A-G Kaduna v. Atta (1986)

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1.
THE ATTORNEY-GENERAL OF KADUNA STATE

2.
THE PERMANENT SECRETARY, MINISTRY OF WORKS AND HOUSING KADUNA STATE

3.
THE PERMANENT SECRETARY, MINISTRY OF ESTABLISHMENTS AND TRAINING KADUNA

V.

1.
MR. VICTOR BASSEY ATTA

2.
MR. OLUSEGUN KUTI

3.
MR. UDOMA MBA UDOMA (For and on behalf of Inter- Designs Partnership)

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/99/85

UMARU MAIDAM A, J.C.A. (Presided)

EPHRAIM OMOROSE IBUKUN AKPATA, J.C.A.

JOSEPH DIEKOLA OGUNDERE, J.C.A. (Read the Lead Judgment)

THURSDAY, 3rd JULY, 1986

CONTRACT – Consultancy agreement – Interpretation of.

CONTRACT – Essential ingredients of.

Issue:

Whether or not there is a valid offer from the appellants as offerors which has been accepted by the respondent so as to constitute a valid agreement for consultancy services between them.

Facts:

    The 2nd defendant the Ministry of Works and Housing wrote a letter, dated 29th November, 1976 to 29th November 1976, exhibit 1, to the plaintiffs asking them to indicate their willingness “to take up the design work of the Staff Training Centre Funtua project as per Federal Military Government approved scale of fees. Your acceptance or refusal should be communicated to this Ministry by 15th December, 1976”. The plaintiffs wrote back on 14th December, 1976 communicating their willingness to undertake the design of the proposed training centre on the Federal

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Government approved scale of fees. This letter is in evidence as exhibit 1A. Thereafter, series of meetings were held between plaintiffs and representatives of the 2nd and 3rd defendants and the Principal of the proposed training centre. At the first of such meetings, the plaintiffs were given a document in which the details of the proposed centre and the number and type of house designs were shown. Plaintiffs’ witness said that that document formed the basis of their brief for the project. At the meetings there was a long discussion on details and some alterations were suggested by the defendant ministries. The plaintiffs were asked to comment on these suggested alterations particularly as the defendants put the total cost of the project as N1,5m. As a result of this the plaintiffs sent exhibits 2 and 2A. It is important to state here that the plaintiffs informed the defendants ministries in exhibit 2 that the “project was severally underestimated at N1.5m”. Exhibit 2 is dated 7th March 1977.

The 2nd defendant wrote another letter to the plaintiffs, exhibit 3 dated 27th July 1977 requesting them to “furnish this ministry with an estimate of the whole project including all the services and the involvement of your fees for pre and post contract services.” The plaintiffs regarded exhibit 3 as the authority to go ahead and produce the designs. They wrote to 3rd defendant enclosing a copy of exhibit 3 and promising to submit their designs and estimate by 19th September 1977. This letter is exhibit 3A and it was copied to the 2nd defendant. Significantly, neither the second nor the 3rd defendant wrote back to the plaintiffs asking them not to submit any designs, or any designs beyond NI .5m having regard to plaintiffs’ exhibit 2A attached thereto.

By the letter dated 14th October 1977 and marked exhibit 4A, the plaintiffs sent their designs to the 3rd defendant. The estimated cost of the designed project is given in exhibit 4Aas N6.3m. Neither the second nor the third defendant ministry got in touch with the plaintiffs. The plaintiffs later visited the defendant ministries to find out the reason for the silence without any success. Tired of waiting, the plaintiffs wrote exhibit 5 dated 6th January 1978 to the 3rd defendants, copying the 2nd defendants complaining about the silence and about not having their approval and authorisation “to proceed with the working drawings” of the project. They also submitted their bill for the work they had so far done as N55,915.90. On 29th March 1978, the 3rd defendant wrote to the plaintiffs exhibit 6 stating, inter alia, that the “design did not suit our purposes and are therefore not acceptable. It is most regretted therefore that payment in respect of the said designs will not be made.

The plaintiffs being dissatisfied took out a writ of summons against the defendants claiming the sum of N55,915.90 being Professional Fees due to them, and the High Court granted them the relief sought.

The defendants were dissatisfied and appealed to the Court of Appeal arguing in the main that there was no valid contract between the parties.

Held (Dismissing the Appeal):

1.
It is trite law that the formation of contract is not governed by rigid but by flexible rules, namely that there must be a definite offer, by one party called the offeror, and communicated to the other party called the offeree who accepts the offer unless the

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offeror, the first party dispenses with such communication.

