ASHIBUOGWU v. THE ATTORNEY-GENERAL, BENDEL STATE & ANOR

Before Their Lordships

Between

AND

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K. ESO, J.S.C. (Delivering the Leading Judgment): Before D. O. Ikomi J. the following facts came to light. The Plaintiff, who is now the Appellant in this Court, as he was in the Court of Appeal, and who would hereinafter be referred to indiscriminately as the Appellant or the Plaintiff got a letter dated 1st November 1974 from the Ministry of Works and Transport, signed by one Mrs. J. N. Nsolo “for Permanent Secretary” saying-

Proposed Headquarters Buildings for Niger Agencies International Limited
I am directed to inform you that you have been appointed Architectural Consultants for the design of the above headquarters buildings.
2. Could you please contact the Chairman/Managing Director of the Niger Agencies International Ltd. at Sapele Road for all the necessary briefing.
3. Your remuneration will be in accordance with N.I.A.Conditions of Engagement and Scale of Charges.”
(See Exhibit 2)

The Plaintiff replied this letter on 11th November, 1974 (Ex.3) wherein he said-
“Permanent Secretary,
Ministry of Works & Transport,
Building Division,
Benin City.

Attention: Chief Architect

Dear Sir,

Proposed Headquarters Building for Niger Agencies International Ltd.
We thank you for your letter dated 1st November, 1974 which reached us on 9th November 1974. We have pleasure in accepting the commission for the design of the above mentioned buildings and we have noted that our fees shall be in accordance with the N.I.A. conditions of Engagement and Scale of professional fees.
Yours faithfully,
SGD.
(GEORGE C. ASHIBUOGWU)”

On the same day, that is 11th November, he wrote to the Managing Director of Niger Agencies International Ltd. saying (Ex.4) –
“Dear Sir,
Proposed Headquarters Buildings
We have been commissioned by the Midwest State Government to design your proposed headquarters buildings to be sited in Benin City, and have been directed to approach you for all necessary briefing.
The undersigned will be calling on you in Benin on Tuesday 19th November 1974 for further discussions and collection of your brief and the site plan. Our fees shall be in accordance with the Nigerian Institute of Architects Conditions of Engagement and Scale of Professional Fees.
(Sgd. GEORGE C. ASHIBUOGWU)

The plaintiff pleaded all these facts in his Statement of Claim and as I intend to dwell on the pleadings later in this judgment I would refer to pertinent paragraphs thereof. Let us take a look at this stage at paragraphs 1- 7 of the Statement of Claim –
“AMENDED STATEMENT OF CLAIM
1. The Plaintiff is an Architect registered under the Laws of the Federal Republic of Nigeria with the Architects Registration Council of Nigeria, the Plaintiff carries on business in the firm names as ASHIBUOGWU DESIGN ASSOCIATES of No. 12 Karael Street, Lagos, Lagos State.
2. The first Defendant, the Attorney-General of Bendel State is sued as representative for and on behalf of the Bendel State Ministry of Works and Transport who shall herein be referred to as the Defendant.
3. The Plaintiff performs his duties as an Architect strictly in accordance with the Nigeria Institute of Architects “Conditions of Engagement and Scale of Professional Fees” for the time being in force. At the trial of this action the Plaintiff shall tender a certified true copy of the said Conditions of Engagement and Scale of Fees in force at the time material to this action.
4. On or about the 1st day of November, 1974 the Bendel State Ministry of Works and Transport by a letter Ref. No. WB(H) Vol./1074 dated 1st November, 1974, appointed the Plaintiff in the Plaintiff’s firm name, Architectural Consultants for the design of the ‘proposed Headquarters Buildings’ for Niger Agencies International Limited.
5. The letter aforesaid stated that the Plaintiff’s remuneration would be in accordance with Niger Institute of Architects (N.L.A) Conditions of Engagement and Scale of Charge. The Plaintiff was also directed to contact the said Niger Agencies for necessary briefings, the said letter will be founded at the trial of this action.

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6. By letter Ref. ADA.39/2/74 the Plaintiff accepted this appointment and/or offer wherein the Plaintiff also agreed that his fees would be in accordance with the Nigeria Institute of Architects (N.L.A.) Conditions of Engagement and Scale of Charge.
7. By a letter Ref. No. BDA/3/74 dated 11th November, 1974 the Plaintiff arranged a meeting with the Managing Director of Niger Agencies pursuant to the requirements as directed by the Ministry of Works and Transport letter of 1st November, 1974 (supra). The said letter or a copy thereof will be founded at the trial of this action.”

The meeting referred to in Ex. 4 (copied above) was held; following which, the Niger Agencies (International) Nig. Ltd. hereinafter referred to as NAIL reacted by sending a copy of their memorandum on the proposed building. The memorandum is rather lengthy and I do not intend to reproduce it herein but pertinent portions thereof disclose the aim for the proposed building the necessity for it as a result of the geographical position of Benin, the existence therein of an Airport. The memorandum concluded.
“In aid of the spirit purpose and function of the Centre, it is hoped that all the economic ministries of the State Government will be relocated at the ITBC. We believed that a Centre as stated above will be a unique attraction to foreign governments and we feel certain that before long their commercial attaches, trade missions and associations will seek to be allocated some space.
We feel too that agencies of State Governments and such Federal organisations as the Nigerian Produce Marketing Company would benefit themselves and the Centre by maintaining some presence there.
It is proposed to retain offices for practising lawyers, accountants, auditors, estate agents and variety of private companies engaged in world commerce.

The reaction of the Plaintiff to this is important and it is contained in Ex. 6 which reads –
“Proposed Headquarters Building
We acknowledge receipt of your letter dated 19th November, 1974, together with your memorandum on the proposed International Trade and Business Centre. With regard to the date for the next meeting in Benin City for further discussions on the project, it is regretted that we shall be unable to be represented at the meeting on the 16th December as we are already committed to another meeting in Lagos on that date. This fact was not known to our Arc. Ashibuogwu at the time he suggested the date at the meeting in Benin City. We are suggesting postponement of the meeting to the 20th December, 1974, or 27th December, 1974 whichever is more suitable to you. Please let us have your confirmation of either date in good time. We regret any inconveniences that change may cause you.
We have studied your memorandum and we are forwarding with this letter our appraisal of the scheme and our suggested approach. This is to be discussed at the meeting to be held later this month. We further suggest that the following matters should be included in the agenda for the meeting.
1. Financial limits of the scheme;
2. Client’s representative with authority to deal with day to day decisions during the progress of the scheme;
3. Recommendation of Specialists whose services may have to be retained on the project;
4. Land acquisition if necessary;
5. Compliance with Statutory Regulations;
6. Appointment of consultants;
7. Draft to programme of operations to be agreed to and
8. General matters.
Yours faithfully,
ASHIBUOGWU DESIGN ASSOCIATES
(Sgd. GEORGE C. ASHIBUOGWU).

A meeting was held by the Plaintiff, the Secretary to the Military Government and NAIL and the letter which was written by the Plaintiff after the meeting states inter alia –
“We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections, sell the accommodation provided and organise the financing of part or the whole of the scheme if possible. We are now consulting a number of local and foreign estate agents on this regard and we shall inform you of developments in due course.
With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport on its adequacy. However, you will be required to enter into separate agreements with the other consultants on the scope of work, mode and time of payment of fees among other things. We suppose that the State Ministry of Works can furnish a specimen of agreement used on government projects. We take this opportunity to give notice of our intention to request some payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project the ministry block.
Yours faithfully,
ASHIBUOGWU DESIGN ASSOCIATES

I have italicised portions of the above letter for their importance in –
1. Instructions as to using the design were to proceed from to the Plaintiff.
2. The Ministry of Works was expected by the Plaintiff to advise NAIL on the adequacy of the agreement to be signed between the Plaintiff and NAIL. [The agreement was certainly not to be signed by the Government].
3. NAIL and not government was expected to enter into separate agreements with other consultants on the scope of work, mode and time of payment of fees.

