3PLR – BENUE STATE COMMISSIONER FOR WORKS v DEVCON DEVELOPMENT CONSULTANTS LIMITED

Published by Law Nigeria Admin at October 29, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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BENUE STATE COMMISSIONER FOR WORKS

V. DEVCON DEVELOPMENT CONSULTANTS LIMITED

IN THE SUPREME COURT OF NIGERIA

SUIT NO. SC 209/1986

1ST JULY, 1988

3PLR/1988/27 (SC)

OTHER CITATIONS

(1988) NWLR (Pt.83) 407

BEFORE THEIR LORDSHIPS:

OBASEKI, J.S.C.

UWAIS, J.S.C.

KARIBI-WHYTE, J.S.C.

BELGORE, J.S.C.

CRAIG, J.S.C.

BETWEEN

BENUE STATE COMMISSIONER FOR WORKS,
ATTORNEY-GENERAL, BENUE STATE

AND

DEVCON DEVELOPMENT CONSULTANTS LIMITED

A.B. ENGINEERING NIGERIA LIMITED (DEVCON)

REPRESENTATION

Ejembi Eko, (Solicitor-General, Benue State, Ministry of Justice) with him, TS. Yakubu, D.D.P.P. Benue State, Ministry of Justice – for the Appellants

N. Chukwumah with him E.C. Okonkwo – for the Respondents

MAIN ISSUES

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 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 consumated acts – Competence of.

Contract- Repudiation as breach of contract – Repudiation by implication – When repudiation may 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 parry.

Practice and Procedure – Courts – Powers of – Grant of interlocutory applications, when proper exercise of equitable jurisdiction -Judgments/orders- Adjudicating on issues not raised – formulating issues for parties – propriety of.

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

MAIN JUDGEMENT

KARIBI-WHYTE, J.S.C.: (Delivering the Lead Judgment)

After argument of counsel in this appeal on the 18th April, 1988, I dismissed this appeal and indicated that I will give my reasons for doing so today.

This is an interlocutory appeal against the judgment of the Court of Appeal Division in Jos, consisting of Agbaje, Abdullahi and Macaulay JJ.C.A. on a very narrow point which the parties have litigated from the High Court. The facts of this case leading to this application are very short and straightforward. Appellants, were the Defendants to an action brought by Respondents, by a writ of summons dated 28/10/85. As plaintiffs in the High Court, Makurdi, they were seeking the following:

‘The plaintiffs jointly and severally claim against the defendants jointly and severally…

(a) a declaration that letter Number D/7Nol.11/526 dated the 17th day of October, 1985, from the military Governor of Benue State, which purported to terminate the written agreement dated the 16th day of May, 1985 between the plaintiffs and the Government of Benue State for the plaintiffs to provide the said Government with certain engineering services, that is to say, the management and supervision of Foreign Loan Contracts in Benue State is contrary to the terms of the said agreement and in breach thereof and consequently null and void and of no effect whatsoever;

(b) an injunction restraining the defendants, by themselves, or through their agents or servants or principals or privies from giving effect to the purported termination of the said written agreement contained in the said letter.”

After the appearance of parties and before issues were joined Respondent/Plaintiff applied by way of motion for an interim injunction to restrain appellants/defendants, who were the respondents to the motion, “by themselves or through their agents or servants or principals or privies from giving effect to the purported termination conveyed to the plaintiffs/appellants via letter dated 17th day of October, 1985, from the Military Governor of Benue State, of the written agreement dated the 16th day of May, 1985, between the plaintiffs/applicants and the Government of Benue State until the final determination of this suit ………………………………..

The motion is supported by affidavit of 16 paragraphs, paragraphs 4, 5, 7, 8, 10, 12 of which are particularly relevant are reproduced hereunder:

“4. That I am informed by the applicants whom I verily believed that by an agreement in writing dated the 16th day of May, 1985, they were appointed by the Benue State Government with certain engineering services, that is to say, the management and supervision of Foreign Loan Contracts in Benue State. I have seen a copy of the said agreement and I exhibit a photo-copy thereof herewith as Exhibit 1.

That as shown in Exhibit 1 hereof, the said agreement was executed on behalf of the Government of Benue State by the Commissioner for Works, Benue State.

That I am informed by the applicants whom I verily believe that after the execution of the said agreement they religiously discharged their obligations under the agreement.

That the applicants inform me and I verily believe them that notwithstanding that they never breached a single condition in the terms of the said agreement, they were surprised and shocked to receive letter No.D/7Nol.11/526 dated the 17th day of October, 1985 from the Military Governor of Benue State acting in the name of the Benue State Government terminating the said agreement. The applicants have shown me photo-copy of the said letter and I exhibit same herewith as Exhibit 2.

That the applicants inform me and I verily believe them that the contents of Exhibit 2 hereof are against the stipulations of Exhibit 1 hereof.

That as shown on pages 4 and 5 of Exhibit 2 hereof the Government of Benue State is in a haste and currently at full speed to appoint other people to take over the work of the applicants under the said agreement contrary to the stipulations of Exhibit 1 hereof.

