➥ CASE SUMMARY OF:
Prof. Ndukaeze Nwabueze v. Ahmadu Bello University Zaria & Ors. (2023) – NICN
by “PipAr” Branham-Paul C. Chima, SAL.
National Industrial Court of Nigeria – NICN/KD/34/2021
➥ JUDGEMENT DELIVERED ON:
TUESDAY 24TH OF JANUARY, 2023
➥ AREA(S) OF LAW
Frustration of contract;
➥ PRINCIPLES OF LAW
⦿ WRITTEN ADDRESS IS SIMPLY TO AID THE COURT AND DOES NOT REPLACE THE EVIDENCE
At this juncture, permit me to restate the elementary and trite law as correctly submitted by learned Defendants’ counsel, that the submission of counsel can never ever take the place of evidence, no matter how beautifully and convincingly couched. In the Supreme Court case of Ogunsanya Vs State  6 MJSC (Pt 1) 24, it was stated per Rhodes- Vivour JSC that: “A case is won on credible evidence and not on address. No amount of brilliance or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case. The main purpose of address is to assist the Court and is never a substitute for compelling evidence….” — S.O. Adeniyi, J.
⦿ FOUR WAYS IN WHICH CONTRACT MAY BE DISCARDED
Now, it is settled that a valid contract may be discharged in any of the four ways namely: (a) by performance; or (b) by express agreement; or (c) by breach; or (d) by the doctrine of frustration. See Adedeji Vs Obajimi  LPELR-33712(SC); Tsokwa Oil Marketing Company Vs B.O.N. Ltd  11 NWLR (Pt 777) 163. — S.O. Adeniyi, J.
⦿ WHEN DOES FRUSTRATION OF CONTRACT OCCURS
As correctly submitted by learned counsel on contending sides, frustration of contract occurs, where after the contract was concluded, events occur which make performance of the contract impossible, illegal or something radically different from that which was in the contemplation of the parties at the time they entered into the contract occurred. In A. G. Cross River State Vs A. G. Federation  7 SC (Pt 1) 72, the Apex Court listed some events that have been judicially recognized to cause frustration of contract as follows: (a) Subsequent legal changes; (b) Outbreak of war; (c) Destruction of the subject matter of contract; (d) Government requisition of the subject matter of the contract; (e) Cancellation of an expected event. See also NBCI Vs Standard (Nig) Eng. Co Ltd  8 NWLR (Pt 768) 104; Obayuwana Vs The Governor of Bendel State  12 SC 147; Okereke Vs Aba North LGA  LPELR-24521(CA). — S.O. Adeniyi, J.
⦿ FRUSTRATION OF CONTRACT NEED NOT BE PLEADED
It is also pertinent to underscore that the defence of frustration of contract, like other recognized defenses, need not be specifically pleaded by using the word ‘frustration’ and it is sufficient that the party raising it pleads facts alleging impossibility of performance of a contract and alleges the occurrence of one or more of the above-mentioned events that the Courts have listed as constituting frustration. Additionally, it is the duty of the Court to make the necessary inference from the evidence led whether and when frustration has occurred. In other words, it is the Court that determines the existence of frustration from the facts pleaded and evidence led by the parties. — S.O. Adeniyi, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice S.O. Adeniyi
⦿ FOR THE CLAIMANT
Prosper Akubue Esq.
⦿ FOR THE DEFENDANT
A. Is’haq, Esq.
➥ CASE FACT/HISTORY
The Claimant is a Professor in the Department of Sociology, University of Lagos. He was engaged on sabbatical appointment by the 1st Defendant as a Professor in the Department of Sociology.
The case of the Claimant is that the terms of the contract clearly spelt out that his appointment by the 1st Defendant was a full-time sabbatical appointment for a year. The Claimant contends that soon after his assumption of duty, the Academic Staff Union of Universities (ASUU) embarked on strike, coupled by the Covid-19 global pandemic, that resulted to the lockdown and consequent closure of public institutions, including the 1st Defendant.
According to the Claimant, shortly after the ASUU strike was called off in January 2021, he reported for duty and began lectures with the students for the course that he was assigned but contends that the Defendants have refused to pay his salary in spite of his demands. The Claimant also contends that Defendants had denied liability, on the ground that the contract had been frustrated.
Being aggrieved by the continued refusal of the Defendants to perform their obligation for payment of his salary under the said contract, the Claimant, the instituted the instant action vide Complaint and Statement of Facts.
The Claimant claimed against the Defendants, the reliefs set out as follows:
- An Order of this Honourable Court directing the Defendants (jointly and severally), to pay to the Claimant arrears of his salary in the sum of N6,030,963.00 (Six Million, Thirty Thousand, Nine Hundred and Sixty-Three Thousand Naira), being Claimant’s one year salary, by virtue of 1st Defendant’s letter of offer of sabbatical appointment to the Claimant.
- An Order, for payment by the Defendants (jointly and severally), to the Claimant, of any ancillary/other benefit (s), to which Claimant is entitled by virtue of the appointment.
- An Order awarding damages in the sum of N1,000,000.00 (One Million Naira) against the Defendants, for unlawfully/wrongfully withholding the arrears of the Claimant’s salary.
- Cost of the action.
➥ ISSUE(S) & RESOLUTION(S)
I. Considering the contravening circumstances, whether the Claimant is entitled to his claims against the Defendants?
RULING: IN CLAIMANT’S FAVOUR.
♎ A. THAT THE CLAIMANT DID NOT COMPLETE ADMINISTRATIVE PROCESSES REQUIRED OF HIM
“I have noted the contention of the Claimant’s learned counsel, that in the entire length and breadth of the Defendants’ pleadings and evidence on record, it was not shown that the Claimant was required by the Defendants to supply the alleged information or any information at all for Claimant’s documentation. This argument is lacking in substance for the simple reason that the Defendants, has demonstrated by paragraph 8 of the Statement of Defence and documentary evidence in Exhibit D1, that other formalities are to be completed before the Claimant’s name is put on the payroll.”
“While testifying under cross -examination by the learned Defendants’ counsel, the Claimant admitted that he did not present letter of his release from his employer (University of Lagos) when requested at the point of documentation. According to him, letter of release was not the procedure for sabbatical appointment. Therefore, the contention of the Claimant’s learned counsel that the Claimant was not required by the Defendants to supply the alleged information or any information at all for his documentation is of no moment, since, it has been clearly established through evidence. And I so hold.”
“It has been established by documentary evidence that the Claimant did not complete his documentation before the ASUU strike and the Covid-19 lockdown, hence, Exhibit D1 was unsigned by the officer and a directive was issued by the Registrar, to stay action on the Claimant’s sabbatical appointment.”
♎ B. THAT THE CONTRACT HAS BEEN FRUSTRATED
“For doctrine of frustration to avail a party, he must show that (a) the event in question (in this case, the ASUU strike and emergence of COVID-19) was not caused by either party (b) the event was unforeseen at the time the contract was entered into and (c) the event has rendered performance of the contract impossible, illegal, or radically different from what the parties originally contemplated … It is notorious that the Covid-19 had a significant impact on everyone and on businesses worldwide. Lockdown, restrictions, disruptions to supply chains and reduced capacity, have all affected the ability of businesses to fulfil contractual obligations. In the present case, the negative impact of Covid-19 is coupled with the ASUU strike which affected academic activities in all educational institutions nationwide. As I had earlier noted, it is the Court that determines the existence of frustration from the facts pleaded and evidence led by the parties. I do not agree with the submission of learned counsel for the Claimant that in the circumstances of the present case, the ASUU strike and Covid 19 lockdown, do not constitute supervening events which can be said to have frustrated the Claimant’s sabbatical appointment.”
“The Claimant having not completed the documentation to place him on the payroll of the 1st Defendant for his salary, before the Covid 19 lockdown/ASUU strike and having not resumed lectures until 08/02/2021, which was a month to the end of his sabbatical appointment, the Defendants have validly raised the defence of frustration of contract. And I so hold. It is settled that a contract which is discharged on the ground of frustration is brought to an end automatically by the operation of law, irrespective of the wishes of the parties. A Claimant in such circumstances will not be entitled to any damages.”
“On the basis of the foregoing analysis therefore, I must and I hereby resolve the sole issue for determination in this suit against the Claimant. It is therefore the conclusion of the Court that the Claimant’s claims fail in its entirety. The suit shall be and is hereby accordingly dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)