Niger Dams Authority v. Chief Victor Lajide (1973)

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UDO UDOMA, J.S.C.

The appellants herein, as respondents in the Lagos State High Court, Suit No. M171169, have complained against the ruling given in favour of the respondent, therein applicant, on 9th September, 1971 by Gomez J. and have therefore appealed against the said ruling to this Court.

The facts and circumstances which gave rise to the suit are not in dispute and may be briefly summarised as follows:-

By a formal building contract in writing under the title KJ .14 dated 1966 made by and between the Niger Dams Authority, the appellants that is, on the one part and Chief Victor Ladipo Lajide, trading under the name and style of Victory Builders and Agencies, the respondent that is, on the other part, the latter agreed to construct 11 resettlement villages in the Shanga area of the east bank of the Kainji Reservoir, the contract to subsist for 12 months.

The contract, KJ. 14 is in a printed and bound volume. It is a formidable and voluminous document and consists of several clauses including instructions to tender as well as specifications.

For the purpose of the present appeal, however, only clauses 41 and 63 need concern us as they appear to be directly relevant to the issues in controversy between the parties. All the same, other clauses may be referred to, incidentally, in the course of this judgment.

Clauses 41 and 63 read as follows:-

”41. The Contractor shall commence the Works on Site within the period named in the Tender after the receipt by him of an order in writing to this effect from the Engineer and shall proceed with the same with due expedition and without delay except as may be expressly sanctioned or ordered by the Engineer or be wholly beyond the Contractor’s control.

63. (1) If the Contractor shall become bankrupt or have a receiving order made against him or shall present his petition in bankruptcy or shall make an arrangement with or assignment in favour of his creditors or shall agree to carry out the contract unless a committee of inspection of his creditors or (being a corporation) shall go into liquidation (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or if the Contractor shall assign the Contract without the consent in writing of the Employer first obtained or shall have an execution levied on his goods or if the Engineer shall certify in writing to the Employer that in his opinion the Contractor-

(a) has abandoned the Contract or;

(b) without reasonable excuse has failed to commence the Works or has suspended the progress of the Works for 28 days after receiving from the Engineer written notice to proceed or has failed to proceed with the Works in accordance with the programme and any amendment approved by the Engineer under Clause 14 hereof or;

(c) has failed to remove materials from the Site or to pull down and replace work for 28 days after receiving from the Engineer’s written notice that the said materials or work had been condemned and rejected by the Engineer under these conditions or;

(d) is not executing the Works in accordance with the Contract or is persistently or flagrantly neglecting to carry out his obligations under the Contract, or;

(e) has to the detriment of good workmanship or in defiance of the Engineer’s instructions to the contrary sub-let any part of the Contract, or;