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4. The Ministry of Works was expected to furnish a specimen of agreements used on government projects.
5. Request for funds for mobilisation was made to NAIL.
As I have said, this letter was written by the Plaintiff on 7th January 1975. On that same day, he wrote to the Ministry [attention of Mrs. Nsolo (by the way, Mrs. Nsolo was the Ministry’s Chief Architect)] saying-
“Proposed Headquarters Buildings Complex for Niger Agencies (International) Nigeria Ltd.
Since our last correspondence in November, 1974, we have had a number of meetings with our clients to clarify the scope of the project and to prepare the brief for the design programme.
Recently, we were able to produce a preliminary sketch design of the scheme which was presented to the clients and discussed at a meeting with the Secretary to the Military Government on Saturday, 4th January, 1975. We are pleased to state that our scheme was provisionally approved and accepted by the clients and working drawings have been ordered on a section of the Project which was designed to make possible the execution of the whole project in three phases or in one if so desired.”

Without any doubt, the Plaintiff accepted NAIL as his clients. For so he said in the letter. The letter to Mrs. Nsolo continued-
“We are presuming that there is a standard form of agreement in your ministry which covers all the consultants’ fees including the Architects. If one exists, we would like to have a copy of it for study and possible adoption for this project. It is our view however I that each consultant should enter into a separate agreement with the client (obviously NAIL) to enable writing into the agreement (obviously with NAIL) details and scope of work to be performed by the consultant.
We are of the opinion that there should be some arrangement for consultation with your ministry as professional advisers to our clients and this matter was mentioned at the meeting with the Secretary to the Military Government and our clients.” (emphasis mine)
So, what Plaintiff wanted from the Ministry, as of that date was consultation as professional advisers to his clients – NAIL. Let us read further. The letter said –
“In this regard, we are suggesting a meeting with you in Benin City to discuss and agree on channels of consultation, fields of cooperation and other procedural arrangements. We suggest any date from 20th to 25th January, 1975, and await your confirmation of one of the dates.
Our clients (nut be NAIL) indicated their desire to invite international tenders for the projects with contract-finance arrangement written into it. We are wondering if your ministry has any laid down procedure for this and if you could furnish us with the information for our guidance in drafting the prequalifications notice, due to go to press early in February, 1975.
Yours faithfully,
ASHIBUOGWU DESIGN ASSOCIATES”
(again, italics mine)

This letter was copied to NAIL.
Another meeting was held on 22nd January and the following, from the minutes is of great importance-
“Matters Discussed included:
i. form of agreement between the clients and each of the consultants and mode of payment of professional fees to the consultants.
ii. Collaboration between the Ministry of Works and the Consultants.
iii. Comments by the Ministry of Works on the preliminary sketch design of the scheme presented by the Architects.”
Among the decisions taken was the following –
“Professional fee invoices are to be submitted to the Architect (that is the Plaintiff) for onward transmission to the client (that is NAIL and not Government) who (that is NAIL) will pay directly to the consultants.”

Now, let us take a look again at the pleadings –
“The Plaintiff avers that a meeting for briefing was indeed held, pursuant to which the Plaintiff was supplied with a memorandum, at the instruction of the Bendel State Ministry of Works and Transport for the proposed building and the Plaintiff was requested to proceed with the design of the said building in accordance with the design of the said building in accordance with the requirements as contained in the said memorandum. The said memorandum dated 19/11/74 or a copy thereof will be tendered and relied upon at the trial of this action.”
“The Plaintiff shall found upon the Plaintiff’s letter Ref. No. 39/24/25 of 7th January, 1974 as well as the said Sketch Design, Report and cost estimates – or their copies thereto.”

I have already reproduced portions of this letter upon which the Plaintiff pleaded he would found his action.
The Plaintiff claimed payment of the first interim fee not from Government but from NAIL. Exhibit 14 is clear on this. It reads-
“Proposed Headquarters Buildings, Benin City.
We refer to the Wilson/Ashibuogwu discussions on 14th March 1975, at your office and wonder why we have not heard from you as agreed in connection with the International Trade and Business Centre project. Without prejudice to any decisions or changes being contemplated on the project, we request the payment of our first interim fee which became due on submission of our first sketch design last January 1975. We look forward to receiving your cheque for N322,679.00 by return mail.”
This was on 1st April 1975. Now, seven months later, Plaintiff not having been paid, directed his claim to the

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Government.
He said-
“Permanent Secretary,
Ministry of Works & Transport,
Building Division,
Benin City.

Attention: Mrs. J. N. Nsolo – Chief Architect

Dear Sir,

Proposed Headquarters Building for Niger Agencies Limited Benin City first Interim Fee Account:
We forward herewith copies of correspondent between our firm and Niger Agencies Limited on the question of fees now due to us and other consultants engaged on the project.
As we were commissioned by you for the project we are directing our demand for our fees to you. The total sum involved is as follows:-
Ashibuogwu Design Associates N322,679.00
Owete Osemenam & Partners 11,000.00
Oluonye Andrews Associates 10,850.00
Total N344,529.00
We shall be grateful for your cheque for the above sum.”
It is upon these facts that the Plaintiff has founded his claim seeking –
(a) A declaration that the Plaintiff is entitled to be paid by the Defendant Ministry the sum of N271,195.40k being professional fees due and payable to the Plaintiff from the Ministry for the services rendered by the Plaintiff at their request.
(b) An Order directing the Ministry to pay the Plaintiff the said sum of N271,195.40k and interest at the rate of 5% per annum from the date of filing this action to date of judgment and thereafter at the rate of 6% per annum until payment.”

The learned trial Judge D. O. Ikomi J. having taken evidence, went painstakingly into all the facts. He concluded –
“From the evidence before me, I am satisfied and I hold that Exhibit 2 did not make the Defendant a principal or agent in the transaction under consideration.
From the evidence before me, it is abundantly clear that the Plaintiff dealt directly with NAIL. Both parties held meetings to the exclusion of the Defendant. Both parties wrote directly to each other several times to the exclusion of the Defendant. It is conceded that in some cases letters were written, or copied, to the Defendant who introduced the plaintiff to NAIL. As was rightly pointed out by learned counsel for the Defendant, in most of the exhibits, the Plaintiff referred to NAIL as its client.”
“From all that I have said above it is clear and i am so satisfied and also agree with the submission of learned counsel for the Defendant which is to the effect that after Exhibit issued plaintiff started dealing with NAIL as its client and the Ministry of Works and Transport was completely cut off. The evidence in support of this submission is overwhelming.
I accordingly hold and find as a fact that the plaintiff dealt directly with NAIL as its client throughout after Exhibit 2 had been issued. Having so held and having regard to the definition of principal and agent reproduced earlier in this judgment, it is manifestly clear that the defendant could not have been a principal or all agent.”
“Before concluding this judgment there is one striking aspect of this case which I must mention. It touches on the inconsistency of the Plaintiff in so far as the question of the payment for the project carried out is concerned.