2.
Offer and acceptance constitute an agreement provided that the two parties reached a consensus ad idem, that is the intention of both parties on what is agreed is identical. Thus an acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them. [Majekodunmi and Anor. v. National Bank of Nigeria Ltd. (1978) 3 SC. 119 at 127 applied.]

3.
An offer has to be accepted before a contract can exist.

4.
Where a court has to find a contract in correspondence between the parties, and not in one particular note or memorandum formally signed, the whole of that which has passed between the parties must be taken into consideration.

5.
The letters will not constitute an agreement unless they show a simple acceptance by the other party of the proposal made by the other, without the existence of any new term yet to be agreed.

6.
Therefore if negotiations for an important term were yet to be carried out, the letters of offer and acceptance will not be deemed to be a complete contract.

7.
In interpreting the intention of the contracting parties, such parties are presumed to intend what they had in fact said, provided the intention is clear and manifest.

8.
In a contract for Consultancy Services, once the offer to the consultants is made naming a project, and the consultants accept the offer as in this case, a consensus ad idem is reached and a consultancy agreement is concluded.

9.
Once a consultancy agreement has been concluded, the employer is bound under the agreement or contract to pay for the consultant’s advice whether he takes it or leaves it.

10.
From the evidence there was a binding contract between the parties and the appellants were under an absolute obligation to pay the respondents for services which they rendered to them.

Nigerian Cases Referred to in the Judgment:

Ajayi Obe v. The Executive Secretary Family Planning Council of Nigeria (1975) 3 SC. 1

Aoaad v. Kessrawani (1956) 1 FSC. 35 at 36

College of Medicine of University of Lagos v. Adegbite (1973) 3 SC. 149

Majekodunmi v. National Bank of Nigeria Ltd. (1978)3 SC. 119 at 127

Nwangwu v. Nzekwu (1957) 2 FSC. 36

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Foreign Cases Referred to in the Judgment:

Bristol, Cardiff and Swansea Aerated Bread (1890) 1 Ch.D. 616

Carlil v. Carbolic Smoke Ball Ca (1893) 1 Q.B. 256 at 269

Hassey v. Horne-Payne (1879) 4 App. Cas. 311

Robertson v. French (1803) 4 East 135

Rossiter v. Miller (1878)3 App. Cas 1124

Appeal:

This was an appeal from the decision of Kaduna High Court which awarded a sum of N55,915.00 to the respondents. The Court of Appeal also dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Kaduna

Names of Justices that sat on the appeal: Umaru Maidama, J.C.A. (Presided), Ephraim Omorose Ibukun Akpata, J.C.A., Joseph Diekola Ogundere, J.C.A. (Read Lead judgment)

Appeal No.: CA/K/99/85

Date of Judgment: Thursday, 3rd July, 1986

High Court:

Name of High Court: Kaduna High Court.

Name of the Judge: S. U. Mohammed, C.J.

Counsel:

Mrs. C. R. Nyam, Director of Civil Litigation, Kaduna State Miss Binta Remara, State Counsel I – for the Appellants

S. N. Onekutu (with him, Y. Usman) – for the Respondents

OGUNDERE, J.C.A. (Delivering the Lead Judgment): Before S.U. Mohammed C.J. at the Kaduna High Court, the respondents herein brought an action against the appellants jointly and severally for the sum of N55.915.90 being professional fees payable by the defendant to the plaintiff in respect of professional services rendered, at the request of the appellants in respect of the Staff Training Centre, Funtua Kaduna State. Pleadings were ordered and delivered and the issues boiled down to the question whether or not there is a valid offer from the appellants as offerors accepted by the respondents so as to constitute a valid agreement for consultancy services between them regarding the Staff Training Centre, Funtua, Kaduna State. The facts of the case, according to the evidence led in proof of the pleadings by both parties, as stated in the judgment of Mohammed CJ, are as follows:

The 2nd defendant the Ministry of Works and Housing wrote a letter, dated 29th November l976, exhibit 1, to the plaintiffs asking

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them to indicate their willingness “to take up the design work of the Staff Training Centre Funtua project as per Federal Military Government approved scale of fees. Your acceptance or refusal should be communicated to this Ministry by 15th December, 1976”. The plaintiffs wrote back on 14th December, 1976 communicating their willingness to undertake the design of the proposed training centre on the Federal Government approved scale of fees. This letter is in evidence as exhibit 1A. Thereafter, series of meetings were held between plaintiffs and representatives of the 2nd and 3rd defendants and the Principal of the proposed training centre. At the first of such meetings, the plaintiffs were given a document in which the details of the proposed centre and the number and type of house designs were shown. Plaintiffs’ witness said that that document formed the basis of their brief for the project. At the meetings there was a long discussion on details and some alterations were suggested by the defendant ministries. The plaintiffs were asked to comment on these suggested alterations particularly as the defendants put the total cost of the project as N1,5m. As a result of this the plaintiffs sent exhibits 2 and 2A. It is important to state here that the plaintiffs informed the defendants ministries in exhibit 2 that the “project was severely underestimated at NI.5m”. Exhibit 2 is dated 7th March 1977.

