Implied Contract: Meaning, Form(V)

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: