AKUDIGWE v. A-G ANAMBRA STATE
(2020)LCN/14370(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, June 15, 2020
CA/AW/493/2013
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
CHIEF AUGUSTINE AKUDIGWE APPELANT(S)
And
ATTORNEY GENERAL, ANAMBRA STATE RESPONDENT(S)
RATIO
DEFINITION OF A CONTRACT
A contract is defined as an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed there must be mutuality of purpose and intention. The two or more minds must meet at the same point, event or incident. Where or when they say different things at different time, then they are not ad idem and therefore no valid contract is formed. The meeting of the minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Dodo v. Salanke (2006) 9 NWLR (Pt. 986) 447 at 468.
Therefore, the essential ingredients of a contract are:
1. Offer and acceptance after conclusion of negotiations.
2. The parties must be of one mind on the subject matter of the contract i.e consensus ad idem.
3. There must also be consideration which must move from the promisee, though it need not move to the promisor. See NNB Ltd. v. Odiase (1993) 8 NWLR (Pt. 310) 235 at 243 – 244.
As to the duty of the Court as it relates to contracts between parties, the Apex Court held in Union Bank of Nigeria Ltd v. Sax Nigeria Ltd &Ors. (1994) LPELR – 3390 (SC) as follows:
“It is not the business of a Court to make a contract for the parties or to re write the one which they have made. See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9. In the construction of documents, the words therein should first be given their simple and ordinary meaning and under no circumstances may new or additional words be imported into the test unless the documents would be by the absence of that which is imported impossible to understand. See Solicitor General, Western Nigeria v. Adebonojo (1971) 1 All NLR 178 cited with approval in Union Bank of Nigeria Ltd v. Ozigi, supra.” Per Adio, JSC. PER SANGA, J.C.A.
THE ESSENTIAL INGREDIENTS OF A CONTRACT
I have listed the essential ingredients of a contract above, one of which is that the parties must be of one mind on the subject matter of the contract, in other words, there must be a consensus ad idem. The law is trite that in order to be bound by a contractual agreement the parties must be in consensus ad idem. In Bilante International Ltd v. Nigeria Deposit Insurance Corporation (2011) LPELR – 781 (SC) the Supreme Court held thus:
“It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See Afolabi v. Polymera Industries (1967) 1 All NLR 144.” Per Fabiyi, JSC.
See also:Attorney General Rivers State v. Attorney General Akwa Ibom State & Anor (2011) LPELR – 633 (SC) Per Katsina-Alu, JSC, Dr. Soga Ogundalu v. Chief A.E.O. Mac Job (2015) LPELR – 24458 (SC). Per Rhodes-Vivour, JSC. This Court succinctly and aptly pronounced on whether parties must reach consensus ad idem in order to be bound by a contract agreement in Mr. Peter Yuseful Onuminya v. Access Bank Plc (2014) LPELR- 22461 (CA) Per Augie, JCA (now JSC) as follows:
“More importantly, and quite aptly so, in the circumstances of this case, parties must reach a consensus ad idem for the contract to be regarded as binding and enforceable. See Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt. 1092) 339; PTF v. WPC Ltd (2007) 14 NWLR (pt. 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different time they are not ad idem and no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract see Dodo v. Salanke (2007) All FWLR (Pt. 346) 57.”PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant as Plaintiff filed Suit No: A/330/2008, against the Respondent as Defendant before the High Court of Anambra State of Nigeria Awka Judicial Division holden at Awka, C.A. Emembolu J., Presiding via a Writ of Summons and Statement of Claim seeking for the following reliefs:
1. Payment of N41,383,650.00 (Forty-One Million, Three Hundred and Eighty-Three Thousand Six Hundred and Fifty Naira) being the cost expended by the Plaintiff in constructing the 6 Kilometer road from Omasi Uno to Omasi Farm Settlement.
2. Payment of N1,882,650.00 (One Million Eight Hundred and Eighty-Two Thousand, Six Hundred and Fifty Naira) being the cost of the Plaintiff expended in repairing one Bulldozer.
3. 10% interest on the judgment sum until the judgment sum is paid. (Page 5 of the record of appeal).