In Exhibit 17, dated 22nd May 1975 and written by the Plaintiff to the Chairman/Managing Director of NAIL he said inter alia as follows:-
“”We do not see how, within the limits of our knowledge ability government should be held responsible for the size of the project and payment of our fees.”
All we are saying now is that our fees are now long overdue for payment for services rendered and we expect your cheque for the sum due rather urgently.”

The above extract speaks for itself and needs no elaboration.
Surprisingly, six months later the Plaintiff shiften ground by writing to the Permanent Secretary Ministry of Works and Transport as follows:-
“”As we were commissioned by you for the project we are directing our demand for our fee to you. We shall be grateful for your cheque for the above sum.”
(See Exhibit 15)

Clearly Exhibits 15 and 17 are inconsistent. The plaintiff cannot blow hot and cold. He cannot in one breath absolve Government from the payment of its fees holding NAIL responsible only 6 months later to in another breath turn round and hold Government liable for the same fees.”

Finally the learned trial Judge said –
“From my assessment of the evidence before me, it will be wrong to say that the plaintiff did not know what he was doing.

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He clearly did, it was when he saw that NAIL was not forthcoming in respect of the payment of the fees that in desperation, he turned to Government, who clearly had nothing to do with the payment of the fees. The approach to Government for fees was an after though. It would have been a different matter if right from the start the plaintiff had demanded his fees from Government.
From the evidence before me I find as a fact that the Defendant was neither a principal nor agent in so far as the project under consideration is concerned. I hold that the Defendant is no way liable to the Plaintiff for the fees due on the project under consideration.
From the evidence before me I hold that NAIL (the owner of the proposed project) was master of the situation at all times and there was no question of the Defendant being its agent. As earlier pointed out NAIL was dealing directly with the Plaintiff all along. Of course, the question of the Defendant being principal does not arise.
I hold the view that, from the evidence before me, if anyone is liable at all it is NAIL that plaintiff has to look up to for payment of its fees and that was what it did rightly in my view, as per Exhibit 17.”

The plaintiff was dissatisfied with this judgment and he appealed to the Court of Appeal, coram Omoigbrai Eboh, Ete and Ikwechegh JJ.C.A. In a lead judgment, delivered by Ikwechegh J.C.A., with which Eboh and Ete JJ.C.A. concurred, the Court of Appeal held-
“The Brief of argument of appellant takes the line that the Exhibit 2 was all the contract-the offer part of it, and that having been accepted in the Exhibit 3, there was nothing else left to be done. This is an inaccurate view. The overview of the situation lies as I have shown in a dutiful examination of Exhibits 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12. All the other correspondences only relate to the efforts to realise the payment that was sought by the appellant. It is not important in my opinion that an offer of N50,000.00 was made to the appellant by a Commissioner on behalf of the Government. That fact cannot be rested upon to found the liability of the respondent under this contract of service. The correspondences, the meetings, and the decisions reached, and the whole circumstances of this event must be considered together in order to search out who are the true and real parties in the contract of service. It cannot be criticised, in any view, that the learned judge of trial had concluded that the respondent was neither the principal nor agent in this contractual relationship. I think the judge was correct. The appellant was not at any time in doubt or in error as to who his employer was, and that NAIL was that employer. If NAIL be dead now, can he look to the Ministry of Works for payment?
The appellant addressed letters to Mrs. Nsolo about this matter in the effort to get her ensure payment: See Exhibits 15 and 16, but these did not help matters. She could introduce the appellant to NAIL which employed him, but she cannot easily get the Ministry of Works to pay the debts left by NAIL.”

The Plaintiff still dissatisfied with the judgment of the Court of Appeal has appealed to this Court. The grounds of appeal were based mainly on misdirection by the Court of Appeal as to the law of Agency and the liability of Principal – disclosed or undisclosed – and Agent in that law.
Learned counsel for the Appellant filed a brief wherein he stated the matters for determination by this Court as follows-
MATTERS FOR DETERMINATION BY THE SUPREME COURT
1. Was Exhibit 2 a letter of appointment/offer or was it a mere letter of introduction?
2. Was it right for the Court of Appeal to have confirmed the decision of the trial judge that the defendant was neither principal nor agent in the transaction where the evidence before the court was that:-
(a) Exhibit 2 was issued by the Respondent whose sole witness in his evidence testified that the Respondent acted as an agent in appointing the appellant.,
(b) the Respondent in his brief had submitted that the respondent could be regarded as an agent of a disclosed principal?
3. Was the Court of Appeal right in failing to examine the liability of the respondent who, in issuing Exhibit 2 did not expressly say that he was acting as an agent for NAIL so as to exclude his liability as principal?
4. Does the fact that the appellant thought at all times that NAIL was his employer shift the liability of the respondent, who issued exhibit 2 without express exclusion of liability on his part, and who at no time repudiated liability and even offered the appellant N50,000.00 in settlement of his claim?
5. Was the Court of Appeal right when it failed to consider at all the various errors of law committed by the trial judge as contained in grounds 2, 3, 4, 5 and 6 of the additional grounds of appeal which were dealt with extensively in the appellant’s brief, particularly where the errors were directly responsible for the trial judge’s wrong conclusion”

Learned counsel referred to the letters, which I have already copied out in this judgment, and submitted that Mrs. Nsolo (who incidentally was Appellant’s classmate) acted on behalf of the Permanent Secretary and, afortiori, the Respondents were liable for her action. Counsel however dwelt mainly on Exhibits 2, 3, and 4 and urged that the Respondents appointed the Appellant. Reference by the Appellant to NAIL as his client, counsel submitted, was just to indicate the beneficiary of the contract. The Appellant, learned counsel urged would not have executed the job but for Exhibit 2. Then learned counsel treated us to a dissertation on the elementary principle of “offer”, “acceptance” and “condition” in the law of contract, and concluded that the error of the Court of Appeal was on the emphasis placed by the Court on the role of Mrs. Nsolo. One may ask what this emphasis was. In the court of trial, the learned trial judge made no force about the relationship of Mrs. Nsolo and the Plaintiff. However, in the Court of Appeal, the Court said-
“The perspective will be helped when it is brought out that this situation arose from doings of all parties concerned in

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the year 1974. The times then were vastly different from today under this Military Regime. In 1974 it was very important consideration who was connected with whom, and in that perspective it was a very advantageous relationship that the appellant was a classmate of a Mrs. Nsolo, Chief Architect in the Ministry of Works, Benin City, and who was in a position to know what job was available and ready to be given to contractors. Mrs. Nsolo is shown in this case to have been in a position where she could have influenced the award of the job to the appellant. At that time approaches for favours used to be commonplace and most people were up to their necks in such practice. The appellant was challenged about such effort and he denied it at first until he was confronted with his letter, Exhibit 24: then he confessed that he had been to meet Mrs. Nsolo to inquire about jobs after which the said Mrs. Nsolo sent out Exhibit 2 to the appellant.”
But then the Court cautioned itself on this unnecessary incursion. The learned Justice said –
“I am not dwelling on the question of there being anything wrong with the appellant having met Mrs. Nsolo. What I am examining is the value of the Exhibit 2. Was it essentially to secure for the appellant the benefit of the job at NAIL which Mrs. Nsolo knew from her privileged position in the Ministry of Works was going at the time; or was it an offer of contract of service in itself? This question would provide the solution to the problem in this appeal.”

And it is true exhibit 2 is great importance in this case for it provides the starting point for the whole episode. Viewed solely, eo ipso it would appear that the contract is between the Plaintiff and the Government for whom Mrs. Nsolo was acting in her position as Permanent Secretary. Indeed, if that were all, it would not matter whether Mrs Nsolo was a classmate of the Plaintiff or even his sister. Except fraud or undue influence is alledged, read into the contract or proved, relationship, blood or otherwise, would not affect the validity of a contract. All it would do is to provide a caution. And each caution indeed which the Court must examine.