The 2nd defendant wrote another letter to the plaintiffs, exhibit 3 dated 27th July 1977 requesting them to “furnish this ministry with an estimate of the whole project including all the services and the involvement of your fees for pre and post contract services.” The plaintiffs regarded exhibit 3 as the authority to go ahead and produce the designs. They wrote to 3rd defendant enclosing a copy of exhibit 3 and promising to submit their designs and estimate by 19th September 1977. This letter is exhibit 3A and it was copied to the 2nd defendant. Significantly, neither the second nor the 3rd defendant wrote back to the plaintiffs asking them not to submit any designs, or any designs beyond N1,5m having regard to plaintiffs’ letter exhibit 2, and the agreed briefs, exhibit 2A attached thereto.

By a letter dated 14th October 1977 and marked exhibit 4A, the plaintiffs sent their designs to the 3rd defendant. The estimated cost of the designed project is given in exhibit 4A as N6.3m. Neither the second nor the third defendant ministry got in touch with the plaintiffs. The plaintiffs later visited the defendant ministries to find out the reason for the silence without any success. Tired of waiting, the plaintiffs wrote exhibit 5 dated 6th January 1978 to the 3rd defendants, copying the 2nd defendants complaining about the silence and about not having their approval and authorisation “to proceed with the working drawings” of the project. They also submitted their bill for the work they had so far done as N55,9.15.90. On 29th March 1978, the 3rd defendant wrote to the plaintiffs exhibit 6 stating, inter alia, that the “design did not suit our purposes and are therefore not acceptable. It is most regretted

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therefore that payment in respect of the said designs will not be made.”.

        Plaintiffs’ reaction to exhibit 6 is exhibit 7 which is dated 10th April, 1978 as follows:

IDK .76/22/21L

The Permanent Secretary,

Ministry of Establishments,

P.M.B.2189,

Kaduna,

Kaduna State.

Dear Sir,

STAFF TRAINING CENTRE FUNTUA

We are in receipt of your letter S/BUIL.1/160 of 29th March, 1978. We consider it a very unfortunate letter because it seemed to ignore the fact that we had a responsibility to discharge and having discharged such responsibility, entirely within your terms of reference, we are entitled to payment. We accepted the commission to design this project in December 1976. On 20th January 1977, by our letter IDK.76/22/04L we asked for a clarification on the briefs to avoid any possible misunderstandings. The meeting was held on 17th February 1977 and the minutes were reported in our letter IDK.76/22/6L. You will note from the minutes that the meeting was attended by two representatives of your Ministry, the Principal of the Institution and representatives of the Ministry of Works. You will note further that the design which we have produced conforms very closely with the briefs that were ratified at that meeting and that, as responsible consultants, we had pointed out the financial implications of the briefs to all present at the meeting.

Since then, two other meetings were held on 10th March, 1977 and 25th April, 1977 and both meetings were again attended by representatives of your Ministry. These meetings were called to discuss our preliminary designs and to ensure conformity with your requirements and to monitor the finances. At these meetings, our designs were quite carefully studied, discussed and approved or amended. Our final designs and cost estimates were subsequently submitted to you on 14th October 1977.

We hope that from the foregoing, you will agree that we served you well within your terms of reference and it is impossible that a design that was approved step by step by the client should be found, in the end to be unsuited to the client’s purposes. On the other hand, if your purposes have changed, you have to admit that you have not communicated any such changes to us as we had continued to work to the briefs ratified at the meeting of 17th February 1977. We hold ourselves available to redesign this project to suit your changed purposes. But so long as the present project is concerned, we have discharged our responsibilities and are entitled to payment as detailed in our long overdue invoice IDK.76/22/18L of 6th January 1978. We sincerely hope that you will find it possible to

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effect payment without further delay.

Yours very truly,

(Sgd) V. B. Attah

FOR: INTER DESIGNS PARTNERSHIP

cc: The Permanent Secretary, Ministry of Works.