That the applicants inform me and I verily believe them that two engineering firms, whose names are presently unknown to them but which will be supplied by a further affidavit when known, have been short listed for appointment to take over the applicants’ work under Exhibit 1 hereof and will be unlawfully appointed within the next few days unless the defendants are restrained.

That I am also informed by the applicants whom I verily believe that on the 1st day of November, 1985 they filed an action in this Honourable Court to declare Exhibit 2 null and void and to restrain the defendants, their agents, servants, privies and principals from giving effect to the purported termination of Exhibit 1. I have been shown a copy of the Writ in the action and I exhibit it herewith as Exhibit 3.”

Respondent herein, who was the applicant, attached to the application, the Form of the Agreement, and the Conditions of Engagement marked as Exhibit 1. Also attached in Exhibit 2, the letter D/7/Nol.11 /526 dated 27th October, 1985 written to applicant by the Military Governor, Benue State, the subject-matter for this substantive action and application. There was also a further affidavit dated 4th November, 1985 in support of the application.

Respondents to the application, who are the appellants in this Court filed a counter affidavit, paragrdpls_4, 5, 6, 7, thereof which are relevant, are reproduced hereunder

Counter-Affidavit

“4. That I am informed by L.O. Ochogwu, counsel to the defendants/respondents and I verily believe him that the contract annexed by the applicant as Exhibit 1 is a contract of service.

That I am informed by the defendants/respondents and I verily believe them that the termination of the contract was completed and effected vide the letter No. D/7/Vol.11/526 of 17th day of October, 1985 Exhibit 2.

That I am informed by the defendants/respondents that the fees are not lawfully earned by the applicants as the applicants did not perform any of the services stipulated in the contract.

That I am informed by L.O. Ochogwu, counsel to the respondents of the following and I verily believe him:

(a) that the applicants are not entitled to the injunctive and declaratory reliefs sought particularly that the reliefs are sought against the State Government or her privies and agents; and that especially the contract is contract of service.

(b) that the applicants are not entitled to the relief of injunction when the act to be restrained is already done and completed.”

After argument on the application the learned Chief Judge, Idoko C.J., dismissed the application on the following grounds –

That the act to be restrained was already completed, and there was nothing left to restrain. In coming to that conclusion the learned C.J. said, at p. 55 lines 36 – p. 56, line 1 – 11 –

“It takes the two sides or one of the sides of a contract to bring it to an end. The bringing to an end by one side may be wrongful, but it is still a termination of the contract. Here the Governor said that he has terminated the contract between the applicants and the Benue State Government. It is not argued that the Governor has no power to bring this contract to an end. What is challenged is that the bringing to an end is not in keeping with the terms of agreement, Exh. 1 and therefore wrong ful. Nevertheless it is still a termination. The wrongfulness of it or not will be looked into in the substantive case. I am therefore in agreement with the learned Solicitor- General that the act I am asked to restrain in the interim is a completed act and it will be a contradiction in terms to restrain a completed act ………………………………………..”

That an injunction did not lie against the State- Reliance was placed on Lastra Construction Nig: Ltd. v. A.G. of Ondo State 1 L.R.N. 363.

On appeal to the Court of Appeal, with leave of that Court, appellant/applicant filed three grounds of appeal, but the Court of Appeal considered and allowed the appeal on the first of the grounds stated above that the learned Chief judge erred in holding that he was being asked to restrain a completed act.

It Is useful to set out the grounds of appeal in the Court of Appeal including their particulars. They are as follows:

That in the light of the claim against the respondents at the trial court, to wit:

“an injunction restraining the defendants…….. from giving effect to the purported termination of the said written agreement contained in the said letter,” the trial court erred in law in holding that “I am therefore in agreement with the Learned Solicitor-General that the act I am asked to restrain in the interim is a completed act and it will be a contradiction in terms to restrain a completed act.”

Particulars of Error

The act sought to be restrained, to wit: giving effect to the purported termination of the agreement was not and could not have been a completed act.

That in the light of Sections 6(6) (b) and 236 of the Constitution of the Federal Republic of Nigeria 1979 and Order 17 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 1978, the trial court erred in law in holding.

“I think this is enough to dispose of this matter for this obvious principle of law that an interim injunction cannot issue from this court against a State Government. The application is therefore incompetent and it is hereby dismissed.”

Particulars of Error

Lastra Construction (Nigeria) Limited v. A.G. of Ondo State (1978) 1 L.R.N. 363 relied on by the trial court was decided on 14/7/78 long before the coming into force of sections 6(6) (b) and 236 of the Constitution of the Federal Republic of Nigeria, 1979 which sections confer unlimited jurisdiction on a High Court of a State to hear all suits between persons or between Government or Authority and any person in Nigeria, and cannot be an authority in this day and age to oust the jurisdiction of a High Court to entertain an issue involving injunction against a Government of a State.

