British East Africa Corporation Limited v Kanji and Another (Civil Appeal No. 16 of 1939) [1939] EACA 62 (1 January 1939)

### COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and SIR CHARLES LAW, C. J. (Zanzibar)

## BRITISH EAST AFRICA CORPORATION LIMITED, Appellants (Original Defendants)

$\mathbf{v}$

# ABDULLA ALIBHAI KANJI AND HASSANALI ALIBHAI KANJI.

# AS ADMINISTRATORS OF THE ESTATE OF ALIBHAI KANJI, DECEASED, Respondents (Original Plaintiffs)

### Civil Appeal No. 16 of 1939

(Appeal from decision of H. M. Supreme Court of Kenya)

Building contract—Special clause appointing architect as sole arbiter to assess and settle all matters in dispute—Dispute as to extrasand variations—Architect's certificate—Function of architect qua arbiter-Whether formal submission and award necessary-Whether architect's certificate conclusive—Civil Procedure Code, 1882, section 34—Parties—Preliminary objection on ground of non-joinder of an essential party—Time for such objection.

The respondent contracted to build certain houses for the appellants. The articles of agreement followed the form sanctioned by the Royal Institute of British Architects save that the formal arbitration clause (article 32) was cancelled and a number of special clauses were added, of which clause 17 took the place of the formal arbitration clause and read as follows: -

"All disputes shall be assessed solely by the architect hereto (Mr. John W. Wynter, of Mombasa) and he shall have full power as appointed herein by both the proprietors and the contractor hereto as sole arbiter and all parties shall accept his award as final and binding on all matters of difference and on all matters that may arise in dispute for the due and full completion of the works."

The architect gave the usual certificates from time to time, the amounts of which were paid to the respondents. Respondents then submitted to the architect a claim for extras and variations. The architect met the respondents on the building site and went into the items of the claim. He then prepared his report on the variations and extras and an assessment of accounts substantially cutting down the claim. The respondents being dissatisfied with the amount allowed instituted this suit.

Appellants paid into court what was due on the architect's assessment and certificate and resisted the balance of the claim on the ground that the architect's certificate was final and binding on both parties. After protracted litigation it was held that the certificate was not conclusive because it was given after a dispute between the parties had arisen and judgment was given substantially for the plaintiffs.

Appellants appealed.

A preliminary objection on the ground of non-joinder of an essential party was taken on appeal. This point had been raised in the lower court on the first day of the hearing, but no ruling was given there and the point did not appear to have been seriously pressed.

Held $(19-10-39)$ .—(1) That an objection on the ground of non-joinder of an essential party must be taken at the earliest opportunity. (Sheehan $v$ , G. E. Railway Co., 16 Ch. 59, followed.)

Preliminary objection overruled.

(2) That the Court must look to the particular contract in order to discover the intention of the parties thereto and where the parties have agreed that all matters in dispute between them should be left to the sole decision of the architect, the architect's position differs from that of an arbitrator dealing with evidence or a judge dealing with a law suit in that the object of leaving such matters to the architect is that his practical knowledge is to be applied so that he, acting as an independent man, may determine what is proper in the circumstances. If a dispute arises the architect in his capacity as an arbiter must consider both sides of the questions submitted to him, and having done so his decision is then con-Clusive and unassailable except on the ground of fraud or collusion.<br>(*Sharpe v. San Paulo Rly.*, 1873 Ch. App. 609, followed.)

(3) That a technical submission' of differences and a regular formal reference and a decision thereon as an arbitrator's award were not necessary under the terms of the contract. The architect's assessment and<br>certificate given after the application of his special knowledge and skill and due consideration of both sides of the matters in dispute was a sufficient award within the meaning of the contract. (Laidlaw $v$ : Hastings Pier Co. (1874), Hudson on Building Contracts (4th ed.), ii 13, and Stevenson v. Waston (1879) 4, C. P. D. 148, followed).

Appeal allowed.