A principal, whether disclosed or otherwise is in position to plead all defences available to him, but in the case of fraud, where the Agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal. The same goes for an act of undue influence, vis-a-vis the third party, brought to bear on the principal by the agent. The problem is one to be sorted out between the Principal and the Agent and not the third party.

However, in this case, not one exhibit must be examined but all the exhibits, not a part of the evidence, but the totality of the evidence, to determine the liability vel non of the Respondents in this action. Was there ever a contract between the Plaintiff and the Government? That must be the primary question. On the totality of the evidence, as borne out by all the correspondence, already copied out, between the parties, which correspondence clearly disclose the position of the parties and, which position is clearly appreciated by the Plaintiff, was the contract herein not between the Plaintiff and NAIL? Was the Government a propos, the Ministry of Works, a propos Mrs. Nsolo, ever a party? Was it not just a mere “tout” for work.

The Plaintiff himself used the word “client” for NAIL while urging on this client (NAIL) to “seek the advice of the Ministry of Works and Transport on “the adequacy of the agreement to be signed by the Plaintiff, the other consultants and the client. Exh. 8. The plaintiff gave notice to NAIL of his intention “to request some payment on account” from NAIL (Ex. 10) certainly, the Government was not being requested to pay this advance on account. The Plaintiff’s notification to the Ministry of Works of progress of arrangement of work between him and his client NAIL was to the effect that Plaintiff’s scheme was “provisionally” approved and accepted by the client” that is NAIL (Ex. 11). The Plaintiff further was of the opinion that “there should be some arrangement for consultation with the Ministry of Works – as professional advisers to our clients,” that is NAIL (Ex. 11).
Up to January 1975, minutes of discussions between the Plaintiff, other consultants and representative of the Ministry of Works showed form of agreement between each consultants and “the clients” (NAIL) collaboration between the Ministry of Works and the consultants and comments by the Ministry of Works on the preliminary sketch design presented (to NAIL) by the Plaintiff (Ex. 12). Indeed, one of the decisions arrived at that meetingwas-
“Professional fee invoices to be submitted to the Architect (Plaintiff [was] for onward transmission to the client [NAIL] who [NAIL] would pay directly to the consultant.
Then, as if to put matter of knowledge of the situation between the parties per adventure, the minutes went on –
“The Architects appreciated the Ministry’s observations and criticisms and promised to look into them in the production of the final design. The pressure by the clients [NAIL] to get something ready for the meeting with the Military Governor’s office could not permit of including any more details in the design than was shown.” (Ex. 12).

And rightly, following the clear situation portrayed above, the Plaintiff wrote to NAIL for payment, wondering why he had not heard from his clients NAIL and requesting “the payment of our first interim fee which became due on submission of our first sketch design last January 1975”. (Ex. 14).

It is clear to me then that upon the evidence before him, the learned trial Judge could rightly say, as he said, that the defendant could not have been a Principal or an Agent and that it would be wrong to conclude that the Plaintiff did not know what he was doing.

The matter could not have been put better than the manner the Plaintiff/Appellant himself put it in Ex. 17. He said-
“At our first meeting (note: the very first meeting) with the clients [NAIL] the question of financial limits was raised by us and we were informed that there is none. We do not see how within our limits of knowledgeability, government should be held responsibility for the size of the project and payment of our

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fees”.
Extracts from Ex. 17: Emphasis mine)

The Plaintiff is right. I do not see either, how Government, the Respondents in this appeal, should be held responsible for the payment of plaintiffs fees. The learned trial Judge was no doubt right in his conclusion and also so was the Court of Appeal. This appeal has no merit whatsoever.

I think it would be idle to discuss the law on Principal and Agent in this case. That situation does not arise in this case. This is a straight forward case of a contract between two parties at equal length – the Plaintiff and NAIL, with the Government as adviser, where necessary, introducing the parties to each other, but certainly not as principal whether disclosed or undisclosed.

The appeal is certainly without merit. The Appellant is looking for payment where it is not and can never be due. It is unfortunate that NAIL the person responsible is legally dead. Whatever remedy the Appellant would have, as a result thereof, cannot be against the Respondents.

I will therefore dismiss the appeal. Affirm the judgments of the trial Court, Ikomi J. of the High Court of Justice, Benin City, and that of the Court of Appeal. The Appellant shall pay costs of N300.00 to Respondents.

S. KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Eso, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and conclusions. I am also of the firm view that all the totality of the evidence adduced, and taking into consideration the whole circumstances of the case, the learned trial Judge was right in his decision that there was no binding contractual agreement between the appellant and the respondent, and that the Court of Appeal was also right in upholding that decision. I see no merit whatsoever in this appeal which I will dismiss with N300.00 costs awarded to the respondents.

S. M. A. BELGORE, J.S.C.: I have had the privilege of reading the lead judgment written by my learned brother, Kayode Eso, J.S.C. with which I agree. I dismiss the appeal for the same reasons advanced by him and affirm the judgment of the Court of Appeal. I also award N300.00 against the Appellant to the Respondents.

A. G. O. AGBAJE, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother Kayode Eso, J.S.C. I entirely agree with him that this appeal does not deserve to succeed. I would like to support the decision in the lead judgment with a few words of my own.
It appears to me that by Exh. 2 in these proceedings the Permanent Secretary, Ministry of Works & Transport, wrote to inform the plaintiff that he has been appointed architectural consultants for the design of the proposed Head quarters buildings for Niger Agencies International Ltd. hereinafter referred to as NAIL. This was in November, 1974. The appointment is obviously at the instance of the Government of Midwest State (now Bendel State).
Exhibit 2 reads thus:-
“Our Ref. WB(R) 375/Vol. IV/1074
1st November, 1974
Ashibuogwu Design Associates,
Chartered Architects & Planning Consultants,
12, Kernel Street,
P. O. Box 1025,
Lagos
Dear Sir,

Proposed Headquarters Buildings for Niger Agencies International Limited
I am directed to inform you that you have been appointed Architectural Consultants for the design of the above headquarters buildings.
2. Could you please contact the Chairman/Managing Director of the Niger Agencies International Ltd. at Sapele Road for all the necessary briefing.
3. Your remuneration will be in accordance with N.I.A Conditions of Engagement and Scale of Charges.
Sgd.
(J.N. Nsolo Mrs)
for Permanent Secretary
Ministry of Works & Transport.”

Although paragraph 2 of the letter directs the plaintiff to the Chairman/Managing Director of NAIL at Sapele Road for all necessary brief, paragraph 3 of the same letter settles the question of fees of the plaintiff for the job to be done by him in that it says that the remuneration of the plaintiff will be in accordance with N.I.A Conditions of engagements and scale of charges. By Exhibit 3 dated 11th November 1974, the plaintiff accepted the commission contained in Exh. 2 including the provision for the fees to be paid for it. And by Exh. 4 the plaintiff informed NAIL of its

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commission. I should reproduce Exhibit 4 in order to get a clear picture of the parties to the contract for the design of the headquarters buildings for Niger Agencies International Ltd. as at November, 1974.
Exhibit 4 says:-
“Our Ref: ADA. 39/3/74
11th November 1974.
Managing Director,
Niger Agencies International Limited,
12B Sapele Road,
Benin City.

