BAMGBOPA & ORS v. STALLION PROPERTY & DEV. CO. LTD (2020)

BAMGBOPA & ORS v. STALLION PROPERTY & DEV. CO. LTD

(2020)LCN/14795(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/281/2012

RATIO

CONTRACT: ELEMENTS OF A VALID CONTRACT

In order to answer this issue, I must like the trial judge go back to the basics of contract law and state what the elements of a contract are. This is because a contract becomes enforceable by law only when it fulfils certain legal requirements. These basic elements that make a contract enforceable are; the offer, acceptance, the intention to create a legal relationship, consideration and capacity to contract. PER BABA IDRIS, J.C.A.

CONTRACT: DEFINITION OF AN OFFER

An offer has been defined by Geoffrey U. Oputa in his book Achike on Contract as:
“an expression of readiness to contract on the terms specified by the offeror which if accepted will give rise to a binding contract,”
See AGOMA VS. GUINNESS NIGERIA LTD (1995) LPELR – 251 (SC) and BILANTE INTERNATIONAL LTD VS. NDIC (2011) LPELR – 781 (SC). In explaining the characteristics of an offer, the learned author stated that an offer is one that if accepted it will result in a contract. An offer is therefore a demonstration of willingness to enter into bargain made so that another party is justified in understanding that his or her assent to the bargain is invited and will conclude it. PER BABA IDRIS, J.C.A.

CONTRACT: LEGAL EFFECT OF A COUNTER OFFER

the legal effect of a counter offer is that it terminates the original offer so that it cannot subsequently be accepted by the offeree. See BEST NIGERIA LTD VS. BLACKWOOD HODGE NIGERIA LTD (2011) LPELR – 776 (SC). PER BABA IDRIS, J.C.A.
STATEMENT OF DEFENCE: EFFECT OF THE DENIAL OF A PARAGRAPH IN A STATEMENT OF DEFENCE BY MEANS OF THE GENERAL TRAVERSE

This is because the law is also settled that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, has the same effect as a specific denial of it. Its effect solely, is to put the plaintiff to strict proof of the allegation in that paragraph and to cast on the plaintiff the burden of proving the allegation denied. See DAIRO & ORS VS. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR – 42573 (SC). In UGOCHUKWU VS. UNIPETROL (NIGERIA) PLC (2002) LPELR – 3321 (SC), the Apex Court held:
“….a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied.” PER BABA IDRIS, J.C.A.

CONTRACT: BINDINGNESS OF ANY ACCEPTANCE MADE SUBJECT TO A CONDITION

It is a settled principle of law that any acceptance, which is made subject to a condition, is invalid and unbinding. An offeree may make his/her acceptance conditional on some happenings. If the acceptance is subject to a condition, there is no binding agreement until that thing is done. In BEST (NIG.) LTD VS. B. H (NIG.) LTD (2011) 5 NWLR (PT. 1239) 95 AT 126, the Supreme Court held as follows:
“Where a contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed and not binding unless and until those terms and conditions are complied with or fulfilled.” PER BABA IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. T. O. A. BAMGBOPA 2. S. O. OKE 3. S. AKINTUNDE (Trading As Civ – Struct Associate) APPELANT(S)

And

STALLION PROPERTY & DEVELOPMENT COMPANY LIMITED RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by an amended notice of appeal dated and filed on the 28th day of June, 2018 appealed against the Ruling/Judgment of the High Court of the Federal Capital Territory in suit No. FCT/HC/CV/528/2005 delivered on the 27th of day of February, 2007 by Honourable Justice Ugochukwu A. Ogakwu wherein the Court entered judgment in favour of the 1st Respondent against the Appellant.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that by a writ of summons and a 27 paragraph Statement of Claim dated 27th April, 2005 wherein the Appellants claimed the following reliefs:
1. The sum of N2,800,000 (Two Million, Eight Hundred Thousand Naira only) being Stage one fees in respect of structural Engineering Design and Consultancy Services rendered to the Defendant at its request in respect of its project, ”Stallion Guest Suites” in Abuja.
2. The sum of (Three Hundred and Eighteen Thousand Seven Hundred and Fifty Naira only) being reimbursable expenses incurred by the Plaintiffs for the

account of the Defendants in respect of the Project, “Stallion Guest Suites” in Abuja,
3. The sum of N1,400,000 (One Million, Four Hundred Thousand Naira only) being disruption charge payable by the Defendant to the plaintiff for the stoppage of the project abruptly and thereby causing a disruption in the work programme at the Plaintiff’s office.
4. The sum of (Two Million, Two Thousand and Twenty-nine Naira, Sixty-five Kobo only) being interest due and outstanding on the above amounts at the rate of 24% per annum being average rate applied on the Plaintiff’s own working capital facility account with their bankers from 5th August, 2003 to March 2005 and thereafter at the rate of 24% per annum until the entire debt is fully liquated.
5. Cost of this action being reimbursable expenses by the plaintiffs in getting the Defendant to perform its obligations in accordance with the applicable scale of fees.

