WAYNE (WA.) LIMITED V. EKWUNIFE.

• Pages: 325-349

WAYNE (WA.) LIMITED V. EKWUNIFE

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325

WALT, J.S.C. I had the advantage of a preview of the lead judgment of

my learned

brother Agbaje, J.S.C. I agree with the reasoning and the conclusions reached

thereupon, both on matters of fact and law. The issue of assessing special damages

on feasibility report on the

ipsi dixit

of the plaintiff only and who is not the maker of

the report has recently been dealt with by this court in

Uwa Printers Limited v.

Investment Trust Limited

(1988) 5 N.W.L.R. 112.

It is therefore for these same reasons given by my learned brother Agbaje, J.S.C.,

in his lead judgment that I would also allow this appeal and do so in terms set out in

the lead judgment, inclusive of order as to costs.

Appeal allowed.

WAYNE (WA.) LIMITED V. EKWUNIFE

WAYNE (WA) LIMITED

V

REUBEN N. A. EKWUNIFE

(Trading under the name and

Style of Gonglobe associates

and Company)

5

SUPREME COURT OF NIGERIA

OBASEKI,

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J.S.C.

UWAIS,

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J.S.C.

KAWU,

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J.S.C.

0

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AGBAJE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

8th December, 1989

APPELLANT

RESPONDENT

SUIT NO. SC 200/1986

Practice and Procedure - Pleadings - Purpose of - Damages - Judgment debt - Interest

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5

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Computation.

Contract - Consequence of illegality - Ntriation of contract - Proper Procedure.

ISSUES:

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1. Whether a party can rely on the illegal aspect of a contract to avoid liability.

2.

What is the purpose of pleadings?

3.

What does a variation of contract entail?

4.

Whether one can vary a written contract by an oral agreement.

5.

When is a contract severable.

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6. Whether a party who has performed part of the contract is entitled to payment.

7. Whether a court can order interest to be paid on a judgment debt from a date

before the date of judgment.

FACTS:

The plaintiff Reuben Ekwunife, trading under the name and style of Gonglobe

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Associates and company sued the defendant company in a Jos High Court, Plateau

State on the contract which the latter awarded to it by a letter accompanied with a

local purchase order for laying of underground cables for its plumbing stations in

some towns in Plateau State.

326

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NIGERIAN SUPREME COURT CASES

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[1989] 3 N.S.C.C.

The Plaintiff in accordance with the letter and the local purchase order, carried

out the projects in these specified areas and made a demand for the sum of N16,000

(sixteen thousand Naira) being payment for work done, but the defendant refused

to pay.

The High court held

inter alia

that the plaintiff was entitled to receive the sum of 5

N16.000 with interest at 10% from the 1st of march 1978 as payment for the contract

since there had been substantial performance.

The defendant dissatisfied appealed to the court of Appeal which reversed the

findings of the trial court on the ground

inter alia

that there had not been substantial

performance and so the plaintiff/respondent was not entitled to payment.

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10

The plaintiff/respondent aggrieved appealed to the Supreme Court on the ground

inter alia

that a party cannot rely on the illegal aspect of the contract to avoid liability.

HELD:

1.

That where

a

contract is

ex facie

illegal, the court will not close its eyes against

it, since it is the duty of every court to refuse to lend its stamp of authority on any 15

illegal transaction.

In this case there is nothing in the contract evidenced by exhs. 1 and 1A to suggest

that it

ex facie,

intends any invasion of any statutory functions reserved for N.E.P.A.,

thus the contract is not

ex facie

illegal.

2.

The purpose of pleadings in a statement of claim is to give the defendant notice 20

of the grounds of claim in keeping with the

audi alteram partem

rule, prevent

surprise and enable him prepare his defence.

3.

That a variation of contract involves a definite alteration of contractual obligation

by mutual agreement. Under common law a contract in writing could only be

varied by writing but in equity, a contract in writing which by law is not of a class 25

that must be evidence in writing under the statute of frauds could be varied or

rescinded by mutual agreement provided there is sufficient consideration to

support the variation. The uncontradicted and unchallenged evidence of P.W.1

and the signature on bills Exh. 3 and 3A after inspection and approval are clear

evidence that both parties agreed that the appellant need not electrify the pumps 30

after laying the pipes this is sufficient consideration.

4.

Section 131 (d) of the Evidence Act provides that evidence of a subsequent oral

agreement between the parties to modify a contract is admissible. In this case

oral evidence of the appellant as to the variation of the contract including the

conduct of the respondent in signing the appellants bill after inspection of the 35

works and approving them was sufficient.

5.

A divisible contract is separable into parts, so that separate parts of the agreed

consideration may be assigned to severable parts of the performance such

divisible agreements admit of no prorata payments for each portion that is

performed and is independent of the performance of other parts of the contract. 40

Taking condition No. 6 in exh. "1" and "1A" together with exh. "3" and "3A" signed

by the respondent's agent as well as the only available and uncontradicted

evidence of the appellant, one can infer that the contract was intended by the

parties as a divisible one.

6.

The doctrine of substantial performance states that though the contract is 45

indivisible, so long as the promisor has performed a substantial part of his own

side of the bargain, though he may not have performed precisely or fully what he

had promised to perform, he is entitled to sue a promisee who has accepted what

he performed on the contract. Though the promisee can counter-claim or bring

a cross-action for damages for partial performance, omissions, or defect in 50

execution.

7.

Interest can be claimed as of right and where there is a power conferred by statute

to do so in exercise of the courts discretion. Order 28 Rule 8 of the High Court

(Civil Procedure) Rules of Plateau State provides for statutory interest on

outstanding Judgment debt at the rate of 10% from the date of judgment. This