➥ CASE SUMMARY OF:
George C. Ashibuogwu v The Attorney-General, Bendel State & Ors. (1988) – SC
by Branham-Paul C. Chima
➥ COURT:
Supreme Court – SC.25/1986
➥ JUDGEMENT DELIVERED ON:
Friday, The 29th Day Of January, 1988
➥ AREA(S) OF LAW
Contract.
Novation.
➥ PRINCIPLES OF LAW
⦿ ACT OF FRAUD BINDS PRINCIPAL WHEN AGENT ACTS WITHIN SCOPE OF AUTHORITY
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. — Eso, JSC.
⦿ NOVATION IN CONTRACT LAW – WHERE PARTIES CHANGE
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. — Agbaje, JSC.
⦿ WORDS SHOULD BE CONSTRUED IN ACCORDANCE TO THEIR INTENTION
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. — Nnaemeka-Agu, JSC.
⦿ WORDS MARKED “WITHOUT PREJUDICE” ARE INADMISSIBLE – CONSIDER CIRCUMSTANCES TOO
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. — Nnaemeka-Agu, JSC.
⦿ AGENT’S AUTHORITY ENDS THE MOMENT HIS PURPOSE IS SPENT
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. — Nnaemeka-Agu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Eso, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
G.N. Uwaechie.
⦿ FOR THE RESPONDENT
B. O. Nwaka (Mrs) Senior State Counsel Bendel State.
➥ CASE FACT/HISTORY
The Plaintiff (now Appellant) statement of claim avers thus:
“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.
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.
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.
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.”
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 ruled, “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 (Niger Agencies International Limited) was dealing directly with the Plaintiff all along. Of course, the question of the Defendant being principal does not arise.”
The Appellant appealed to the Court of Appeal which affirmed the decision of the trial court. The Court of Appeal held “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?”.
Dissatisfied, the Appellant has further appealed.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Was there ever a contract between the Plaintiff and the Government?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE DEFENDANT CANNOT BE SAID TO BE THE APPELLANT’S CLIENT
“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).”
B. THAT THE APPELLANT AGREED THAT GOVERNMENT IS NOT RESPONSIBLE FOR FEES PAYMENT
“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.’”
“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.”
C. THAT THE GOVERNMENT SIMPLY PLAYED THE ROLE OF AN ADVISER
“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.”.
.
.
.
✓ DECISION:
“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.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
