The Contractual and Tortious Liabilities in Employer-Consultant Agency Relationship in Construction Contracts in Nigeria

Abstract

The purpose of this paper is to analyze the liabilities of construction professionals who through discharge of their obligations as agents of employers in construction contract have assumed contractual and tortious liabilities. This paper proposes that the construction consultants are agents of construction employer and should so act with certain limited circumstances. Applying and focusing upon the principles of law of agency, the paper adopts a black-letter law approach, using extant provisions of Nigerian Conditions of Engagement and Consultancy Service Agreement (CECSA) terms and conditions, comparative review of some standard forms of contract, Nigerian and English case laws and literature. It analyses of cases supported by literature against unethical practices of consultants as recently reported by contract audit inquiries in public construction contracts in Nigeria, at both pre and post contract stage of project procurement management, within Nigerian legal jurisdiction similar to and as adopted from English common law jurisdiction and other jurisdictions. The paper finds the arguments advanced against unethical practices of consultants now have universal judicial agreement that the liability of a professional person to their employer arises both in contract and in tortious negligence .The study may show that the arguments against unethical practices are significant, though limited to Nigerian legal jurisdiction, but with wider implications in similar common law jurisdictions. This paper will be instructive to employers, construction professionals, academics and students in the field of construction contract management and other parties to contracts. The paper contributes to advancing the course of acts in ensuring duty of care, and that professional ethic will play a proper running and well being of the construction process at every stage while reducing disputes and achieve project objectives.

Keywords: Agency, Construction Contract, Consultant, Employer, Liability, Nigeria.