The defendants did not respond to exhibit 7 until 6th March 1979 in exhibit 8 as follows:

“Ref. No. S/BUIL.l/vol. 1/319

Ministry of Establishments

and Training,

                                                Kaduna State,

                                                P.M.B. No. 2189,

                                                Kaduna – Nigeria.

                                                6th March, 1979

M/S Interdesign Partnership,

P.O.Box 742,

18/19 Ahmadu Bello Way,

Kaduna.

STAFF TRAINING CENTRAL – FUNTUA

I am directed to refer to your letter No. IDK.76/22/22L of 21st December, 1978 on the above subject, and to inform you that after very careful consideration of the issues involved regarding your claim contained therein, the Government has decided not to make the payment. Any inconvenience caused to your company is regretted, please.

                            (Sgd) Lawal Musa Daura

                            for: Permanent Secretary.”

It is noteworthy that the Ministry of Justice advised in exhibit 9 as follows:

                                “Ref No. MOJ/CIV.8/1979/10

                                 31st January, 1980

The permanent Secretary,

Ministry of Works and Housing,

Kaduna.

The Permanent Secretary,

Ministry of Establishments, Kaduna.

Re-Payment ofN55,915.90 as Professional

Fees to Inter-Designs Partnership

I refer to your letter No. S/BUILD/T/Vol.11/10.1 also refer you to our discussions on the 24th January, 1980. After the discussions and going into the records sent to me by your Ministries I come to understand that there is no formal agreement between your Ministry and the Inter-designs Partnership. As a result of the absence of this agreement I am not able to find out the terms and references you gave to the consultants with regard to the work you asked them to do. From the facts I gathered I come to the conclusion that:

1.
You assigned this work to the consultants to do.

2.
No detailed terms and references were given to the consultants; you only asked them to design the school

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and they started their work on that line.

3.         They have actually started the work and have gone far with it. They only stopped after receiving an instruction from you to do so.

In view of these facts stated above it is my opinion that the consultants are entitled to be paid for the work they have done. Your only claim is that the work done by the consultants does not conform with the instructions you gave them. But there is nothing to substantiate that, since you don’t have the record of any specifications you gave to these people. In the absence of this your Ministry cannot have a good case against the consultants. However, due to the fact that the consultant did not complete their job, they cannot be entitled to the whole amount. So in this case I suggest that you negotiate with the consultants and agree on what to pay them for the work they did so far.

                        (Sgd) Rabe Saidu,

                        for: Solicitor-General and

                        Permanent Secretary.”

The learned trial Chief Judge after a precise and concise review of the case of the two parties found in favour of the respondents as claimed that is, that the appellants do pay to the respondents the sum of N55,915.90. The appellants, dissatisfied with that judgment appealed to this honourable court on the following grounds:-

Ground One

That the decision is un-warranted, unreasonable and cannot be supported by the weight of evidence before the trial Court.

Particulars

i.
The learned trial Judge admitted exhibit 2 in evidence despite appellant’s counsel objection to such admission and even though it was not shown that such objection was over-ruled.

ii.
Despite the admission of exhibit 2 and the reliance placed on it, the learned trial Judge still held that the respondents were not bound to limit themselves to a ceiling of N1.5 million placed on the project by the appellants.

iii.
The question whether or not there was a binding contract between the appellants arid the respondents was decided by mere conjecture rather than by concrete evidence presented before the trial court.

iv.
The evidence before the trial court did not support the inference that it was not possible for the respondents to make and supply an estimate of the project to the appellants without producing the designs first and foremost.

Ground Two

That the learned trial Judge erred in law in holding that there was a binding contract between the appellants and the respondents.

Particulars

i.
Exhibit 1 did not specify the scope and/or the extent of the services to be rendered by the respondents.

ii.
Exhibit 1A clearly indicates that the respondents knew or had

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                       reasons to know that exhibit 1 was not a firm offer.

iii.
The testimony of PWI on page 17 lines 25-29 shows that in a case of this nature, a formal contract setting out the scope of the work to be done was undoubtedly necessary if the appellants were to be bound.

iv.
The testimony of DW1 also stated that a formal contract was to be signed between the appellants and the respondents which were never done.

v.
The preliminaries undertaken by the appellants after exhibit 1 were never concluded nor agreed upon by the appellants and the respondents as such, there is no offer capable of acceptance and consequently no binding contract.

Ground Three

The learned trial Judge erred in law in holding that the submission of designs by the respondents which would have cost the appellants about N6.3 million to erect over and above the ceiling of N 1.5 million set by the appellants for the proposed project was not a counter-offer which nullified the offer (if any) made by the appellants.

