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.

(b) that the applicants are not entitled to the relief of injunction when the act to be restrained is already done and completed.”

After argument on the application the learned Chief Judge, Idoko, C.J. dismissed the application on the following grounds

1. That the act to be restrained was already completed, and there was nothing left to restrain. In coming to that conclusion the learned C. J. said, at p.55 lines 36- p.56, lines 1-11-

”It takes the two sides or one of the sides of a contract to bring it to an end. The bringing to an end by one side may be wrongful or unlawful, but it is still a termination of the contract. Here the Governor said that he has terminated the contract between the applicants and the Benue State Government. It is not argued that the Governor has no power to bring this contract to an end. What is challenged is that the bringing to an end is not in keeping with the terms of Agreement, Exh. 1 and therefore wrongful. Nevertheless it is still a termination. The wrongfulness of it or not will be looked into in the substantive case. I am therefore in agreement with the learned Solicitor-General that the act I am asked to restrain in the interim is a completed act and it will be a contradiction in terms to restrain a completed act….”

2. That an injunction did not lie against the State – reliance was placed on Lastra Construction Nig. Ltd. v. A. G. of Ondo State 1 LRN.363.

On appeal to the Court of Appeal, with leave of that Court, Appellant/Applicant filed three grounds of appeal, but the Court of Appeal considered and allowed the appeal on the first of the grounds stated above that the learned Chief Judge erred in holding that he was being asked to restrain a completed act.

It is useful to set out the grounds of appeal in the Court of Appeal including their particulars. They are as follows:-

“1. That in the light of the claim against the respondents at the trial Court, to wit: “an injunction restraining the defendants … from giving effect to the purported termination of the said written agreement contained in the said letter,” the trial Court erred in law in holding that “I am therefore in agreement with the learned Solicitor-General that the act I am asked to restrain in the interim is a completed act and it will be a contradiction in terms to restrain a completed act.”

Particulars of Error

The act sought to be restrained, to wit: giving effect to the purported termination of the agreement was not and could not have been a completed act.

That in the light of Sections 6(6)(b) and 236 of the Constitution of the Federal Republic of Nigeria 1979 and Order 17 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 1975, the trial Court erred in law in holding

“I think this is enough to dispose of this matter for this obvious principle of law that an interim injunction cannot issue from this court against a State Government. The application is therefore incompetent and it is hereby dismissed.”

Particulars of Error

Lastra Construction (Nigeria) Limited v. A.G. of Ondo State (1978) 1 LRN. 363 relied on by the trial Court was decided on 14/7/78 long before the coming into force of Sections 6(6) (b) and 236 of the Constitution of the Federal Republic of Nigeria, 1979 which Sections confer unlimited jurisdiction on a High Court of a State to hear all suits between persons or between Government or Authority and any person in Nigeria, and cannot be an authority in this day and age to oust the jurisdiction of a High Court to entertain an issue involving injunction against a Government of a State.

Counsel duly filed their briefs of argument and relied on them in argument. There were three issues for determination, but the Court of Appeal considered only two of them which are –

“(1) Was the learned trial Chief Judge right in holding at page 56 of the records that the act he was asked to restrain in the interim was a completed act when the language of the application as shown at page 4 of the records was that what was sought to be restrained was not and could not have been a completed act.

(2) In the light of sections 6(6)(b) and 236 of the Constitution of the Federal Republic of Nigeria, 1979 and Order 17 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 1978, and numerous decided authorities granting injunctions against State Governments, was the learned Chief Judge right in holding at page 57 of the records that it is an obvious principle of law that an interim injunction cannot issue from his court against a State Government. In essence, is Lastra Construction (Nigeria) Limited v. A.G. of Ondo State (1978) 1 LRN.363 still good law in the light of the present constitutional provisions and decisions of Higher Courts

The Court of Appeal allowing the appeal, held quite rightly in my view in answer to the second issue for determination that the learned Chief Judge was in error in holding that injunction did not lie against the State. It was correctly pointed out that Lastra Construction (Nig.) Ltd. v. A.G. of Ondo State (supra) relied upon by the learned Chief Judge was decided on 14/7/78 before the coming into force on October 1, 1979 of the Constitution and sections 6(6)(b) and 236(1) thereof. Counsel to the Respondent in the Court of Appeal properly conceded the point.

