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Law/Judiciary

Implied Contract: Meaning, Form(V)

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On Issue No 3
Whether or  not there was
a contract between the appellant and the respondent on the design of the Palace of Mishkaham Mwaghavul, learned counsel for the appellant submitted that the learned trial Judge disregarded the respondent’s admission that the appellant was orally engaged to produce this design which said orally offer the appellant accepted and executed the full designs together with the bill of quantities and submitted same to the respondent which recei ved them without complaint as contained in exhibit 18.
Counsel further submitted that the learned trial Judge completely ignored appellant’s submissions in exhibits 16 – 18,21 – 25 and 27  which were never denied by the respondent. That the trial Judge wrongly relied on the interpretation given by DWI of exhibit 15 which he was never a part of as DW1 was not even a member of the Finance and General Purpose Committee of the Local Government.
Counsel also stated that the briefing ‘for this design was received from the Mishkaham Mwaghavul himself while the briefing for the proposed Guest House in Abuja was received from the Director of Works. That none of these briefings was in writing and none was invalid or inferior to the other as both were based on oral instructions from the respondent. That by sections 61 – 63 of the Plateau State Local Government Law No.1, 1999, members of the Traditional Council are recognized as part of the Local Government system with the Mishkaham Mwaghavuk in this case as Chairman of the Traditional Council paid directly by the Local Government.
Learned counsel for the appellant again submitted that the Finance And General Purpose Committee (F. & G .P.c.) is mainly responsible for:
“the regulation and control of the finances and the consideration and award of contract.”
As contained in section 53(2) of the Plateau State Local Government Law No.1, 1999. Again counsel stated that the appellant had submitted architectural, structural, electrical/mechanical designs and bill of quantities as contained in exhibit 18 and paragraphs 35 and 36(vii) of the statement of claim and all of which had been accepted by the respondent without denial or being queried. Learned counsel further stated that in early August 2008, one Monday Daspan and Hon. Josiah Bigwan, councilor for works invited the appellant to receive briefing on the design of the proposed Guest House in Abuja from the Director of Works.
Learned counsel referred to a series of correspondence between the appellant and. the respondent during which the appellant was persuaded to make a 5% discount in respect of the architectural designs alone. That the mode of communication which the appellant had maintained with the respondent through the respondent’s Chairman was exactly the same in both the design for the proposed Guest House and the Mwaghavul Palace in Mangu.
That the respondent had admitted its oral design in paragraph 21 on page 11 of the written address of its counsel, Joel Tahvan. Learned counsel for the appellant referred to the appellant’s letter dated 16th B September 2008 (Exhibit 16) which read as follows:
“Following the instruction given to us to redesign the Palace and Chamber of the Mishkaham Mwaghavul, we met the Mishkaham Mwaghavul and obtained briefs from him for the designs. Consequently, we have produce architectural designs in tandem with the brief we obtained, which designs you will find attached. We are working on the engineering designs and the bill of  quantities which we will soon submit to you.”
Counsel further stated that the respondent did not deny it’s responsibility for the work, or for the payment but rather proceeded to affirm the appellant’s position as the consultant for the designs as already appointed by the respondent in September 2008. See exhibit 15.
Counsel again referred to exhibit 17 which re-emphasized and E stated in part as follows:
“We are still working on the structural designs, mechanical/electrical designs and bill of quantities which we will soon complete and submit to you along with our total fees for your early settlement.”
In order to determine the terms of contract, learned counsel cited the case of Diamond Bank Ltd. v. Ugochukwu (2008) 1 NWLR (Pt. 1067) 1 at 23 – 24 Para. H where the court held thus:
“In deciding the terms of a contract or what was agreed by the parties, it is always better to look at all the documents passing between the parties and glean from them or from the conduct of the parties whether they were ad idem on all material points or how they expected their relationship to be maintained.” Per Rhodes-Vivour, JCA.
Learned counsel for the appellant further submitted that based on all of the above, the situation can best be described as “an agreement implied in fact” as “founded upon a meeting of minds which although not embodied in an express contract, is inferred from the conduct of the parties. That the transaction between the parties as contained in exhibits 15 – 18 is fully covered by the conditions of an implied contract since the respondent accepted the designs and availed himself of the benefit of the services therein.
