Commissioner For Works, Benue State & Anor V. Devcon Development Consultants Ltd & Anor (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

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/N/Vol.II/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 Contract’s in Benue State is contrary to the terms of the said agreement and in breach thereof and consequently null, 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/applicants via a 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 an affidavit of 16 paragraphs, paragraphs 4, 5, 6, 7, 8, 9, 10, 12 of which are particularly relevant are reproduced hereunder-

“4. That I am informed by the applicants whom I verily believe 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.

5. 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.
6. 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.
7. 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/7/Vol.II/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 a photo-copy of the said letter and I exhibit same herewith as EXHIBIT 2.
8. 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.
9. 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.
10. 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 applicant’s work under Exhibit 1 hereof and will be unlawfully appointed within the next few days unless the defendants are restrained.
11. 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 is Exhibit 2, the letter D/7Vol.II/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, paragraphs 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.

5. 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.II/526 of 17th day of October, 1985 Exhibit 2.
6. 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.
7. 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 agents; and that especially the contract is contract of service.