The brief facts that led to filing this suit are that the Plaintiff who alleged that he is a businessman that engages in road construction, management of agricultural farm, engineering, services and repairing of bulldozers and other heavy duty equipment and vehicles applied to the
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Anambra State Government to allow him supervise the Ada/Omasi Rice Farm Settlement a project that belongs to the said State Government. That by a letter dated 26th May, 2001 with reference No. MOA/PS/249/10, the State Government allowed the Appellant the right to supervise the farm project. That due to the insecurity along the dilapidated road that leads to the farm settlement he (the Appellant) was awarded the contract to construct a direct road to Omasi farm through Omasi Uno which had the added advantage of having direct access to the farm settlement without following the route that passes through Enugu State. That:
11. Besides, the Anambra State Government considered such direct route as the only feasible way of resuscitating and fully taking over the farm settlement.
13. The Plaintiff aver that the project is the construction of 6 Kilometer Road from Omasi Uno to Omasi Farm Settlement.
14. The Anambra State Government had no money at the material time to sponsor the project and was finding it difficult to secure anybody to take up the project on contractor finance basis until the Plaintiff his willingness (sic) to take up the project on
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contractor finance basis.
17. Based on the letter of March, 2002 signed by C.E. Chukwudum, the Plaintiff entered into further discussion with the result that Ministry of Works and Transport, Anambra State caused Bills of Quantities with respect to the said project to be prepared. The said Bills of Quantities shall be relied on at the trial and hereby (sic) pleaded.
18. The Plaintiff swung into action and had to dispose of his property and even had to borrow money to execute the project and succeeded in completing same before the rains set in as mandated.
19. The Plaintiff also agreed with Anambra State Government to repair one Bulldozer with his money to facilitate the aforementioned projects awarded to him and to be refunded the money later.
21. Regrettably, the Plaintiff aver that since he completed the aforementioned project and repaired the Bulldozer he has not been paid any money out of the N41,383,650.00 being the cost of constructing the 6 kilometer Road from Omasi Uno to Omasi Farm Settlement and N1,882,650.00 being the costs of repairing one Bulldozer neither has Anambra State Government paid any money out of the miscellaneous
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matters bordering on security, transportation, overhead etc, despite repeated demands by the Plaintiff for Anambra State Government to pay him the said money.
The Appellant pleaded that after he finished constructing the road the Anambra State Government Commissioned the said 6 Kilometer road from Omasi Uno to Omasi Farm Settlement but did not pay the Appellant to date thus he instituted this suit.
Upon being served with the Originating Processes, the Respondent filed a Statement of Defence on 17th March, 2009 wherein it traversed the Plaintiff’s claim seriatim. It is the contention by the Respondent that it was the Plaintiff who expressed interest in constructing the road to Omasi to enable his Committee (Special Revenue Committee on Omasi Farm Settlement of which he was appointed chairman vide a letter dated 23/10/2001) collect revenue from the farm settlers. That when the Plaintiff brought up the issue of access road, the then permanent secretary, Mr. C.E. Chukwudum, through a letter dated March, 2002 informed the Plaintiff of the inability of the defendant to award any contract as its resources were lean. That the Defendant made sure that
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the Plaintiff clearly understood that the access road he sought to construct would be at no cost to the Anambra State Government.
That the Plaintiff then sought the approval of the Defendant to finance the access road with the funds to be sourced from the revenue he collected on behalf of the Defendant as the Chairman of the Special Revenue Committee on Omasi Farm Settlement vide a letter dated 23/10/2001. That the Defendant conveyed the approval of the Ministry of Works and Transport to allow the Plaintiff take steps to make the farm accessible but at no cost to the State Government. As for the Bill of Quantities which the Plaintiff is flaunting, the Defendant averred that it is the Plaintiff who prepared the said Bill of Quantities without recourse to the Ministry of Works. That in constructing the said access road the Plaintiff did not use his personal funds but used the revenue collected on behalf of the Defendant to grade the road. That the Plaintiff as chairman of the Special Revenue Committee never paid any money into the coffers of the Anambra State Government nor did he render account of the revenue collected after the police had helped him gain
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access and control of the Omasi Farm Settlement. That the bulldozer the Plaintiff is alleging he repaired from his personal money was repaired with funds realized from the revenue collected at the farm settlement. That the bulldozer was repaired at no cost to the Defendant as there “is no contract agreement to repair the Bulldozer”. That the Anambra State Ministry of Works never inspected nor evaluated the said road construction contract. That there is no contract agreement between the Plaintiff and the Defendant and the Plaintiff’s claim to any payment is fraudulent as the Defendant does not owe the Plaintiff a kobo. That the letter of March, 2002 is not a contract agreement neither were the Bills of Quantities prepared for or by the Ministry of Works and Transport. The Defendant urged the lower Court to dismiss the Plaintiff’s Claim.