Pleadings were filed and exchanged with each party calling one witness to testify on their behalf. The Appellant tendered Exhibits A, A1, A2, A3, A4, B, B1, B2, C, C1 – C9, D, E, F, F1, G, H, J, K, L, L1, L2, M, M1 – M5, N, N1 – N7 while the

Respondent tendered Exhibits O and 01 – 03. At the conclusion of trial, written final addresses were filed and exchanged.

The Appellant being dissatisfied with the decision of the Trial Court appealed against the decision. In accordance to the rules of Court, parties filed and adopted their respective briefs of argument at the hearing of the appeal. In the Appellant’s brief, five (5) issues were distilled for the determination of this appeal:
1. Whether the learned trial Judge did not err in law when he refused to give effect to Exhibits A-44 (Terms of Engagement) and Scale of Fees approved by various professional bodies for engineering contract and the Federal Government approved Scale of Fees and Conditions of Engagement for Consultants in determining the Appellants claim for professional fees, disruption charge and interest on the Appellants professional fees. (Grounds 1, 7 and 8);
2. Whether the learned trial Judge did not err in law when he held that the offer made by the Appellants was contained in Exhibit B1 and there was no consensus ad idem between the parties whereas the term of offer was made in Exhibits B2 by the Appellants and

accepted by the Respondent. (Grounds 2 and 6);
3. Whether the learned trial judge did not misdirect himself in law and facts when he held that Exhibits B2 and B1 do not correspond and could not have constituted an offer and acceptance but a counter offer. (Ground 3)
4. Whether the learned trial Judge did not err in law when he held that the Appellants did not discharge the burden of establishing oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit B1 on phone. (Grounds 4, 5 and 10).
5. Whether the learned trial Judge’s failure to consider the arguments and submissions proffered on the meaning of the clauses “subject to agreement on your fees” in Exhibit B2 did not occasion a miscarriage of justice on the Appellants (Ground 7 and 9).

The Appellant argued issue one, two and four together. In arguing these issues, counsel for the Appellants submitted that the dispute between the two parties relates to the quantum of fees payable to the Appellants by the Respondent as well as other expenses incurred by the Appellants as consultants to the Respondent for the building of “Stallion Guest Suites” in Abuja.

Counsel argued that Exhibit B1 (Letter with which the Appellant forwarded details of their professional fees) was the Appellants response to Exhibit B (which is a request for the Appellants to make a full submission of professional fees) while Exhibit B2 was the letter which the Respondents engaged the Appellants meaning that the term of offer was Exhibit B2 while the mode of acceptance was not expressly stated in writing.

Counsel argued that Exhibit B2 was received by the Appellants and that the Appellants in acceptance of the offer (Exhibit B2) started to perform their duties. That the Appellants worked on the initial architectural design with an overall cost of 1,700,000,000.00. Counsel then argued that it is trite that an offer maybe accepted in several ways including words, conduct or even in writing and that by the Appellants taking steps in the project they had indicated and did accept the offer of appointment as consultants. Additionally, counsel submitted that a contract is defined as an agreement between two or more parties creating an obligation recognized by law.

Counsel also submitted that it can be seen from paragraph 7 of

the sworn deposition of PW1 at page 211 of the record of appeal, that the Appellants promptly informed the Respondent’s General Manager that the Appellants would not accept less than the Federal Government Scale of fees. Furthermore, that the Respondent did not dispute the fact state above and Exhibit B1 was not rejected by the Respondents meaning that by Exhibit B1 and the oral discussions with the Respondent’s General Manager, it is beyond dispute the Respondent accepted the Federal Government Scale of fees.

The Appellants’ counsel argued that the trial judge’s conclusion that nothing in the statement of claim or testimony shows that Respondent’s General Manager assented to the oral discussions on the phone on the terms of Exhibit B1 is highly erroneous which was the basis the judge used to hold that the Appellants did not prove the quantum of their professional fees.

Counsel submitted that PW1 maintained that no standard agreement containing the condition of engagement was signed by the parties but the engagement was based on exchange of letters. That the Supreme Court by FEDERAL GOVERNMENT OF NIGERIA VS. ZEBRA ENERGY LIMITED (2002) 13 NWLR

(PT. 798) 162 has held that when documents form a long drawn transaction, they should be read together and not in isolation as such Exhibits B, B1, B2 when read together shows that the determinates of the fees the Appellants are entitled to are in Exhibit A1 and A2. Additionally, they argued that building and construction contracts are different from normal contract they are sui generis in the realm of contracts.