Counsel duly filed their briefs of argument and relied on them in argument. There were three issues for determination, but the Court of Appeal considered only two of them which are:

“(1) was the learned trial Chief Judge right in holding at page 56 of the records that the act he was asked to restrain in the interim was a completed act when the language of the application as shown at page 4 of the records wasthat what was sought to be restrained was not and could not have been a completed act.

(2) In the light of sections 6(6)(b) and 236 of the Constitution of the Federal Republic of Nigeria, 1979 and Order 17 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 1978, and numerous decided authorities granting injunctions against State Governments, was the learned Chief Judge right in holding at page 57 of the records that it is an obvious principle of law that an interim injunction cannot issue from his court against a State Government. In essence, is Lastra Construction (Nigeria) Limited v. A. G. of Ondo State (1978) L.R.N. 363 still good law in the light of the present constitutional provisions and decisions of High Courts?

The Court of Appeal allowing the appeal, held quite rightly in my view in answer to the second issue for determination that the learned Chief Judge was in error in holding that injunction did not lie against the State. It was correctly pointed out that Lastra Construction (Nig.) Ltd. v. A.G. of Ondo State (supra) relied upon by the learned Chief Judge was decided in 14/7/78 before the coming into force on October 1, 1979 of the Constitution and sections 6(6) (b) and 236(1) thereof. Counsel to the Respondent in the Court of Appeal properly conceded the point.

The main point in issue which is also the strongest ground of appeal before us is the first ground of appeal that the learned Chief Judge was in error to hold that the subject-matter of the application, the letter Exhibit 2, sent to applicants having been completed, there was nothing left to restrain. The Court of Appeal after referring to the affidavit and further affidavit relied upon for the application, and the counter affidavit in opposition thereto, decided the question whether the acts complained of had been completed.

The approach adopted was to refer to paragraph 4 of the letter complained of which states:

“4. You will agree with me that no responsible government will fold its hands and watch public funds which are being repaid with heavy interest rate managed with such recklessness and with no sense of responsibility. In view of all the short comings highlighted, I hereby terminate your above agreement with the Benue State Government with immediate effect. You are therefore requested to hand over all properties belonging to Benue State Government in your possession to the Project Manager Mr. John Adaghi.

The court also referred to and relied on paragraphs 14 of the 1st affidavit and 4 of the further affidavit

“14. That I am informed by the applicants whom I verily believe that if the defendants/respondents and their privies, principals, agents and servants are not restrained now, they will disrupt the applicants business totally in their attempt to give vent to Exhibit 2 hereof.”

Paragraph 4 of further affidavit reads:

“4. That further to paragraph 10 of my affidavit sworn to at the Registry of this Honourable Court on the 1st day of November, 1985, I have now been informed by the applicants and I verily believe them that the two firms short listed by the defendants and their privies to take over the applicants are

(1) MUIR ASSOCIATES

(2) SAM RAWNS PARTNERS.”

Based on the above the court came to the following conclusions –

“It is clear in my view that reading a portion of paragraph 4 of exhibit 2 quoted above and the two paragraphs of the appellants’ affidavit reproduced above the effect of the acts being completed. The scope of the work as enshrined in exhibit 1 of the contract document signed between the parties are still very far from being completed. It is also my view that exhibit 2 is only a step taken to explore alternative way of effecting the work to a successful completion. It is therefore my judgment that the learned trial Chief Judge was in error to hold that the act he was asked to restrain in the interim is a completed act and will be a contradiction in terms to restrain a completed act.”

Thus the Court of Appeal came to the conclusion that the sending of Exh. 2 to the appellants was not a concluded act to effect the termination of the contract between the parties. It was therefore held that the balance of convenience was in favour of the grant of the interim injunction sought. The respondents in the Court below have appealed against that decision to this Court.

Appellants after obtaining the leave to appeal from this court filed four grounds of appeal, which, excluding particulars, are reproduced below as follows –

“(1) The learned justices of Appeal erred in law and misdirected themselves on the facts when they held (per U. Abdullahi, J.C.A.) that –

“It is clear in my view that reading a portion of paragraph 4 of Exhibit 2………. and the two paragraphs (14 of the affidavit and 4 of the further affidavit) of the appellants’ affidavit…… the effect of the acts being complained of by the appellants are far from being completed. The scope of the work as enshrined in exhibit 1 the contract document signed between the parties are very far from being completed. It is also my view that exhibit 2 is only a step taken to explore alternative way (sic) of effecting the work to successful completion. It is therefore my judgment that the learned trial Chief Judge was in error to hold that the act he was asked to restrain in the interim is a completed act and will be a contradiction in terms to restrain a completed act.”

(2) The learned Justices of Appeal misdirected themselves in law when they held (per U. Abdullahi, J.C.A.) –

“In this case, I need also to refer to paragraphs 14(sic) of the appellants’ affidavit and also paragraph 4 of their further affidavit. Standing unchallenged they are, these paragraphs obviously lift the scale of convenience to the side of the appellants. It is my view that the contents of these paragraphs 9,10 and 11 of the appellants’ affidavit…… constitute a prima facie case that the balance of convenience in this case should and ought to have been resolved in favour of the appellant; (sic) and I so resolve.”

