Implied Contract: Meaning, Form(III)

That portion of the brief
is hereby reproduced hereunder as follows:
The consideration for this service is again not  predetermined at the time of offer as it is based on the  Scale of Fees, exhibit 36, and can only be determined  after the designs have been executed and the project  cost determined, which is the normal practice and  which is what the respondent insisted on in paragraphs  10 – 15 and particularly paragraph 30 of the amended statement of defence and paragraphs 12 – 17 and 30 – 36 of the defence witness’ statement on oath of OW 1, the Director of Works. In paragraph 30 of the defence  witness’s written statement on oath, DWI clearly stated  thus: “That a consultant engaged in consultancy services  such as this must produce designs such as architectural,  electrical, mechanical, structural and bill of quantities, and that it is based upon all these components that he  can charge for his services … “This position concurs with what the appellant was saying in exhibits 3 and 6.
The following points stand out very clearly. The award of contract and/or offer to the appellant by the respondent is at the time and/ or point of oral engagement admitted by the respondent through its counsel in paragraph 2.1 on page 11 of his written address which stated no fee and/or amount and before commencement of the designs by the appellant.
(b) It is the appellant who charges his professional fee once he is engaged as a consultant for the design service after the completion of the design service and he is not again awarded a contract after the oral engagement.
(c) The correct position is not that the appellant  must produce designs before being awarded the contract but rather before charging his fee after the designs which is based on exhibit 36, which specifies fees for each of these professionals individually
(d) The appellant followed this strict procedure as he properly gave notice to the respondent of charging his full professional fee in exhibit 11 which he charged only after the respondent had neglected, ignored and/or disregarded his strict notice/warning by defaulting on payment by the preparation of a provocative 60% valuation for the 100% completed work in exhibit 12 and then charged his full fee of NI8,244,853.63 in exhibit 13 as he warned he would, this amount now being the consideration for this contract.
(e) This is typically a case of “future consideration” which is defined by Black’s Law Dictionary as “consideration to be given in the future, especially consideration that is due after the other party’s performance” and/or “consideration that is a series of performances, some of which will occur after the other party’s performance.”
(f) The respondent did not ask for any discount on this fee.
(g) The appellant acted within the provisions of clause 14 of the contract agreement exhibit 10 which allows any of the parties to cancel the contract agreement by giving a seven day notice to the other.”
Learned appellant’s counsel further submitted that: The fact that it is the consultant alone who charges his fee i.e. the appellant in this instant case is further affirmed by the minutes of meeting between the respondent’s 3-man F & GPC Committee and the appellant with his partner on the request for discount on the appellant’s fee exhibit 4 which on the first page in the seventh line after the attendance list stated. “The management had appointed a three man Committee in its last F & GPC meeting to negotiate on that aspect of the contract stage to seek a discount from the consulting firm. The three man Committee presented the request of the council to the consulting firm.” That the meeting  was thus not to impose a fee on the appellant but rather to seek a discount on his fee as again he alone charges his own professional fee for the services rendered.
He then cited the case of Zakhem Con. (Nig). v. Emmanuel Nneji Zakhem Can. (Nig.) (2006) 12 NWLR (Pt. 994) 297 at 311-312, paras. H-B where the Supreme Court held thus:
“It is possible for a contract to emerge from a series of correspondence between two persons. But it must be apparent, when the correspondence exchanged are read together, that parties have come to an agreement .
“The final exercise of judgment must of necessity involve a consideration of all the correspondence that is properly put in evidence by both sides.”
Learned counsel then referred to the correspondence in both the written submissions and oral evidence in court of both parties that payment for this service is by way of charging fees based on the scale of charges for the professionals.
In a further submission learned counsel then cited the Court of  Appeal case of M.D. Kanu Sons & Co. Ltd. v. First Bank Nig. Plc (2006) 5 SCNJ 400 at 417 where the Court held thus:
“It is settled law that if time is made the essence of  an agreement and the time frame is not met by the performance of acceptance within the time stipulated, the offer or will not be held to a contract. Further, an offer may only be accepted in the manner and terms attached to the offer.”
