IN THE MAGISTRATE COURT OF LAGOS STATE

IN THE IKEJA MAGISTERIAL DISTRICT

HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH

2. GEOCON ENGINEERING SERVICES LTD. ……….DEFENDANT

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

CLAIMANT’S COUNTER AFFIDAVIT TO 1ST AND 2ND DEFENDANTS’ AFFIDAVIT IN

SUPPORT OF THEIR MOTION ON NOTICE
DATED 26TH OF APRIL, 2022.

I, OSIANO OSHOGWE, Male, Nigerian, Christian & Property Developer of No.

36, Oyibo Ajarho Street, Lekki Phase 1, Lagos do hereby make oath and say as
follows:

1. That I am the MD/CEO of the Claimant, Zarano Nigeria Limited.

2. That by virtue of my office, I am familiar with the facts of this case and
have the authority the Claimant to depose to this affidavit.

3. That I have read the affidavit in support of the 1st and 2nd defendants’
Motion to join one Mr. Olugbenga Aderemi and J.F. Isaac Ventures as
defendants to this suit.

4. That the contract for the drilling of an industrial borehole which gave
rise to this suit was between the claimant and the 1 st and 2nd defendants.

5. That Mr. Olugbenga Aderemi and J.F. Isaac Ventures sought to be joined
were not parties to the borehole contract.

6. That all sums paid by the claimant in furtherance of the contract were
paid directly to and received by the defendants.
7. That the Claimant is not part of any arrangements between the
defendants and the parties sought to be joined.

8. That it was the 1st defendant who sought to transfer his liability to Mr.
Olugbenga Aderemi when the Claimant petitioned the police.

9. That it was at the behest of the 1 st defendant that the police invited Mr.
Olugbenga Aderemi who after all discussions issued a post-dated
Cheque for the sum of N3,500,000 (Three Million, Five Hundred
Thousand Naira) in favour of the Claimant otherwise the parties sought
to be joined were not mentioned in the claimant’s petition to the police.

10. That the claimant did not award a borehole contract to the parties
sought to be joined neither did it pay any money to them in furtherance
of a borehole contract.

11. That when I saw Mr. Olugbenga Aderemi on the site, I took him to be an
employee of the 1st and 2nd defendants.

12. That the Claimant is not suing on the Cheque issued by Mr. Olugbenga
Aderemi but on the borehole contract between it and the defendants.

13. That the cheque and sworn affidavit both of which originated from Mr.
Olugbenga Oluremi were attached to the originating process just to
show the sequence of events and also to establish that the sum of
N3,500,000.00 (Three Million, Five Hundred Thousand Naira) was
refundable to the claimant after the defendants failed to deliver on the
borehole contract.

14. That it is the defendants who seek to transfer their liability to the parties
sought to be joined.

15. That Godwin Efemena Ferdinand Macaulay Esq. informed me and I verily
believe him that the parties sought to be joined are not necessary
parties to the resolution of the claimant’s claim against the 1 st and 2nd
defendants in that:

a. The defendants have in paragraph 2 of their statement of defence

admitted the existence of contract between them and the Claimant for
the construction of a borehole.
b. The 1st and 2nd Defendants have not denied receiving the contractual
sums paid by the Claimant in furtherance of the contract, and had in fact
acknowledge receipt of a total sum of N6,500,000 (Six million, five
hundred thousand naira) from the claimant in their Solicitors,
Hackbridge & Hackberry’s letter to Claimant’s solicitors, which letter is
dated January 26, 2021, marked exhibit ‘G’ and attached to the
statement on oath of Mr. Osiano Oshogwe dated 22nd February, 2022.

c. The 1st and 2nd defendants have admitted the failure of the borehole
contract in their solicitors’ letter referred to above and in paragraph 16
of their statement of defence.

16. That I swear to this affidavit in good faith believing same to be true and
in accordance with the oaths law of Lagos State.

___________________
DEPONENT

SWORN TO AT THE MAGISTRATE

COURT REGISTRY OGBA, IKEJA,
This day of 2022.