(3) The learned justices of Appeal erred in law in setting aside the order of the learned Chief Judge refusing the plaintiffs’ application before him when the plaintiffs failed to discharge the onus on them of proving their entitlement to the equitable relief sought by them before that court.

(4) The decision of the Court of Appeal is against the weight of evidence.

Counsel filed and relied on their briefs of argument, before us. Counsel for the appellants formulated three questions for determination. The two issues for determination formulated by counsel to the respondents cover the same issues. The two issues formulated by counsel for the respondent are as follows:

“(1) whether or not the Court of Appeal was right in holding that the acts complained of were not completed and should be restrained and

(2) whether or not the Court of Appeal was right in holding that from the state of available affidavit evidence that balance of convenience was in favour of the plaintiffs.”

Counsel to the appellants submitted that it was clear from the evidence before the court that the complaint of plaintiff/respondent against Exh.2, is that it unilaterally terminated the agreement between them and the defendant/appellant. The issue was whether or not this was a completed act. It was submitted that neither party referred to the “scope of work” in Exh. 1, relied upon by the justices of the Court of Appeal in their judgment. It was contended that the Court of Appeal made no reference to the unilateral termination by the appellants of their Agreement with the respondents. Consequently it was argued that the Court of Appeal formulated suo motu an issue, without the benefit of arguments of counsel – the cases of Olusanya v. Olusanya (1983) 3 S.C. 41 Ebba v. Ogodo & Anor. (1984) 4 S.C. 84, Ogida v. Ofiha (1986) 1 N.W.L.R. (Pt. 19) 786, 798were cited and relied upon. Counsel further submitted that the issue raised suo motu could never have arisen in the circumstances of this case. Referring to the issue of injunction, it was submitted that the question of effect being given to Exh. 2 no longer arose as Exh. 2 itself was not a declaration by the Military Governor to do something in the future but was in fact evidence of an act already done. The rightness or otherwise of the termination is a different matter which will only arise at the trial of the substantive suit. In the circumstance the interim injunction was unnecessary.

In his reply in support of the judgment of the Court of Appeal, Counsel to the respondent relied on the averments in applicants’ affidavit which remain unchallenged suggesting that the act complained of had not then been completed. It was submitted that Exh. 2 which was the letter unilaterally terminating the Agreement was bad ab initio and null and could not, as it did not, terminate Exh. 1. This is the whole case of the plaintiff. It was therefore submitted that appellants cannot be heard to say that Exh.2 terminated Exh. 1 and was a completed act, since that issue is the basis of the substantive action pending trial.

I have said above that the point in issue raised by the facts of this appeal is a very narrow one. The issues for determination formulated are precise and sufficiently accurate. This is a judgment on an interlocutory appeal from a decision on an application for interim injunction to restrain the defendant/appellants from giving effect to the termination of the written Agreement dated 16th May, 1985 between the parties till the determination of the substantive suit.

The short point necessary for determination in this appeal is whether the sending of Exh. 2 to the plaintiff is a complete act of a declaration terminating the Agreement between the parties.

Before considering this statement let us examine the approach of the Court of Appeal to the issue. It is somewhat of a surprise that the Court of Appeal after referring to the relevant paragraph of Exh. 2 where the Military Governor unequivocally stated.

……In view of all the short comings highlighted, I hereby terminate your above agreement with the Benue State Government with immediate effect,” went on to hold that that was merely exploratory. Nothing could be clearer than the declaration in Exh. 2. The view founded on averments in applicants’ affidavit, and Exh. 2 which complain about short- comings in respect of Exh. 1 cannot in my respectful opinion be regarded as capable of interpreting Exh. 2 as an exploratory move and alternative way of securing completion of the work subject- matter of the contract in Exh. 1.

It is important for the determination of this appeal to appreciate that the Declaration sought in the substantive action is that the letter Exh. 2, i.e. D/7/Vol. 11/526 dated 17^th day of October, 1985 purporting to terminate the written Agreement dated 16th May, 1985 between the parties is contrary to the terms of the said agreement and in breach thereof and consequently null and void and of no effect whatsoever.

The action for declaration was brought on the basis that the letter Exh. 2 sought to be set aside is null and void and of no effect. Accordingly, as was pointed out by counsel to the appellants, what was before the court in support of the application for interim injunction is the question of the validity of the letter terminating Exh. 1 i.e. Exh. 2.

Counsel to the respondents has not argued before us or in any of the Courts below that respondent/plaintiff did not receive Exh. 2. Also, it has not been contended that the letter was a forgery, or was otherwise invalid or not written by the Defendant/Appellant. The contention has always been that Exh. 2 was contrary to the terms of the Agreement between the parties. Paragraph 8 of the Affidavit in support of the motion for interim injunction avers as follows:

“8. That the applicants inform me and I verily believe them that the contents of Exh. 2 hereof are against the stipulations of Exh. 1 hereof.”