#### Bryson for the appellants.

#### Inamdar or the respondents.

WHITLEY, C. J.—This suit, commenced in 1927, has had a chequered career. The facts are set out in the various judgments, notably in that of Pickering, J., and I do not propose to recapitulate them in detail. I shall confine myself to such as appear to bear directly on the specific points which we are called upon to decide.

The first of these is a preliminary objection that the claim must fail by reason of non-joinder of a necessary party. The contractors who entered into the building contract with the appellants, out of which the claim arises, were two brothers, one of whom, Govind Naran, died before the suit was instituted. The surviving brother, Alibhai Kanji, was granted letters of administration to his estate, but he brought the action in his own name. He, the original plaintiff, died some years later and in 1938, by order of court, his administrators were substituted as plaintiffs. The appellants now contend that the personal representatives of the co-contractor, Govind Naran, ought to have been made co-plaintiffs. The point was raised when the case first came on for trial before Stephens J., but no decision was given and it is now revived after a lapse of ten years.

The impression which one gets from the Judge's notes is that the point was not pressed at the time. It was not revived before Pickering J. or Lucie-Smith J., but whatever laches the appellants may have been guilty of they are not necessarily precluded from raising the

objection again on appeal. The appellants rely upon section 45 of the Indian Contract Act, which requires that co-contractors must sue jointly. The respondents reply firstly that where the contractors are also partners as in this case there is no need to join the personal representatives of a deceased partner inasmuch as it is open to the surviving partner to bring an action on the contract and secondly that under section 34 of the Civil Procedure Code, 1882, any objection to non-joinder must be taken at the earliest possible opportunity and in any event before the first hearing. As regards the first of these contentions there have been conflicting decisions in India, but it is not necessary to rule on it here since it seems clear that the second contention is a good answer to the objection. The record shows that the appellants had several opportunities before the first hearing of which they failed to avail themselves and that they did not even plead the objection in their written statement of defence. The case of Ram Sebuk and others v. Ramlall Koondoo (6 Calcutta 815) relied upon by Mr. Bryson is clearly distinguishable, and the English case of Sheehan v. Great Eastern Railway Company (16 Ch. 59) seems definitely to put the appellant out of court. I accordingly think that this preliminary objection must fail.

Before dealing with the main ground of appeal it is necessary to consider shortly the history of the case.

The original plaintiff was the surviving partner and co-contractor, Alibhai Kanji. The present plaintiffs are the administrators of his estate who were substituted after his death by order of court dated 28th August, 1934. For convenience I shall refer throughout to Alibhai Kanji as the plaintiff. The defendants are a limited liability company with a branch in Mombasa. On the 7th February, 1925, the plaintiff and his brother Govind, who died in October, 1925, entered into a contract to build for the defendants three dwelling houses in Mombasa. The plaintiff completed the work after the death of his brother. The articles of agreement were in the form sanctioned by the Royal Institute of British Architects with the important exception that article 32 was cancelled and a number of special clauses were added, of which clause 17 takes the place of article 32 as what may be termed the arbitration clause. This substitution is an important element in the case since it indicates that the parties intended to dispense with the usual lengthy and formal provisions for reference to arbitration contained in the cancelled article 32 and instead to leave all disputes to be settled by the architect in the simple informal manner provided by clause 17 which reads as follows:-

"All disputes shall be assessed solely by the architect hereto (Mr. John W. Wynter of Mombasa) and he shall have full power as appointed herein by both the proprietors and the contractor hereto as sole arbiter and all parties shall accept his award as final and binding on all matters of difference and on all matters that may arise in dispute for the due and full completion of the works"

It is necessary also to set out articles 12, 13 and 30 and clause 4 of the special clauses.

"12. The contractor shall not vary from the drawings or specification except as provided by clause 5, or by the authority of the architect which is to be sufficiently proved by any writing

or drawing given by him or by any subsequent written approval by him. If the work shown on any of the details or the further drawings of details referred to in clause 1, or necessary to comply with any instructions, direction or explanations which may be given from time to time by the architect be in the opinion of the contractor, in excess of that comprised in the contract, he shall before proceeding with such work, give notice in writing to this effect to the architect. In the event of the architect and contractor failing to agree as to whether or not there is any excess, and of the architect deciding that the contractor is to carry out the said work, the contractor shall accordingly do so, and the question whether or not there is any excess, and if so the amount thereof, shall be settled by the architect on completion of the works and the contractor shall be paid accordingly. No claim for an extra shall be allowed unless it shall have been executed under the provisions of clause 5, or by the authority of the architect as herein mentioned. Any such extra as hereinafter referred to is an authorized extra.