BEFORE ME

COMMISSIONER FOR OATHS

 IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT
HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH ………. DEFENDANT

2. GEOCON ENGINEERING SERVICES LTD.

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

CLAIMANTS’ SOLICITORS’ WRITTEN ADDRESS IN OPPOSITION TO 1ST& 2ND

DEFENDANTS’ MOTION ON NOTICE FOR JOINDER DATED 26TH DAY OF
APRIL, 2022

1. BRIEF STATEMENT OF FACTS

The Claimant’sclaim against the 1st and 2nd defendants is for the sum of
N3,500,000.00 (Three Million, Five Hundred Thousand Naira) arising from a
failed contract for the construction of a borehole.

In their statement defence and in paragraphs 4 & 8 of their affidavit in support

of their motion for joinder, the 1 st and 2nd defendants seek to hold the parties
sought to be joined liable to the Claimant. The 1 st and 2nd defendants therefore
filed a motion on notice dated 26th April, 2022 to have one Mr. Olugbenga
Aderemi and J.F. ISAAC VENTURES as 3rd and 4th Defendants to the claimant’s
Suit. The parties sought to be joined were not parties to the borehole contract,
neither did they receive money directly from the Claimant in furtherance of
the said contract.

2. ISSUE FOR DETERMINATION

Whether the parties sought to be joined who were not parties to the borehole
contract between the Claimant and the defendants can be joined as
defendants to this suit.

LEGAL ARGUMENT:

In paragraph 2 of their statement of defence, the defendants stated amongst

other things, “The defendant admits paragraph 5 of the statement of claim
to the extent that it was Mr. Osiano Oshogwe, the MD/CEO of the claimant
who contracted the defendants to construct a borehole project on behalf his
client at No. 2, Owena Street , Parkview Estate, Ikoyi, Lagos at the cost of
N7,500,000.00 (Seven Million, Five Hundred Thousand Naira Only).

It is clear from the above that the only parties to the borehole contract upon
which the Claimant bases its claim are the Claimant on the one part and the
defendants on the other part.

In the case of MR. P.K OJO V. ENGINEERFELIX OGBE [2007] (9) NWLR PART
1040 PG. 542 relied upon by the defendants’ counsel, MUKHTAR, J.C.A. in his
judgment cited with approval the statement of the law by Iguh, JSC in MAKWE
V. NWUNOR (2001) 14 NWLR (PT. 733) 356 at 372.

“It is trite law that as a general rule, a contract affects only the parties thereto
and cannot be enforced by or against a person who is not a party to it. In other
words, only the parties to a contract can sue or be sued on the contract and,
generally, a stranger to a contract can neither sue nor be sued on the contract
even if the contract is made for his benefit and purports to give him the right
to sue or to make him liable upon it. In the same vein, the fact that a person
who is a stranger to the consideration of a contract stands in such near
relationship to the party from whom the consideration proceeds that he may
be considered a party to the consideration does not entitle him to sue or be
sued upon the contract.”

On the strength of the above statement of the law it is submitted that the
parties sought to be joined who were not parties to the borehole contract
cannot sue or be sued on it. They therefore cannot be added as defendant to
the suit. His Lordship also stated in his judgment that, ‘’The law is that a
person should not be joined as a defendant against whom there is no claim
by the plaintiff.’’

The point must also be that a contract is one thing, its execution is another. If a
contractor engages third parties to execute his contract, the involvement of
the third parties does not make them parties to the contract except as
between them and the contractor who engaged them.

It is submitted further that a defendant who wishes to bring in any person not
already a party to the action as a third party must proceed under Order 7 of
the Magistrates Courts (Civil procedure)Rules by first filing a third party
notice.

It is submitted with all due respect that the case of OJO VS OGBE (supra) relied
upon by defendants’ counsel does not support the motion for joinder. In that
case, a defendant on record applied for his name to be struck out from the suit
on the ground that he was not a necessary party to the suit. Here we are
confronted with a case in which a party who is already a defendant seeks to
join third parties as defendants. Even in that case, the court stated that “The
only reason which makes it necessary to make a person a party to an action is
that he should be bound by the result of the action, and the question to be
settled therefore must be a question in the action which cannot be
effectually and completely settled unless he is party”.