Particulars

i.
The respondents were not entitled to regard Exhibit 3 as empowering them to produce designs to any tune the respondents fancied as they never intimated the appellants that it would, not be possible for them to make an estimate without having first produced designs.

ii.
In all the correspondence and meetings held between the appellants and the respondents there was never a time the appellants authorised the respondents to produce designs beyond the NI.5 million set for the project in question.

iii.
There is nothing on exhibit 2A that shows that it emanated from the appellants or that its contents were discussed and agreed to by the appellants as the discussions were not made available to the trial court.

Ground Four

That the learned trial Judge erred in law in holding that it was not possible for the respondents to give a rough estimate of the proposed project until after they had put up preliminary designs.

Particulars

i.
There is a conflict between the testimony of PWI on page 18 of the record and exhibit 2 as the latter without reference to any preliminary drawings indicated that N15 million was an under estimation of the project whilst the former stated that it was not possible for the estimate of the project to be made without first producing the designs.

ii.
The respondents never informed the appellants that the estimates could not be made without the designs first prepared and had.

iii.
DW 1 in his testimony on page 22 lines 15-19 said it was possible to have a rough estimate of a project before the preliminary drawings are produced.

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Ground Five

That the learned trial Judge erred in law in holding that the production of designs by the respondents was not the first task the respondents were to perform. Particulars

i.
It is not in evidence that the respondents did any other thing besides the designs they made.

ii.
The testimony of DW1 on page 20 lines 5-9 does not by any stretch of the imagination suggest that the respondents did carry out any feasibility studies.

iii.
Exhibit 1 does not show that the respondents were in addition to the production of the drawings required to carry out any feasibility studies.

Both the appellants and respondents filed Briefs of Arguments. At the hearing of this appeal, Mrs. C R Nyam, the learned Director of Civil Litigation of Kaduna State, Miss Binta Remava, learned State Counsel Grade 1, with her for the appellants adumbrated the appellants’ Brief with ingenious and spirited arguments. On the Respondents’ side, S M Onekutu Esq, of learned counsel for the respondents urged nothing in answer to the oral arguments proffered on behalf of the appellants, but chose rather to rely on respondents’ brief, thus giving a lady, the last say.

I have given deep thoughts to the arguments of learned counsel for both parties, whether written or oral which have delved deeply into the legal requirements for the formation of a contract, what is a valid offer and acceptance, consensus ad idem, and the law on the interpretation of contracts. It is trite law that the formation of a contract is not governed by rigid but by flexible rules, namely, that there must be a definite offer, by one party called the offeror, and communicated to the other party called the offeree who accepts the offer unless the offeror, the first party dispenses with such communication. See Ajayi Obe v. The Executive Secretary Family Planning Council of Nigeria (1975) 3 SC page 1. Offer and acceptance constitute an agreement provided that the two parties reached a consensus ad idem, that is the intention of both parties on what is agreed is identical. Thus, in Majekodumi and Anor. v. National Bank of Nigeria Ltd. (1978) 3 SC page 119, at 127 the Supreme Court per Fatayi-Williams JSC as he then was, opined thus:

“An acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them.”

See also Carlill v. Carbolic Smoke Ball Company (1893) 1 Q.B.D. 256 at 269 where Bowen L.J. opined as follows:

“Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to be person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law -1 say nothing about the laws of other countries to make a contract. But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person

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who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in any offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.”

But an offer has to be accepted before a contract can exist. See College of Medicine of University of Lagos and Anor. v. Adegbite (1973)3 SC page 149. The case of Hassey v. Horne-payne (1879) 4 App. Cas. page 311 is the authority for the proposition that where a court has to find a contract in correspondence between the parties, and not in one particular note or memorandum formally signed, the whole of that which has passed between the parties must be taken into consideration. The letters will not constitute an agreement unless they show a simple acceptance by the one party of the proposal made by the other, without the existence of any new term yet to be agreed.

At page 320 to 321, Alkin Kairn LC opined thus:

“Now, my Lords, the conclusion I draw from that is this, that we have here, the appellant himself telling us that the two original letters, which, if you took them alone without any knowledge supplied to you of the other facts of the case, might lead you to think that they represented and amounted to a complete and concluded agreement, yet really were not a complete and concluded agreement, that there were to be other terms which at that time had not been agreed upon, that efforts were made afterwards to settle those other terms, and that these efforts did not result in a settlement of these other terms. The consequence therefore of the whole is, that it appeals to me not only that there is no note in writing, according to the Statute of Frauds, of that which was a completed agreement between the parties, but that there was in point of fact no completed agreement between the parties.”