Pleadings having been filed and exchanged the matter went to trial. The Appellant testified as PW1 on 28/2/2013 and tendered four documents (which were not objected to by the Respondent) and were admitted in evidence by the learned trial Judge and marked as follows:
1. Letter dated 12 March, 2001
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addressed to the DPO Police Headquarters Adazi Marked as Exhibit ‘A’;
2. Letter dated 23rd October, 2001 addressed to Chief A.I. Akudigwe marked as Exhibit ‘B’;
3. Letter dated March, 2002 addressed to Chief A.I. Akudigwe marked as Exhibit ‘C’.
4. Bills of Quantities for the proposed construction of 6 Kilometer Omasi Uno to Omasi Farm Settlement road Omasi Town marked as Exhibit ‘D’. (Pages 100 to 104 of the Record).
The Defendant also called one witness Mr. Ugochukwu Uddoh, the Director of Highways who testified as DW1 on 25/4/2013. He adopted his written deposition and was cross-examined (pages 105 to 107 of the Records).
Learned counsel adopted their respective written addresses on 10/6/2013. Judgment was delivered on 17/6/2013. In his judgment, the learned trial Judge canvassed three issues for determination as follows:
1. Whether the Plaintiff was awarded the contract for road construction of 6 Kilometer from Omasi Uno to Omasi Farm Settlement Road in Ayamelum Local Government Area.
2. Whether the Plaintiff was assigned to repair and renovate the abandoned heavy duty
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machines (caterpillar).
3. Whether the Plaintiff is entitled to 10% interest on the Judgment sum until the judgment sum is paid.
On issue 1, the learned trial Judge held thus:
“When negotiations are in progress between the parties intending to enter into a contract, the whole of those negotiations must be considered as to determine whether, if at all the contract came into being. In this regard, there was no contract entered between the parties as there was no offer or acceptance of the offer. I am in agreement with the submissions of learned counsel to Defendant (sic) that the Plaintiff has not shown that there was a contract on which the Court can be called upon to enforce.”
On the second issue, the learned trial Judge held thus:
“…The Plaintiff did not put any evidence before the Court to show that repair was effected. The receipts issued by the person who repaired the Caterpillar is not before the Court…I am in agreement with counsel of Defendant (sic) that there is no proof that a Bulldozer was repaired, the particulars of the bulldozer was not placed or tendered in Court. The receipt of parts
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purchased by the Plaintiff, the mechanic who carried out the repairs was not called to witness.
After a due consideration of the case, I hold that the Plaintiff has not proved his case as required by law. I hereby dismiss the Claim of the Plaintiff as lacking in merit. I make no order to cost.” (The Judgment is at pages 110 to 113 of the Records).
The Plaintiff was aggrieved with this decision, he filed a Notice of Appeal containing three grounds of appeal dated 18/7/2013 filed on 23/7/2013. (Pages 114 to 116 of the Records). Records of Appeal were compiled and transmitted to this Court on 23/9/2013. The Appellant’s Brief of Argument was prepared by E.E. Madu Esq. It was filed on 08/06/2015 but deemed as properly filed and served on 02/06/2015. Learned counsel formulated two issues for determination as follows:
1. Whether the trial Court was right when he held that there was no contract between the parties without putting the case of the parties on the imaginary scale on the principle in Mogaji v. Odofia (sic) and inspite of Exhibits A, B and D.
2. Whether the trial Court was right to have dismissed the Appellant’s case on
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the sole ground that the letter of acceptance must unqualifiedly accept a particular Appellant (sic) by constructing six kilometers of Omasi Uno to Omasi Farm Settlement and repairing the Bulldozer.
The Respondent’s brief was settled by Ngozi A. Iwouno, Assistant Director, Ministry of Justice, Awka. Learned counsel canvassed one issue for determination as follows:
Whether the learned trial Judge made a correct approach to the evidence lead by the parties by coming to a conclusion that there was no valid contract between the parties.
In determining this appeal, I will adopt the two issues formulated by learned counsel to the Appellant and I will consider the argument in support of the two issue together.
