Implied Contract: Meaning, Form(IV)

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.
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