Therefore if negotiations for an important term were yet to be carried out, the letters of offer and acceptance will not be deemed to be a complete contract. See Bristol, Cardiff and Swansea Aerated Bread (1890) 1 Ch.D. page 616. In Rossiter v. Miller (1878) 3 App. Cas. page 1124, Lord Blackburn at page 1151, opined thus:

“So long as they are only in negotiation, either party may retract; and though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there is no contract. The parties, in such a case, are still only in negotiation but the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that

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they continue merely in negotiation.”

In interpreting the intention of contracting parties, such parties are presumed to intend what they had in fact said, provided the intention is clear and manifest.

In Nwangwu v. Nzekwu and Anor (1957)2 FSC page 36 at page 37, Foster Sutton FCJ opined thus:

“It is the case that the cardinal presumption is that the parties are presumed to have intended what they have in fact said, so that their words as they stand must be construed, but there is also the common and universal principle that an agreement ought to receive that construction which its language will admit, which will best effectuate the intention of the parties and that greater regard is to be had to be clear intent of the parties than to any particular- words which they may have used in the expression of their intent.

If by any reasonable construction the intention of the parties can be arrived at and that intention carried out consistently with the rules of law, it is the duty of the Court to take that course.”

In the same train of thought is the case of Aouad and Anor. v. Kessrawani (1956) 1 ESC page 35 at page 36:-

“In construing a contract the cardinal presumption is that the parties are presumed to have intended what they have in fact said, so that their words as they stand must be construed. In other words, the meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used, so these terms are, in the words of Lord Ellenborough, in Robertson v. French (1803) 4 j East. 135, “to be understood in their plain, ordinary and popular sense, unless they have, generally, in respect to the subject matter, as by the known usage of trade, or the like, acquired a particular sense distinct from the popular sense of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to the contract, be understood in some other special and peculiar sense”

The learned trial Judge, in his judgment at pages 31 -32 of the record found as follows:

“I have no doubt whatever in my mind that there was building contract between the parties. The defendants asked the plaintiffs to state whether they were prepared to produce designs for the project at Federal Government scale of fees. The plaintiffs wrote and accepted to carry out this task. Meetings were consequently held between the parties at one of which the final requirements of the defendants were given to the plaintiffs with a request by defendants that plaintiffs should comment on the suggested alterations particularly as they attended the cost. There is further no doubt that the plaintiffs were fully aware right from the beginning that the funds available for the project were only N1.5m. When however the plaintiffs got the final briefing from the defendants they realised that N1.5m was grossly inadequate; so they informed the defendants, instead of the defendants stopping them from getting

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any further, they wrote to plaintiffs about 4 months after plaintiffs had informed them that N1.5m was inadequate, requesting the plaintiffs to furnish them with “an estimate of the whole project including all service and the involvement of your fees for pre and post contract services.”

1st prosecution witness said until they produced the designs they could not give an estimate. 1st defendant’s witness however said a rough estimate is possible even without a design. From the evidence of 1st prosecution witness it would appear that the task of providing an estimate is not that of an architect but that of a quantity surveyor and suppose a quantity surveyor could not possibly produce an estimate from nothing. He has to have some design where estimate can be reasonably costed. Indeed 1st prosecution witness said they engaged the services of a quantity surveyor for the task of estimating the cost of their design of the project.

By 27th July, 1977 when defendants wrote to plaintiffs calling for the estimate and the fees of plaintiffs they were aware that the NI.5m allocated for the project was grossly inadequate. 1st prosecution witness regarded exhibit 3 as empowering the plaintiffs to go ahead and produce preliminary design. I think the plaintiffs are in the circumstance properly entitled to interpret exhibit 3 as empowering them to go ahead; particularly bearing in mind exhibit 2 in which they warned that the N1.5m allocated would not be sufficient. I have not the slightest doubt that the defendant instructed plaintiffs to produce preliminary design for the project. With all due respect to Mrs. Nyam I am not inclined to accept the submission that up to the stage exhibit 3 was written defendants were still feeling their way forward on agreement.

It means to me that defendant had asked plaintiffs to produce a design for the project. Initially defendants had told plaintiffs how much money they had for it; the plaintiffs informed them that that amount was grossly inadequate; the defendants still went ahead and asked them to produce designs and estimate of the cost and also their bill of fees. If the defendants had no intention of committing themselves why ask plaintiffs to send in their bill of fees for pre and post contract service”? I have no doubt that there was a building contract between the parties as I have no doubt also that the plaintiffs have produced a design on the lines of what the defendants had contracted with them to produce. The plaintiffs are clearly entitled to their fees (far beyond) what the defendants had allocated is in my view immaterial. Accordingly I enter judgment for the plaintiffs against the defendants jointly in N55,9 15.90.”