In his submission while arguing issue 1, learned counsel to the Appellant submitted that the law is settled that a contract is an agreement between two or more parties which creates reciprocal legal obligations to do or not to do a particular thing. Cited: Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 143. That offer means a proposal which originated or emanates from the offeror to the offeree to enter into an agreement to do or not to
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do a particular thing. That since the whole essence of offer is reciprocal acceptance, the offeror anticipates the expected acceptance, and this he makes clearly in the offer. A valid offer must be precise and unequivocal giving no room for speculation or conjecture as to its real content in the mind of the offeree. Cited:Orient Bank (Nig.) Plc v. Bilante Inter. Ltd (1997) 8 NWLR (Pt. 514) ratio 1 at page 76.
Learned counsel urged the Court to hold that there is a valid contract between the Appellant and the Respondent as confirmed by Exhibits A, B and D.
That in evaluation of evidence, the trial Court is to be guided by the following principles:
a. Whether the evidence is admissible;
b. Whether the evidence is relevant;
c. Whether the evidence is credible;
d. Whether the evidence is conclusive; and
e. Whether the evidence is more probable than that given by the other party. Cited: Mogaji v. Odofin (1978) 4 SC 91.
Learned counsel urged the Court to hold that the evidence of the PW1 is more probable than that given by DW1 who testified under cross-examination that he did not know anything about the contract between the
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parties as reflected at pages 105 to 107 of the record of appeal. That DW1 in his testimony stated that the contract between the parties was not within his knowledge. That this admission helped the Appellant’s case. That civil cases are decided on balance of probabilities or preponderance of evidence. Not by the number of witnesses called but by the quantity or probative value of the testimony of the witnesses. That the lower Court failed to do this in its judgment. Cited: Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 176. Learned counsel urged the Court to hold that the trial Court failed to evaluate the evidence adduced before it and to resolve this issue in favour of the Appellant.
While arguing issue 2, learned counsel submitted that an acceptance is the reciprocal act or action of the offer to an offeror in which his agreement to the terms of the offer is as conveyed to him by the offeror. That the conduct of the parties must be unequivocally traceable to the transaction to constitute acceptance. Where there is a missing link between the conduct of the parties and the transaction, a Court of law will not be prepared to hold that a valid contract
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exists between them. That the learned trial Judge was wrong when he held that there was no letter of acceptance from the respondent to show that the offer of the Appellant was accepted. Learned counsel referred to pages 112 of the Records. That the lower Court failed to consider Exhibit ‘D’ which is the Bill of Quantities issued to the Appellant by the Ministry of Works and Transport under government seal. Cited: Orient Bank (Nig.) Plc v. Bilante Inter. Ltd. (supra) where this Court held that an acceptance is the reciprocal act or action by the offeree indicating his agreement to the terms of the offer as conveyed to him by the offeror. That an acceptance of an offer may be demonstrated by the following:
a. By conduct of the parties;
b. By their words;
c. By documents that have passed between the parties.
That there are positive evidence which are Exhibits A, B and D which this Court is urged to draw inference that there was a valid acceptance by the respondent. He urged the Court to resolve this issue in favour of the Appellant. Learned counsel also urged the Court to allow this appeal, set aside the judgment by the lower Court
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and enter judgment in favour of the Appellant as per his Statement of Claim.
Learned counsel to the Respondent’s submission in support of the lone issue he canvassed is that a contract is an agreement between two or more parties making obligations that are enforceable in law. That Section 5(1) of the Contract Law, Revised Laws of Anambra State lists the requirements for a valid contract as: offer, acceptance, ascertained agreed terms, intention to create legal obligations and valuable consideration. Cited:Noah Ben I. Saka v. Daniel A. Ijala (2010) 4 NWLR (Pt. 1184) 405; Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723. That Exhibits A, B and D tendered by the Appellant, as proof of a valid contract cannot be construed to be a valid offer and acceptance.
That a careful look at the documents relied upon by the Appellant shows that they do not disclose offer, acceptance, consideration or intention by the respondent to create a legal relationship and as such do not contain the requirement that must be present for a valid contract to exist in law. That the intention of the parties in a written contract is always to be gathered from the document
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itself. That the terms of the contract are to be determined by the parties and not by the Court. All that the Court does is to construe the words used by the parties in the agreement. Cited: Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144. That in the instant appeal, the lower Court after due consideration rightly held that there is no letter of acceptance. That it is not correct to say that the lower Court did not adequately consider the Appellant’s case. That the learned trial judge considered the Appellant’s case and rejected it, so the authority of Mogaji v. Odofin (supra) cited and relied upon by the Appellant is not applicable in this case.