Dear Sir,

Proposed Headquarters Buildings
We have been commissioned by the Midwest State Government to design your proposed headquarters buildings to be sited in Benin City, and have been directed to approach you for all necessary briefing. The undersigned will be calling on you in Benin on Tuesday 19th November 1974 for further discussions and collection of your brief and the site plan. Our fees shall be in accordance with the Nigerian Institute of Architects Conditions of Engagement and Scale of Professional Fees.
(Sgd. GEORGE C. ASHIBUOGWU)”

I must pause here to find out if as at November, 1974 a contract for the design of the proposed Headquarters building for NAIL has been entered into and if so who were the parties to it.

As I have shown above by Exh. 2 there was at least an offer by the Government of Mid-Western State (now Bendel State) to the plaintiff commissioning him to do the design with clear terms as to how he was to be paid.
By Exh. 3, the plaintiff accepted the commission. By Exh. 4 the plaintiff only informed NAIL of the commission.

Because of the offer and the acceptance which I have found in the matter of the commission for the design of NAIL Headquarters I am satisfied that there was a contract then for the design of NAIL Headquarters. And because the offer was evidently made by the Government of Mid-Western State (now Bendel State) to the Plaintiff who in turn accepted it, I am satisfied that the parties to the contract were the Government of Mid-Western State (now Bendel State) and the plaintiff, as at November, 1974.

So at November 1974 on the authority of Gardens v. Heading & anor. (1928) 2 K.B. 284 at 289 the Government of Mid-Western State (now Bendel State) would be prima facie liable to pay for the job done by the plaintiff pursuant to the contract. And if the parties to the contract for the design of NAIL headquarters were the same in 1981, at the time the plaintiff sued for his fees in respect of the work done pursuant to the contract, as they were in November 1974, the Government of Mid-Western State now Bendel State would still be liable.

If however, the parties to the contract have changed or can be said to have changed in the interim, the contract for the design of NAIL Headquarters would then be between the new parties to it and the obligation to pay for the work done will be on the new party to it. This is because of the concept of Novation of contract. The meaning of Novation and its scope are stated as follows in Halsbury’s Laws of England 3rd Edition Volume 8 page 262 – 3:-
“460. Meaning of novation. Novation is, in effect, a form of assignment in which, by the consent of all parties, a new contract is substituted for an existing contract. Usually, but not necessarily (c), a new person becomes party to the new contract, and some person who was party to the old contract is discharged from further liability. The introduction of a new party prevents the new contract from being a mere accord without satisfaction (p), and thus affords a defence to any action upon the old contract (q).
For novation to ensue there must be not only the substitution of some other obligation for the original one, but also the intention or animus novandi (r)…
461. Consent essential. Since novation is a new contract, it is essential that the consent of all parties shall be obtained (b), and in this necessity for consent lies the essential difference between novation and assignment (c).
Such consent may be inferred from conduct without express words…
462. Valuable consideration necessary. In addition to the consent of all parties being obtained, it is necessary that the new contract should comply with all other requirements of an original contract. There must, for example, be valuable consideration; but as a general rule the rescission of the former agreement of itself constitutes sufficient valuable consideration (h)…
463. Writing unnecessary. Since novation is a new contract, it follows that it need not be in writing as being a promise to answer for the debt of another, for the original debt no longer exists (1).
Similarly, where the original contract was in writing, and before breach thereof a new oral contract has been entered into in substitution for it, evidence of such new oral contract may be admitted, for, the old contract being annulled, the new contract does not vary it (m), even though the new contract may adopt some of the provisions of the old one (o).”…

What I have to decide next is whether from the events or transactions subsequent to the contract between Government of Mid-western State (now Bendel State) and the plaintiff can it be properly said that a new person has become party to the original contract and some party to the original was discharged from liability.

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We have no express words to this effect. From the conduct of all parties concerned, I can infer, as I am entitled to do, that a new contract has been substituted for the old one subsisting as at November 1974, by the time the plaintiff took his action in 1981. I have come to this conclusion because of the following evidence in this case.
After NAIL has been informed by Exh. 4 of the commission, the Government of Mid-Western State gave the plaintiff the Chairman/Managing Director of NAIL and the plaintiff held a meeting to discuss the commission. NAIL then forwarded to the plaintiff their memorandum on the proposed building which is Exh. 5A. Exh. 6 is the plaintiff’s reply to it. The following passages in Exh. 6 are worthy of note in connection with the point I am now considering:-
“We have studied your memorandum and we are forwarding with this letter our appraisal of the scheme and our suggested approach. This is to be discussed at the meeting to be held later this month. We further suggest that the following matters should be included in the agenda for the meeting:
1. Financial limits of the scheme;
2. Client’s representative with authority to deal with day to day decisions during the progress of the scheme;
3. Recommendation of Specialists whose services may have to be retained on the projects;
4. Land acquisition if necessary;
5. Compliance with Statutory Regulations;
6. Appointment of consultants;
7. Draft programme of operations to be agreed to and
8. General Matters.”

Then there is Exh. 8 a letter from the plaintiff to NAIL apparently after some meetings between the plaintiff the Secretary to the Military Government, Mid-Western State now Bendel State and NAIL. The portions of Exh. 8 which are relevant to the point at issue are as follows:-

“Our Ref: No. ADA. 39/24/75
7th January, 1975
The Chairman/Managing Director,
Niger Agencies (International) Nigeria Ltd.,
P. O. Box 553,
Benin City.
160

Dear Sir,

Proposed Headquarters Buildings Complex, Benin City For Niger Agencies (International) Nigeria Limited
We refer to the meetings held with you and the Secretary to the Military Government on Saturday, 4th January, 1975, and forward herewith two sets of drawings of the sketch design of your proposed headquarters buildings complex to be known as “International Trade and Business Centre.”
You should please indicate your formal approval of the scheme by signing one set of the drawings and return to us.
We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections…
With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport on its adequacy

We take this opportunity to give notice of our intention to request some payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project –

Yours faithfully,
ASHIBUOGWU DESIGN ASSOCIATES
Sgd. GEORGE C. ASHIBUOGWU)
cc. Secretary to the Military Government,
Benin City, Ministry of Works & Transport
(Building Div.) Benin City.”

Next is Exhibit 11 also of 7/1/75 written by the plaintiff to the Permanent Secretary Ministry of Works Transport.
Part of Exh. 11 says:-
“We are pleased to state that our scheme was provisionally approved and accepted by the clients and working drawings have been ordered on a section of the project which was designed to make possible the execution of the whole project in three phases or in one if so desired…

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Although we have already sent to our client Forms of Agreement between building owner and the Architect for their signature.
We are presuming that there is a standard form of agreement in your ministry which covers all the consultants’ fees including the Architects. If one exists, we would like to have a copy of in for study and possible adoption for this project…
We are of the opinion that there should be some arrangement for consultation with your ministry as professional advisers to our clients and this matter was mentioned at the meeting with the Secretary to the Military Government and our clients. In this regard, we are suggesting a meeting with you in Benin City to discuss and agree on channels of consultations, fields of co-operation and other procedural arrangements. We suggest any date from 20th to 25th January, 1975,.

Our clients indicated their desire to invite international tenders for the project with contract-finance arrangement written into it. We are wondering if your ministry has any laid down procedure for this and if you could furnish us with the information for our guidance in drafting the prequalifications notice due to go to press early in February, 1975.”