Finally, the Appellants argued that Exhibit D is evidence that their work was disrupted and Appellants they took a loan and credit facility from a bank to finance their services with several interest rates but the trial judge declined to granny claim for disruption charge and interest. Additionally, that there was no arrangement on how the Appellants would perform their duty as consultants to the Respondent before the suspension of work, can the Respondents who benefited now deny the Appellants are entitled to quantum fees claimed for work done.

In arguing issue three the Appellants’ counsel submitted that at page 358 of the record of appeal, the learned trial judge held that Exhibit B2 clearly does not correspond with the terms of offer in

Exhibit B1 and is at variance with the offer and would therefore not constitute an acceptance of the offer in Exhibit B1 in law. Counsel also submitted that Exhibit B1 was not an acceptance of the offer in Exhibit B2 but a response to Exhibit B. Additionally, Exhibit B2 was the actual offer which was accepted by conduct of the Appellants. Furthermore, that the learned trial judge misapprehended the law when he held that Exhibit B2 was a counter offer which was at variance with Exhibit B1 when in fact Exhibit B2 and Exhibit B1 was the offer which the Appellants accepted by attending meetings with other consultants amongst other acts. That the Appellants not only accepted Exhibit by conduct, the Respondent was never misled to the fact that Appellants fees would be according to Federal Government Scale of fees.

Counsel to the Appellants adopted their arguments in respect of issues 3 and 4 and also submit that the learned trial judge apparently misapprehended the state of the law and fact when he held inter alia that Exhibits B1 and B2 were at variance with the other and at best constitute a counter offer. They urged the Court to hold that Exhibit B1 and B2

are not at variance with each other since Exhibit B2 was the offer by the conduct of the Appellants was accepted.

In relation to issue five, counsel argued that it is trite that in so far as a Court is not the final Court for the determination of any dispute, the Court is bond to consider all issues submitted before it for determination as well as other issues that may have arisen in the course of determining the dispute between the parties. Reference was made to the cases of OKONJI VS. NJOKANMA (1991) 7 NWLR (PT. 202) 131 @ 150 and EZEOKE VS. NWAGBO (1988) 1 NWLR (PT. 72) 616 @ 627.

Counsel further argued that at page 309 of the Record, the Appellants in their final address submitted on the clause “subject to agreement on your fees, which shall be negotiated”. This is the fulcrum of the dispute between the Appellants and the Respondent. Unfortunately, the learned trial judge never alluded to this fundamental clause in determining the second issue submitted before him determination by the Appellant. That by the clause above the Respondent meant that the appointment and subject matter of the offer will only be effective upon the determination of the

fees payable for the consultancy services to be rendered by the Appellants.

The Appellants’ counsel also argued that the Appellants performed their duties under the contract without any protest or objection from the Respondent only for the Respondent to turn around to contend that the quantum of fees payable to the Appellants was not agreed upon. Counsel also submitted that by Section 169 of the Evidence Act, 2011, the Respondent cannot contend otherwise and if at all they can, which we do not concede, the Respondent waived and abandoned its right to contend that fees were never agreed upon. Reference was made to the case of ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) 126 @ 145.

In conclusion, counsel argued that had the learned trial judge averted his mind to this issue, he would not have reached the erroneous conclusion that the Appellant were not entitled to disruption charge. Counsel urged the Court to hold that the learned trial judge erred in law which error occasioned a miscarriage of justice when he refused to consider the submission of the Appellant in relation to the clause “subject to agreement on your fees, which shall be negotiated. “<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Respondent on the other hand raised 4 (four) issues for determination thus:
1. Whether the learned trial judge is not right in law when he refused to give effect to Exhibits A-A1 in determining the Appellant’s claim for professional fees, disruption charge and the interest on the Appellant’s professional fees. (Ground 1, 7 and 8).
2. Whether the learned trial judge was not right in law when he held that there was no consensus ad idem between the Appellants and the Respondent with regards to the fees to be paid under the contract regard being had to Exhibit B1 andB2. (Ground 2, 3 and 6)
3. Whether the learned trial judge was not right in law when he held that the Appellant did not establish by credible and acceptable evidence, the purported acceptance by the general manager of the Respondent of the terms of offer contained in Exhibit B1 (Ground 4, 5 and 10)
4. Whether the learned trial Judge was not right in refusing to unduly consider the arguments and submissions proffered on the meaning of the clause “subject to agreement on your fees” in Exhibit. (Ground 9).”