In my considered view, the findings of the learned trial Judge cannot be faulted in any way. I support his finding that there was a valid offer by the appellants to do architectural and other consultancy services to the respondents in their letter exhibit 1 of 29th November 1976 and the acceptance of the offer as in the letter of the respondents exhibit 1A of 14th December, 1976. 1st DW Rakeshsur, an architect in the Ministry of Works and Housing Kaduna, in his evidence before

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the court said as follows:

“I know a firm of architects called Inter-designs Partnership; I know they were working on the Staff Training Centre, Funtua. The Ministry of Establishment had the project and they asked us to get some consultant for the design of the Centre. The Ministry of Works and Housing on their part, approached Interdesigns Partnership with a view to the latter taking up the job of designing at the Federal Government approved scale of fees. The initial approach was by letter which I produce and tender. Soleye states this is already exhibit 1. Interdesigns Partnership are plaintiffs in this case. As a result of exhibit 1 plaintiffs came and held several discussions with us and worked out the requirements. They then wrote to say that the N1.5m allocated for the project was not sufficient. The plaintiffs were to work out the feasibility study, do some preliminary designs for the approval of the Ministries.

Later on when plaintiffs worked out the estimates, after producing their designs, they informed us that the project would cost about N7.0m.

I see Exhibit 2 and read it out aloud paragraph 4 aloud. At the time exhibit was written plaintiffs had not submitted the designs. We gave plaintiffs our requirements during our several discussions.

Plaintiffs did not sign any consultancy agreement with us. Plaintiffs wrote to us indicating they were drafting a consultancy agreement. I’d know the letter if I see it. This is the one and I tender it. After sometime plaintiffs submitted the designs along with their fees and asked for us to approve the designs. We had to approve the designs before the project could take off. The designs were not approved because they did not suit the purposes. The designs were too costly for the client Ministry. The client ministry had only N1.5m and the cost of the designs produced was about N6.3m. The total amount required including consultant’s fee and overhead charges was about N7m. The plaintiffs were aware that only N1.5m was available for the project.

The plaintiffs submitted their bill of fees for the preliminary designs – about N55,000 which were correct according to the calculations. The fees claimed by the plaintiffs of N55,915.90 agreed with the Federal Government scale of fees. Fees are worked out on the basis of the total cost of the project. So if the project had been executed this would have been their fees based on the designs submitted.

When plaintiffs wrote exhibit 2 we did not stop them from taking further action on the matter. When we did not approve the designs we wrote to them saying the designs were not approved and their charges could not be paid. Later on the project took off and it was within N1.5m. As an architect I say the project could be designed to cost not more than N1.5m.”

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Under cross examination by Miss Soleye, the witness said:-

“An architect’s job entails feasibility study, work out and discuss the client’s requirements and according to the client’s budget. The Federal Government scale of fees is in stages. The first stage when an architect is entitled to charge fees is when he produces the preliminary designs such as the plaintiffs did in this case. The next stage is when the architect produces the working drawings. Preliminary designs are work done for a client and an architect is entitled to charge fees at this stage. It is not possible for an architect to produce even preliminary designs without a brief. Feasibility study includes funds, land etc. – architect has to ensure these – approval of approving authorities etc.

So far as I know it was never communicated to plaintiffs that they should not produce any designs for more that N1.5m. It is possible to give a rough estimate of a project without the designs but it has to be the client’s requirements i.e. the client’s brief.”

Thus from the evidence of the principal witness, even though the original intention of the Ministry of Works and Housing is that the project should cost N 1.5m, that Ministry did not stop the respondent from producing designs on the project worth about N6.3m after the plaintiffs/respondent had been warned that their estimate of N1.5m was unrealistic. Although DW1 said that they actually spent N1.5m on the project, there is no evidence, since he was not asked, to show that the project as completed included and as designed by the respondents.