That having defaulted by giving the appellant a 60% evaluation in exhibit 12 for the 100% completed work, the respondent had implied a full acceptance of the effect of such default which is clearly contained in exhibit in the sum ofN18,244,853.63, and this was consequently charged in exhibit 13.
On how to interpret a contract involving several documents, counsel referred to the Supreme Court case of Central Bank of Nig . & Anor v. Mrs. Agnes Igwillo “Where a contract which includes contract of  employment involves several documents, the trial court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties.” (Attorney- General of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785; Leyland Nig. Ltd. V DizengoffW.A. (1990) 2 NWLR (Pt. 134) 610 referred to).  Learned counsel further submitted that the parties both  admit the scale of charges as the basis for charging fees and that the respondent having defaulted by the preparation of only a 60%  valuation certificate for the 100% completed work, it is therefore duty bound to pay the professional fees charged in exhibit 13, the “contract agreement – exhibit 10 having been cancelled by its own clause 14 and the respondent having been properly informed in exhibit 11 by the appellant that that was the only option in the event of any default.
Learned counsel concluded that with this full understanding between the parties, the appellant could rightly charge the full professional fees for the design service as he did after the conditional due prior notice to the respondent on which the respondent duly defaulted. Issues one and two will be taken together as had already been done by learned counsel for the respondent.
(a) Whether or not the judgment of the trial court is against the weight of evidence and Whether or not the appellant can unilaterally alter the contract agreement in exhibit 10 between the parties. Appellant’s counsel strongly contended that the learned trial
Judge relied and evaluated only two out of the 39 exhibits tendered  which were exhibits 10 and 15 to reach his decision on the design of the proposed Guest House in Abuja and that of the Palace of Mishkaham Mwaghavul respectively. That he furthermore failed to place probative value on exhibits 11 – 14,16 – 33 and 36 – 37 and
also exhibits 1 – 3 and 6. That out of 39 exhibits tendered only 9 were mentioned by the trial court and only two were evaluated with probative value being placed thereon.
Learned respondent’s counsel on the other hand stated that all the documentary evidence relating to issues before the court were adequately considered. He further submitted that the appellant did not show that the learned trial Judge in the inference drawn or the conclusion reached in his decision on the accepted evidence cannot be justified.
It is, however, common ground that the officials of the respondent at various times in the year 2008 orally engaged the appellant’s consultancy firm to render consultancy services to it by producing pre-contract designs for its proposed Guest House at Abuja and Palace at Mangu. In both cases as can be gleaned from the facts placed before the trial court, that the designs comprised  of 5 components, namely Architectural, electrical, mechanical,  structural designs and a bill of quantities.
With regard to the Guest House at Abuja, the appellant was asked orally by the respondent’s Chairman sometime in August 2008, at a meeting which took place in Jos between the appellant
and officials of the defendant, to produce the designs for the Guest House. The appellant subsequently obtained the site plan from officials of the respondent, produced an architectural design of the Guest House and also submitted a bill ofN4,013,896.23.

The gravamen of the dispute between the parties is that the said bill which the appellant insisted was only for the architectural design 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 1 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?
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 not write exhibits 4, 7 and 8 as erroneously stated by Mr. Tahvan at p. 14, para. 1 of his written address.  Exhibit 4 contains the minutes of the meeting held between the defendant’s three man committee set up by its F. & G .P.C. and the plaintiff and his partner
for the purpose of negotiating a discount of the bill submitted by the plaintiff to the defendant. These are the minutes of the meeting which the plaintiff claims were falsified to the extent that the fee charged by plaintiff, 5% of which he agreed to discount to bring 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 Zamfara on behalf of the defendant’s Chairman. It is dated 0811 0/2008. It requests the submission by the plaintiff of the structural, electrical and mechanical drawings and designs as well as the bill of quantities for the proposed project otherwise the defendant would not enter into any agreement with him. It is emphasized 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 1011 0/2008. 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: