Warner And Warner International Associates (Nigeria) Ltd. Vs Federal Housing Authority (1993)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C 

The parties to this appeal entered into a written contract in December, 1974 for the plaintiff to construct 199 Duplex buildings (Type H4-H3a) at a contract sum of N13,372.800.00. 140 of these houses were to be constructed in Festac (Festival of Arts and Culture) Town, and the balance of 59 at another location called Ipaja. This contract, copy of which was tendered and admitted in evidence as Exhibit 1 (vide pp. 993-1038 Volume 3 of the record of proceedings), provided for the initial payment of mobilisation fee to the contractor, to be followed by payments made on the basis of “stage of work” agreed upon. A fixed date for the completion of the buildings was also agreed upon.

Sometime in 1976, defendant purported to terminate this contract. Following the intervention of the Federal Minister of Housing, Urban Development and Environment, this termination was set aside and the plaintiff returned to the site and continued his work.. The contract however continued to be dogged with controversy and so by another letter dated 2nd March, 1979 (Exhibit 76), the defendant finally terminated the aforesaid contract. Aggrieved by this action, the plaintiff sued the defendant in the High Court of Lagos claiming, as per its final amended statement of claim (vide p.600 et seq of Vol. 2 of records of proceedings).

“A(i) A declaration that the letter dated 2nd March, 1979 reference No. FHAC 29A, purponing to terminate the Building Contract (hereinafter called ‘the Contract’) dated 5th December, 1974, between the plaintiffs and the defendants, is invalid, null and void, and entirely of no effect.

(ii) A declaration that the Contract is valid and is still subsisting.

(iii) A perpetual injunction restraining the defendants by themselves and or their servants agents and whosoever otherwise from taking any steps pursuant to the letter of termination of the Contract and in particular from taking possession of the building sites hitherto being worked upon by the plaintiffs at the Festival Town, Badagry Road, Lagos, and from re-awarding the Contract for the construction of the buildings the subject matter of the Contract to another Contractor or Contractors and further from, interfering with any of the fixtures, construction equipment and materials, e.t.c. of the plaintiffs now lying on or being at their various building sites in the said Festival Town, Badagry Road, Lagos.

AND IN THE ALTERNATIVE TO ‘A’ ABOVE

(i) The sum of N15,000,000.00 (Fifteen Million Naira) being Special and General Damages for wrongful termination of the contract by the defendant.

PARTICULARS OF DEBTS:

(a) Payment due to the plaintiffs on claim for preliminaries as agreed with the defendants on 25th July, 1979 in the Federal Ministry of Works and Housing, Lagos (vide that Ministry’s letter dated 3rdAugust, 1978) i.e. N1,764,149.78 LESS N190,041.60 already paid to the plaintiffs by Certificate No.14A dated 29th January, 1979.

– N1574, 108.18

(b) Claim for refund in respect of additional expenditure by the plaintiffs due to Port congestion, i.e. in air freighting

aluminium mould son the express advice of the defendants in 1975. A formal claim of which was submitted on 4th December, 1978, vide plaintiffs’ letter ref. WIA. EKEM. 300 (3)/78 under the Contract provision for ‘Force Majeure’

– 370,141.89