13. No variations shall vitiate the contract; but all authorized extras for which a price may not have been previously agreed, and an omission which may have been made with the knowledge of the architect, or without his knowledge provided he subsequently gives a written sanction to such omission, shall be measured and valued, as hereinafter provided by the architect, and a copy of such measurement and valuation shall be given to the contractor. The fees for so measuring and valuing the variations shall be added to the contract sum. If in the opinion of the architect the work cannot be properly measured and valued day-work prices shall be allowed therefor, provided that vouchers specifying the time and material employed shall have been delivered for verification to the architect or his nominees at or before the expiration of the week following that in which such work shall have been done. The variation shall be valued at the rates contained in the contractor's original estimate, or, where the same may not apply, at rates proportionate to the prices therein contained. The amount to be allowed on either side in respect of the variations so ascertained shall be added to or deducted from the contract sum as the case may be.

30. The contractor shall be entitled under the certificates to be issued by the architect to the contractor and within six days of the date of each certificate, to payment by the employer from time to time by instalments, when in the opinion of the architect work to the value... has been executed in accordance with the contract at the rate of 80 per cent of the value of work so executed in the building ...

The architect shall issue his certificates in accordance with this clause.

... The contractor when applying for a certificate shall, as far as practicable, furnish to the architect an approximate statement of the work executed based on the original estimate.

4. The architect's certificate shall be final and binding on. both the employers and the contractor in respect of payments due for the various works in accordance with the agreement of contract."

The architect Mr. Wynter gave certificates from time to time on which the plaintiffs were paid some Sh. 81,000. On the 19th December, 1925. Mr. Burke, the plaintiffs' lawyer, submitted to Mr. Wynter a claim for extras made up of a number of items totalling Sh. 53,333. Mr. Wynter replied making an appointment on the site for the purpose of measuring and settling the question of extras. He asked the plaintiff to bring with him a priced schedule of works which was missing and which he had twice previously written for without result. It is clear from Mr. Wynter's letter of 26th December, 1925 (Exhibit 1) that this meeting on the site duly took place and that as a result he prepared his report on the variations and an assessment of accounts. This report and assessment substantially cutting down the plaintiffs' claim were delivered to the plaintiff on 31st December together with the architect's certificate for the Sh. 31,786/93. The same day plaintiff's lawyer wrote to Mr. Wynter stating that his figures were not accepted. On the 6th January, 1926, Mr. Burke wrote to the defendants threatening proceedings. The plaint was filed on the 3rd March, 1927. On the 19th August, 1927, Mr. Wynter gave his final cretificate for certain items which he had held over for consideration. On the 5th September, 1927, the defendants paid into court Sh. 26,936/33 which they still contend is all the plaintiff is entitled to. I should add that in addition to the question of extras the parties are also at issue as to how much the defendants are entitled to deduct in respect of goods supplied by them to the contractors for use in the building operations. The defendants say that at then current prices the figure should be Sh. 7,742/16, whilst the plaintiff puts it at Sh. 2,995. This item forms the subject matter of the only cross objection which was proceeded with before us. The case first came before Stephens, J., who in his judgment dated the 10th October, 1927, held that the architect's certificate was not final if a dispute had arisen between the parties before the certificate was given. On the issue whether a dispute between the parties existed prior to or on 31st December, 1925, the date of the certificate, Pickering, J., held on the 7th February, 1928, in favour of the plaintiff. On the 21st September, 1936, Mr. McIntyre was appointed Commissioner to report on the question of extras and the amount to be allowed to the defendants for goods and materials supplied. Lucie-Smith, J., in his judgment dated 13th October, 1938, accepted with one small variation the Commissioner's amended report of 1st March, 1937. In the appeal before us the defendants appeal against all three judgments and the plaintiff has filed certain cross objections against the report of the Commissioner.