In relation to issue one, the Respondent argued that by the testimony of the

Appellants’ sole witness under cross-examination contained at page 342 of the record, it is made clear and unambiguous that the standard conditions of engagement as contained in Exhibit A is not mandatory. That in order words, the client can resort to exchange of letters which then forms the basis of the engagement of the consulting engineer. Additionally, that it was also evidence and beyond controversy that there is no formal agreement executed between the Appellant and the respondent as envisioned in Exhibits A – A4, rather what was to form the basis of the engagement Appellants by the Respondent the letter written to the Appellants by the Respondent – Exhibit B2 which expressly stated that the fees paid to the Appellants was to be negotiated consequently upon which the Appellants commenced work.

Counsel also argued that at no time during the exchange of letters did the Appellant make references to Exhibit A, A3 and A4, in fact in Exhibit B1 which emanated from the Appellant, he expressly stated that their calculation of their fees is on the basis of the Federal Government scale of fees (Exhibit A1 and A2) which exhibits made no reference

to disruption charge as rightly held by the learned the trial judge.

Furthermore, that with regards to the payment of interest on the purported professional fees of the Appellant, the learned trial judge was right when he held at page 326, last paragraph of the record thus:
“the evidence of the plaintiffs is that in accordance with the practice in industry a bill not settled within 40 days of presentation begins to attract interest at bank rate, Exhibits A, A3 and A4 were relied upon, I have not seen any reason to depart from my findings under issue number Two above to the effect that Exhibits A, A3 and A4 do not apply to the relationship between the parties. I therefore held that the plaintiff cannot find a claim for interest payment on their fees based on Exhibits A, A3 and A4.

Counsel then submitted that it is well settled from credible and contradicted evidence that Exhibits A, A3 and A4 which where heavily relied upon by the Appellants do not apply to the relationship between the Appellants and the Respondent with regard to the contract in issue. That it is because there is formal agreement between the parties that incorporate the said

exhibits neither were the exhibits contemplated by the Appellant to govern their relationship with the Respondent.

Counsel further submitted that it is in evidence (Exhibit B1 and the oral testimony of the Appellant sole witness at page 342 of records) that the on exhibits contemplated by the appellant to regulate their relationship with the respondent are Exhibit A1 and A2 which makes no provision for payment of interest on fees. Also, that it is in evidence (Exhibit N, N1 – N7) that the claims of the Appellants for travelling and hotel expenses are unenforceable. Exhibit A1 was relied upon by the Appellants for this head of claim. Counsel submitted that interestingly the exhibit provides only for reimbursable expenses incurred on the project. That from Exhibit N, N1 – N7, it is very clear that the Appellants purportedly incurred the expense three years after the project was suspended by the Respondent vide Exhibit D.

Counsel for the Respondent submitted that the date on Exhibit D is March 21st, 2003 while the purported expense covered by Exhibit N, N1 – N7 were incurred between 24th May – 22nd June, 2006. Can these expenses

properly be said to be incurred by Appellants while “on the project” of the Respondent as envisaged by Exhibit A1 regard being had to the fact that work was suspended on the project by respondent since March 21st, 2003. Counsel stated that the answer is an obvious and resounding NO.

Finally, Counsel submitted that the trial Court properly evaluated all the evidence adduced in the case and ascribed probative value and weight to each of them in refusing to give effect to Exhibit A – A4. The Court was urged to so hold and to resolve issue one in favour of the Respondent.

Counsel for the Respondent then argued issue two and three together. Counsel submitted that the trial judge was right in law to hold that there no consensus and item between the Appellants and the Respondent with regards to the fees to be paid to the Appellants under the contract regard being had to Exhibit B1 and B2.

Counsel also argued that the sole issue that gave rise to the Appellants’ case is the fees to which the Appellants are entitled to under the contract entered into between themselves and the Respondent. That the Appellants are contending that their fee is on the

basis of Exhibits A1 – A4, the Respondent is contending that it is subject to negotiation which is a clear indication that the parties are not in agreement.

Counsel then submitted that a valid contract can only be made when there is consensus ad idem between the parties involved in the formation of the contract. That there must be a valid offer, a valid acceptance, valid consideration, intention to create a binding contract and capacity on both parties to enter into such contract. Furthermore, that an invitation to treat does not qualify as an offer in law.

Counsel then argued that applying the basics of a contract above Exhibit B forms an invitation to treat; a proposal sent to the Respondent by the Appellants telling them to make submission on the professional fees payable. That the Appellants then made an offer in Exhibit B1 stating their fees will be in accordance with the 1996 Federal Government Approved Scale of Fees then the Respondent wrote Exhibit B2 wherein it appointed the Appellants as the Structural Engineering Consultants for the project but with the condition that the fees would be subject to negotiation. That this is at best a

counter offer on the part of the Respondent on the basis of which the Appellants took up.

Basically, the Respondents argued that Exhibit B2 is a counter offer to Exhibit B1 which had the effect of rejecting the terms on fee payment as proposed by the Appellants in Exhibit B1 and proposing a new term as in Exhibit B2 and the records do not show anything that is a variation in the term of the contract as contained in Exhibit B2. Counsel then submitted that the Appellants contented they called the General Manger of the Respondent to tell him that their terms as contained in Exhibit B1 stand but that he law is settled that oral evidence cannot be used to vary the contents of a document. Additionally, that the Appellants failure to call the former General Manger of the Respondents to testify that such a conversation happened between him and the Appellants was rightly held by the trial Court as not discharging the burden of proving such a conversation took place. Furthermore, that nowhere in the pleadings of the Appellants or evidence of their sole witness did they give evidence as to the response of the General Manger of the Respondent.

In conclusion, Counsel for the Appellants argued that it is either there was consensus ad idem between the Appellants and the Respondent on the basis of Exhibit B2 or there was no consensus ad idem in which case the Appellants cannot bring this suit to insist that they be paid on the basis of Exhibit B1. That whatever fee is to be paid has to be negotiated and the Court should hold so.

In arguing issue four, counsel for the Respondent argued that the Appellants’ submissions proffered on the meaning of the clause “subject to agreement on your fees” in Exhibit B2 is with respect nothing but the attempt of a drowning man who is clutching at any straw for salvation pursuant to which the trial judge refused to unduly consider it. Further, that this over hyped Appellants’ arguments proffered on the meaning of the clause “subject to agreement on your fees” in Exhibit B2 is in fact against the Appellants for it is an admission on their part that the issue of fees was not properly settled before they started the job thereby making the contract an inchoate one which is not binding.

RESOLUTION OF THE ISSUES
For the determination of this appeal, I have formulated the

following issues:
1. Whether the learned trial judge did not misdirect himself in law and facts when he held that Exhibits B2 and B1 do not correspond and could not have constituted an offer and acceptance but a counter offer.
2. Whether the learned trial Judge did not err in law when he held that the offer made by the Appellants was contained in Exhibit B1 and there was no consensus ad idem between the parties whereas the term of offer was made in Exhibit B2 by the Appellants and accepted by the Respondents.
3. Whether the learned trial Judge did not err in law when he held that the Appellants did not discharge the burden of establishing oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit BI on phone.
4. Whether the learned trial Judge did not err in law when he refused to give effect to Exhibits 4-44 (Terms of Engagement) and Scale of Fees approved by various professional bodies for engineering contract and the Federal Government approved Scale of Fees and Conditions of Engagement for Consultants in determining the Appellants claim for professional fees, disruption charge and interest on the

Appellants professional fees.
5. Whether the learned trial judge’s failure to consider the arguments and submissions proffered on the meaning of the clauses “subject to agreement on your fees” in Exhibit B2 did not occasion a miscarriage of justice on the Appellants.

ISSUE ONE
Under this issue, the Appellants’ complaint relates to whether the trial judge did not misdirect himself in law and facts when he held that Exhibits B2 and B1 do not correspond and could not have constituted an offer and acceptance but a counter offer.

(Letter detailing the Appellants’ corporate profile and professional fees should they be engaged) was not an offer but a response to Exhibit B (letter asking the Appellant to make a full submission of their professional fees).

At this juncture, it is imperative to reproduce Exhibit B1 in order to ascertain whether it is in fact an offer. The Exhibit read thus:
“We thank you for your letter of 11 August, 2000 on the above mentioned, and attach herewith

as requested the details of the professional fees payable on a project based on an estimated total construction cost of N425m. The calculation is strictly in accordance with the 1996 Federal Government Approved Scale of Fees and Conditions of Engagement for Consultants a copy of which is herewith enclosed for confirmation and retention.
We also enclose herewith a copy of an update on the corporate profile of our firm, and look forward with pleasure to be of service once again on a happy and successful project.”

Applying the definition of an offer to the letter (Exhibit B1) as reproduced above, it is clear that the letter is in fact an offer and not just an answer to Exhibit B. That is to say had the Respondent assented to the terms in Exhibit B1, a valid contract would have been established. The second leg deals with Exhibit B2 being a counter offer. At this point, I must examine Exhibit B2 to see if it is a counter-offer. Exhibit B2 read thus:
“We refer to the above project and wish to advise you that you have been appointed as the Structural Engineering Consultant on the Project, subject to agreement on your fees, which will be negotiated.

The scope of works will be communicated to you. Kindly confirm your acceptance on the attached copy. Congratulations.”

