WHAT DOES THE LAW SAY ABOUT UNWRITTEN CONTRACTS?
The fact that a contract has not been reduced into writing does not make it unenforceable. However, the party who is asserting the existence of a contract of employment must prove such facts by presenting credible evidence of the existence of such a contract. The party can adduce evidence in one or all of the following ways;
1. CONDUCTS OF THE PARTIES
The behaviour and actions of the parties can portray the existence of a contractual relationship between them. A typical example is an agency relationship. When an agent carries out certain functions in the name and the capacity of his principal it can be easily deduced that the agent is in the employment of such a principal, in fact, the principal will be estopped from denying the existence of such a relationship. Where the conducts or performance objectively show that the parties had the intention to be bound by a contract, a valid contract can be said to exist between them.
2. ORAL TESTIMONY OF THE ALLEGING PARTY
The parties alleging the existence of a contractual relationship can prove same effectively if he satisfies the Court that the elements of a valid contract exist (Offer, acceptance, consideration and intention to create legal relations) In the case of TAURA v. CHUKWU,
An agreement can be oral, or can be inferred from the conduct of the parties thereto. Notwithstanding the contract is oral, it is enforceable. In the instant case, the conduct of the parties shows that the agreement was not in writing. For a valid contract to come into being in law, there must be a definite offer by the offeror and definite acceptance by the offeree and of course a legal consideration. There must be mutuality of purpose and intention. See the cases of; OKUBULE VS. OYAGBOLA (1990) 4 NWLR pr.r47 pc.723. DAHIRU VS. KAMALE (2001) FWLR pT.62 18s3. If an oral agreement becomes the subject of legal proceedings as in the instant case, a Court is unlikely to uphold that agreement if the essential elements of a valid contract are not satisfied. Where a party alleges the existence of oral contract, that party has the burden of proving the assertion to the satisfaction of the Court. In the instant case, the plaintiff at the lower Court gave oral evidence of what transpired and what was agreed, he highlighted the key terms and he was able to prove the existence of the essential elements. Therefore, it is my view that the said oral contract between the parties exists and is enforceable. See paragraphs 3 to 12 of the plaintiff/Appellant statement of claim on pages 48-49 of the record of appeal. Per ABOKI, J.C.A. (Pp. 16-17, Paras. F-F)
3. THIRD PARTY TESTIMONY
A third party can testify to the existence and terms of a contract of employment. Where a third party witnesses the making of the said agreement or the execution of the obligation to be carried out by either of the parties the 3rd party can testify to the existence of such a contractual relationship.
4. WRITTEN COMMUNICATIONS
Written communications between the parties can evidence the existence of a contractual relationship between them. Written communication includes but is not restricted to; emails, text messages, correspondences, letters of instruction, and letters of demand. The obligations of the parties can also be inferred from written communications.
5. EXECUTION OF OBLIGATION UNDER THE CONTRACT
Where a party has fulfilled an obligation of which the other party clearly owes a responsibility it can be inferred that a contract of employment exists between the parties. Proof of execution of an obligation can evidence a contractual relationship.
6. EVIDENCE OF PART PAYMENT
As earlier mentioned, consideration whether in part or full, is an essential element of a valid contract. Where it can be shown that part payment has been paid in fulfilment of an obligation it can be said that the parties had the intention to create legal relations and as such the parties are bound. The party to which the part payment has been made is bound to fulfil his end of the obligation.
It should be noted that to prove the existence of a contract made orally, the party alleging the existence should be able to prove that there was consensus ad idem.