Even the further affidavit dated 4th November, 1985, in support of the application did not depose to the evaluation of the scope of work relied upon by the Court of Appeal in the judgment. It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. it is clearly not competent for the Judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him – See Nigerian Housing Development Society Ltd. & Anor. v. Yaya Mumuni (1977) 2 S.C. 57; Re Adenili (1972) 1 All N.LR. (Pt.1) 298. It is well settled that a plaintiff is bound by the case put forward in writ of summons, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) N.M.L.R. 231. Similarly, an applicant will be bound by the prayers in his motion.

In Ochonma v. Ashirim Unosi (1965) N.M.L.R. 321, where the defendant failed to establish an absolute grant of title from the plaintiff, but did not also plead the type of title of which he held of the plaintiff, but pleaded that the grant was for the purpose of an Oil Mill. The Judge held that what was granted was what he called a “Kola tenancy” which gave the defendant ‘lull rights of possession” for as long as he wished, without payment of rent, but not the right to alienate the land. He held that the only right remaining in the plaintiff was the reversion. On appeal, the Supreme Court allowing the appeal said, at p. 323.

“In our view the judge was wrong to base his judgment on an interpretation of the transaction between the parties which neither of them had pleaded or testified in evidence. The defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there has been an absolute grant to him. He failed to do this, and we do not consider that it is open to the judge on the pleadings, to find that the kind of tenancy he described had been created.”

Similarly, the issue that “the scope of work” as enshrined in Exh. 1, the contract document signed between the parties are still very far from being completed” was not the case of either of the parties since that was not the issue either in the substantive action or in this application before this Court. That case cannot be made for the parties by the Court of Appeal as is being done in this case.

The Court of Appeal having missed the real point in issue before them could not in such circumstance but have wandered away from the atmosphere properly relevant for the doing of justice between the parties. The view they took was not in accord with the facts of the case presented before the High Court, the judgment of which was on appeal before them.

There is another aspect to the judgment of the Court of Appeal. Even if it is conceded for the purposes of the judgment of that Court that the letter Exh. 2 referred to the scope of work, subject-matter of the Agreement in Exh. 1, can it be seriously argued that, in law, Exh. 2 despite the unequivocal declaration of termination of the agreement cannot put an end to the obligations in Exh. 1? This appears to me the contention of counsel to the Respondents in this Court, who was the Appellant in the Court of Appeal, and what the Court of Appeal held when they said,

“The effect of the acts being complained of by the appellants are far from being completed. The scope of the work as enshrined in Exh. 1 the contract document signed between the parties are still very far from being completed. It is also my view that Exh. 2 is only a step taken to explore alternative way of effecting the work to a successful completion…………………………………”

My immediate answer is clearly in the negative. The contention of counsel to the respondents in this appeal was that para. 2.2 10.2 of Exh. 1 prescribes the conditions for its termination and any termination of Exh. 1 outside the prescribed conditions is accordingly a nullity. The provisions for the purpose of clarity and convenience are reproduced below, and are as follows:

‘This Agreement may be terminated by notice in writing in each case without prejudice to the right of either party which may have occured prior to such termination; by either party by immediate notice if the “Engineer” shall become insolvent, or is in the process of dissolution (other than for the purposes of amalgamation or reconstitution), or commits a material breach of its obligations hereunder and fails to remedy the same within a reasonable time after having been given due notice to do so, or if it is unable to substantially perform or cornplete its obligations, hereunder due to force majuere, civil commotion, or any defaults of the other party.

The “Engineer” may by written notice to the client terminate this Agreement:

(i) If he has not received payments as provided in Appendix C hereof within thirty (30) days after the due dates; and such default has not been corrected within thirty (30) days after notice thereof has been given by the “Engineer’;

(ii) If the services have been postponed as provided for in Clause 2.2. 10. 1 or Clause 2.2 10.2 and such postponement has lasted for a period exceeding six (6) months.

It is common ground that Exh. 1 constitutes the contract between the parties. It is also common ground that the provisions reproduced above indicate the circumstances when the contract can be lawfully determined by either party. Thus outside the above provisions it is well settled law that a contract can still be discharged by any of the acts which could constitute a breach. Among the several recognised forms of breach, repudiation by either party of his obligations under the contract is an accepted method of discharge of contract. Repudiation occurs when a party by words or conduct conveys to the other party that he no longer intends to honour his obligations in the agreement when they fall due. Repudiation which may either be express or implicit operates as an immediate breach and discharges the person repudiating from his obligations in the contract – See Mersey Steel & Iron Co. v. Naylor Benzon & Co. (1884) 9 App. Cas. 434. When it is established that a party has made his intention clear beyond doubt that no longer is he willing to perform his side of the bargain, there is a breach of the contract – See James Shaffer Ltd. v. Findlay, Durham and Brodie Ltd. (1953) 1 W.L.R.. Admittedly, Exh.2, subject matter of complaint in this action has unequivocally declared the intention of the Defendant/Appellant, not to continue with the agreement between the parties. The expression” in view of all the shortcomings highlighted I hereby terminate your above agreement with the Benue State Government ‘with immediate effect’, leaves no one in doubt of the determination of the Defendant/Appellant to discharge the contract by such a repudiation. The contract having come to an end by this breach the remedy of the innocent party is not insisting that it still subsists, but that he should be compensated.

