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Law/Judiciary

Implied Contract: Meaning, Form(III)

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Again, that the trial Judge only dwelt heavily on exhibit 10 which is the contract agreement and ignored or failed to evaluate and comment on clause 14 of the agreement which allows for its own unconditional cancellation by any of the parties on a 7 day notice to the other, after the appellant had cancelled the agreement. It was further submitted, that:

The trial Judge also failed to consider basic established  facts and practices admitted by both parties on the  method of charging fees for design services such as this one. At the hearing it was admitted unchallenged from the appellant as recorded on 15/06/2010 in the record of proceedings of the trial court that fees for these services “are based on the approved scale of charges” and at the defence DWl also concurred as recorded on 13/10/2010 in the record of proceedings of the trial court that “all those professionals (i.e. architects, engineers and quantity surveyors) engaged who have worked are entitled to be paid” their professional fees.

He also avoided any comment on exhibit 36 the Scale of Fees for Professionals in the Construction Industry brought in by the respondent, for which document alone it had amended its statement of defence in order to bring it in as recorded in the record of proceedings of the trial court dated 25/06/2010, to affirm that the “consideration” for this service is the fee and to show how fees on a design service such as this one are  calculated.

He held that the appellant had only brought a draft! sketch plan for the Palace of Mishkaham Mwaghavul when in fact as contained in exhibit 18 and paragraph 36(ix) of the statement of claim and as reaffirmed unchallenged at the hearing as recorded on page 8 of the records of proceedings of the trial court, the appellant had brought in the detailed architectural designs, the structural, electrical and mechanical designs and bill  of quantities for this design, this error being solely due to lack of evaluation of the evidence before the court.

On what to consider before a court reaches a decision the Supreme Court in the case of John Ogbu & Anor v. The State (2008) 3 SCLR (Pt. 3) 33 at 46, (2007) 5 NWLR (Pt. 1028) 635 at 653, para. F held:

“It is in accord with equity and good conscience as well as the right to fair hearing that all material and relevant facts and documents duly tendered and admitted in proceedings have to be taken into consideration in reaching a decision in the case or matter.”

In answer to issue number one, learned counsel for the respondent M.A. Ekone, Esq. in his submission argued issue one and two together which are the weight of evidence and the contract agreement in exhibit 10. On issue 1, he stated that the appellant’s brief on issue one which is against the weight of evidence is not a complaint against the totality of the evidence adduced in court but against the finding of fact on specific documents. That the learned trial Judge merely relied on 2 out of the 39 exhibits tendered therein.

It was thus his submission that the learned trial Judge evaluated the evidence before him to deliver his judgment that the documentary evidence relating to the issues before the court were adequately

considered and that the submission of the appellant on the issue of the contract between the parties did not cover the 39 exhibits admitted before the court. He then referred to pages 134 – 141 of the record of appeal.

In a further submission by counsel for the respondent he stated that the appellant has not shown that the trial Judge either wrongly accepted or that the conclusion reached by the trial Judge based on

the accepted evidence cannot be justified. He then cited the case of Onwumere v. Agwunedu (1987) 3 NWLR (Pt. 62) p. 673 at 684 where the court expatiating on the meaning of “judgment” being against the weight of evidence relied on Anyaoke & Ors. v. Adi Ors.

(1986) 3 NWLR (Pt. 31) 731 at 742, para. A which stated thus:

“It is true that an omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party, which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. “

Counsel further stated that the contract agreement covered by exhibit 10 was tendered and accepted by both parties. That the learned trial Judge followed the basic elements of a binding contract as follows:

a.Offer

b.Acceptance

c. Consideration

d. Intention to create legal relationship

e. Capacity to enter into contract.

He further cited the case of Beta Glass Pic v. Epaco Holdings Ltd.

(2011) 4 NWLR (Pt. 1237) page 223 at 244, paras. G – H.

That after a series of correspondences between the parties, the respondent/defendant made an offer through exhibit 7 and the plaintiff/appellant accepted the offer through exhibit 9. (See

page 171 of the record of appeal). Also that the consideration was N4,0 13 ,806 .23k in exhibit 10 at pages 172 – 173 of the record. That E in exhibit 9 where the appellant accepted the offer made to him, he did not indicate the fact that he was misled or that he did not understand the agreement.