Learned counsel concluded by referring to Prof. I.E. Sagay’s book Nigerian Law of Contract at pages 5 and 6 thus: “In the case of implied contracts, the terms are not expressly stated. The court, in such circumstances, will normally construe the existence of a contract from the conduct of the parties rather than their words or correspondence. For example, a passenger usually enters a bus without any dialogue between him and the conductor or driver. Yet to all reasonable men, his action implies that he will pay his fare, while the bus owner is obliged to carry him safely to his destination, … “ He further went on to say that “A classic case of a contract concluded by conduct occurred in Attorney-General of Kaduna State & Ors. v. Victor Bassey Atta & Ors. (1986) 4 NWLR (Pt. 38) 785 CA. The Kaduna State Ministry of Works and Housing invited the respondents, who are architects, to design a building and they agreed to do so. After several meetings and correspondences, during which the respondents made it clear that the cost of the project was going to be greatly in excess of the 1.5 million naira proposed by the ministry, the latter finally wrote to the respondents in July 1977 requesting them to “furnish the ministry with an estimate of the whole project including all the services and the involvement of your fees for pre and post contract services.”
That from all the foregoing, there is indeed a contract implied-in- fact between the parties on the design of the Palace of Mishkaham Mwaghavul.
In his reply, learned counsel for the respondent stated that the appellant misconceived the case before the court as the appellant does not actually know who his employer is.
Whether, it is the Mangu Local Government Councilor the Finance and General Purpose Committee (F. & G.P.C.) of the Local Government Council. There is no evidence on oath as to who orally engaged the appellant to design the Palace at Mangu.
Learned counsel further submitted that exhibit 15 on page 179 of the record of appeal is not shown to be a certified true copy of a public document. He then cited section 109 of the Evidence Act, 2004 and also the case of Ogunleye v. Aina (2011) 3 NWLR (Pt. 1235) pg. 479 at 536 – 537, paras. H – A. That the trial court had wrongly admitted such document and that it is now the duty of this court to reject such evidence. He then cited the case of Lawson v. Afani Const. (Nig) Ltd. (2002) 2 NWLR (Pt. 752) Pg. 585 at 615- 616, paras. H- A.
That the trial court properly held that exhibit 15 is inchoate and cannot form the basis of any contract between the appellant and Mangu Local Government Council. Counsel quoted a portion of the I” paragraph in exhibit 15 thus:
“On the provision of a building plan for the Mishkaham Mwaghavul the consultant handling the provision “Zamani Consultants” have brought a draft/sketch of the plan and would be sent to the Ministry for onward action.”
That the above did not show that there was a contract between the appellant and the respondent and thus the appellant cannot be heard to say that he submitted drawings and made demands for fees to be paid to him without a valid contract. That on the issue of an implied contract there had been no official from Mangu Local Government Council who had been called to state that the appellant was orally engaged to carryon any works on their behalf. That whilst the 1 st agreement was documented as exhibit 10, the argument in volving the design of the Palace of Mwaghavul in Mangu was not documented and therefore there was no binding contract. He then cited the case of Alfotrin Ltd. v. A.-G., of the Federation & Ors.
(1996) RSCNJ 236 at 256, (1996) 9 NWLR (Pt. 475) 634 at 656, paras. G-H where the apex court held thus: “to constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof, the parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration.
There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled.”
That the appellant thus misconstrued the case of A.-G.,I Kaduna State &: 1. Urs. V. victor H. Atta &: 1. Urs. (supra) to submit that he had a Consultancy Services Agreement with the respondent.
Counsel then concluded that the appellant had no agreement with the respondent and urged the court to dismiss the appeal. Having gone through the copious arguments of both learned counsel on this issue, the question here is whether there was indeed a Consultancy Services Contract between the parties with regard to the designs appertaining to the Palace of the Mishkaham Mwaghavul. The appellant’s case is that the respondent engaged him sometime in September, 2008 to produce the designs and bill of quantities for the Palace and that having submitted same to the defendant; he had
performed his own side of the bargain and therefore entitled to his professional fees. He then relied on exhibit 15.
The respondent on the other hand contends that the appellant merely submitted a sketch plan which it forwarded to the Ministry of Local Government and Chieftaincy Affairs, and that no formal agreement was entered into between the parties.
The appellant however has made heavy weather of exhibit 15 which is a copy of an extract of the minutes of the respondent’s
Finance and General Purpose Committee (F & GPC) meeting held on the  1st day of September 2008, to show that since Zamani  Consultants are said to be the consultant “handling” the drawings, then a contract was in existence. The appellant again has gone a  step further to produce exhibits 16 – 18 as well as exhibits 21 – 25 and exhibit 27. I have gone through these exhibits with a fine tooth comb and I have noted that the said exhibits greatly inter- connected and can safely be regarded as a follow up from exhibit 15. Additionally, they were never controverted by the respondent.
For openers, I shall hereby reproduce exhibit 16 which reads thus:

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Features

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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