From the contents of Exhibit B2 reproduced above, it is very clear that the Respondent did not accept the terms in Exhibit B1. Exhibit B2 in all intents and purposes seeks to vary the terms in Exhibit B1 which is the definition of a counter-offer. A counter offer is a statement by the offeree which has the legal effect of rejecting the offer and of proposing a new offer to the offeror. It puts an end to the previous offer of the initial offeror. See BILANTE INTERNATIONAL LTD VS. NDIC (2011). I therefore echo the words of the trial judge that Exhibit B2 is a counter-offer.
Having come to the conclusion that Exhibit B2 was a counter offer while Exhibit B1 was an offer, the legal effect of a counter offer is that it terminates the original offer so that it cannot subsequently be accepted by the offeree. See BEST NIGERIA LTD VS. BLACKWOOD HODGE NIGERIA LTD (2011) LPELR – 776 (SC).
I resolve this issue in favour of the Respondent against the Appellants.

ISSUE TWO
This issue relates to whether the trial judge erred in law

when he held that the offer made by the Appellants was contained in Exhibit B1 and there was no consensus ad idem between the parties whereas the term of offer was made in Exhibits B2 by the Respondents and accepted by the Appellants.

I have already established from issue one above that Exhibit B1 was indeed an offer. This is not the issue; the issue is whether there was no consensus ad idem between the parties. The Appellant argued that the offer was contained in Exhibit B2 and not B1 and that the Appellants accepted by oral communication and conduct. Now, the trial judge in his judgment held in page 358 that:
“As already stated under the civil process the essentials of a valid contract are that there must be a binding offer made by one party and accepted by the other party for the parties to be at consensus ad idem…Exhibit B2 dearly does not correspond with the terms of the offer in Exhibit B1. It is definitely at variance with the offer. So in law, it would not constitute an acceptance of the offer in Exhibit B1. It is a counter-offer.”
I agree with the words of the trial judge above. There was no consensus ad idem between the parties

relying on Exhibits B1 and B2. This is because Exhibit B1 was an offer and Exhibit B2 a counter offer. However, this is to the extent that I agree with the trial judge. I believe that the relationship between the two parties does not stop here. The law is indeed trite that for a contract to be enforceable there must be consensus ad idem between the parties that is a meeting of minds. This means that all parties to an agreement (contract) have the same understanding of the terms of the agreement.
Nonetheless, in this case, if one looks at Exhibit B2 as a counter- offer which proposes a new offer and the conduct of the Appellants in attending meetings in furtherance of the Respondent’s Project as evidenced by Exhibits C, C1 – C9 then there was consensus ad idem between the parties on the scope of work, but one issue, being the fees to be paid was not negotiated or agreed upon, hence the contract can be said to be incomplete. Essentially, it means that there was a contract between the parties which is evidenced by the Appellant’s conduct of commencing work on the project however it was incomplete in that the fees was not negotiated.

I therefore resolve this issue in favour of the Appellants against the Respondent.

ISSUE THREE
This issue relates to whether the trial judge erred in law when he held that the Appellants did not discharge the burden of establishing oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit B1 on phone. The trial judge as it relates to this issue, held on page 360 of the record of appeal that:
“It is settled law that a contract may be in writing, oral or even by conduct. The acceptance of an offer must in all cases be communicated to the offeror… where the form of communication of acceptance has not been prescribed by the offeror, the form to be adopted will depend on the nature of the offer and the surrounding circumstance. Exhibit B1 which was in writing was met by Exhibit B2, which was equally in writing.
Now the phone call made after Exhibit B2 was an oral insistence on the terms of the offer in Exhibit B1. The communication of the acceptance of the terms of the said oral communication in view of the surrounding circumstances is expected to be oral. I have closely examined the pleadings and evidence adduced.

I find nothing in the statement of claim or in the testimony of the plaintiff’s sole witness to the effect that the former General Manager of the Defendant assented to the oral discussions on the phone of the terms of the offer in Exhibit B1.
I have already found that the Statement of Claim is silent and there is no evidence before me as to the response to the phone call. Howbeit, it is trite law that the burden of proof lies on the party who asserts a positive state of fact and who would fail if no evidence whatsoever was led in proof of the fact. See Sections 135, 136 and 137 of the Evidence Act. Since there is no evidence as to the acceptance of the oral insistence on the terms of Exhibit B1 the plaintiffs failed to discharge the burden of establishing that their oral discussion on the phone with the former General Manager of the Defendant was accepted.”

