Implied Contract: Meaning, Form(III)

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.