Carlen (Nig.) Limited V. University Of Jos & Anor (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiff, a limited liability company on 19th April, 1982 entered into a contract with the Vice-Chancellor of the University of Jos for the construction of faculties of Environmental Sciences and Education at the permanent site of the University in Jos at a total cost of N28,09 million. It was the Registrar of the University that signed the contract, presumably on behalf of the Vice-Chancellor.

The contract contained an arbitration clause in the event of a dispute between the parties to it. The contract was partly executed and some payments made by the University to the plaintiff before a dispute arose between the parties leading to the termination of the contract by the Vice-Chancellor by a letter dated 16th April, 1984.

The plaintiff instituted an action at the High Court of Plateau State (Jos Judicial Division) in 1986 against the University of Jos and the council of the University as defendants claiming by its amended statement of claim a total sum of N11,358,000.00. The defendant’s entered appearance and filed and served an amended statement of defence. At the subsequent trial the plaintiff called witness in support of its case and at the close of the plaintiff’s case the defence opened. Whilst the case for the defence was still on, learned leading counsel for the defendants Mr. Brown-Peterside, SAN filed a motion praying for an order or orders.

“1. directing the plaintiff to give security for costs in this matter,

2. striking out this action/or dismissing it on the ground that it is premature and/or incompetent.”

This motion was supported by an affidavit and a further affidavit both sworn to by junior counsel in the Chambers of the learned Senior Advocate. At the hearing of the motion, the learned trial Judge took arguments from learned counsel for the parties and in a reserved ruling held that the two defendants were juristic persons and that the action was properly brought against them.

He also held that both the Vice-Chancellor and the Registrar of the University could properly have been made parties to the action and that the Vice-Chancellor was an agent of the council and a legal person. On the question of incompetence of the action and the jurisdiction to try the matter and that the defendants having taken steps in the matter, the action was competent notwithstanding the arbitration clause in the contract. The first prayer was abandoned at the hearing and was consequently struck out.

Being dissatisfied with the decision, the defendants appealed to the Court of Appeal upon one ground of appeal which, because of issues raised before us, in this appeal, I quote hereunder. It reads:

“1. The learned trial Judge erred in law in ruling as he did that the suit before him is competent and/or that he had jurisdiction to hear the same, and this error occasioned miscarriage of justice.

PARTICULARS OF ERROR

1. Para 3163(3) – payment after forfeiture of exhibit 1, which is the contract on which the suit is based, (which is hereunder reproduced), is clear and unambiguous and the learned trial Judge ought to have given effect to it by holding otherwise. If he had done so, he would have come to a different conclusion:

‘Payment after forfeiture: If the employer shall enter and expel the contractor under this clause he shall account (sic) of the contract until the expiration of the period of maintenance and thereafter until the costs ‘of completion and maintenance damages for delay in completion (if any) and all other expenses incurred by the employer have been ascertained and the amount thereof certified by the engineer. The contractor shall then be entitled to receive only such sum or sums (if any) as the engineer may certify would have been due to him upon due completion by him after deducting the said amount. But if such amount shall exceed the sum which would have been payable to the contractor shall upon demand pay to the employer the amount of such excess and it shall be deemed a debt due by the contractor to the employer and shall be recoverable accordingly.’

(II) By paragraph 3201 of the same Exhibit 1, the employer is, simply defined as ‘The Vice-Chancellor’. That being so, neither of University of Jos nor the council of the University and Jos is a party to the said contract and therefore ought not to have been sued. If the learned trial Judge had properly adverted his mind to the foregoing, having regard particularly to the University of Jos Act, 1979 inter alia, he would have come to the conclusion that he had no jurisdiction to hear the suit and/or that the suit before him is incompetent.”

Briefs having been filed and exchanged the appeal was argued before the Court of Appeal holden at Jos and that court in a reserved judgment allowed the appeal and set aside the judgment of the trial High Court. The Court of Appeal held:

1. that the contract was not executed by the parties to the action moreso as the seal of the University was not affixed thereto;
2. that as the contract agreement was signed by the Registrar and not the Vice Chancellor, it was not executed by the parties to the suit; it was wrongly admitted in evidence;
3. that both the council of the University and the Vice Chancellor are not legal persons;

The court, per Katsina-Alu, J.C.A., further held: