The Federal High Court sitting in Abuja has granted Dantata & Sawoe Construction Company Limited a thirty-day extension to settle issues concerning the alleged $1,257,592.83 debt owed to Zutari Consulting Nigeria Ltd following subcontract work on the Dangote Fertilizer Plant project in Lekki, Lagos, Nigeria.
Justice Inyang Ekwo adjourned the case for a report on the settlement on Tuesday, months after he approved the placement of a winding-up petition advertisement against Dantata in a motion on notice filed by Zutari Consulting Nigeria Ltd (the petitioner) in Suit No: FHC/ABJ/PET/3/2023.
The petitioner is involved in engineering designs, consulting, and supervision of engineering works, while Dantata & Sawoe provides general construction services, among other activities, according to court documents.
Petitioner’s Claims
The petitioner’s lawyer, Chris Ekemezie, submitted that their client was engaged by the respondent in 2015 for design work related to the respondent’s subcontract at the Dangote Fertilizer Plant project in Lekki, Lagos, Nigeria.
He contended that after the petitioner completed its work, Dantata & Sawoe allegedly became indebted to it in the sum of: “a. $1,257,592.83, ZAR 2,136,623.39, and £4,364.38.”
He argued that due to the respondent’s failure to pay the petitioner the outstanding amount, a dispute arose between the parties, and when they could not resolve it themselves, the petitioner submitted the dispute to the International Chamber of Commerce for arbitration.
The petitioner stated that arbitration was held in London, United Kingdom, and a final arbitral award was made by the arbitration tribunal on April 7, 2021, finding that the respondent is liable to the applicant for the stated debts.
The petitioner then filed a motion seeking the court’s permission to place its wind-up petition against Dantata in national dailies in the interest of justice, pending the final decision of its main suit.
In a notice of preliminary objection filed on May 9, 2023, Dantata’s legal team urged the court to strike out the petition.
The legal team of Dantata & Sawoe argued that the conditions under which the petitioner seeks to wind up their client are completely lacking in merit.
In an affidavit deposed on May 9, 2023, Sherwin Cayabyab, an employee of the respondent, denied the indebtedness claimed by the petitioner.
He confirmed that his company engaged the services of the petitioner for a subcontract at the Dangote Fertilizer Plant for the sum of N162,000,000.00 and that payment had been made.
However, he explained that the subcontract was varied, as agreed by the petitioner, the respondent, and Saipem (Dangote).
“The contract sum was increased and converted from naira to USD, and the purported variation was intended to be presented to Saipem (Dangote), which eventually refused the variation on the grounds that there was no additional work.
“In light of this refusal, the Respondent turned around and made a claim against the Respondent/Applicant, even when the Respondent/Applicant had paid the original contract sum of N162,000,000.00,” the deponent explained.
He admitted the existence of the arbitral award in favor of the petitioner/Respondent, adding that it was “based on the purported variation of the subcontract,” which has been appealed (subject to litigation).
Ruling on their applications in July 2024, Justice Inyang Ekwo stated that Dantata’s objection was made against the substantive matter and not against the motion on notice to advertise the petition.
He noted that contrary to Dantata & Sawoe’s submission, the law allows a winding-up petition to proceed despite the pendency of other processes, as all that is required for the petition to succeed is that the respondent owes the petitioner a debt of N200,000 and above.
Ekwo said that, having studied the petition, he “found evidence of the respondent’s indebtedness (Dantata and Sawoe),” thus granting the motion to place the wind-up petition in two national dailies.
What Transpired in Court
At the resumed sitting, counsel for the petitioner, Felicia I. Okam, stated that on the last adjourned date, the Court made an order for advertisement, which has been complied with.
Dantata’s lawyer, Uchenna Njoku, noted that following the Court’s ruling, they had filed a notice of appeal and an application for a stay of proceedings.
“We will be looking to the Court for directions on how best to proceed. It is our belief that the Court has jurisdiction to stay proceedings in the interest of justice,” Njoku said.
The judge reminded Njoku that he had directed the parties to settle the matter, but Njoku did not comply.
Njoku responded that there are ongoing discussions regarding settlement, adding, “Unfortunately, my founding partner, Chief Kanu Agabi, who would have been before the Court, is unavoidably absent due to another proceeding. We have looked at this matter, and we need to sit down.”
The judge asked Njoku to assure him that the subject matter would not be tampered with by the parties.
Njoku assured the Court that the assets of Dantata far outweigh what the petitioner claimed, adding, “As ministers in the temple of justice, I assure the Court that we will not do that.”
The judge then asked Mr. Njoku how long he wanted to conclude settlement discussions.
“I will be asking for thirty days,” Njoku replied, to which Okam confirmed that this was a convenient date.
“Learned Counsel for Dantata has indicated to this Court that they will explore out-of-court settlement. I want to give the parties an opportunity. Therefore, this adjournment is to allow them to explore out-of-court settlement,” Ekwo ruled, adjourning the case to October 24, 2024, for a report on the settlement.
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