The gravamen of the dispute between the parties is that the said bill which the appellant insisted was only for the architectural design and was regarded by the respondent’s officials to represent a bill for the entire structural, mechanical and electrical designs as well as the bill of quantities. A similar dispute arose when the appellant upon being commissioned for the project, received an oral briefing from the Mishkaham Mwaghavul himself and then produced and submitted the designs to the respondent inclusive of the bill of quantities as required. This time the respondent contended that there was no formal agreement between the parties.
The appellant, however, in his reply brief clearly stated that following the failure of the trial Judge to make findings on material and important issues of fact as contained in its brief of argument, particularly in exhibits 10 – 13, and 16 – 18, the court will be left with no alternative than to allow the appeal. He then cited the case of Olagunju v. Adesoye (2009) 33 WRN I at 36, (2009) 9 NWLR (Pt. 1146) 225 at 263, paras. F-G where the court held that:
“This is why it is firmly established that where a trial court fails to make findings based on material and important issues of facts or approaches the evidence called by the parties wrongly, the appellate court will have no alternative but to allow the appeal.”
He further cited the case of Karibo & Ors. v. Grend & Anor. (1992) 3 NWLR (Pt. 230) 426 at 441. Also case of Morenikeji & 4 Ors. v. Adegbosin & 4 Ors. (2003) 8 NWLR (Pt. 823) 612.
There are however two pertinent questions to be deliberated upon in considering issues one and two in this appeal.
(1) Did the trial Judge properly evaluate the documentary evidence placed before him?
(2) Was there a valid contract which the appellant could unilaterally rescind?
I shall however begin by referring to page 326 of the record of proceedings where the learned trial Judge clearly stated thus:
“An evaluation of the evidence adduced is necessary Let me start by pointing out that the plaintiff did no write exhibits 4, 7 and 8 as erroneously stated Mr. Tahvan at p. 14, para. 1 of his written address Exhibit 4 contains the minutes of the meeting hell between the defendant’s three man committee set u] by its F. & G .P.C. and the plaintiff and his partne for the purpose of negotiating a discount of the bil submitted by the plaintiff to the defendant. These an the minutes of the meeting which the plaintiff claim were falsified to the extent that the fee charged by plaintiff, 5% of which he agreed to discount to brim it down to N4,013,896.23, was made to look as if the plaintiff had agreed that the fee covered all the five components of the design project.
Exhibit 7 is a letter written on the defendant’s letter headed paper under the hand of one Moses Zamfar: on behalf of the defendant’s Chairman. It is date: 08/10/2008. It requests the submission by the plaintiff of the structural, electrical and mechanical drawing and designs as well as the bill of quantities for tlue proposed project otherwise the defendant would not enter into any agreement with him. It is emphasised at paragraph 3 that the defendant’s approval of the pre-contract work was inclusive of the above stated requirements.
Exhibit 8 is entitled “Award of contract” and written under the hand of Engineer Gyang C. Wash, the Director of Works of the defendant, on behalf of the defendant’s Chairman. It is written to Zamani Consultants and is dated the 10/1012008. The document is a photocopy of the original. It is therein stated that the contract awarded is for “consultancy services for the design of (Architectural), Structural, Electrical, Mechanical and Bills of Quantity) proposed Guest House of Mangu L.G.C. in Abuja” at the cost ofN4,013,896.23.”
The learned trial Judge went further to refer to and observe On exhibit 5 thus:
“Exhibit 5 is a copy of the hand written letter written by the plaintiff on behalf of Zamani Consultants on 25/09/2008. Although this letter is entitled “Acceptance
of Appointment as Consultant for Design of Guest House in Abuja on Plot C 1″ the body is rather an acceptance of defendant’s request for a discount of 5% on the initial fee charged by the plaintiff, namely N4,225,153.92. It is emphasised that this fee is for the architectural design of the Guest House buildings alone.”
In his mention of exhibits 4, 7 and 9 the learned trial Judge again stated that exhibit 4 was ratified by exhibit 10 while exhibit 9 dated the 10th day of October 2008 was “clearly intended to modify the plaintiff’s position expressed in exhibit 5. He also quoted exhibit 9 which stated as follows:
“Please refer to your letter dated 8th October 2008 on the above subject matter, which was in response to ours of 11th September, 2008.