The dictum of Lord Blackburn in Mersey Steel and Iron Co. v. Naylor Benzon & Co. (supra) at pp. 442-443 is quite explicit. He said;

“Where there is a contract to be performed in the future, if one of the parties has said to the other in effect ‘if you go on and perform your side of the contract I will not perform mine”, that in effect, amounts to saying ‘I will not perform the contract’. In that case the other party may say, ‘you have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as having put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract.”

This is precisely the situation in this case. Exhibit 2, the letter terminating the agreement with plaintiff/respondent with immediate effect is unequivocal that defendant/appellant was no longer going on with the contract with plaintiff/respondent. In fact this was sufficiently brought out in the affidavit and further affidavits in support of the motion for interim injunction. The Court of Appeal was therefore in error in holding that Exhibit 2 was merely exploratory. Exhibit 2 is a complete action repudiating the contract and resulting in its breach.

The Court of Appeal relying on their opinion of the law went on to grant the interim injunction asked for. I am unable to appreciate the grounds of law on which this can validly be done. It is a fundamental rule that a Court will only grant an injunction to support a legal right. – See Montgomery v. Montgomery. (1965) p. 46. The Court cannot exercise this equitable jurisdiction where there is no legal right cognisable by the Courts. Injunction will therefore be granted only to protect the violation of a legal right. The Court have always inclined towards keeping the remedy of interlocutory injunction flexible. In deciding whether to exercise the discretion in favour of the applicant the Court ought to consider the case as a whole, having regard to the case of the parties. It is therefore not sufficient to rely on the fact that applicant has an arguable case and that his right has been in infringed.

A court is entitled to grant an interlocutory injunction where applicant is able to make a prima facie case showing that the conduct of the defendant is unjustified and that damages will not be adequate remedy.

It has always been the law that the applicant for an interlocutory injunction should satisfy the court that there is a serious question to be tried at the hearing of the action and the facts disclose a reasonable probability that applicant will be entitled to the relief claimed. – See Preston v. Luck (1884) 27 Ch.D. 506. The real purpose of applying for interim injunction is to keep matters in status quo until trial. In coming to such a decision, regard must be had to the rights of the parties, and the balance of convenience and the extent to which any damages to the applicant could be cured by the payment of damages rather than by the grant of injunction. – See Ladunni v. Kukoyi (1972) 3 S. C. 31 and Donmar Productions Ltd. v. Bart & Ors. (1967) 1 W.L.R. 740.

The most plaintiff/applicant/respondent has been able to establish by his affidavits is that defendant/respondent/appellant has committed a breach of contract in respect of which, if he may, he can sue for damages. But it is unfortunate that the substantive action before the court is not even saying that. It is seeking to set aside the letter Exhibit 2, which terminated the contract.

It is a well settled principle of law where there is a legal right to do a thing, the motive with which it was done is generally immaterial to its validity – See Mayor and Corporation of Bradford v. Pickles (1894) 3 Ch. 53. In this case, the appellant, who is a party to the contract with the respondent is within his legal rights to terminate the contract and subject himself to action for the damages resulting from his act. Considering the case as a whole as presented to the Court and the fact that Appellant before us was exercising his undoubted right to repudiate the contract and subject himself to damages, the crucial fact that the court cannot restore the status quo ante, appellant having by Exhibit 2 completed the act, there is therefore no basis for the consideration of the balance of convenience. The Court of Appeal was in error to have granted the injunction asked for. Appellant has made out a good case for the setting aside of the judgment of the Court of Appeal.

The appeal against the judgment of the Court of Appeal is hereby allowed. The judgment of the Court of Appeal setting aside the ruling of Idoko, C.J. of the Benue State High Court is itself hereby set aside. The ruling of Idoko, C.J. is hereby restored.

Respondents shall pay to appellants costs assessed at N500 in this Court, and N250 in the Court below.

OBASEKI, J.S.C. On the 18th day of April, 1988, I allowed this appeal after hearing submissions of counsel and studying the record of proceedings and judgment in the court below. I thereafter set aside the decision of the Court of Appeal and restored the order of the High Court refusing the injunction prayed for. The Reasons for the said judgment were reserved till today and I now proceed to give them. However, I have had the advantage of reading in draft, the Reasons For Judgment just delivered by my learned brother, Karibi-Whyte, J.S.C. I agree with them as they accord with my opinions on all the issues for determination in the appeal. I adopt them as my own. It was for those reasons I allowed the appeal in this matter.

Additionally, I would add that in an application for interlocutory injunction an order of injunction will not issue where there is nothing to restrain. If an act has been completed nothing remains to be restrained. It does appear to me from the facts of this case that the Governor of Benue State has by Exhibit 2, letter of termination of appointment, completed the act before the action was filed.