The main point in issue which is also the strongest ground of appeal before us is the first ground of appeal that the learned Chief Judge was in error to hold that the subject matter of the application, the letter Exhibit 2, sent to applicants having been completed, there was nothing left to restrain. The Court of Appeal after referring to the affidavit and further affidavit relied upon for the application, and the counter affidavit in opposition thereto, decided the question whether the acts complained of had been completed.

The approach adopted was to refer to paragraph 4 of the letter complained of which states:-

“4. You will agree with me that no responsible government will fold its hands and watch public funds which are being repaid with heavy interest rate managed with such recklessness and with no sense of responsibility. In view of all the short comings highlighted, I hereby terminate your above Agreement with the Benue State Government with immediate effect. You are therefore requested to hand over all properties belonging to Benue State Government in your possession to the Project Manager Mr. John Adaghi.

The court also referred to and relied on paragraphs 14 of the 1st affidavit and 4 of the further affidavit

“14. That I am informed by the applicants whom I verily believe that if the defendants/respondents and their privies, principals, agents and servants are not restrained now, they will disrupt the applicants business’ totally in their attempt to give vent to Exhibit 2 hereof.”

Paragraph 4 of further affidavit reads:-

“4. That further to paragraph 10 of my affidavit sworn to at the Registry of this Honourable Court on the 1st day of November, 1985, I have now been informed by the applicants and I verily believe them that the two firms short listed by the defendants and their privies to take over from the applicants are

(1) MUIR ASSOCIATES

(2) SAM RAWNS PARTNERS.”

Based on the above the court came to the following conclusions-

“It is clear in my view that reading a portion of paragraph 4 of exhibit 2 quoted above and the two paragraphs of the appellants’ affidavit reproduced above the effect of the acts being completed. The scope of the work as enshrined in exhibit I the contract document signed between the parties are still very far from being completed. It is also my view that exhibit 2 is only a step taken to explore alternative way of effecting the work to a successful completion. It is therefore my judgment that the learned trial Chief Judge was in error to hold that the act he was asked to restrain in the interim is a completed act and will be a contradiction in terms to restrain a completed act.

Thus the Court of Appeal came to the conclusion that the sending of Exh. 2 to the Appellants was not a concluded act to effect the termination of the contract between the parties. It was therefore held that the balance of convenience was in favour of the grant of the interim injunction sought. The Respondents in the Court below have appealed against that decision to this Court.

Appellants after obtaining the leave to appeal from this court filed four grounds of appeal, which, excluding particulars, are reproduced below as follows –

“(1) The learned Justices of Appeal erred in law and misdirected themselves on the facts when they held (per U. Abdullahi, J.C.A.) that-

“It is clear in my view that reading a portion of paragraph 4 of Exhibit 2 … and the two paragraphs (14 of the affidavit and 4 of the further affidavit) of the appellants’ affidavit… the effect of the acts being complained of by the appellants are far from being completed. The scope of the work as enshrined in exhibit 1 the contract document signed between the parties are very far from being completed. It is also my view that exhibit 2 is only a step taken to explore alternative way (sic) of effecting the work to successful completion. It is therefore my judgment that the learned trial Chief Judge was in error to hold that the act he was asked to restrain in the interim is a completed act and will be a contradiction in terms to restrain a completed act.”

(2) The learned Justices of Appeal misdirected themselves in law when they held (per U. Abdullahi, J.C.A.)-

“In this case, I need also to refer to paragraphs 14 (sic) of the appellants’ affidavit and also paragraph 4 of their further affidavit. Standing unchallenged as they are, these paragraphs obviously tilt the scale of convenience to the side of the appellants. It is my view that the contents of these paragraphs of the affidavit read along with paragraphs 9, 10, and 11 of the appellants’ affidavit… constitute a prima facie case that the balance of convenience in this case should and ought to have been resolved in favour of the appellant; (sic) and I so resolve.”

(3) The learned Justices of Appeal erred in law in setting aside the order of the learned Chief Judge refusing the plaintiffs’ application before him when the plaintiffs failed to discharge the onus on them of proving their entitlement to the equitable relief sought by them before that court.

(4) The decision of the Court of Appeal is against the weight of evidence.

Counsel filed and relied on their briefs of argument before us. Counsel for the Appellants formulated three questions for determination. The two issues for determination formulated by counsel to the Respondents cover the same issues. The two issues formulated by counsel for the Respondent are as follows –

“(1) whether or not the Court of Appeal was right in holding that the acts complained of were not completed and should be restrained and

(2) whether or not the Court of Appeal was right in holding that from the State of available affidavit evidence the balance of convenience was in favour of the plaintiffs.”