will deal first with the appeal against the judgment of Stephens, J. Mr. Bryson contends that the learned Judge failed to appreciate properly the terms of the contract and was wrong in holding that any dispute prior to granting the certificate would cause it to be not final. Stephens, J. relied on the cases of Lloyd Brothers $v$ . Milward and Clemence v. Clark, reported in Hudson on Building Contracts, 2nd Edition, at pages 454, 207. I agree with Mr. Bryson that those cases are distinguishable by reason of the fact that in both of them provision was made in the contract for reference to a third party as arbitrator whereas here all disputes are to be decided by the architect and different rules must apply. The arbitration clause in those cases was the same as the regulation clause provided by article 32 which was deliberately cancelled by the parties in the present case. Their rights must accordingly be governed by the substituted clause 17. We have been referred to a large number of cases but none of them are exactly in point. As Mr. Hudson observes in the 6th Edition of his book at page $261:$ —

"Whatever the correct view may be of contracts where the decision of the architect or engineer may be given in one of two methods, it would seem that the architect or engineer must not by granting a certificate do anything which would prevent the contractor from having the benefit of the arbitration clause or of having his claims properly and judicially enquired into by the architect or engineer, if either party so desired, under one clause or the other. Such clauses, however, in building and engineering contracts, and in particular the arbitration clauses, vary so greatly that nothing more than an indication can be given of the probable rights of the parties to the contract or the duties of an architect or engineer thereunder."

The one underlying principle which runs through all the decisions seems to be that the first duty of the court is to carry out the intentions of the parties so far as they can be gathered from the terms of the particular contract under consideration. Here one intention which clearly emerges from the substitution of clause 17 for the cancelled article 32 is that the parties meant to dispense with the cumbrous and expensive machinery of a formal arbitration and to rely upon the architect to decide all disputes. That being so the following observations of James, L. J. in Sharpe v. San Paulo Railway $Co., 1873.$ Ch. App. at page 609, afford an indication of the angle from which the court should approach the case:-

"The engineer has made his certificate, finding an ultimate balance upon all the accounts, which certificate is not, according to my view of the pleadings, in any way impeached on any grounds which this court can take cognizance of. It is not pretended that Mr. Brunlees did not come to a conclusion to the best of his belief, and according to the best of his judgment. He was to determine the sums to be paid, and was not like an arbitrator dealing with evidence, or like a judge dealing with a law suit. The very object of leaving these things to be settled by an engineer is that you are to have the practical knowledge of the engineer applied to it, and that he, as an independent man, a surveyor, a valuer, an engineer, is to say what is the proper sum to be paid under all the circumstances. That was the agreement between the parties. The contractors relied upon Mr. Brunlees and the Railway Company relied upon Mr. Brunlees. That is the ordinary course between such companies and such contractors, and practically it is found to be the only course that is convenient for all parties, and just to all parties. I myself should be very loath to interfere with any such stipulation upon any ground except default or breach of duty on the part of the engineer."

Here the parties agreed that the architect's certificate should be final and binding. That applies also to payments for extras. (See Richards v. May (1883) 10 Q. B. D. 400 and Goodyear v. Weymouth 35 L. J. C. P. 12.) His certificate is in effect made a condition precedent to any payments. The parties also agreed by clause 17 that in case of disputes arising they will accept his award on such disputes as

sole arbiter as final and binding. It may be said that contractors take a grave risk in agreeing to leave everything so completely to the architect who is also the agent of the building owners but that is their affair and if they later feel aggrieved at his decisions they are still bound by them. The same remark would apply if the employers felt that he had wrongly allowed certain items as extras. Moreover experience has shown that such an arrangement has generally proved in practice to be entirely satisfactory to all parties.