Following the reciept of Exhibit 2, a letter No. D/7/Vol.11/526 dated 17th day of October, 1985 from the Military Governor of Benue State terminating the written agreement, Exhibit 1 dated 16th day of May, 1985 between the plaintiff/respondent and the Government of Benue State for the plaintiff/respondent to provide the said Government with certain engineering services that is to say, the management and supervision of Foreign Loan Contracts in Benue State, the plaintiff/respondent instituted an action to declare the letter Exhibit, 1 null and void and of no effect whatsoever and an order of injunction restraining the defendants/appellants from giving effect to the purported termination of the said written agreement.

After appearance of the parties but before pleadings were filed and exchanged, the plaintiff/respondent by motion applied to the High Court for an interim injunction to restrain the defendants/appellants (respondents to the motion) “by themselves or though their agents servants or principals or privies from giving effect to the purported termination conveyed to the plaintiffs/applicants” by Exhibit 2 “pending the final determination of this suit…..:’ After hearing arguments of counsel and reading the motion paper together with the affidavit and attachments, the learned Chief Judge, Idoko, C.J. dismissed the application. The plaintiffs’/applicants’ appeal against the decision to the Court of Appeal was however successful. The defendants/respondents being aggrieved then appealed to this court to reverse the findings. The issues raised for determination are two-fold:

(1) whether or not the Court of Appeal was right in holding that the acts complained of were not completed and should be restrained;

(2) whether or not the Court of Appeal was right in holding that from the state of available affidavit evidence the balance of convenience was in favour of the plaintiffs.”

The short answer to these two questions must be in the negative. Summing up the ground for the termination and the action warranted by the plaintiff’ default, the Military Governor said in Exhibit 2:

“In view of all the shortcomings highlighted, 1 hereby terminate your above agreement with the Benue State Government with immediate effect.”

In express terms, therefore, the agreement has been in unmistakable terms put to rest. There is therefore nothing left for the court to restrain in the interim.

The guiding principles under which a court acts in an application for interlocutory injunction are very well settled. I need only refer to the recent case of Obeya Memorial Specialist Hospital Ltd. The Attorney-General of Federation and Anor. (1987) 3 N.W.L.R. (part 60) 325; Kufeji v. Kogbe (1961) All N.L.R. 113. See also Ladunni v. Kukoyi (1972) 3 S.C. 31; Egbe v. Onogun (1972) 1 All N.L.R. 95,98 and Preston v. Luck (1884) 27 Ch. D. 506.

Paramount among these principles of law is that there must be a serious question to be tried at hearing the facts disclose a reasonable probability that the applicant will be entitled to the relief claimed. There must be a prima facie case showing that the conduct of the defendant is unjustified and that damages will not be an adequate remedy.

My learned brother, Karibi-Whyte, J.S.C. examined every facet of the issue in his Reasons for Judgment and I agree with him that the plaintiff/respondent failed to make out any case for the grant of interlocutory injunction to warrant the exercise of the court’s discretion in his favour. There was nothing left for the court to restrain by an order of injunction after the issue and service of Exhibit 2.

UWAIS, J.S.C. I have had a preview of the reasons for judgment read by my learned brother Karibi-Whyte, J.S.C. Indeed, it was for those reasons that I allowed this appeal on the 18th day of April, 1988 with N500.00 costs against the respondent. I adopt the said reasons as mine and do not wish to add anything.

BELGORE, J.S.C. I have read in advance the lead judgment of Karibi-Whyte, J.S.C. I have nothing useful to contribute beyond his cogent reasons. I agree that the appeal has merit and I allowed it on 18/4/88 for the same reasons.

CRAIG, J.S.C.: On the 18th of April, 1988 this Court, after hearing oral submissions from Counsel allowed the appeal and adjourned till today for reasons. I now give my own reasons for agreeing that the appeal should be allowed.

In the High Court of Justice at Makurdi, the plaintiff/appellants had filed a declaratory action in the following terms:

“(a) a declaration that letter Number D/7/Vo1.11/526 dated the 17th day of October, 1985, from the Military Governor of Benue State, which purported to terminate the written agreement dated the 16th day of May, 1985, between the plaintiffs and the Government of Benue State for the plaintiffs to provide the said Government with certain engineering services, that is to say, the management and supervision of Foreign Loan Contracts in Benue State is contrary to the terms of the said agreement and in breach thereof and consequently null and void and of no effect whatsoever.

Before that action came up, indeed before pleadings were filed in the suit, the plaintiffs brought a motion before the Court asking for an interim injunction against the defendants in the following terms:

“Interim Order restraining the defendants by this order through their agents or servants from giving effect to the purported termination conveyed to the plaintiff/applicants via letter dated 17th day of October, 1985 from the Military Governor of Benue State in respect of the written agreement dated 16th May, 1985 between the plaintiffs/applicants and the Government of Benue State delivered until the final determination of this suit.” (italics mine.)