I now turn to the grounds of appeal starting with ground two in which it was submitted that the negotiations on the scope of the work was a term of the contract which remained unsettled and thereby prevented a consensus ad idem between the parties. It seems to me that in a contract for consultancy services once the offer to the consultants is made, naming a project, and the consultants accept the offer as in this case, a consensus ad idem is reached and a consultancy agreement is concluded. It then remains for the employer, that is the appellants, to settle with the consultants, the respondents, the details arid limitation of the work. And that was the purpose of the preliminary meetings between the parties, the exchange of letters exhibits 2,2A, 3 and 3A. After the consultants’ letter exhibit 2, indicating that the scope of work in exhibit 2A will exceed N1.5m, it was the duty of the Ministry of Works and Housing, second appellant, if they so wished, to peg the consultants to a project of N1.5m and to seek a meeting to trim down the scope of work in exhibit 2A; rather than that, that Ministry gave the consultants a green signal in exhibit 3 as follows:

“NC/ST/BLD/624/vol. 1 /26/H

Ministry of Works & Housing,

Headquarters, Kaduna State,

P.M.B.2023

Kaduna, Nigeria.

27th July, 1977

M/S Interdesign Partemship,

P.O.Box 742,

18/19 Ahamadu Bellow Way,

Kaduna.

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Staff Training Centre, Funtua

With reference to your letter No. IDK.76/22/6L of 7th March, 1977,1 am directed to ask you to furnish this Ministry with an estimate of the whole project including all the services and the involvement of your fees for pre and post contract.

We shall be grateful if it is treated as urgent and the estimate is sent directly to the Ministry of Establishment and a copy of the estimate to this Office.

(Sgd) Aziz A Malik

for: Permanent Secretary.”

By that letter, assuming that the arguments of the appellants on this score are valid, and I think not, then the negotiations on the scope of work is concluded, and there then emerged a consensus ad idem on the scope of work as in exhibit 2A. This ground therefore lacks merit and is dismissed.

As to ground three, it is ground two argued from another angle. A consultant, according to the Concise Oxford Dictionary, is an expert who is called in to give information or advice in special cases. Therefore one who advises is not in a position to give a counter offer. The employer is at liberty to take or leave his advice, but once a consultancy agreement has been concluded, the employer is bound under the agreement or contract to pay for the consultant’s advice whether he takes it or leaves it. This ground therefore fails.

As to grounds four and five which are based on the scope of work, that question has already been answered under grounds two and three above. They fail, and are dismissed accordingly.

The omnibus ground that the decision is un-warranted, un-reasonable and cannot be supported by the weight of evidence is misconceived having regard to the foregoing. The last nail in the coffin of this ground is exhibit 9 the letter of advice from the Solicitor-General to the Permanent Secretaries, Ministries of Works and Housing, and Establishments advising the second and third appellants that there was a valid contract of consultancy between the parties and that they should pay the respondents for the work they had done.

In the circumstances all the grounds of appeal lack merit, they are dismissed seriatim and in toto, with N350.00 costs in favour of the respondents.

MAIDAMA, J.C.A. (Presiding): The respondents, who were the plaintiffs, before the high Court Kaduna claimed against the appellants the sum of N55,915.90 as professional fees for the services which they rendered to the appellants, in respect of the Staff Training Centre at Funtua. The issue before the trial court was whether there was a valid agreement for the consultation services which gave rise to this claim. After listening to the evidence and the argument of learned counsel on both sides, the learned trial Chief Judge, in a reserved judgment, which he delivered on the 27th February, 1981, gave judgment in favour of the respondents for the amount claimed.

The appellant’s complaint in this appeal is that there was no valid agreement which will entitle the respondents to recover the amount claimed. I have considered the submissions of the learned counsel both oral and written, and I am satisfied that from the evidence there was a binding contract between the parties and the appellants were under an absolute obligation to pay to the respondents for services which they rendered to them. In my view the learned Chief Judge was right in

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giving judgment for the respondents. I am in full agreement with the reasons given by my learned brother, Ogundere JCA in the lead judgment just read by him for dismissing this appeal. I also dismiss this appeal for the same reasons as contained in the judgment of my learned brother, with costs as assessed by him.

AKPATA, J.CA: I have been privileged to read in advance the judgment of my learned brother, Ogundere J.C.A. I agree with him that the appeal be dismissed. The learned trial judge, Mohammed CJ was right in coming to the conclusion that there was binding contract between the respondents and the appellants that the former should produce the designs and estimate of the project.

Although no formal agreement was reached as to the fees to be paid to the respondents for the work they were mandated to embark upon, the appellants cannot be heard to dispute his bill for N55,915.90 in the circumstances of this case, in view of the evidence of DWI an architect in the Ministry of Works and Housing Kaduna. The appeal is dismissed in its entirety. I assess the costs of this appeal at N350.00 in favour of the respondents.

Appeal Dismissed

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