Reuben N. A. Ekwunife Vs Wayne (West Africa) Limited (1988)

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Philip Nnaemeka-Agu . J.S.C.

This is an appeal by the plaintiff against the reversal by the court of appeal Kaduna Judicial Division of the judgement given in favour by L. D. Abdullahi, J. , in a Jos high court. The claim before the court is as follows:

“The defendant by Local Purchase Order No. 17142 and 17143 all dated 31st October, 1977 and by letter Reference No WJ/ ADM 069/7/78 awarded the work of laying of underground cables for its petrol pumping stations in the following towns Mangu (5 pumps) Barkin Ladi (5 pumps) Nassarawa, (5 pumps) Bassa (5 pumps) Pankshin (5 pumps)Wase and Kanam (5 pumps). The plaintiff in accordance with the Local Purchase order and the letter Reference No.

WAJ/ADM 069/7/78 did carryout the projects in the specified areas and make a demand for payment of work done which the defendant refused, or neglected to pay. Wherefore the plaintiff claims from the defendant the sum G of N16,000 (sixteen thousand Naira) as payment for the work done. ” The said two Local Purchase Orders (to be henceforth called L. P. Os) run as follows: “Suppliers copy Wayne (West Africa) LTD Branches Subsidiary of Dresses Industries Inc. Agents for Tecalemit & C. L.

Equipment. Enugu, Tel 3503 Tel: 7354, 4595038-40 BURMA ROAD, Ibadan “ 23639 45950 P. O. Box 103 Jos” 2541 Apapa Kano” 4419 P. H. Tel: 8276 Benin Tel: 21 Local Purchase Order NO. 17442 Conglobe Associates & Co.

, E. 5 Abdul Salami Street 3/10/1977 Jos. Please Supply/Repair the following Item No. Description Amount Carryout flame proof Electrification at M. O. Trade Yards in the following Area to Wayne pumps- 1 Bassa-5 pumps 2 Pankshin- 5 pumps 3 Langtan – 5 pumps 4 Wase and Kanam- 10 pumps Wayne will supply Cables and glands Gear 10,000 Switches by you 10,000 Subject To …………………… % Discount The duplicate copy of this purchase order must be attached to your invoice. The Company cannot accept responsibility for delays in payment arising from non-compliance with this condition.

Ten Thousand Naira Only. (Sgd. ) Approved Signature CONDITIONS ON REVERSE SIDE “Suppliers copy Wayne (West Africa) Ltd Branches. Subsidiary of Dresses Industries Inc. Agents for Tecalemit &P. C. L.

Equipment. Enugu Tel: 3503 38-40 Burma Road, Ibadan Tel: 23639 P. O. Box 103, Jos” 2541 Apapa Kano Tel: 4419 P. H. ” 8276 Benin” 21 LOCAL PURCHASE ORDER NO. 17443 Conglobe Associates & Co.

, E. 5 Abdul Salami Street, 31/10/1977 Jos. Account Code…………………. . Please supply/repair the following Item No. Description Amount Carry out flame proof Electrification At M. O.

Trades Yard in the following Area (1) Mangu 5 pumps (2) Baraki Ladi 5 pumps (3) Nassarawa 5 pumps. Wayne will supply cables and glands. Gear switches to be supplied by you 6,000. 00 Subject To………………% Discount 6,000. 00 The duplicate copy of this Purchase Order must be attached to your invoice. The company cannot accept responsibility for delays in payment arising from non-compliance with this condition. Six thousand Naira only.

Conditions on Reverse Side It is to be observed that each L. P. O. referred to the conditions on the reverse side. But because of the materiality and bearing of these conditions to the result of this case, I shall set them out at a more appropriate time. The suit was initially commenced under ‘Undefended List’; but, on the application of the defendant, pleadings were ordered, filed and duly exchanged. I shall set out only portions of the pleadings, which I consider relevant to the issues that have arisen for determination in this appeal, later in this judgment.

I should mention, too, that after the contract was awarded on the 31st of October, 1977, without any limitation as to time of completion, the defendant, by a letter dated 1st February, 1978, (Exh. 2) unilaterally gave to the plaintiff two weeks to complete the work and imposed a penalty of N5 . 00 for any day the plaintiff failed to complete work. It is, however, noted, as pointed out by the Court of Appeal, rightly in my view, that the parties did not rely on Exh. 2, even though the two bills of completion for total sum of N16,00. 00 submitted by the plaintiff which were tendered as Exh. 3 and 3A.

were dated 1/3/78 and 11/3/78. 1 may observe also that the Manager of the defendant company duly signed the bills as submitted. After pleadings, the parties made some futile attempts at settlement out of court. During the negotiations the defendant made an offer – ‘without prejudice’ – to pay N9,000 in full and final settlement of the claim. But as the negotiations broke down, the case went to trial. Plaintiff testified on his own behalf and one Peter Adenola who took over from the signatory of Exh. I.

lA. 3 and 3A. testified on behalf of the defendant. In his judgment the learned trial Judge made the following findings, inter alia: (i) That the contract between the parties was one in writing, contained in Exhs. 1 and lA. which must be relied upon exclusivelv for ascertainment of the terms of the contract; (ii) That the contract was a divisible contract, which the plaintiff had substantially performed and so was entitled to payment, subject to any counter-claim by the defendant for any defects or omissions towards the diminution of the contract price; (iii) That as there was no counter-claim the plaintiff had proved his case beyond a balance of probability and so was entitled to payment. He therefore entered judgment to the plaintiff on his claim for N 16,000.