It seems to me that the true position under the terms of this contract may be summed up shortly as follows: -

The contractor cannot obtain any payments without the certificate of the architect whose duty it is from time to time to give interim certificates and eventually after completion of the work a final certificate. Payment for any extras is also dependent on a certificate. The authority of the architect for any variations must be obtained in writing before the contractor can be entitled to claim payment for the same. If a dispute arises as to whether any work is an extra or not or any other point arising out of the contract the decision of the architect after considering both sides of the question is conclusive and can only be attacked on the ground of collusion with the employers or of fraud neither of which has been pleaded or even suggested in the present case. If the architect has done what is thus required of him by the terms of the contract it seems that the plaintiff's main claim cannot succeed. In my opinion the plaintiff has not established that the architect has failed to do this.

The disputes upon which the plaintiff relies fall under three heads. They are all covered by the claim put forward on the 19th December, 1925, based on the account of 31st October. The first is item No. 1, a claim for extras for stone work; the second item No. 8, a claim for extras for 6 teak screens and the third a dispute arising out of the schedule of prices.

As regards the stone work the plaintiff claimed 19,950 shillings for 13,300 cubic feet extra stone work in the three houses. Mr. Wynter in his assessment of variations of contract dated 28th December and handed to plaintiff on 31st December makes the following observations on this claim: $-$

"This is a claim for 13,300 cubic feet extra for stone work and is governed by para. 5 in the special clauses of contract item 1 on page 1 in the schedule of works and clause 5 in the agreement of contract.

Owing to extraordinary difficulties in the excavations for wine cellars the contractors were granted permission to raise the ground floor level 15 inches above the level given in the contract without extra cost. See my letter dated 18th February, 1925, to the contractors. If the proprietors agree to a gratuitous allowance for the stone work as above the item would contain 3,249 cubic feet extra at Sh. 1.50-Sh. 4,873.50."

It is clearly established by the evidence that the contractors encountered unexpectedly hard coral which made it difficult to excavate for the cellar specified in the plans. They obtained the architect's consent to a variation allowing them to raise the building instead of excavating but without extra cost to the defendants. After the work had been done they sought to obtain payment for the extra stone used. They were not entitled to such payment as of right since they had not got the stone work authorized in writing as an extra and a contractor is still bound by his contract price even though unexpectedly difficult ground may involve him in additional expense. The architect duly considered this claim and decided that the contractors were not entitled to anything as of right but that if the defendants were prepared to make a gratuitous allowance a proper figure would be Sh. 4,873.50. The contractors did not accept that figure so the defendants were acting entirely within their rights when they eventually refused to make any gratuitous allowance. The plaintiff by the terms of the contract had agreed to be bound by the architect's certificate or award and this dispute having been referred to and considered by him I regard his decision as a binding award.

As regards the teak screens, the position is not so clear. Admittedly they were not included on the original plans but they were added later. A strong case can be made out for their being regarded as extras, but the architect in his evidence stated that the active partner agreed to this addition or alteration at the time without asking that it be paid for as an extra. It was relatively only a small matter and it is possible that at the time the contractor thought that he might, so to speak, throw it in, the contract being a large one. It is significant in this connexion to note that the plaintiff's lawyer's letter of the 22nd September, 1925, puts forward claims in respect of royalties and windows as being added to the plan (both of which claims were allowed by the architect) but makes no mention of these screens which, the plaintiff now contends, should be treated as extras for the same reasons. However that may be the contractor did not get it authorized as an extra and the architect having considered the claim held that as the contractor had agreed to the screens being added to the plans they fell under clause 5 of the special clauses and could not be regarded as an extra. I am not sure that he did not err in so holding but none the less it would seem that under the terms of this contract his decision is not final in the absence of any suggestion of fraud or collusion.

