P&ID deserves only $250m in damages, says ex-AGF in dissenting decision
Development Limited , deserves more than $250 million in damages as against the $6.5billion initially awarded by a tribunal in the United Kingdom .
“This final award deals with the quantification of the damages for which the government is liable. The effect of the tribunal’s decisions on what P&ID’s expenditure and income would have been if the GSPA had been duly performed is that the net present value of the profits which would have been earned is $6,597,000,000. This is the measure of damages.
Ojo said: “I am unable to agree with the conclusions reached therein. I hereby issue the following dissenting award. I shall now proceed to the measure of damages which is where I differ. The points of contention on damages relate to four broad issues namely: Mitigation, Capital Expenditure , Operating Expenditure and Yield.”
“As I earlier stated, contrary to the suggestion of the majority, the Claimant clearly admitted its duty to mitigate by stating in paragraph 28 of the Claimant’s written reply on the issue of damages that ‘it is accepted that P&ID was under a duty to mitigate its loss whether as a matter of Nigerian or English law.’ This admission cannot be disregarded.
“Mitigation of damages entails reduction or amelioration of the loss occasioned by the breach. The majority opinion seems to misconceive and misplace the duty to mitigate having been admitted by the claimant. In the instant matter, there is admission by claimant that It put other protects on hold in order to undertake the project contemplated under the GSPA.
“In view of all the above, I find that the claimant is not entitled to damages for loss from the breach for more than three years,” Ojo said. “He, the respondent’s expert, testified to the fact that the claimant’s estimates, as contained in the Claimant’s expert’s report, were understated by about 40%. This was maintained by that witness throughout cross examination.
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