We wish to inform you that we fully accept the offer as stated in that letter. You will find attached the documents in respect of the project i.e. structural drawings electrical/mechanical drawings and the bill of quantities. We expect immediate full payment of our consultancy fees please.”
I am of the view that the trial Judge made mention of the above exhibits specifically as they were the most contentious.
Exhibits not specifically mentioned herein I presume he regarded as direct and non-contentious and only merited a cursory glance. The documentary evidence relating to the issues before the court were adequately considered. I agree with learned counsel for the respondent that the submission of the appellant on the issue of the contract between the parties did not cover the entire 39 exhibits admitted before the trial court. I agree with learned respondent’s counsel that reliance was merely placed on the relevant and non- contentious exhibits before the trial court and most other exhibits placed before the court were straight forward and agreed upon by both parties for example the series of correspondences exchanged between the parties.
On the issue of 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 on full payment firmly and conditionally demanded by him, it is on record as earlier stated in this judgment that the appellant, a major architectural outfit of about 27 or 29 years standing had been made oral offers and commissioned to produce the two designs by the respondent with no specific award sum or amount. The appellant however submitted the architectural designs for
Guest House in Abuja accompanied by the professional contract fee of N4 ,225,153.92 and also full payment fee for design for the Mwaghavul Palace in the sum of NI4,428,817.72. There was however a 5% discount on the professional contract fee of N4,255,153.92 before a dispute arose over the payment for the 12 latter.
professional fees. I have carefully perused exhibit 10 including clause 14 which is now the bone of contention between the parties, For ease of reference, I shall hereby reproduce clause 14 of the said exhibit 10 and it reads:
“This contract agreement may be cancelled by either party without reasons being given to such party, by such party giving seven days notice in writting for such cancellation to the other party provided that the employer shall pay to the contractor for the value of work carried out satisfactorily at the time of cancellation of this agreement.”
No doubt the contract agreement exhibit 10 in the said clause 14 gives room for its own cancellation by either party on a 7 days notice to the other party. It is however to be noted that such notice was given by the appellant in exhibit 11 before charging his full professional fee in exhibit 13 with a 10% discount on the said sum.
Also, the fact that the appellant had submitted all the cornpleted designs and drawings to the respondent had not been controverted or disputed by the respondent. The latter’s arrival at a 60% valuation of the work done instead of 100% had not been explained or demonstrated in any way during the entire proceedings either in the lower Court or in the respondent’s brief of argument. Exhibit 13 records as follows:
“We wish to express our surprise at the valuation certificate dated 23rd October, 2008 raised in our favour in respect of the consultancy services for the designs already fully completed by us. The valuation certificate, a copy of which is attached, gave us only a 60% completion of the project instead of 100% completion, as all the designs and drawings i.e. architectural, structural and electrical/mechanical drawings as well as the bill of quantities have been fully completed by us and submitted to you.
We are troubled that by splitting our valuation certificate, you have deliberately refused to effect full and immediate payment to us on the project despite our clear demands in this respect in our letter of 10th October 2008 and particularly that of 21 st October, 2008. We find this situation totally unacceptable. We are consequently compelled to reject in totality the out-gone Advisory Council’s unilateral imposition of our previous architectural fees on us as the total consultancy fee for the project as particularly complained of by us in our letter of 21 st October 2008 and to request for payment of our full but 10% discounted professional fees in the sum ofN 8,241,853.63 as calculated below.”
I therefore agree with the submission of learned counsel for the appellant that having defaulted by giving the appellant 60% valuation in exhibit 12 from the 100% completed work, the respondent had implied a full acceptance of the effect of such default as contained in exhibit 11. The respondent had been properly put on notice and its failure to act appropriately in giving a 100% valuation for the completed work had placed the respondent in the line of fire for the full consequence of its own default. The appellant could then cancel the contract agreement and charge his full professional fees as he had previously warned in exhibit 11 and amply demonstrated in exhibit 13.
In effect and in my humble view, I agree with learned counsel for the respondent that the trial Judge fully evaluated the documentary evidence before him but that he only arrived at the wrong conclusion and final decision as the said decision was clearly against the weight of evidence. In the final analysis, issues one and two are hereby resolved in favour of the appellant against the respondent.
Judiciary As Last Hope Of The Common Man
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
Elele OSPAC Seeks Govt’s Assistance
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.
Legal Departments In LGAs And Justice Dispensation
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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