That the learned trial Judge considered the evidence of PW1 and DW1 and the documents tendered and marked as exhibits and reached the correct conclusion based on the evidence before him. That he was entitled to prefer the evidence which he believed and which supported his judgment. That he evaluated the evidence of the witnesses before him and properly weighed same before delivering his judgment. Learned counsel to the Respondent urged the Court to uphold his submission and to dismiss this appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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15Finding:
I have carefully considered the facts that gave rise to filing this suit as contained in the record of appeal. I also considered the pleadings by the parties, the oral and documentary evidence adduced in support thereof during trial and the submission by learned counsel in their respective briefs of argument. I am of the opinion that the sole issue that can determine this appeal is:
Whether there was a valid contract between the Appellant and the Anambra State Government for the construction of the 6 Kilometer Road from Omasi Uno to Omasi Farm Settlement and whether there is a contractual agreement between the two parties for the repair of a bulldozer belonging to the Anambra State Government by the Appellant.
To determine this issue, I will first consider the meaning and purport of a contract.
A contract is defined as an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed there must be mutuality of purpose and intention. The two or more minds must meet at the same point, event or incident. Where or when they say
16
different things at different time, then they are not ad idem and therefore no valid contract is formed. The meeting of the minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract. See Dodo v. Salanke (2006) 9 NWLR (Pt. 986) 447 at 468.
Therefore, the essential ingredients of a contract are:
1. Offer and acceptance after conclusion of negotiations.
2. The parties must be of one mind on the subject matter of the contract i.e consensus ad idem.
3. There must also be consideration which must move from the promisee, though it need not move to the promisor. See NNB Ltd. v. Odiase (1993) 8 NWLR (Pt. 310) 235 at 243 – 244.
As to the duty of the Court as it relates to contracts between parties, the Apex Court held in Union Bank of Nigeria Ltd v. Sax Nigeria Ltd &Ors. (1994) LPELR – 3390 (SC) as follows:
“It is not the business of a Court to make a contract for the parties or to re write the one which they have made. See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9. In the construction of documents, the words therein should first be
17
given their simple and ordinary meaning and under no circumstances may new or additional words be imported into the test unless the documents would be by the absence of that which is imported impossible to understand. See Solicitor General, Western Nigeria v. Adebonojo (1971) 1 All NLR 178 cited with approval in Union Bank of Nigeria Ltd v. Ozigi, supra.” Per Adio, JSC.
Upon considering the meaning and purport of contract and the duty of Court as it relates to contracts between the parties the next point to consider is whether there is any document evidencing the fact that the parties had entered into a binding contract. The documents relied upon by the Appellant as evidence that he entered into a binding contract with the respondent is the later dated March, 2002 which was admitted in evidence by the appellant during trial and marked as Exhibit ‘C’. A copy of Exhibit ‘C’ is at page 41 of the records. It is a letter on letter headed paper of Government of Anambra State of Nigeria addressed to the Appellant and it reads thus:
“PROPOSED CONSTRUCTION OF 6KM OMASI-UNO – OMASI FARM SETTLEMENT ROAD IN ANYAMELUM
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LOCAL GOVT. AREA.
I am directed to refer to your letter of 29th January, 2002 on the above subject matter and to convey the approval of the Hon. Commissioner for Works and Transport for his intention to allow you to take steps to make the said farm accessible by road. This request has become necessary in view of your readiness to make the farm accessible before the rain set in. The resources of Government is presently too lean to accommodate any talk of contract award. All issues concerning this matter may later and at a convenient time be addresses.”
The letter was signed by C.E. Chukwudum, Permanent Secretary.
As I stated above this document (which does not contain the date in March, 2002 when it was written) is the sole document the Appellant is relying on as the main document showing that the parties had entered into a contract for the construction of the road in issue. In paragraphs 15, 16 And 17 of his pleadings the Appellant averred thus:
15. Plaintiff aver that his said willingness to take up the project was immediately acknowledged by the correspondence dated 8th January, 2002 and confirmed by another correspondence
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dated March, 2002 by C.E. Chukwudum.