The third dispute turns upon a schedule of prices which was at one time kept on the site of the building but which disappeared. Curiously enough no copy seems to have been kept by anyone. The architect was under the impression that it had been removed by the contractors and twice wrote asking for it without result. When they submitted their bill for extras he told them to bring the schedule to the site where he was going to discuss the claims with them. They did not bring it. They were pressing for a final certificate and he prepared his assessment of what was due under the contractor's claim for extras without having the schedule before him. In his evidence the architect stated that, although he had not this schedule to refer to, the figures which he allowed were in accordance with the terms of the contract and it would appear from some of the items that he must have been familiar with the schedule. The contractors claimed substantially higher prices but they have produced no schedule to support them and they have failed to satisfy me affirmatively that the architect's figures are wrong.

recollection so long afterwards. in 1925 is more likely to be strictly accurate than his subsequent twenty-one months after the events in question and what he wrote porne in mind that he did not give evidence until September, 1929, clause 17 which provides that he shall "assess" disputes. It must be was holding an arbitration he was in fact proceeding under special although in his evidence he stated that he did not consider that he word "assessment" is, I think, important as seeming to indicate that some items, reducing some and disallowing others. His use of the pros and the cons and made what he called his assessment allowing was discussed and measurements were made. He then considered the that he arranged and held a meeting on the site where each item to these items. It is clear from the evidence and the correspondence agreed upon by the parties the point of view of the defendants as whom they relied was in a position to put to himself as the arbiter The architect as agent for the defendants being the expert upon plaintiff put forward a claim for extras made up of seventeen items. indicated he has in my opinion failed to discharge that onus. The such failure is of course on the plaintiff and as $1$ have already be of no effect as regards any disputed items. The onus of establishing agent for the defendants. If he had so failed the certificate would either in his capacity as architect and arbiter, or in his capacity as had tailed to carry out the terms of the contract between the parties to be considered is whether when the architect gave the certificate he Stephens, J. went too far in so holding and that the real question that a dispute had arisen. With the greatest respect I think that had in fact arisen and Pickering, J. rightly in my opinion found accordingly directed that an issue be tried as to whether any dispute not final and binding but the whole of it could be reopened. He the parties before the architect gave his certificate the certificate was Stephens, J. He held in effect that if any dispute had arisen between of whilst summarising the facts. I will now consider the judgment of So much for the merits which I thought it convenient to dispose

clusive. At page 17 Lord Coleridge observes: --were to be referred to the engineer whose decision was to be conor differences straing upon any matter connected with the contract Hudson, Vol. 2, p. 13. There the contract provided that any disputes Laidlaw v. Hastings Pier Company reported in the Fourth Edition of of the remarks of Lord Coleridge in his judgment in the case of of view, and give his decision. I feel supported in this view by some deal specifically with each disputed item fairly, consider both points think that all that this clause requires is that the architect should I bus nontrator", I am unable to agree with this contention and I no particular formalities, introduces the words "assess" and "arbiter", of special clause 17 which says nothing about a reference, prescribes the parties of the usual formal arbitration clause and the substitution and making a formal award. In view of the deliberate cancellation by and that he ought to have held a formal arbitration hearing evidence The plaintiff contends that what the architect did was not enough

court of law, and there has been a great deal of argument in cases I have looked at, has been brought under discussion in a exact precedent of any other deed which, at least in the decided kind. It does not appear to have been drawn according to the "Now, this deed is a deed in some respects of a peculiar

discussing the particular provisions of the deed in order to ascertain what is the exact position of the engineer of the company under it. Now, the points which it is alone material to state for this purpose are these: there is a claim by the plaintiffs; there is a resistance by the company; and there are certificates which, if they are final and cannot be examined, are conclusive that the sum of money sued for in this action is due to the plaintiffs. The questions upon this matter are simply: is the final certificate, and are the other certificates, of the engineer conclusive as to the facts ascertained in them, so that the defendants must pay, even if there have been errors in those certificates, which, for the purpose of discussing the question, I will assume to be the fact. Now, the matter has been argued upon several grounds, distinguishable in idea and distinguishable in point of fact. It has been said, first of all, that the engineer is placed in a position under the deed to exercise particular functions, and that the case has arisen for the exercise of those functions, that he has exercised them in fact, and that his exercise is therefore conclusive upon the parties. It has also been put, not exactly that he fills the position of agent to the defendants, clothed with peculiar functions as between the plaintiffs and the defendants, but that he is by the terms of the deed—I do not like to use the word quasi-arbitrator, because the moment you introduce the word quasi you introduce indefiniteness into legal decisions—but I take it that it must be understood he is made by the deed an arbitrator, and if there has been a reference to him of matters in dispute between the plaintiffs and the defendants, he is made arbitrator by the deed, and his decision is final.