The Appellants argued that by paragraph 7 of the sworn deposition of PW1 which was in support of paragraph 7 of the Appellants’ claim, the Appellants said that they would only accept Federal Government Scale of Fees and the Respondent did not dispute the fact as PW1 was not cross-examined on this

point as such the Respondent accepted that fact. The Respondent on the other hand argued that the law is clear that oral evidence cannot be used to vary the contents of a document. Also that the Appellants failed to call the former General Manager of the Respondent to testify that such a conversation happened.

Upon review of all the arguments and evidence tendered, I find that I agree with the decision of the trial judge. The law is indeed settled that the burden of proof lies on the party who asserts and who would fail if no evidence whatsoever was led in proof of the fact on either side. See Section 132 of the Evidence Act 2011.

The Appellants therefore had the burden to prove that the phone call conversation in fact transpired. However, the Appellants fell short of this burden by not calling the Former General Manager of the Respondent to attest to their claim. Additionally, the Respondent did deny paragraph 7 of the Appellants’ claim with the general traverse in their statement of defence. This is because the law is also settled that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, has the same

effect as a specific denial of it. Its effect solely, is to put the plaintiff to strict proof of the allegation in that paragraph and to cast on the plaintiff the burden of proving the allegation denied. See DAIRO & ORS VS. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR – 42573 (SC). In UGOCHUKWU VS. UNIPETROL (NIGERIA) PLC (2002) LPELR – 3321 (SC), the Apex Court held:
“….a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied.”

Furthermore, as correctly stated by the Respondent oral evidence cannot be used to vary or contradict the contents of documentary evidence except where fraud is pleaded. As such the Appellants did not establish oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit B1 on phone.

At best, the Appellants accepted the terms in the counter-offer Exhibit B2 by conduct as there is evidence of the Appellants’ attending meetings and working on the project alongside other contractors, Exhibits C, C1 – C9. From the evidence adduced in this case the fees were never negotiated before the

Appellants started work, the contract then is one that is incomplete. To this end, I agree with the trial judge that there was not enough evidence to prove that there was an oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit B1.

I also resolve this issue in favour of the Respondent against the Appellants.

ISSUE FOUR
This issue pertains to the trial judge’s refusal to give effect to Exhibits A – A4 in determining the Appellants’ claim for professional fees, disruption charge and interest on the Appellants’ professional fees.

I will start with the Appellants’ claim for professional fees which are to be paid. As it relates to the professional fees to be paid, the Appellants maintained that they are to be paid in accordance with the Federal Government Approved Scale of fees and Conditions of Engagement for Consultants (Exhibits A1 and A2) while the Respondent maintained that the fees were subject to negotiation. The Appellants relied on the oral conversation they allegedly had with the former General Manager of the Respondent who they claimed agreed to the terms in Exhibit B1, that is to pay them

Federal Government Approved Scale of fees.

Now, I have already established and agreed with the trial judge’s decision that there was no consensus ad idem between Exhibits B1 and B2 to establish a binding contract. This means the parties from these two letters did not come to an agreement on the professional fees to be paid. I have also clarified from issue three that there was not enough evidence to show that there was oral acceptance by the Respondent’s General Manager of the terms of offer contained in Exhibit B1. Consequently, this means that the parties never agreed on Federal Government Approved Scale of fees.

In issue two above, I went further to state that Exhibit B2 was a counter offer which created a fresh or new agreement that in my view the Appellants accepted by conduct (i. e. attending meetings and other acts in relation to the project). Now, the last documentary/credible evidence available as to the formation of the contract is Exhibit B2 which stated that the fees would be negotiated. I therefore hold that the professional fee is one that is subject to negotiation and not to be paid according to Federal Government Approved Scale of fees.

Next is the disruption charges that the Appellants claimed they are entitled to by virtue of Exhibits A and A3. The Trial judge in his judgment on page 361 of the record of appeal held:
“It is in evidence that no formal Agreement was signed by the parties. So clearly the Standard Conditions of Engagement embodying payment of disruption charge as in Clause 21.1 C of Exhibit A was not in any agreement executed by the parties. The evidence is that the appointment was by exchange of letters vide B1 and B2. I have already found that these Exhibits do not constitute a valid contract between the parties. Even if they did, the offer of the Plaintiffs and the evidence on the point is that their fees would be calculated in accordance with the Federal Government Approved Professional Scale of Fees for Consultants in Construction Industry which represents the least fees chargeable under the different regulations. The Federal Government Scale of fees is Exhibit A1 and A2. I have painstakingly gone through Exhibits A1 and A2 and they contain no provision on payment of disruption charge.”

The learned trial judge further held in page 362 of the Record of

Appeal that:
“At the risk of prolixity, let me state again that there was no formal agreement executed by the parties incorporating the clause for payment of disruption charge as contained in Exhibits A3 and A4. Furthermore, the said Exhibits are distinct from A1 and A2, the Federal Government Scale of fees, which the Plaintiffs had stated would be the basis on which their fees were to be calculated. Accordingly, I hold that the plaintiffs cannot resort to Exhibit A3 and A4 in order to found a claim for payment of disruption charge.”