It is submitted that the judgment of the court in this case cannot bind the
parties sought to be joined because they are not parties to the borehole
Contract. They are therefore not necessary parties to this case.

For the above reasons, we humbly, on behalf of the Claimant, urge your
Honour to dismiss the motion or joinder with substantial cost against the
defendants.

Dated this _____________________ day of __________________ 2022

Godwin E.F. Macaulay Esq

G.E.F Macaulay & Co
Claimant’s Solicitors
15, Omo Israel Street,
Oke-Odo, Off Lagos
/Abeokuta Expressway
Lagos.
Tel: 08098178810, 08033097180
E-mail: efemena24@gmail.com

FOR SERVICE ON:

1ST& 2ND DEFENDANT
c/o Their Solicitors
Proactive Chambers
Seyidara, Seyidara & Co.
14, Salvation Road,
Opebi, Ikeja, Lagos State.
 IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT
HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH

2. GEOCON ENGINEERING SERVICES LTD. ……….DEFENDANT

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

REPLY STATEMENT ON OATH OF MR OSIANO OSHOGWE

CLAIMANTS REPLY TO THE 1ST AND 2ND DEFENDANTS’ STATEMENT OF
DEFENCE DATED 26TH APRIL 2022

1. In reply to paragraph 2 and 3 of the statement of defence, the claimants

state that there were no intervening circumstances which affected the
completion of the borehole project other than the fact that not long
after he received payments for the project, the 1 st defendant travelled
overseas, leaving the unfinished project in the hand of a third party.

2. In reply to paragraph 4 of the statement of defence, the time for the

completion of the project was not open-ended but was for a period of 4
weeks which was sufficient for the execution of such project, the
defendants being aware also that the claimant was constructing on
behalf of a client. The second contractor EL SASFIELD HYDRO VENTURES
engaged by the claimant completed the project in 4 (four) weeks.

3. In reply to paragraph 5 of the statement of defence, the claimant states

that the defendants were not under any contractual obligation to the
claimant until they received payments for the project, which they did
willingly. The claimant did not thereafter enter into and could not have
entered into any agreement with the defendant for the extension of the
commencement date of the project, when time was of the essence of its
building contract with its client.
4. The claimant states that the averment in paragraph 6 of the statement
of the defence only exist in the imagination of the defendant as it was
not the claimant’s business what equipment the defendants applied in
the execution of the project.

5. The claimant in reply to paragraphs 7, 8, and 9 of the statement of the

defence states that it was not a party to any arrangements between the
defendant Mr. Olugbenga Aderemi, and that having given the contract
to the defendants, it was not the claimant’s business how they went
about executing it.

6. In reply to paragraph 10 of the statement of defence, the claimant states

that as the owner of the project it was its duty to point out the location
of the borehole to whoever the defendants assigned to the project. This
the claimant did without any objection from the defendants as to the
suitability of the location.

7. In reply to paragraph 11 & 12 of the statement of defence the claimant

reiterate that it wasn’t part of any arrangement between the defendants
and any third parties and that the 1 st defendant being the MD/CEO of
the 2nd defendant he does not require the approve and consent of the
claimant to disburse money to his employees. The claimant is equally a
total stranger to 1st defendant’s travel schedules.

8. In reply to paragraph 14, 15 & 16 of the statement of defence, the

claimant states that 1st defendant was not in the Nigeria when the
alleged events happened and therefore was not in a position to attend
to the exigencies of the project. In this solicitor letter to the police dated
22nd June, 2021, which is being relied upon by the claimant and attached
as Exhibit “E” to its witness statement on oath, the third party, Mr.
Olugbenga Aderemi stated in paragraph 5 thus “Our client contacted Mr.
Uche for funds to remove the said pipes but he had travelled out of the
country. He was contacted on phone but he claimed that he could not
help until he returned to Nigeria”. In his bohemian attitude, the 1 st
defendant did not return to the project site until after January, 2021
after Christmas.

