George C. Ashibuogwu V. The Attorney-general, Bendel State & Anor (1988)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

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-

“Ashibuogwu Design Associates,

Chartered Architects & Planning Consultants,

12 Kernel Street,

Sun Love,

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.”

(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.
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.
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 seeiton 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 Februaty, 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 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. 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 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 meeting was-

“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 knowledge ability, government should be held responsibility for the size of the project and payment of our 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.

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SC.25/1986