on, the Claimant has fulfilled the conditions precedent for the Court to enter a Summary Judgment in its favour.

2. That from the affidavit evidence and the Statement of Claim, the Claimant has demonstrated that the Defendant has no defence whatsoever to this action.

3. That Order 11 of the Delta State High Court (Civil Procedure) 2009 is supportive of the Claimant’s application.

4. That the application sought by the Claimant/Applicant having fulfilled all the conditions necessary for its grant, graciously granted as prayed.

RELIEFS SOUGHT

i. The sum of N9,950,531.17 (Nine Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty One Naira, Seventeen Kobo) against the Defendant
ii. Interest of 15% on the said sum until judgment is given and 10% thereafter until final liquidation thereof.
iii. Cost of this action.

LIST OF AUTHORITIES RELIED ON

i. AMH Continuation Ltd v. C.A.P. Ltd (2005) 1 NWLR pt 908 p.441, 448

ii. Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (1989) 5 NWLR pt 123, p. 523

iii. Woodgrant Ltd v Skye Bank Plc (2011) All FWLR Pt. 601 pg.1516, pg.1533 para C-D;

iv. Thor Ltd v FCMB Ltd (2005) 14 NWLR Pt. 946 pg.696, pgs 710-711

v. Order 11 of the Delta State High Court (Civil Procedure) Rules 2009

LIST OF CLAIMANT’S WITNESSES

i. Chief Peter Akpofure – Project Director
ii. Mr. Monday Tebite

LIST OF DOCUMENTS TO BE RELIED ON BY THE CLAIMANT

i. Defendant’s Letter of Award of Contract

ii. Claimant’s Letter of Acceptance

iii. Various photographs of the completed work

iv. Certificate of Payment

v. Various Letters of Demand

DATED this…………..day of …………………………………2014

Cyril Ojiemen, Esq.
For: Cyril Ojiemen & Co.
Abisco Ekius House
16, Okumagba Avenue
Warri, Delta state.

FOR SERVICE ON THE DEFENDANT:
DESOPADEC
25, Warri Sapele Road,
Warri.
Delta State