The meeting as held on 22/1/75, Exh.12 from the plaintiff to Permanent Secretary, Ministry of Works & Transport, Mid-Western State (now Bendel State) shows what were discussed and the decisions reached on them. Relevant to the issues I am now considering are the following decisions:-
“1. Consultants nominated by the Architects were announced and their appointment approved.
2. Consultants are to enter into separate agreements with the client. The agreement will state the scope of work to be carried out by the consultants, the rate and mode of payment of professional fees.
3. Professional fee invoices are to be submitted to the architect for onward transmission to the client who will pay directly to the consultant.
4. Consultants are to send three copies of their respective forms of agreement to the Architect for inclusion of services to be rendered and passing on to the client.
5. The Ministry of Works will be kept informed of progress and developments in the project through consultants’ drawings and comments by the Ministry will be discussed.
8 The Ministry of Works will advise the clients on their obligations to the consultants and vice versa, and the need to ensure that these are observed for the smooth execution of the project.
9. The preliminary sketch design produced by the Architects was discussed and the comments of the Ministry of Works were heard.”

In Exhs. 11 and 12 NAIL was referred to by the plaintiff as his client in respect of the job relating to NAIL building headquarters. There is no doubt having regard to Exh. 12, the Government of Mid-Western State now Bendel State acquiesced in this. A formal contract was to be signed by the plaintiff and NAIL, the Government of Mid-Western State now Bendel State, being only professional advisers.

Then there is Exh. 14 of 11th April, 1975 from the plaintiff to NAIL which is a demand from the latter by the former of the first interim fee of N322,679.00. And then there is Exh. 17 of 22/5/75 from the plaintiff to NAIL. It will be necessary to reproduce the whole of Exh. 17 in order to appreciate its full implications.
“ADA. 391/7/75
2nd May, 1975.

The Chairman/Managing Director,
Niger Agencies (International) Nig. Limited
P. O. Box 553,
Benin City.

Dear Sir,

PROPOSED HEADQUARTERS BUILDING BENIN CITY PROFESSIONAL FEE
We refer to the Wilson/Ashibuogwu discussions on 17th May, 1975 at your office and at which some of your senior officials were present and would like to confirm the matters discussed at our observations, as itemised below:-
1. Delay to project Design: Mr. Wilson stated that he had submitted a draft memorandum to the Secretary to the Military Government for approval for a joint submission to the Governor and that we, the architects could not, in the circumstance, be instructed to proceed with the final design of the scheme until something is heard from the Government.
Arch. Ashibuogwu appreciated the situation but thought that the clients were Niger Agencies and not Government as such and that the matter should have been clarified long before now, five months after the first and preliminary sketch design had been submitted to and accepted by the clients.
2. Payment of first interim fees.
Mr. Wilson said that although he recognised that whether the project was abandoned or not, the fee must be paid, he was also waiting for government to declare its involvement. He argued that the Niger Agencies had no hands in the appointment of the Architects and could thus not be acting alone in payment of fees now overdue.
3. Observation: We do not consider this contention by Mr. Wilson a valid argument. It is a fact that we were appointed Architects for the project by government which also stated the conditions of engagement and scale of professional fees, this apparently was as agreed between Niger Agencies and Government and the role of client still rested with the

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Niger Agencies on whose memorandum was based our brief guide report from which the sketch design was evolved.
Thus, the size of the project was set by the Niger Agencies (our previous correspondences on the scheme refer) and not government.
At our first meeting with the clients, the question of financial limits was raised by us and we were informed that there is none. We do not see how, within our limits of knowledgeability, government should be held responsible for the size of the project and payment of our fees.
All we are saying now is that our fees are now long overdue for payment for services rendered and we except your cheque for the sum due, rather urgently. We are sending copies of this letter to the Ministry of Works and Transport and the Secretary to the Military Governor’s Office requesting payment.
We believe that the three parties, viz Niger Agencies, Ministry of Works & Transport and Secretary to the Military Governor’s Office will be able to sort this matter out and pay us.
Yours faithfully,
ASHIBUOGWU DESIGN ASSOCIATES
Sgd. GEORGE C. ASHIBUOGWU.
cc.
Secretary to the Military Government and
Head of Service, Governor’s Office, Benin City.

It will appear that it was when the plaintiff failed to secure payment for his services from NAIL that he turned to the Government of Mid-Western State now Bendel State for payment reliance then being placed by him on the old contract between them as evidenced by Exhibits 2 and 3. Following some meetings between the plaintiff and the representatives of Government of Mid-Western State now Bendel State on the matter the latter offered the former an ex-gratia payment of N50,000.00 which he rejected.

It appears clear to me from the various exhibits I have referred to in this judgment that subsequent to November 1974 it can be legitimately inferred from the conduct of the three parties to the transactions which have given rise to the present action now before us on appeal that:-
(1) A new contract was substituted for the old contract between the plaintiff and the Government of Mid-western State, whereby the latter commissioned the former to design the proposed NAIL headquarters Buildings which commission was duly accepted.
In the new contract NAIL and the plaintiff were parties to it, the Government of Mid-Western State now Bendel State a party to the old contract was discharged from further liability see Exh. 17 in particular.
(3) The subject matter of the new contract was still the commission to the plaintiff to design the proposed NAIL headquarters buildings but this time NAIL commissioned the work to be done by the plaintiff and the Government of Mid-western State now Bendel State was to act only as professional advisers.
(4) All the three parties to the transactions leading up to the new contract impliedly consented to the new contract.

Evidence of the work to be done by the plaintiff at the instance of NAIL and the acceptance of the commission by the plaintiff is provided by Exhibits 5, 5A, 6 and 8.

The conclusion I reach therefore is that I do not agree to the view of the trial court which was endorsed by the lower court, the Court of Appeal to the following effect:-
“The Defendant from the evidence before me did not order the Plaintiff to carry out the project. It merely introduced the plaintiff to NAIL and that was by way of assistance to the plaintiff, who was canvassing for jobs. The Defendant more or less acted as the mouth piece of the plaintiff just for the purpose of securing the contract relating to the project under consideration.”

However, I agree for the reasons I have given above with the trial court and the court below that the defendant, the respondent to this appeal is not liable on the claim against it by the plaintiff the appellant. In the result the appellant’s appeal is dismissed by me too with costs as assessed in the lead judgment of my learned brother, Kayode Eso, J.S.C.

P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the plaintiff against the dismissal of his claim of N271,195.40 plus interest at 5% as professional fees for services said to have been rendered by him to the Ministry of Works, Bendel State as an architect in designing the proposed building of Niger Agencies International Ltd. at Benin City in 1974 – 1975. The claim was originally against the Attorney-General, Bendel State and one Pius Ebhowieien as Liquidator of Niger Agencies International Limited (to be hereinafter referred to as N.A.I.L. or NAIL for short). But as the Liquidator could not be served he was struck out of the suit and the plaintiff (to be hereinafter called the appellant proceeded against the Attorney-General, Bendel State of Nigeria (hereinafter called the respondent) alone. It ought to be mentioned that although at the time the original statement of claim was filed NAIL was still a party, nothing was alleged in the statement of claim against it. Also, that NAIL is a Limited Liability Company.

The facts which led to the institution of the action are important. The appellant, as admitted in his evidence and found by the High Court, contacted the Chief Architect, Bendel State Ministry of Works, Mrs. Nsolo, an old class-mate of his, for a job. As it appears, she found him one – the design of the proposed building of NAIL in Benin City. She therefore wrote to him a letter Exhibit 2, dated 1st November, 1974, which has been set out in the lead judgment of my brother, Eso, J.S.C. The appellant wrote a letter of acceptance, Exhibit 3, dated 11th November, 1974, addressed to the Permanent

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Secretary, Ministry of Works & Transport, Building Division, Benin City, but “For Attention: Chief Architect.” By another letter, Exhibit 4, of the same date, the appellant contacted the Managing Director, NAIL on the job. Exhibit 4 is also set out in the lead judgment.

