B. STATE COMM. FOR WORKS & ANOR. V. DEVCON LTD. & ANOR.

• Pages: 157-174

B. STATE COMM. FOR WORKS & ANOR. V. DEVCON LTD. &

ANOR.

157

B. STATE COMM. FOR WORKS & ANOR. V. DEVCON

LTD. & ANOR.

1.

BENUE STATE COMMISSIONER

FOR WORKS,

2.

ATTORNEY-GENERAL, BENUE STATE



APPELLANTS

V

1.

DEVCON DEVELOPMENT CONSULTANTS

LIMITED

2.

A.B. ENGINEERING NIGERIA

LIMITED (DEVCON)



RESPONDENTS

SUIT No. SC 20

9

/

1

986

SUPREME COURT OF NIGERIA

20



OBASEKI,



J.S.C.

UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

BELGORE,



J.S.C.

CRAIG,



J.S.C.

25



1st July, 1988

Equitable remedies - Injunctions - Interlocutory injunction to restrain the breach of a

contract already repudiated - Competence of - Relevant consideration for the grant of

interlocutory injunctions - When a court may grant

-

What an applicant in a motion for

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grant of interlocutory application must prove - Purpose of interim injunctions -

Cognisable legal rights as precondition for grant of an injunction - Declaration -

Declaratory order - Declaration for invalidity of consunzated acts - Competence of.

Contract - Repudiation as breach of contract - Repudiation by implication - When

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repudiation

~

nay be said to have occured - action in restraint of breach of contract -

competence of - Right to breach as a legal right - the proper remedy of an injured party.

Practice and Procedure - Courts - Powers of - Grant of interlocutory applications, when

proper exercise of equitable jurisdiction - Judgmentslorders - Adjudicating on issues not

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raised - formulating issues for parties - propriety of.

Jurisprudence - Rights - Exercise of - Relevance of motive to validity.

ISSUES

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1. Whether it is open for a court to decide a case before it on issues other than those

formulated by the parties to the case.

2. Where a party to a contract repudiates in unequivocal terms, his obligations in

the contract, does the injured party's remedy lie in an action for a declaration of

nullity of the act of repudiation.

50

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3. Where a contractual agreement stipulates the modes for the Lawful determination

of the contract to which it relates, can such a contract be discharged by any other

act(s) amounting to breach, for example, repudiation.

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10

15

158

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NIGERIAN SUPREME COURT CASES



[1988] 2 N.S.C.C.

4.

When can it be said that a party to a contract has repudiated the contract. Does

the mere manifestation of a clear intention not to perform the contract by such a

party amount to a repudiation?

5.

Whether the equitable jurisdiction of the courts to grant an injunction can be



validly exercised in favour of a party who cannot show a cognisable legal right.



5

6.

Whether the mere fact that an applicant to an interlocutory injunction has an

arguable case is sufficient to ground an order of injunction.

7.

When will a court be entitled to grant an interim injunction and what must the

applicant prove to be entitled to his relief.

8.

What is the real purpose and essence of an application for an interim injunction.



10

9.

Where a party to a contract commits a breach, can the court consider the issue

of balance of convenience" with regard to the preservation of the

status quo ante

for the purpose of granting an injunction to restrain a breach already committed?

Is motive relevant to the valid exercise of a legal right"

10.

Whether an order of injunction can issue where there is nothing to restrain, as for

example, where the act sought to be restrained has already been consumated.

FACTS:

The respondents as plaintiffs in the High Court of Benue State (Makurdi judicial

Division) brought an action against the appellants, then defendants for certain dec-

laratory and injunctive reliefs. The parties on both sides were parties to an engin-

eering contract executed 16th May, 1985. By a letter dated 17th October 1985, the

Military Governor of Benue State, as chief Executive of that state, addressed a letter

to the plaintiff/respondents, terminating, in unequivocal terms, the contractual agree-

ment of the 16th of May, 1985, for non- performance by the latter. The reliefs which

the respondents sought were (a) a declaration that the letter of 17th October 1985

was null and void as it did not comply with the stipulations of the parties in the agree-

ment between them as regards determination of the contract, and (b) an injunction

to restrain the appellants from "giving effect to the purported termination of the said

written agreement." After the appellants had entered appearance, the respondent

brought an application by way of motion for an interim injunction restraining the ap-

pellants (respondents to the application) from "giving effect to the purported termi-

nation conveyed to the the plaintiff/applicant via letter dated 17th October, 1985,

from the Military Governor of Benue State, of the written agreement dated 16th May,

1985, between the plaintiffs/applicants and the Government of Benue State until the

final determination of this suit



" The learned trial chief judge ruled, dismissing the

application, that the act to be restrained was already completed and there was noth-

ing to restrain; and that a contract may be brought to an end unilaterally or bilaterally

and whether or not the act bringing the contract to an end is wrongful, it is still a ter-

mination. The Governor in this case had made it clear that he had terminated the

contract and the wrongfulness or otherwise of the termination was an issue for the

substantive suit. He further held that an injunction did not lie against the state. The

plaintiff/applicants, now respondents appealed to the court of Appeal which, allow-

ing the appeal, held

inter alia,

that the trial Court had erred in holding that injunction

did not lie against the State (which point the Appellants' counsel conceded. And fur-

ther, the court of Appeal held that since the scope of work as enshrined in the Agree-

ment (Exh.1) had not been completed, that Exhibit 2, the letter terminating the

contract, was only a step taken to explore an alternative way of effecting the work

(subject matter of contract) to successful completion. Therefore, the trial court (it

held) was in error in holding that the act sought to be restrained was a completed

act. The appellants being aggrieved, appealed to the Supreme Court where the main

issue for determination was whether the sending of Exh.2 to the plaintiff/respondent

was a complete act of a declaration terminating the Agreement between the parties.

After agreeing that the Court of Appeal was right in the issue of whether or not an in-

junction could lie against a state Government, the Supreme Court.

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