Designs For Palace/Chamber of Mishkaham Mwaghavul.
We write to inform
you that following the instruction given to us to redesign the palace and chamber of the Mishkaham Mwaghavul, we met the Mishkaham and obtained briefs from him for the designs.
Consequently, we have produced 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.
Meanwhile, we wish to inform you that the estimated cost of the project is N 1 06,496,000.00.
We will soon submit to you the complete set of drawings and the bill of quantities for the project, along with our fees for the work for your early settlement.
For: ZAMANI CONSULTANTS
Arc. Thomas 1. Daspan
Again exhibit 17 reads thus and I quote:
Re-Designs For Palace/Chamber of Mishkaham Mwaghavul
Please refer to our letter dated 16th September 2008 on the above named subject matter, a copy of which is attached.
You will recall that we had submitted to you architectural designs for the project and you had requested for additional copies of the designs.
Kindly find attached two (2) complete copies of the architectural designs, including the site layout for the buildings which was not included in our initial submission.
We are still working on the structural designs, mechanical/electrical designs and the bill of quantities which we will soon complete and submit to you along with our total fees for your early settlement.”
For: ZAMANI CONSULTANTS
Arc. Thomas I. Daspan Principal Consultant.”
Part of exhibit 18 reads thus:
“We also wish to inform you that we were appointed as consultants for the design of the Palace/Chamber of Mishkaham Mwaghavul by the out-gone LGC Advisory Committee on the instruction that the drawings and the bill of quantities were meant to be forwarded to the Ministry of Local Government and Chieftaincy Affairs.
We submitted the architectural designs for the project on the 16th of September 2008, with additional copies of the drawings on 23rd September 2008. Copies of the letters of submission of the drawings bearing these dates are attached.
We have now fully completed the structural drawings, electrical/mechanical drawings and the bill of quantities, all of which you will please find attached.
These are in addition to the architectural drawings already submitted to you.”
It is noteworthy that the respondent did not deny the above correspondence and thus a series of other correspondences followed which gave the strong impression that there was a definite meeting of minds between the appellant and the respondent somewhere along the line. Again the act and conduct of the parties will determine whether or not there has been an implied contract between them.
An implied contract is one that is inferred from the conduct of the parties and which arises where a party without being requested to do so, renders services under circumstances indicating that he expects to be paid and the other party knowing such circumstances avails himself of the benefit of those services. In the instant case, the respondent had availed himself of the services of the architectural/ mechanical drawings and made no move to stop the appellant from producing them. I also refer to Prof. Sagay’s book cited (supra) where it was stated that the court held thus:
“An acceptance of an offer can be demonstrated by the conduct of the parties as well as by words and documents.”
In the instant appeal, the learned trial Judge, however, failed to construe deduce or infer a consultancy agreement from the correspondences exchanged between the parties and their conduct. In the case of Nneji v. Zakhem (2006) 5 SCNJ 235, (2006) 12 NWLR (Pt. 994) 297 at 311-312, paras. H-A the Supreme Court clearly stated thus:
“It is possible for a contract to emerge from series of correspondence between two persons. But it must be apparent when the correspondences exchanged are read together that parties have come to an agreement.”
Exhibits 16 – 18 as well as 21 to 25 are some of the correspondences exchanged between the appellant and the respondent which in my opinion culminated into the contract between them and the subject matter or cause of action in the instant appeal matter.
In the case of Omega Bank (Nig.) Plc. v. OB.C. Ltd. (2005) 1 SCNJ 150 at 153, (2005) 8 NWLR (Pt. 928) 547 at 574-575 at paras. H-A the Supreme Court held as follows:
“It is not the function of the court to make contracts between the two parties, but it is the court’s duty to construe the surrounding circumstances including written and oral statements so as to effectuate the intention of the parties.”
From all of the foregoing it is my firm view point that there was indeed a contract implied-in-fact between the appellant and the respondent on the design of the Palace of Mishkaham Mwaghavul.
In the result, issue No.3 is also resolved in favour of the appellant against the respondent.
From the totality of all of the above as well as the reasoning and conclusions reached herein and also having considered the submissions of both learned counsel, this appeal has merit and it is hereby allowed. The judgment of the trial court dated the 16th day of December 2010 is hereby set aside. In its stead, the claim of the appellant succeeds and it is accordingly granted as prayed. I make no order as to cost as each party is to bear its own cost of this action.
OGUNBIYI, J.C.A.: My brother, Philomena Mbua Ekpe, JCA, had adequately dealt with this appeal and I do not have any useful thing to add thereto. I agree with the reasonings and conclusions arrived thereat. I therefore also allow the appeal, set aside the judgment of the trial court and enter same in favour of the appellant by granting his claims as per the reliefs sought at the trial court. I also make no order as to costs.
SANKEY, J.C.A.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Ekpe, J.C.A. I entirely agree with his opinion that this appeal is meritorious and ought to be allowed. Thus, I abide by all the consequential orders made in the lead judgment.
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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