The appellant followed matters up with the Managing Director of N.A.I.L. and held a meeting in the latter’s office which was confirmed by another letter, Exhibit 5. There is nothing to show that the Ministry of Works was represented. Rather, from that stage on, several meetings were held between N.A.I.L. and the appellant and several correspondences exchanged between them without reference to the Ministry of Works or Mrs. Nsolo. N.A.I.L. gave to the appellant a copy of their memorandum, Exhibit 5A, dated the 7th of October, 1974, spelling out the concept of the project. I may observe that Exhibit 5A made it clear that N.A.I.L. was a Limited Liability Company and that the project in question was its own. Appellant replied with a letter, Exhibit 6, dated the 3rd of December, 1974. In that letter he acknowledged receipt of the memorandum and suggested a meeting for the 20th of December, 1974. He also suggested the following agenda for the meeting namely:
1. Financial limits of the scheme;
2. Client’s representative with authority to deal with day to day decisions during the progress of the scheme;
3. Recommendation of Specialists whose services may have to be retained on the project;
4. Land acquisition if necessary;
5. Compliance with Statutory Regulations;
6. Appointment of Consultants;
7. Draft programme of operations to be agreed to and
8. General matters.
Significantly, no reference was made to the Ministry of Works or Mrs. Nsolo in these most vital matters. That the appellant himself believed that the Ministry of Works and Mrs. Nsolo had no longer any important, if any, role to play is confirmed by his own hand in Exhibit 8, where he wrote, inter alia, as follows:
“We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections, sell the accommodation provided and organise the financing of part or the whole of the scheme if possible. We are now consulting a number of local and foreign estate agents in this regard and we shall inform you of developments in due course.
With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport its adequacy. However, you will be required to enter into separate agreements with the other consultants on the scope of work, mode and time of payment of fees among other things. We suppose that the State Ministry of Works can furnish a specimen of agreement used on government projects. We take this opportunity to give notice of our intention to request some payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project – the Ministry block.”

I shall refer again to this letter which was copied to the Ministry of Works as well as the Secretary to the Military Government again later on.

As a follow up of the last paragraph of Exhibit 8, the appellant wrote another letter, Exhibit 14, dated 1st April, 1975, to N.A.I.L. asking them to pay their first interim fee of N322,679.00 (which was later corrected to N271,195.00, the subject of this claim). Some five months later by Exhibit 15 dated 14th November, 1975, the appellant directed the same bill to the Permanent Secretary Ministry of Works and Transport. “Attention: Mrs. J.N. Nsolo – Chief Architect.” The appellant appeared to have referred his unpaid bill to the Secretary to the Military Government and Head of Service also, as evidenced by Exhibit 18 and 20. He also made representations to the Hon. Commissioner for Works and Transport. See Exhibits 21 and 23. The Commissioner offered him N50,000.00 as “compensation” in what looked like an ex gratia offer: but this was rejected. Hence the appellant went to Court.

In the High Court the main defence of the respondents was that they merely introduced the appellant to N.A.I.L. who became his clients; that the appellant duly acknowledged this and the fact that N.A.I.L. became his clients’; that there was no government decision to appoint the appellant as an architect; that there was no contract between the appellant and the respondent; that any offer which the respondent made to pay the appellant any sum was a magnanimous gesture as there was no binding contract.

The learned trial judge, after hearing and addresses of counsel dismissed the appellant’s claim on the grounds that there was no contract between the appellant and the respondent either as a principal or as agent of N.A.I.L. On appeal to the Court of Appeal, Benin Division, the appeal was dismissed.

The appellant has further appealed to this Court. The issues for determination by this Court were formulated by the learned counsel for the appellant thus:
“1. Was Exhibit 2 a letter of appointment/offer or was it a mere letter of introduction?
2. Was it right for the Court of Appeal to have confirmed the decision of the trial judge that the defendant was neither principal nor agent in the transaction where the evidence before the court was that:-
(a) Exhibit 2 was issued by the Respondent whose sale witness in his evidence testified that the Respondent acted as an agent in appointing the appellant,
(b) the Respondent in his brief had submitted that the respondent could be regarded as an agent of a disclosed principal?

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3. Was the Court of Appeal right in failing to examine the liability of the respondent who, in issuing Exhibit 2 did not expressly say that he was acting as an agent for NAIL so as to exclude his liability as principal?
4. Does the fact that the appellant thought at all times that NAIL was his employer shift the liability of the respondent, who issued exhibit 2 without express exclusion of liability on his part, and who at no time repudiated liability and even offered the appellant N50,000.00 in settlement of his claim?
5. Was the Court of Appeal right when it failed to consider at all the various errors of law committed by the trial judge as contained in grounds 2, 3, 4, 5, and 6 of the additional grounds of appeal which were dealt with extensively in the appellant’s brief, particularly where the errors were directly responsible for the trial judge’s wrong conclusion?”
Although the learned counsel for the respondent formulated the issues somewhat differently, she raised substantially the same questions. In court, counsel on either side adopted his/her brief and addressed us in line with those briefs.

Taking the first and third issues together, the central question is the interpretation to be given to Exhibit 2. I have already set it out above. The first question is what approach should be made in the interpretation of Exhibit 2?
In my judgment it is crucial that Exhibit 2 should be construed in the context in which it was written. For, I believe it to be well – settled that in the interpretation of statutes we ought to bear in mind the circumstances when the Act was passed and the mischief which then existed and use them as an aid to the construction of the words which Parliament has used. See on this: Holme v. Guy (1877) 5 Ch. O. 596; River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, per Lord Blackburn; Eastman Photographic Materials Co., Ltd. v. Comptroller-General of Patents (1898) A.C. 571. Besides, words in a statute are to be construed in accordance with their intention. See Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904. These principles of interpretation have for a long time been applied to the interpretation of documents.
In the instant case, it is, I believe, correct to read Exhibit 2 in the context of the circumstances in which it was written. It is therefore of material significance that the appellant went to the Ministry of Works and Transport, Benin City to look for a job; that at the material time one Mrs. Nsolo, an old classmate of his was the Chief Architect in the Ministry; that it was Mrs. Nsolo who wrote the letter in question; and that there is nothing to show that at the time the Government of Bendel State per se wanted to give out any job, or in particular the job in question. In my judgment, the trial judge and, indeed, the Court of Appeal, were right to have construed Exhibit 2 in these contexts. With these facts in view, it appears clear to me that when in the second paragraph of Exhibit 2 Mrs. Nsolo wrote to say:
“Could you please contact the Chairman/Managing Director of the Niger Agencies International Limited at Sapele Road for all the necessary briefing.”
the two courts below were right to have held that Exhibit 2 was merely a letter of introduction. Subsequent acts of the appellant himself confirmed that he understood the letter as a letter of introduction. For, without further reference to Mrs. Nsolo or the Ministry of Works and Transport and knowing of course that NAIL was a limited liability company, a legal person, he went ahead and held meetings about the project with the Managing Director of NAIL and reached a number of very vital decisions. Both of them agreed on the financial limit (or lack of it) of the scheme; agree on NAIL’S (client’s) representative for the execution of the scheme; and discussed and agreed on other fundamental issues listed in Exhibit 6, including the appointment of other consultants and professionals. It is not correct, as the third issue framed by the learned counsel for the appellant postulates that it was necessary for Mrs. Nsolo to expressly state further that she or the Ministry was acting as an agent of NAIL when the letter itself names NAIL as the party to whom the appellant must go for all the necessary briefing.