Counsel to the Appellants submitted that it was clear from the evidence before the court that the complaint of Plaintiff/Respondent against Exh. 2, is that it unilaterally terminated the agreement between them and the Defendant/Appellant. The issue was whether or not this was a completed act. It was submitted that neither party referred to the “scope of work” in Exh. 1, relied upon by the Justices of the Court of Appeal in their judgment. It was contended that the Court of Appeal made no reference to the unilateral termination by the Appellants of their Agreement with the Respondents. Consequently it was argued that the Court of Appeal formulated suo motu an

issue, without the benefit of arguments of counsel- the cases of Olusanya v. Olusanya (1983) 3 S.C.41 ; Ebba v. Ogodo & anor. (1984) 4 S.C.84, Ogida v. Oliha (1986) 1 NWLR (Pt.19) 786, 798 were cited and relied upon. Counsel further submitted that the issue raised suo motu by the Court could never have arisen in the circumstances of this case. Referring to the issue of injunction, it was submitted that the question of effect being given to Exh. 2 no longer arose as Exh. 2 itself was not a declaration by the Military Governor to do something in the future but was in fact evidence of an act already done. The rightness or otherwise of the termination is a different matter which will only arise at the trial of the substantive suit. In the circumstances the interim injunction was unnecessary.

In his reply in support of the judgment of the Court of Appeal, Counsel to the Respondent relied on the averments in applicants’ affidavit which remain unchallenged suggesting that the act complained of had not then been completed. It was submitted that Exh.2 which was the letter unilaterally terminating the Agreement was bad ab initio and null and void and could not, as it did not, terminate Exh. 1. This is the whole case of the plaintiff. It was therefore submitted that appellants cannot be heard to say that Exh.2 terminated Exh. 1 and was a completed act, since that issue is the basis of the substantive action pending trial.

I have said above that the point in issue raised by the facts of this appeal is a very narrow one. The issues for determination formulated are precise and sufficiently accurate. This is a judgment on an interlocutory appeal from a decision on an application for interim injunction to restrain the Defendant/Appellants from giving effect to the termination of the Written Agreement dated 16th May, 1985 between the parties till the determination of the substantive suit.

The short point necessary for determination in this appeal is whether the sending of Exh.2 to the Plaintiff is a complete act of a declaration terminating the Agreement between the parties.

Before considering this statement let us examine the approach of the Court of Appeal to the issue. It is somewhat of a surprise that the Court of Appeal after referring to the relevant paragraph of Exh. 2 where the Military Governor unequivocally stated,

“…………….In view of all the short comings highlighted, I hereby terminate your above agreement with the Benue State Government with immediate effect,”

went on to hold that that was merely exploratory. Nothing could be clearer than the declaration in Exhibit 2. The view founded on averments in applicants’ affidavit, and Exh. 2 which complain about short-comings in respect of Exh. 1 cannot in my respectful opinion be regarded as capable of interpreting Exh. 2 as an exploratory move and alternative way of securing completion of the work subject matter of the contract in Exhibit 1. It is important for the determination of this appeal to appreciate that the Declaration sought in the substantive action is that the letter Exh. 2, i.e. D/7/V0l.11/526 dated 17th day of October, 1985 purporting to terminate the written Agreement dated the 16th May, 1985 between the parties is contrary to the terms of the said agreement and in breach thereof and consequently null and void and of no effect whatsoever.

The action for declaration was brought on the basis that the letter Exh. 2 sought to be set aside is null and void and of no effect. Accordingly, as was pointed out by counsel to the Appellants, what was before the court in support of the application for interim injunction is the questions of the validity of the letter terminating Exh. 1 i.e. Exh. 2.

Counsel to the Respondents has not argued before us or in any of the Courts below that Respondent/Plaintiff did not receive Exh. 2. Also, it has not been contended that the letter was a forgery, or was otherwise invalid or not written by the Defendant/Appellant. The contention has always been that Exh. 2 was contrary to the terms of the Agreement between the parties. Paragraph 8 of the Affidavit in support of the motion for interim injunction avers as follows –

“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.”

Even the further affidavit dated 4th November, 1985, in support of the application did not depose to the evaluation of the scope of work relied upon by the Court of Appeal in their judgment. It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the Judge suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him – See Nigerian Housing Development Society Ltd. & anor. v. Yaya Mumuni (1977) 2 S.C. 57; Adeniji & ors. v. Adeniji & ors. (1972) 1 All NLR (Pt. 1) 298. It is well settled that a Plaintiff is bound by the case put forward in writ of summons, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) NMLR. 231. Similarly, an applicant will be bound by the prayers in his Motion.