Now, I think, speaking for myself, that the true view of $\cdot$ the engineer's position under the deed is not the latter but the former view. I do not think that he is an arbitrator under the deed. I do not think that a submission of differences in the ordinary sense of the word, and a decision thereupon as an arbitrator's decision, was necessary under the provisions of the deed. He appears to me, from the beginning to the end of the deed, out of the four corners of which his position and authority are to be collected, to have been treated as agent to the defendants, but agent to the defendants clothed with peculiar functions and those are to be exercised in certain cases provided for by the deed; and when he exercises those functions, they are to be conclusive, or otherwise, according as the deed provides."

## and later on at page $22:$ —

"Now, it appears to me that there was a claim made for a certain sum in respect of certain extras, that those extras were matters the payment of which the defendants intended to dispute, that the matter was referred in the fair ordinary sense and meaning of that word to the engineer, because he was asked to look to it, and to take this and that into account before he decided, that he did look through it, and did ascertain that certain things were in his opinion, due, and that certain things were not due, and that he certified for the balance which he thought was due, and in my opinion that was a decision within the meaning of the contract. It seems to me that a technical submission and a regular formal reference were not required by this deed."

To a large extent those remarks seem applicable to the present case. The only other authority to which I would refer is the case of Stevenson v. Watson, 4 C. P. D., in which at page 158 Lord Coleridge observes:-

"The quality of the work, and the extent to which particular deductions or additions came within particular heads of the bill of quantities, are questions perfectly fit for the determination of an architect, and in many cases it would be necessary, and, probably, in all cases actually required that there should be an exercise of considerable professional judgment and skill, and that before the arithmetical result of so many feet of work and so many pounds and shillings for the work could be arrived at, there must be knowledge of the work, familiarity with the bills of quantities, professional understanding to comprehend the technical terms, and judgment to say under which head the deductions or additions ought to be placed. I think therefore, it is plain when the documents which I am told we must treat as part of the claim are looked at, that although no doubt, the result is one of figures, yet before it can be arrived at, there must be an exercise of professional knowledge, skill and judgment."

He later goes on to say: $-$

"Where indeed the building owner and the architect collude together, and in collusion the architect fraudulently abstains from doing his duty towards the builder, there is the authority for saying that he can maintain an action against the building owner: Batterbury v. Vyse, 2 H. & C. 42; or the architect: Ludbrook v. Barrett, 36, L. T. 616. It must be left to the Court of Appeal to overrule those cases if they are wrong. They are directly in point, and seem to me founded on clearest sense and justice; but they are not this case, because here neither fraud nor collusion are suggested, unless fraud and mala fides be suggested by the word 'knowingly', which, for reasons already given, I do not think can be, nor does Mr. Cave go so far as to say so. I think this case is within the authority of the cases cited which decide that where the exercise of judgment or opinion on the part of a third person is necessary between two persons, such as a buyer and seller, and, in the opinion of the seller, that judgment has been exercised wrongly, or improperly, or ignorantly, or negligently, an action will not lie against the person put in that position, when such judgment has been wrongly, or improperly, or ignorantly, or negligently exercised.

I will not discuss the principles on which they rest; it is enough to say that in those judgments pronounced by courts of co-ordinate jurisdiction, and also in the Exchequer Chamber, I entirely concur, not only on authority, but on grounds of reason and sense."

It follows then that, in my opinion, even though disputes had arisen, they were decided in accordance with the intention of the parties as expressed in the terms of their contract and the certificate was binding and conclusive. That being so it is unnecessary to deal with the judgment of Pickering, J., which was directed to the particular issue which he was asked to decide and which, though decided rightly, on the view which I take of the case, can have no bearing on the result.

That disposes of everything except the questions of interest and the cross objections.