9. In reply to paragraph 19 of the statement of defence, the claimant states

that the petition to the police did not involve any third party but only
the defendants. It was in an attempt to shirk his liability to the claimant
that …. Defendant besought the police to invite the party whom he
 claimed he gave a substantial part of the contract money. This was what
gave rise to the third party, Mr. Olugbenga Aderemi issuing a postdated
cheque in favour of the claimant and backing it up with a sworn
affidavit.

10. In reply to paragraph 21 of the statement of defence, the claimant states

that the defendants’ claim that it damaged the rig machine of the third
part is a maze fabrication to put them on the same page with the third
part. The said third party, Mr. Olugbenga Aderemi was allowed by
claimant to personally drive the rig machine a moving vehicle away from
where it was parked, two weeks after the issued a post-dated cheque for
the sum claimed and swore to an affidavit on the 1 st of April, 2021. The
third party drove away his rig without any incidents and it was not until a
week before the maturity date of the cheque that the third party wrote
a letter dated 22nd June 2021 claiming he had no funds in his account to
meet the value of the cheque, and alleging that claimant damaged his
rig.

11. The third party’s Chicanery was noted by the defendants’ solicitors
Hackbridge & Hackberry’s letter dated in August 12, 2021 where ar page
7 they said; “please advise your client to go back to zone 2, police
command, Onikan so the rig owner, Mr. Olugbenga Aderemi can explain
to the command why up till now, he is unable to make any payment
after demobilization of his rig. He issued a post-dated cheque to that
effect only to renege after removing his equipment which was serving as
some form of collateral”. It is the same defendants who now claim that
on behalf of the third party in paragraph 2 of their statement of defence
that the claimant damaged the third party’s rig to the tune of
N4,500,000.00

12. Paragraphs 27, 28, 29, & 30 are mere fabrication, existing only in the
imagination of the defendant. On the last meeting which solicitor,
Godwin Efemena Ferdinard Macaulay had with the police in the
company of the 1st defendant, the IPO, office Israel Akanwa told the first
the defendant pointedly that he was the one liable to the claimant and
not the third party, for this reason, the police who held on the cheque
parties the due date, never took any action against the third party when
he defaulted on the cheque.

13. The defendants have in paragraph 31 of their statement of claim,

enlarge their confusion and subterfuge by alleging that the galvanized
 pipes and the rig machine belonging to the third party are both stuck in
the project site till date.

14. The claimant is neither aware nor concerned about the defendants’
averments in paragraph 33 of their statement that it claims a defund of
the sum of N3,500,000.00 (Three Million, Five Hundred Thousand Naira).

15. The claimant refutes paragraph 34 of the statement of defence and finds
preposterous the defendants’ allegation that he controlled or dictated
how they disbursed money for the execution of the project.
 IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT
HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH

2. GEOCON ENGINEERING SERVICES LTD. ……….DEFENDANT

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

MOTION ON NOTICE
 IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT
HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH

2. GEOCON ENGINEERING SERVICES LTD. ……….DEFENDANT

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

WRITTEN ADDRESS IN SUPPORT OF MOTION

 IN THE MAGISTRATE COURT OF LAGOS STATE
IN THE IKEJA MAGISTERIAL DISTRICT
HOLDEN AT OGBA
SUIT NO: SCC/IKJ/084/2022
BETWEEN

ZARANO NIGERIA LIMITED ……… CLAIMANT

AND

1. MR. UCHE AMAKOH

2. GEOCON ENGINEERING SERVICES LTD. ……….DEFENDANT

1. MR. OLUGBENGA ADEREMI …… PARTIES SOUGHT TO BE JOINED

2. J.F. ISAGE VENTURES AS 3RD AND 4TH DEFENDANTS

AFFIVIDAVIT IN SUPPORT OF MOTION NOTICE