16. The Plaintiff was mandated by the Anambra State Government through C.E. Chukwudum’s aforementioned correspondence to not only take steps to make the said farm accessible but also to make the farm accessible before the rains set in.
17. Based on the letter of March, 2002, signed by C.E. Chukwudum, the Plaintiff entered into further discussion with the result that Ministry of Works and Transport, Anambra State caused Bills of Quantities with the respect to the said project to be prepared. The said Bills of Quantities shall be relied on at trial and (sic) hereby pleaded.
In his evidence in support of his pleadings, during cross-examination, the Appellant testified thus:
Q: See Exhibit C, who gave you this document?
A: A Permanent Secretary, it was (sic) given this Exhibit C, Exhibit C is the contract award written by the Permanent Secretary. (page 103 of the Records).
This testimony by the Appellant is a clear manifestation of his complete misunderstanding of the purport and meaning of a contract. He was of the mistaken belief that Exhibit C is the contract document by the Anambra State
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Government awarding to him the contract to construct the road in issue. Unfortunately, the Appellant chose to ignore the last sentence in the first paragraph of Exhibit C which stated that:
“The resources of Government is presently too lean to accommodate any talk of contract award.”
A literal interpretation of this sentence contained in Exhibit ‘C’ is that the government cannot enter into any discussions on awarding contract in view of its meagre resources. I have listed the essential ingredients of a contract above, one of which is that the parties must be of one mind on the subject matter of the contract, in other words, there must be a consensus ad idem. The law is trite that in order to be bound by a contractual agreement the parties must be in consensus ad idem. In Bilante International Ltd v. Nigeria Deposit Insurance Corporation (2011) LPELR – 781 (SC) the Supreme Court held thus:
“It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree
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has a duty to comply with same. See Afolabi v. Polymera Industries (1967) 1 All NLR 144.” Per Fabiyi, JSC.
See also:Attorney General Rivers State v. Attorney General Akwa Ibom State & Anor (2011) LPELR – 633 (SC) Per Katsina-Alu, JSC, Dr. Soga Ogundalu v. Chief A.E.O. Mac Job (2015) LPELR – 24458 (SC). Per Rhodes-Vivour, JSC. This Court succinctly and aptly pronounced on whether parties must reach consensus ad idem in order to be bound by a contract agreement in Mr. Peter Yuseful Onuminya v. Access Bank Plc (2014) LPELR- 22461 (CA) Per Augie, JCA (now JSC) as follows:
“More importantly, and quite aptly so, in the circumstances of this case, parties must reach a consensus ad idem for the contract to be regarded as binding and enforceable. See Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt. 1092) 339; PTF v. WPC Ltd (2007) 14 NWLR (pt. 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different time they are not ad idem and no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or
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determinant in the law of contract see Dodo v. Salanke (2007) All FWLR (Pt. 346) 57.”
It is my finding that the Appellant and the Anambra State Government are not of one mind on the purported contract for the construction of the 6 Kilometer road from Omasi Uno to Omasi Farm Settlement therefore, the alleged contract is not binding and cannot be enforced. Exhibit ‘C’ by its simple and ordinary meaning cannot by any stretch of the imagination be considered as an offer by the said Anambra State Government to the Appellant. This Court cannot add or give a different meaning to the contents of Exhibit ‘C’.
As to whether there is a contractual agreement between the parties in respect to the repairs of a Bulldozer belonging to the respondent by the Appellant, my answer is also in the negative. I have perused the record of appeal and there is no document that support the Appellant’s claim in that respect. It is only the Appellant’s ipse dixit against the denial by the Respondent’s witness. There is also no consensus ad idem in respect to that claim by the Appellant. I resolve the sole issue I formulated against
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the Appellant in favour of the Respondent.
It is my judgment that this appeal lacks merit. It is hereby dismissed. The judgment by the lower Court in Suit No: A/330/2008, delivered on 17th June, 2013 is affirmed by me. I make no order as to costs.
Parties to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother B.G SANGA, JCA. I agree with his reasoning and conclusion.
For the more detailed reasons given in the lead judgment, I too will dismiss the appeal.
I also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his opinions and conclusion.
I also affirm the judgment of the Court below.
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Appearances:
Dr. S.C Obiora,Esq. with him, J.A. Obiajulu For Appellant(s)
Chief O. Ugolo (SAN), with him, O.C Ugolo For Respondent(s)