It is convenient to consider the fourth issue next. It puts the question whether the fact the appellant thought at all times that NAIL was his employer shift the liability of the respondent who issued Exhibit 2 without exclusion of liability on his part and not only did not repudiate liability but also made an offer of N50,000.00. I have already expressed by opinion as to the true import of Exhibit 2.

Before dealing with the main question, I should state that the context in which the Bendel State Commissioner for Works and Transport offered N50,000.00 did not carry with it any implication of admission of liability. The scanty material available on the point shows that after the appellant petitioned both the Military Governor and the Commissioner about the non-payment of his professional fees by NAIL, the Commissioner summoned him in his office and offered him N50,000.00, not as an admission that government itself was indebted to him but, as he put it, as a compensation. It was clearly stated under his hand by the appellant himself in Exhibit 21 that the Commissioner was directed by government to summon the meeting to negotiate what compensation should be paid to his firm for work done on the Niger Agencies Headquarters building project. Part of the memorandum of the discussions at the meeting which was prepared by the appellant himself runs thus:
“The Hon. Commissioner said that his government was in sympathy with the architects who had been involved in such an expensive project which government had no intention to continue with any longer. He said that he was offering N20,000.00 and another N50,000.00 for the other consultants that submitted fee claims to cover out-of-pocket expenses incurred on the project.
The memorandum later stated that later the Commissioner agreed to double the offer to the appellant to N50,000.00. The memorandum also makes it clear that the Commissioner stated he had no mandate to negotiate with the appellant outside the offer of compensation. However the appellant rejected the offer on professional grounds. The Court of Appeal after finding against the appellant and dismissing his appeal suggested (not decided) that this offer should be increased to N100,000.00 as a good gesture by the government.

Now the appellant wants to use this offer to support his case against the respondent. In my opinion this stance is misconceived. The offer was made by the Commissioner not on grounds of admission of liability on the part of the respondents but, as the Court of Appeal rightly put it, as a good gesture. A government which receives a petition from its

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citizen about a loss being suffered by any of its citizens because of the act of a limited liability company floated by the government to execute particular functions, but which company had now gone into liquidation, would be correct to offer some compensation to the citizen for his loss without necessarily admitting that the government itself is liable at law. A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances it is not essential that the words “without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding. Hence in Mole v. Mole (1951) Probate 21, C.A., oral communications to a conciliator by a party to a matrimonial dispute was treated as having been made without prejudice. See also Pool v. Pool (1951) Probate 470; also Henley v. Henley (1955) Probate 202. Although these two cases deal with privilege attaching to statements made during negotiations as between a husband and his wife during a dispute, the principle is rather broadly – based. The learned authors of Phipson: On Evidence (11th Edu.) put it thus at p. 307 in para. 679.
“Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties. There can be no doubt that the Commissioner for Works and Transport is part and parcel of the Bendel State Government whom the Attorney-General represents in the suit.

In the instant case, I believe I am entitled to take notice of the position of a Commissioner in Government. He is the political head of his Ministry. He receives some of such petitions from members of the public from time to time. In this case, he not only received a petition from the appellant but had the one which the appellant sent to the Military Governor referred to him. His mandate was to negotiate compensation, not to investigate liability; the latter being an exercise by the Courts. To hold that evidence of such an offer which was clearly stated to have been made as a mere compensation is admissible as proof of admission of liability is to suggest that before a Commissioner who receives a petition makes an offer of compensation in settlement he must first wait to know the opinion of the arm of government designed, the courts, designed for the investigation of the merits and demerits of every claim. That would be an untenable position and one which will work hardship on the public in general, who often petition their governments for redress, even if their claims might have failed in court for one reason or the other. I believe that public policy dictates that such an offer should be privileged. In my judgment it would be wrong in the circumstances to treat whatever the Commissioner offered as any proper basis for finding the respondent liable for the appellant’s claim in Court. I shall not do so. I now come to the conduct and attitude of the appellant as to who are the proper parties to the contact. There can be no doubt that from the evidence before the Court, there is abundant evidence that soon after the appellant received Exhibit 2, he proceeded to deal with and treat NAIL as his clients. He held meetings with its Managing Director and without reference to the Ministry of Works and Transport reached agreement with them on all the vital decisions relating to the job. In several letters, some of which were copies to the Ministry he referred to NAIL as his “clients” and referred to the Ministry simply as advisers. Reference may be made to Exhibits 8, 11, 12, 14 and 17, among others. It is enough if I refer to extracts from one of these vital exhibits. In part of Exhibit 17, he wrote to NAIL thus:
“At our first meeting with the clients, the question of financial limits was raised by us and we were informed that there is none. We do nor see how, within our limits of knowledgeability, government should be held responsible for the size of the project and payment of our fees.
All we are saying now is that our fees are now long overdue for payment for services rendered and we expect your cheque for the sum due rather urgently.”
(Italics is mine)

He followed this up by sending a bill, Exhibit 14, to N.A.I.L. for his first interim payment for settlement. It was only when he failed to get the money that he sent the same bill to the Ministry some five months later. From all these and more it is clear all long, that since his receipt of Exhibit 2, the appellant treated N.A.I.L. as his client and the Ministry as mere advisers. The question therefore is whether the law can now allow the appellant to shift from this position which had been accepted by the Ministry itself and now say that the Ministry was his client? I do not think so. For it is provided in section 150 of the Evidence Act, thus:
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
On the facts of this case, there can be no doubt that the appellant has, by his own written words and conduct, caused or permitted the respondent to believe that in the project of the building for Niger Agency International Limited, Benin City, the Agency itself was his employer and that the Ministry did accept that to be the true position and acted accordingly all through. The appellant cannot therefore be allowed to resile from this position to now say that the Ministry of Works and Transport and not the Agency was his client. See: Joe Iga & Ors. V. Ezekeil Amakiri & Ors. (1976) 11 S.C.1, at pp.12 -13. Being a provision of the Evidence Act, it is a rule of evidence: Morinatu Oduka & Ors. V. Kasunmi & Anor. (1968) N.M.L.R. 28. But even if it was a rule of pleading the facts which raise the defence were duly pleaded, and due notice given that the defendants would rely on legal and equitable defences. The defence is well-founded.

With respects, I believe that issue No.2 is misconceived in so far as it fails to take into account the scope of the authority of the Ministry of Works as found, even if it is conceded, without agreeing, that it acted as an agent of
N.A.I.L. for purposes of appointing the appellant as Architects for the project. As a matter of law the authority of any agent appointed for a particular purpose is spent the moment he executes that purpose for which he was appointed. In this case – if I can put it as high as that the Ministry of Works was an agent for recommending the appointment of the appellant as an architect and no more. There is nothing to show that the Ministry, as an agent of N.A.I.L. instructed him or assigned to him the works for which he now claims first interim payment. I am of the view that, as far as those works are concerned, the Ministry was neither the agent nor the principal (employer) of the appellant: The two lower courts were right to have said so.

The last issue is vague and scarcely deserved the dignity of a detailed consideration. Reference to Mr. Bishop Amadiobogha’s evidence as hear say apparently lost sight of the fact that in all the courts, this case has been decided mainly on documentary, and not oral, evidence. I should dismiss this issue and the grounds upon which it is based as lacking in substance. On the whole, for all I said above and the fuller reason given in the lead judgment by my brother, Eso, J.S.C., appeal fails and is dismissed with costs assessed at N300.00 against the appellant.

Appearances

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