Learned counsel for the respondent further submitted that a close perusal of the appellant’s complaint is that though he accepted and got paid vide the contract as per exhibit 10, he sought refuge under a clause in exhibit 10 to rescind and resile from the agreement to claim professional fees. That in all the correspondences, the appellant alluded to in his brief to unilaterally create a new contract, the appellant never cited any document by respondent that a new contract had been entered into with him.

Counsel concluded by submitting that the court should not interfere with the conclusions reached by the trial court that the plaintiff had not tendered any agreement between the parties showing that they had agreed that the cost of the contract between the parties can be hiked to over N18 million. It was then held that the plaintiff is bound by the agreement in exhibit 10 and that the appeal be dismissed based on issues 1 and 2, as the appellant cannot unilaterally alter the agreement consented to and executed vide exhibit 10.

On Issue No.2

Whether or not the appellant could cancel the contract agreement for the design of the proposed Guest House in Abuja as allowed by the agreement and thereafter charge the full professional

fees as he did following default by the respondent in making the full payment as demanded by the appellant. Counsel argued that while the learned trial Judge detailed the circumstances with led to the

signing of the contract (exhibit 10) for the sum of N14,0 13,896.23 he completely avoided the events contained in exhibits 11 – 13 and rather dwelt on paragraphs 25 – 31 of the statement of claim that led to the charging of the full professional fees by the appellant in the sum ofNI8,244,853.63.

Counsel further stated that the learned trial Judge ignored and completely avoided the fact that just as he held that exhibits 9 and 10 had cancelled exhibit 5 and ratified exhibit 4, so also had exhibits 11, 12 and 13 cancelled exhibits 9 and 10 by virtue of clause 14 of exhibit 10, which allowed for the cancellation of that agreement, which argument the appellant’s counsel properly proffered in the last two paragraphs on page 6 of his written address.

He also made reference to the fact that the trial Judge completely ignored and/or avoided any reference to the fact that the respondent’s default, refusal and/ or failure to give a 100% valuation to the appellant on the 100% completed work in exhibit 12 despite the appellant’s very clear and definite notice/warning in exhibit 11 that failure to do so would lead to his rejection of the contract agreement and his charging the full professional fee on the design clearly paves the way for the appellant’s cancellation of the contract agreement and the charging of his full professional fee unhindered as he did in exhibit 13.

It is also the submission of learned counsel that the appellant consequently wrote rejecting the 60% Valuation Certificate exhibit 12 and charged his full but 10% discounted professional fee of N 18 ,241,853.63 in a letter dated 28th October 2008, exhibit 13, just as he had said he would in his letter dated 21 st October 2008, exhibit 11 and that the respondent’s reply dated 30th October 2008 exhibit 14 to the appellant’s letter of 28th  October 2008 exhibit 13 did not address the issues in B the appellant’s letter as described in paragraphs 31 and 39 of the statement of claim.

Learned counsel again submitted that the learned trial Judge held firmly that the parties were strictly bound by the contract agreement, disregarding clause 14 of  the contract agreement.

He further stated that the trial court completely ignored and refused to comment on the facts highlighted in  the last two paragraphs of page 6 of the appellant’s  counsel’s written address that there is still a contract  even without the contract agreement exhibit 10 as the  obligation to pay for work done still subsists even  after cancellation of the contract agreement which  clause 14 of the agreement allows as it stated. “The  Contract Agreement may be cancelled by either  party without reasons being given to such party, by  such party giving seven days notice in writing for  such cancellation to the other party provided that the  employer shall pay the contractor for the value of work carried out satisfactorily at the time of cancellation of  this agreement.

Also that the appellant’s written statement in exhibit 35  stating “payment for” meant payment in full as on page 1040 of  Longman Dictionary of Contemporary English which was indeed a misconception.

That the appellant wrote many demands for payment on this  design in exhibits 21 – 25 and 27 none of which the respondent  disputed and also that the respondent never wrote to tell the appellant that the sum of N4,013,896.23 paid to him was final  payment. He again stated that the appellant had corrected the  erroneous fee calculation in paragraph 10 in his appellant’s reply to the statement of defence as amended.

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Judiciary As Last Hope Of The Common Man

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The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended.  Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings.  The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?

 

By: Chidi Enyie

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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.

It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.

Ikwerre people are proud of him and will back till eternity.

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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels:  NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing,  nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the  Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National  Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the  various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in  Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers,  the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.  A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.

 

By: Sylvester Udemezue with reports from King Onunwor

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