I reviewed the testimony of PW1 as it relates to these Exhibits and I find that I agree with the findings of the trial judge. All the exhibits relied on to claim for the disruption charges Exhibits A, A3 and A4 are distinct from Exhibits A1 and A2 which the Appellants said was the basis upon which their fees would be calculated. Moreover, by the testimony of the Appellants’ witness, it can be gleaned that Exhibit A is not mandatory and there was no formal agreement between the parties in which Exhibit A3 and A4 was incorporated. This argument even goes to no moment given by the decision above, that the

fees of the Appellants are subject to negotiation.

Finally, as it relates to interest on professional fees, the Appellants again relied on Exhibit A, A3 and A4. I adopt and stand by my reasoning that these three exhibits do not apply to the relationship between the two parties in this case. Moreover, Exhibit A3 and A4 were not incorporated inside any formal agreement between the two parties. Additionally, the Appellants are adamant that they be paid according to Exhibit A1 and A2. If they are to be paid according to the aforementioned, the exhibits do not provide for interest on fees. At the risk of being repetitive, I will again state that the parties did not agree on Federal Government Approved Scale of fees contained in Exhibit B1. The last credible evidence available Exhibit B2, states that the fees would be negotiated as such there was no agreement on interest on professional fees.
I resolve this issue in favour of the Respondent against the Appellants.

ISSUE 5
This issue relates to the trial judge’s failure to consider the arguments and submissions proffered on the meaning of the clauses “subject to agreement on your fees” in Exhibit B2.

The Appellants wanted the trial judge to interpret the terms “subject to agreement on your fees which shall be negotiated” to mean that the subject matter of the offer will only be effective upon determination of fees payable for the consultancy services to be rendered. I completely understand the gravamen of the Appellants’ complaint in this issue, which is that they would not have started work like they did had the issue of fees not been settled as that is what the wording in Exhibit B2 “subject to agreement on your fees which shall be negotiated.” It is a settled principle of law that any acceptance, which is made subject to a condition, is invalid and unbinding. An offeree may make his/her acceptance conditional on some happenings. If the acceptance is subject to a condition, there is no binding agreement until that thing is done. In BEST (NIG.) LTD VS. B. H (NIG.) LTD (2011) 5 NWLR (PT. 1239) 95 AT 126, the Supreme Court held as follows:
“Where a contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed and not binding unless and until those terms and conditions are complied with or fulfilled.”

Now, I find that there is no evidence before me to show that these fees were negotiated before the Appellants started work. This is a Court of law which deals with evidence and not the address of counsel. The Appellants had in fact tried to prove that their fees were as stipulated in Exhibit B1 (Federal Government Scale fees) and agreed to by the Respondent in a phone call. However, in the earlier part of this judgment I already decided that there was no credible evidence to show that the phone conversation actually took place.

This leaves us with Exhibit B2 which states that the fees would be paid “subject to agreement on your fees which shall be negotiated” and the Appellants’ conduct of commencing work. Now, since there is no evidence that there was any negotiation done before the Appellants commenced work, the conclusion which is reached is the same as I have reached in the earlier part of this judgment, which is that the contract was incomplete.
In a nutshell, there was an incomplete contract between the parties from Exhibit B2 and the conduct of the Appellants in commencing work. Like the trial judge, I cannot help but state

that the remedy available to the Appellants would have been one under quantum meruit which is an equitable remedy to provide restitution for unjust enrichment. This remedy is often pleaded as an alternative claim to recover even if the contract is unenforceable. The Appellants as stated by the trial judge did not ask for this remedy as such the hands of both the trial judge and this Court are tied.

The trial judge therefore did not occasion a miscarriage of justice on the Appellants when he did not consider the arguments and submissions proffered on the meaning of the clauses “subject to agreement on your fees.” The trial judge would have come to the same conclusion as this Court that the agreement was incomplete and not binding.
I resolve this issue in favour of the Respondent against the Appellants.

The appeal is accordingly hereby dismissed. Parties are to bear their respective costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft form the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree with the reasoning and the conclusion that this appeal is lacking in merit and should be dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I therefore, do dismiss this appeal and I abide by the consequential order as to cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother; MOHAMMED BABA IDRIS JCA.

I agree with the reasoning and adopt the conclusion and orders reached therein. The appeal is dismissed and I abide by the consequential orders made therein.

Appearances:

Tolani Esq., with him, Y. Goodluck Esq For Appellant(s)

Osuji Esq For Respondent(s)