Government Of Anambra State & Anor V. Carsul Ltd. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the judgment of H.O. OZOH J. in the Awka Judicial Division of the High Court of Anambra State delivered on 24th day of June 2010.

The Respondent herein as Plaintiff took out an originating summons dated 14/7/08 and filed on 23/7/08 against the Appellants who were Defendants to the suit.

The questions for determination in the said originating summons are as follows:-

1. Whether in the light of clause 22 of the Contract Agreement (Exhibit A) providing for Arbitration between the parties, the purported termination of the contract agreement between the parties by the defendants do not constitute a breach of a fundamental term of contract and therefore null and void.
2. What is the combined effect of clause 12 of Exhibit A and clause 22 thereof?
3. Whether the Plaintiff ought not to rightfully continue with contract works under Exhibit A in the light of the breach of a fundamental term of the contract aforesaid.
4. Whether the Plaintiff pursuant to clause 7, 8, 9 and 13 of Exhibit A, is not entitled to payment on certificate No. 5 from the Defendants for works already completed before the purported and irregular termination, and
5. Whether in any case the Plaintiff is not entitled to damages from the Defendants for this breach of contract.

Pursuant to the above questions, the Respondent as Plaintiff seeks the following reliefs:-

A. A declaration that the purported termination of the contract between the parties constitutes a breach of a fundamental term of the contract and is therefore null and void.

B. In the light of the declaration above, An order that the Plaintiff is entitled to continue pending the contract agreement until properly determined.

C. An order that the Defendants pay over to the Plaintiff the sum of N7,630,874.95 (Seven million, six hundred and thirty thousand eight hundred and seventy four naira ninety five kobo) being the sum due on interim payment certificate No. 5. General Damages of N50,000.000.00 (fifty million naira) for breach of contract.

In support of the originating summons, the Plaintiff Respondent attached a 10 paragraph affidavit and documents, Exhibits A – HI and H.

The Defendants/Appellants in reaction filed a 14 paragraph counter-affidavit.

Paragraph 7 and 8 of the Plaintiffs/Respondent’s affidavit in support in particular deposed as follows:-

7. That my humble prayer before the Honourable court is to interpret the said paragraph 22 of Exhibit A and determine whether the Defendants did comply with Exhibit A before the purported termination thereof and in so doing, determine the questions for determination as formulated in the originating summons hereof.
8. That at the time of purported revocation of Exhibit ‘A’ interim payment certificate No. 5 amounted to N7,630,874.95 (seven million six hundred and thirty thousand, eight hundred and seventy four naira ninety five kobo) was yet to be paid. Copy of the payment certificate is annexed as Exhibit G.

The Defendant/Appellant countered paragraphs 7 and 8 of the affidavit in support in their paragraphs 9 and 10 as follows:

9. That the Defendants deny the contents of paragraphs 8-9 of the affidavit in support of this suit as same is false and further state that the contract for this road project subject matter of this suit has since been awarded to Grandstar construction company Ltd. and that work on same is nearing completion.

In the court below, parties filed and adopted their written addresses.

In the judgment of the court contained at pages 46 53 of the Record, the learned trial judge proceeded on the basis that the suit was a proper one to be brought by way of originating summons.