Implied Contract: Meaning, Form(VI)

“Dear Chairman,
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.
Thank you.
Yours faithfully,
For: ZAMANI CONSULTANTS
Arc. Thomas 1. Daspan
Principal Consultant.”
Again exhibit 17 reads thus and I quote:
“Dear Chairman,
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.”
Thank you.
Yours faithfully,
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.
Appeal allowed.