The ECOWAS Court advised the Ecowas Commission to “exhibit some measure of responsibility and commitment in executing contracts entered into, in future.”
The Economic Community of West African States (ECOWAS) Commission is in breach of its regional court’s order concerning payment of about N400 million judgement debt, PREMIUM TIMES reports.
A firm, Vision Kam-Jay Investment Limited, was awarded a contract on November 11, 2014 for the supply, installation and maintenance of power and associated equipment at ECOWAS Commission’s Niger House and River Plaza Server Room in Abuja.
The contract was awarded in two tranches of N35.7 million and N20.6 million to make a total N56.4 million contract sum and at a completion period of four weeks.
After the execution of the contract, a job completion certificate dated 18 December, 2014, was issued by the commission to the contractor for payment.
However, trouble started when the commission, in breach of the agreement, made the first tranche payment of N35.7 million, but ignored the second tranche of N20.6 million despite several demands by the contractor, Vision Kam-Jay Investment Limited.
The commission’s failure to pay the second tranche of the contract fee (N20,698,920.00) to the contractor, triggered a legal tussle that traversed the ECOWAS Court and the Federal Capital Territory High Court before terminating at the Court of Appeal in Abuja.
In determining the suit, a three-member panel of the ECOWAS Court, headed by Friday Nwoke, held that the defendants, President of the Commission and the ECOWAS Commission, “admitted owing the plaintiff the sum of N56,415,422.00 to be paid in two tranches” by refusing to enter “appearance or file a defence.”
The ECOWAS Court held in its verdict of 6 October, 2016, the second tranche of “N20.6 million has remained unpaid till date despite repeated demands” by Vision Kam-Jay Investment Limited.
Consequently, a default judgement was entered against the commission and its president.
The judge said “it will serve the interest of justice to award some interest against the defendants for breach of the contract they voluntarily into with the plaintiff.”
While ordering the ECOWAS Commission to pay the plaintiff the outstanding N20.6 million debt, the court directed the “defendants to pay 1 per cent on the sum from 16 April, 2015 till the judgement debt is liquidated.”
With the refusal to comply with the order, the judgement debt ballooned to N403,220,029.40 as of August 15, 2022 due to the one per cent interest that has accrued over the period of seven years since the verdict was delivered.
‘ECOWAS Commission must exhibit measure of responsibility’
In handing down the verdict, the ECOWAS Court advised the commission to “exhibit some measure of responsibility and commitment in executing contracts entered into in future.”
The regional court lamented that “it is unfortunate that the laxity on the part of the officers and the legal department of the ECOWAS Commission have occasioned loss to the judgement debt.”
In a post-judgement application to upturn the court’s findings, ECOWAS Commission alleged that the contractor did not disclose material facts on “contract inflation to the court.”
But the panel of judges said the commission failed to advance same argument before the court when it had the opportunity to defend itself.
“The issuance of a job completion certificate” by ECOWAS Commission to Vision Kam-Jay Investment Limited “is a clear indication of satisfaction,” the court declared before dismissing the commission’s application for review of facts.
“The applicant (ECOWAS Commission) had the opportunity to scrutinise the price quotation given to it by the respondent (contractor) which it failed or refused to do so,” the panel noted.
The court added that the “facts upon which the applicant based its submissions for review are not new facts in line with the provisions of Article 25.”
Article 25 of the Protocol A/P/7/91 provides that “an application for revision of a decision may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor… when the decision was given, unknown to the court and also to the party claiming revision… “
While throwing out the commission’s request to upend the ruling, the court found “the conduct” of ECOWAS Commission and its president “not fair to the Community at large.”
“In view of the above, the application for review of judgement fails on the grounds that the applicants failed to establish new facts justifying revision,” the three-member panel of Justices led by Friday Nwoke, Micah Wright and Yaya Boro declared in their ruling on 7 July, 2018.
It is imperative to state that the president of ECOWAS Commission, being the head of the Commission, is responsible for the enforcement of the judgment of ECOWAS Community Court of Justice, in accordance with Treaty obligations with regards to the provisions of Article 15 (3) & (4) of ECOWAS Revised Treaty.
The ECOWAS Commission, headquartered in Nigeria, has Omar Touray from The Gambia as its new president. He resumed office on 13 July, 2022.
Dispute’s journey through Nigerian courts
Determined to recover the debt, the firm instituted garnishee proceedings at the FCT High Court in Abuja.
On 11 June, 2020, the judge, O.C. Agbaza, handed down a Garnishee Order Nisi against EcoBank for the attachment of funds belonging to ECOWAS Commission.
The court further made the Garnishee Order Absolute against ECO Bank, while discharging First Bank of Nigeria and United Bank for Africa (UBA) in a suit marked: FCT/HC/FJ/26/2019.
On 1 December, 2020, Mr Agbaza made the Garnishee Order being the outstanding judgment debt due to Vision Kam-Jay Investment Limited as of 28 February, 2020 as per the judgment of ECOWAS Court.
Dissatisfied with the High Court’s orders, ECOWAS Commission approached the Court of Appeal in Abuja, asking it to nullify the pending Garnishee orders.
But the appellate court on 17 February, 2021, dismissed the appeal.
In its judgement, a three-member panel of the Court of Appeal headed by Moore Adumein, dismissed the suit and further directed the implementation of the Garnishee Order Absolute of the FCT High Court’s ruling of 1 December, 2020 concerning the judgment of the ECOWAS Court delivered on 6 October, 2016.
“In this case, having resolved that the appeal against the interlocutory decision is incompetent, the substantive appeal has become academic,” Mr Adumein held.
“The decisions of the trial court delivered on 11 June, 2020 and 1 December, 2020 are hereby affirmed,” the Court of Appeal said.
Judgement creditor seeks foreign minister’s intervention
The chief executive officer of Vision Kam-Jay Investment Limited, John Uttuh, has appealed to Nigeria’s Minister of Foreign Affairs, to prevail on ECOWAS Commission to pay up the debt.
Mr Uttuh lamented that his business had been “disrupted and suffered untold hardship.”
In the letter dated 15 August and addressed to the Minister of State, Federal Ministry of Foreign Affairs, the judgement creditor, chronicled the previous letters he had written seeking the Nigerian government’s intervention in trying to recover the debt.
He said the debt had crippled his company’s activities.
“The court judgement and our plethora of letters of demand to the President of ECOWAS Commission… have been ignored,” Mr Uttuh said.
Recalling the penchant of ECOWAS Commission in criticising member states for flouting court orders, Mr Uttuh said, “it is sad that the ECOWAS Commission is the one in flagrant violation of its own court’s decision.”
He urged the minister to “deploy mechanisms” that would “ensure adherence to rule of law and to compel ECOWAS Commission to pay the aforementioned judgement debt in the interest of the ECOWAS Community.”
Salett Nogueira, the spokesperson of the ECOWAS Commission denied knowledge of the pending judgement debt.
In a telephone interview with this reporter, on Thursday, Ms Nogueira said, “I am not aware of this issue; I am not in a position to give you further details. Try out another source.”