An affidavit of 16 paragraphs was filed in support of that application. The contract referred to as well as letter of termination were attached to the affidavit and marked Exhibits t and 2. In their counter-affidavit, the defendants (Benue State Government) admitted that they wrote the letter Exhibit 2 but they asserted that the whole contract existing between the two parties had been completely terminated and there was therefore nothing to restrain. The matter first came before the learned Chief Judge of Benue State on the 9th of December, 1985 and after hearing legal arguments from Counsel, he ruled that:

“the act which I am asked to restrain in the interim is a completed act and it will be a contradiction in terms to restrain a completed act. I hereby refuse the injunction.”

The plaintiff/respondents were dissatisfied with that ruling and they appealed to the Court of Appeal Jos (Coram, Agbaje, J.S.C. (as he then was) Abdullahi and Mecualy J.J.C.A.) and that Court, after hearing legal argument allowed the appeal and made an order restraining the Benue State Government. In their judgment they held that since there were other aspects of the contract to be performed, it was still within the powers of the High Court to restrain the State Government from committing a breach of those other aspects.

As stated before, the defendants were dissatisfied with that ruling and have set out in the lead judgment.

After hearing both counsel in argument, it seems to me that the main question which this court has to decide is whether the letter of termination, Exhibit 2, has put an end to the contract between the parties or whether some acts still remained to be performed by either of the parties. Counsel for the defendant/appellants submitted that there was nothing else remaining for the plaintiffs to perform and that after writing the letter, Exhibit 2, the State Government had taken steps to appoint another independent contractor in place of the plaintiffs.

In his reply Mr. Chukwuma for the respondents had to admit that his Company had been effectively removed from the site as shown in paragraph 11 of their affidavit which reads:

“11. That the applicants further inform me as follows and I verily believe them, that:

(a) as a follow-up to Exhibit 2, the Government of Benue State unlawfully used law enforcement agents to lock-up their offices at No.1c Ogiri Oko Road, Makurdi and prevent them from gaining access to some of their records or property therein which are necessary for the proper presentation of their case in this suit;

(b) the Government of Benue State has unlawfully damaged their reputation by inferring in Exhibit 2 hereof that they were reckless and irresponsible and that this libel has been circulated to a number of people and will further and with renewed vigour be circulated to others unless restrained and

(c) the Government of Benue State is in Exhibit 2 threatening unless restrained to recover unlawfully from the applicants fees lawfully earned by the applicants in the execution of the terms of Exhibit 1 hereof.”

But Counsel argued in an eloquent, but rather pathetic manner that the letter, Exhibit 2, had disrupted the whole business of the respondents and laid them open to damages from their employees and other sub-contractors.

Counsel further submitted that the Court could still restrain the appellants from further disrupting the respondents’ business.

In my judgment, I think Counsel is in error in his submissions. It seems to me that Mr. Chukwuma is expecting too much from this Court. It is to be expected that any breach of contract would give rise to one form of disruption or the other. In that event, a motion for injunction is not the solution, for no Court can stop what has already occurred. In my view, a claim in damages would appear to be a more appropriate remedy.

In paragraph 4 of the letter Exhibit 2, the Appellants wrote to the Respondents in clear and unequivocal terms that:

“You will agree with me that no responsible government will fold its hands and waste public funds which are being repaid with heavy interest rate managed with such recklessness and with no sense of responsibility. In view of all the short comings highlighted, I hereby terminate your above agreement with the Benue State Government with immediate effect. You are therefore requested to hand over all properties belonging to Benue State Government in your possession to the Project Manager, Mr. John Adaghi “ (italics mine.)

In my view that paragraph puts a total end to any contractual relationship between the parties. The result is that there is nothing left to restrain. In this respect, I should like to add that the State Government might have acted wrongly. It probably terminated the contract in breach of the agreement between the parties: If this were so, (and this is one of the claims before the High Court) the Respondents’ remedy was to sue for the breach and to claim adequate compensation.

Mr. Chukwuma also addressed us on the balance of convenience and he submitted that the balance was in favour of his clients. In view of the conclusion which I have reached in respect of the grant of the injunction, it is hardly necessary to proceed on a consideration of this aspect of the appeal. However, for the record, I should like to say that the contract, Exh.1, shows that the respondents had been appointed as independent contractors to supervise and monitor a multi-million Naira construction contract between the State Government and some foreign companies. The letter, Exh. 2, complains about certain inadequacies of the respondents and went further to state that the State Government no longer had any confidence in the overall performance of the respondents. In those circumstances it seems to me that the State Government took the only logical step by terminating the entire contract and appointing another supervisor for the job. In this way, it would be possible to minimize the eventual loss which might be occasioned to the appellants as a result of the disagreement between the parties. When the whole case is viewed from that stand point, it becomes clear that the balance of convenience is in favour of the respondents.

In conclusion, I should like to state that I have had a preview of the judgment of my learned brother, Karibi-Whyte, J.S.C. and for the fuller reasons set out in the said judgment, I agree that this appeal succeeds. It was for these reasons that I allowed the appeal on the 18th day of April, 1988 and would make the same order for costs as contained in the lead judgment.

Appeal allowed.