In Ochonma v. Ashirim Unosi (1965) NMLR 321, where the defendant failed to establish an absolute grant of title from the Plaintiff, but did not also plead the type of title of which he held of the Plaintiff, but pleaded that the grant was for the purpose of an oil Mill. The Judge held that what was granted was what he called a ‘Kola tenancy’ which gave the defendant ‘full rights of possession’ for as long as he wished, without payment of rent, but not the right to alienate the land. He held that the only right remaining in the Plaintiff was the reversion. On appeal, the Supreme Court allowing the appeal said, at p.323

“In our view the Judge was wrong to base his judgment on an interpretation of the transaction between the parties which neither of them had pleaded or testified in evidence. The defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there has been an absolute grant to him. He failed to do this, and we do not consider that it is open to the Judge on the pleadings, to find that the kind of tenancy he described had been created.”

Similarly, the issue that “the scope of work” as enshrined in Exhibit 1, the contract document signed between the parties are still very far from being completed” was not the case of either of the parties since that was not the issue either in the substantive action or in this application before this Court. That case cannot be made for the parties by the Court of Appeal as is being done in this case.

The Court of Appeal having missed the real point in issue before them, could not in such circumstance but have wandered away from the atmosphere properly relevant for the doing of justice between the parties. The view they took was not in accord with the facts of the case presented before the High Court, the judgment of which was on appeal before them.

There is another aspect to the judgment of the Court of Appeal. Even if it is conceded for the purposes of the judgment of that Court that the letter Exh. 2 referred to the scope of work, subject-matter of the Agreement in Exh. 1, can it be seriously argued that, in law, Exh. 2 despite the unequivocal declaration of termination of the agreement cannot put an end to the obligations in Exh. 1 This appears to me the contention of counsel to the Respondents in this Court, who was the Appellant in the Court of Appeal, and what the Court of Appeal held when they said,

“The effect of the acts being complained of by the appellants are far from being completed. The scope of the work as enshrined in Exhibit 1 the contract document signed between the parties are still very far from being completed. It is also my view that Exhibit 2 is only a step taken to explore alternative way of effecting the work to a successful completion……”

My immediate answer is clearly in the negative. The contention of counsel to the Respondents in this appeal was that para. 2.2.10.2 of Exhibit 1 prescribes the conditions for its termination and any termination of Exhibit 1 outside the prescribed conditions is accordingly a nullity. The provisions for the purpose of clarity and convenience are reproduced below, and are as follows –

“This Agreement may be terminated by notice in writing in each case without prejudice to the rights of either party which may have occurred prior to such termination; by either party by immediate notice if the “Engineer” shall become insolvent, or is in the process of dissolution (other than for the purposes of amalgamation or reconstitution), or commits a material breach of its obligations hereunder and fails to remedy the same within a reasonable time after having been given due notice to do so, or if it is unable to substantially perform or complete its obligations, hereunder due to force majuere, civil commotion, or any defaults of the other party.

The “Engineer” may by written notice to the Client terminate this Agreement:

(i) If he has not received payments as provided in Appendix hereof within thirty (30) days after the due dates; and such default has not been corrected within thirty (30) days after notice thereof has been given by the “Engineer”;

(ii) if the services have been postponed as provided for in Clause 2.2.10.1 or Clause 2.2.10.2 and such postponement has lasted for a period exceeding six (6) months.

It is common ground that Exhibit 1 constitutes the contract between the parties. It is also common ground that the provisions reproduced above indicate the circumstances when the contract can be lawfully determined by either party. Thus outside the above provisions it is well settled law that a contract can still be discharged by any of the acts which could constitute a breach. Among the several recognised forms of breach repudiation by either party of his obligations under the contract is an accepted method of discharge of contract.