The only cross objection argued at the appeal was the contention that the Commissioner and Lucie-Smith, J., had wrongly allowed Sh. 7,742 for goods supplied by the defendants to the plaintiff. The plaintiff admits only Sh. 2,995. The onus to establish the Sh. 7,742 was clearly on the defendants. They were greatly handicapped in that the matter did not come before the Court until more than ten years later. They were unable to prove delivery and in the absence of the persons who were in charge of the transctions at the time they were unable so to prove the entries in their books as to make them of themselves sufficient evidence to make the plaintiff liable. This cross objection must I think succeed, the plaintiff being entitled to the difference of Sh. 4,747.

As regards interest I would allow the plaintiff 9 per cent on the Sh. $26,936/33$ up to the date of payment in since in my opinion there was no proper tender in law. The plaintiff having been underpaid to the extent of Sh. 4,747 he is also entitled to interest at 9 per cent on that sum from 3rd March, 1927, to 29th December, 1928, and from 21st September, 1936, to the date of this judgment and thereafter at the rate of 6 per cent until the date when the accounts between the parties are finally adjusted. The dates which I have just set out are based on those fixed by Lucie-Smith, J., on the last page of his judgment. I agree with the reasons which he gave for arriving at those dates.

There remains the question of costs. I would allow the plaintiff costs of the suit on Sh. 31,683/33 (being Sh. 26,936/33 paid into court plus Sh. 4,747 underpaid) up till date of payment in. He will also be entitled to some costs in respect of the Sh.4,747 after that date. I shall deal with this later.

After the date of payment in the defendants have for the most part been engaged in resisting an unjustified claim so that they are clearly entitled to recover most of their costs but I think some allowance should be made to the plaintiff in respect of the hearing before Pickering, J. Before him the defendants argued that no dispute had arisen and as I have already indicated I take the view that the learned Judge rightly decided against them. Taking that into account I think it would be fair to allow the defendants three-quarters of their costs of the suit subsequent to date of payment in. I would give the defendants the costs of the appeal before us and allow the plaintiff his costs of the cross objection to the extent of Sh. 4,747.

As regards this sum of Sh. 4,747 the plaintiff, if the view which I take is correct, has been underpaid to that extent and must be allowed some costs in respect of it. Had it not been for the plaintiff's main claim which was the basis of the suit and which in my opinion has failed the question of what was in fact a proper price for him to pay for goods sold and delivered by the defendants could easily and quickly have been disposed of in 1926 when all the relevant evidence was still available. That question had nothing to do with the architect. It was purely a matter between the contractor and the defendants who supplied him with the goods. This particular dispute occupied none of the time during the hearings before Stephens, J., and Pickering, J., and very little of the time before Lucie-Smith, J. and the Commissioner. I think that Sh. 500 would be a fair allowance to make. This sum to cover all the hearings including the hearing of the appeal before us. To sum up the final position in my view is as follows. There is due from the defendants to the plaintiff: -

(1) Sh. 4,747 in respect of the successful cross objection.

- (2) Interest at 9 per cent on Sh. 29,636/33 from 3rd March, 1927 (date of institution of the suit) to date of payment into court. - (3) Interest at 9 per cent on Sh. 4,747 from 3rd March, 1927, to 29th December, 1928 and from 21st September, 1936 to the date of this judgment and thereafter at the rate of $\acute{6}$ per cent until the date when the accounts between the parties based on this judgment are finally adjusted and settled. - (4) The costs of the suit on Sh. $31,683/33$ up till date of payment in. - (5) Sh. 500 costs allowed in respect of the Sh. 4,747 underpaid. - (6) The costs of and incidental to the filing of the cross objection to the extent of Sh. 4,747 but not including any costs of the hearing before us or for getting up or instructions, these being already covered by the allowance under (5) supra.

Against this the defendants are entitled to three-quarters of their costs of the suit subsequent to the date of payment in and the costs of the appeal.

The totals found due under the above heads should be set off against one another.

SIR JOSEPH SHERIDAN, C. J.—I have had the advantage of reading the judgment of the learned Chief Justice of Uganda with which I am in entire agreement.

SIR CHARLES LAW, C. J.—I have been privileged to read the judgment of the learned Chief Justice of Uganda with which I would respectfully agree and to which I am unable usefully to add anything.