⦿ CASE SUMMARY OF:
Adecentro (Nig.) Ltd. v. Council Of Obafemi Awolowo University (2005) – SC
⦿ LITE HOLDING
⦿AREA OF LAW
Adecentro (Nig.) Ltd.
Council of Obafemi Awolowo University
(2005) JELR 45165 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE APPELLANT
- FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The appellant a construction company had entered into a contract with the respondent to construct a laboratory building and what is described as the general service and supply center at an initial price of N2,440,449.00 (two million four hundred and forty thousand four hundred and forty nine naira). The sum originally agreed to was later on revised upwards to N7,356,663.28 (seven million three hundred and fifty six thousand six hundred and sixty three naira twenty eight kobo).
Some of the pertinent terms of the contract are: (a) That the whole works should be completed within a period of 44 weeks. (b) That the appellant if occasion so demands may apply for extension of time to complete the job. (c) That the architects certificate is a condition precedent for payment.
The construction work was not completed within the due date agreed but the parties after several meetings agreed that the completion work be extended to 139 weeks. As late as the middle of 1985, the appellant applied for further extension of total of 67 weeks. According to the appellant, the consultant architect approved only for an extension of 35 weeks in spite of the protestation of the appellant. The appellant was equally piqued further in this seemingly jaundiced state of affair by the refusal or failure of the respondent to pay its entitlement to certificate No. 35 of the sum of N102,743.73. Subsequently the two parties each determined the contract. Feeling sorely about such a development the appellant instituted an action in the High Court. The respondent on the other hand denied all liabilities and maintained that the unenviable situation was caused by the incompetence of the appellant in not putting the best men on duty and this resulted in perennial requests for extension of time which delayed the work and in turn had the resultant effect of escalating costs.
With this in mind, the respondent then counter claimed for damages for a sum of N12,746,616.54. (Twelve million seven hundred and forty six thousand six hundred and sixteen naira fifty four kobo).
At the High Court, the suit of the appellant was dismissed while the counter claim succeeded. The award of damages was somewhat bizarre in the language it was given. I shall come to this later. An appeal to the Court of Appeal was dismissed, hence a final appeal to this court.
- Whether the lower court was correct in upholding the learned trial Judge’s decision that the appellant was not entitled to the extension of time sought?
- Whether the appellant was, in the circumstance and having regard to the contract entitled to any sums of money due in consequence of the extension of 67 weeks sought by it but which the respondent neither formally granted nor refused?
- Whether the two lower courts did not so misconstrue the first relief sought by the appellant as to occasion a serious miscarriage of justice?
- Which of the parties, having regard to the contract validly determined the contract or were the two lower courts right in holding that the respondent validly determined the contract?
- Whether the respondent was entitled to the measure of damages as stipulated under the contract especially in the light of the holding of the court that the respondent did not determine the contract in accordance with the contract document – exhibit P2, but under the common law?
- Were reliefs granted in the counter claim proper in the circumstances?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: PARTIALLY ALLOWED]
ISSUES 5 and 6 are resolved in favour of the appellant while issues 1, 2, 3 and 4 are resolved against the appellant.
ISSUES 1 & 2 & 3 ARE RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. There are two facts that I have found in this matter – (a) whenever any variation in whatever form inclusive of the extension of time is to be made all parties attended i.e. respondent, its resident engineer, the architects and the appellants. Any extension of time does not depend on the architect alone having regard to possible financial implication and the informal manner parties had been using without the strict need for any variation being made in writing. (b) the appellant seemed to have recognized this in their suppliant letter to the respondent. I hold that when a claim of right metamorphoses into one of supplication, it ceases to wear the clothe of a right but a mere privilege. In this case the appellant was literally begging the respondent for mercies. I see nothing to vindicate a so called right of 67 weeks. Further to this, the parties seemed to have waived the necessity for written approval in the strict sense since evidence shows that they opted for less formal way of communicating easily in this matter. By so doing they have varied or waived strict compliance with the dictates of the contract. See the operation of section 132 of the Evidence Act.
- ISSUE 5 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
- The appellant argued strongly that as the court found out that some work was done in respect of valuation 36, there ought to be payment for it. On this point the respondent replicando drew the attention of the court to terms of payment to wit, that there should be a valuation certificate by the quantity surveyors on the basis of which the architect would issue the certificate. The resolution of this matter is not much of a thorny one seeing that DW 1 has testified that the quantity surveyors were halfway in the approval exercise in respect of valuation 36 before the termination by the appellant. To my mind the ipse dixit of DW1 shows that the quantity surveyors had evinced the intention to approve. That being the case not withstanding that all procedures were not completed, I am of the view that the appellant is entitled to equity in this case as the justice of the situation ought to make the respondent pay for the service rendered and appropriated here. It is my view therefore that the appellant is entitled to the sum of N47,696.03 in respect of the valuation. This is a case where equity should be used to temper rigours of the law.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
I hold that when a claim of right metamorphoses into one of supplication, it ceases to wear the clothe of a right but a mere privilege. In this case the appellant was literally begging the respondent for mercies. – Pats-Acholonu, JSC. ADECENTRO v. OBAFEMI (2005)