Repudiation occurs when a party by words or conduct conveys to the other party that he no longer intends to honour his obligations in the agreement when they fall due. Repudiation which may either be express or implicit operates as an immediate breach and discharges the person repudiating from his obligations in the contract – See Mersey Steel & Iron Co. v. Naylor Benzon & Co. (1884) 9 App. Cas. 434. When it is established that a party has made his intention clear beyond doubt that no longer to perform his side of the bargain, there is a breach of the contract – See James Shaffer Ltd. v. Findlay, Durham and Brodie Ltd. (1953) 1 WLR 106. Admittedly, Exhibit 2, subject matter of complaint in this action has unequivocally declared the intention of the Defendant/Appellant, not to continue with the Agreement between the parties. The expression “in view of all the shortcomings highlighted I hereby terminate your above Agreement with the Benue State Government” with immediate effect, “leaves no one in doubt of the determination of the Defendant/Appellant to discharge the contract by such a repudiation. The contract having come to an end by this breach the remedy of the innocent party is not in insisting that it still subsists, but that he should be compensated.

The dictum of Lord Blackburn in Mersey Steel and Iron Co. v. Naylor Benzon & Co. (supra) at pp.442-443 is quite explicit. He said;

“Where there is a contract to be performed in the future, if one of the parties has said to the other in effect “if you go on and perform your side of the contract I will not perform mine”, that in effect, amounts to saying “I will not perform the contract”. In that case the other party may say, “you have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as having put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract.”

This is precisely the situation in this case. Exhibit 2, the letter terminating the agreement with Plaintiff/Respondent, with immediate effect is unequivocal that Defendant/Appellant was no longer going on with the contract with Plaintiff/Respondent. In fact this was sufficiently brought out in the affidavit and further affidavits in support of the Motion for interim injunction.

The Court of Appeal was therefore in error in holding that Exhibit 2 was merely exploratory. Exhibit 2 is a complete action repudiating the contract and resulting in its breach.

The Court of Appeal relying on their opinion of the law went on to grant the interim injunction asked for. I am unable to appreciate the grounds of law on which this can validly be done. It is a fundamental rule that a Court will only grant an injunction to support a legal right – See Montgomery v. Montgomery (1965) probate 46. The Court cannot exercise this equitable jurisdiction where there is no legal right cognisable by the Courts. Injunction will therefore be granted only to protect the violation of a legal right. The Courts have always inclined towards keeping the remedy of interlocutory injunction flexible. In deciding whether to exercise the discretion in favour of the applicant the Court ought to consider the case as a whole, having regard to the case of the parties. It is therefore not sufficient to rely on the fact that applicant has an arguable case, and that his right has been infringed.

A court is entitled to grant an interlocutory injunction where applicant is able to make a prima facie case showing that the conduct of the defendant is unjustified and that damages will not be adequate remedy.

It has always been the law that the applicant for an interlocutory injunction should satisfy the court that there is a serious question to be tried at the hearing of the action, and the facts disclose a reasonable probability that applicant will be entitled to the relief claimed. – See Preston v. Luck (1884) 27 Ch. D. 506. The real purpose of applying for interim injunction is to keep matters in statu quo until trial. In coming to such a decision, regard must be had to the rights of the parties, and the balance of convenience and the extent to which any damage to the applicant could be cured by the payment of damages rather than by the grant of injunction. – See Ladunni v. Kukoyi (1972) 3 S.C. 31; Donmar Productions Ltd v. Bart & ors. (1967) 1 WLR 740.

The most Plaintiff/Applicant/Respondent has been able to establish by his affidavits is that Defendant/Respondent/ Appellant has committed a breach of contract in respect of which, if he may, he can sue for damages. But it is unfortunate that the substantive action before the court is not even saying that. It is seeking to set aside the letter Exhibit 2, which terminated the contract.

It is a well settled principle of law that where there is a legal right to do a thing, the motive with which it was done is generally immaterial to its validity – See Mayor and Corporation of Bradford v. Pickles (1894) 3 Ch.53. In this case, the Appellant, who is a party to the contract with the Respondent is within his legal rights to terminate the contract and subject himself to action for the damages resulting from his act. Considering the case as a whole as presented to the Court and the fact that Appellant before us was exercising his undoubted right to repudiate the contract and subject himself to damages, the crucial fact that the court cannot restore the statu quo ante, appellant having by Exhibit 2 completed the act, there is therefore no basis for the consideration of the balance of convenience. The Court of Appeal was in error to have granted the injunction asked for. Appellant has made out a good case for the setting aside of the judgment of the Court of Appeal.

The appeal against the judgment of the Court of Appeal is hereby allowed. The judgment of the Court of Appeal setting aside the judgment of Idoko, C.J. of the Benue State High Court is itself hereby set aside. The judgment of Idoko C.J. is hereby restored.

Respondents shall pay to Appellants costs assessed at N500 in this Court, and N250 in the Court below.

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SC.209/1986