Deji Oyenuga Vs International Computers Ltd (1991)
LawGlobal-Hub Lead Judgment Report
OLATAWURA, J.S.C.
This appeal is on damages awarded by the lower court. Before referring to the only ground of appeal, I will state briefly the facts which led to the action which was instituted in the Judicial Division of the High Court of Lagos State.
The indorsement of the Writ of Summons is as follows:
“The plaintiff claims against the defendant is for the sum of N90,000.00 being professional fees for work already performed on drawing No.N.269/1/2/3 and 4 in respect of I.C.L. House at 12, Gerrard Road, Ikoyi, at the request of the defendants. The defendants have refused and/or neglected to pay inspite of repeated demands.”
The appellant was a partner in the firm of Messrs James Cubitt Follo Atkinson and Partners. It was around 29th March, 1972 that the respondent instructed the firm to prepare a sketch design so as to obtain planning permission from the Lagos Executive Development Board (L.E.D.B.) to develop 12 Gerrard Road, Ikoyi. The partnership was dissolved and the firm that finally carried out the work was Deji Oyenuga and Partners. This fact was brought to the knowledge of the respondent. It was the case of the appellant that work done by the appellant was without objection on the part of the respondent. The drawings were prepared and forwarded to the respondent. The respondent through its letter Exhibit 2A gave approval for the working drawings. At a later stage the appellant was asked to give a cost of the work to be executed. The calculated cost was N1,307,130.00. The appellant went to London to discuss how the project would be financed. As a result of the work executed, the appellant raised a bill for N30,019.20. See Exhibit P.2A9. He based his bill on Exhibit P1, used by practising Architects in Nigeria. He said he had instructions to go beyond the design stage. This includes the preparation of working drawings etc. for submission to L.E.D.B. He sent copies to the respondent. This preparation of working drawings attracted a fee of 1% of the cost of construction. According to the appellant the total cost of the estimated cost of construction is 3% i.e. N45,000.00. He added other expenses such as hotel bills, travelling, printing charges and legal expenses which brought the total amount claimed to N90,000.00. He was cross-examined. He was the only witness.
The respondent’s case as presented by 1 D.W. was that the appellant was instructed to carry out a specific job in respect of which the appellant sent a bill of N1,400.00. There were exchanges of letters between the respondent and the appellant. The appellant went to London not specifically on the instruction of the respondent in that he had something else to do, he was then asked to take the opportunity of seeing the parent company in London. He went and thereafter sent a bill vide Exhibit P. 2A9. He said he did not agree with the scale of fees; and that in any case the appellant did not send the scale of fees Exhibit P1.
When this witness was cross-examined he agreed he is a Computer Specialist by drawing and not an Architect and that he was not in a position to say whether the drawings were sketches or working drawings. He agreed he did not reject the drawing when he received the first bill. He agreed that the drawings were prepared as directed in Exhibit P2 and submitted same to L.E.D.B. That was the case for the respondents.
Both counsel addressed the court. After a review of the evidence and consideration of the submissions of Counsel on both sides, the learned trial Judge, Bada, J. awarded the sum of N2,500.00 to the appellant.
The appellant in this court who was the appellant in the lower court was dissatisfied with the judgment of Bada, J. and appealed to the Court of Appeal, Lagos Division. As seen from the judgment of the court of trial, the defendant fought the case on the basis that since there was no agreement on the scale of fees of the Nigerian Institute of Chartered Architects (N.I.A.) the plaintiff was only entitled only on the basis of quantum meruit. The Appeal in the lower court was virtually fought on that basis. The Court of Appeal allowed the appeal and awarded the sum of N15,000.00 in favour of the appellant. The appellant, still dissatisfied with the award made by the lower court, has appealed to this court on the quantum of damages.
Briefs were filed and exchanged, and it is the issue of the amount of damages that is now before us. I will mention however that the application brought by the respondent for enlargement of time within which to apply for leave to cross-appeal and other prayers was struck out on 30th October, 1990 with cost.
The only ground of appeal against the judgment of the Court of Appeal is as follows:
“The learned trial Justices of Appeal erred in law and on the facts when they held as follows:
From all what I have been saying, this appeal succeeds and it is allowed. During the course of the argument, I think it is agreed on both sides that the percentage of 1% based upon the N.I.A. scale of fees 1% on the total costs of development in Ex. P2A6 which is N15,000.00 will be adequate and that sum is hereby awarded in favour of the appellant.
PARTICULARS OF ERROR
There was no agreement by the appellant that he was entitled to charge 1% of the cost of development. His case (which the Court accepted) is that he was entitled to 3% of the cost of development which in this case is N45,000.00.”
Unfortunately, the appellant in this Court did not state the issue for determination by the Supreme Court notwithstanding the general summary of the issues raised in the trial court and the Court of Appeal. However, the respondent has stated the issue broadly and I agree with the respondent’s counsel in his formulation of the issue when he said:
“The single issue for determination in this appeal is whether the learned Justices of Appeal were in error in awarding the appellant 1% of the total costs of development in Exhibit P.2A6 which is N15,000.00 based on the Nigerian Institute of Architects Scale of fees Exhibit P.1”.
In the overall consideration of the amount payable to the Appellant in respect of the claim and pleadings the trial Judge formulated two issues;
“(i) Was any fee or any scale of fees agreed upon between the parties in respect of the work to be executed by the plaintiff
(ii) Did the plaintiff exceed the instruction given to him by the defendants
After evaluating the evidence and due consideration of the law based on Hudson’s Building and Engineering Contracts, the learned trial Judge said:
“In the present situation therefore, and on the statement of law on the remuneration of architect where there is no express agreement as to such remuneration quoted herein, it becomes the duty of this Court to determine what remuneration should be paid to the plaintiff”
The appellant in paragraphs 10 and 11 of the Amended Statement of Claim averred as follows:
“10 It was an implied term of the contract between the plaintiff and the defendant that the defendant would pay the plaintiff fees in accordance with the scale of fees as regulated by the Nigerian Institute of Chartered Architects or alternatively a reasonable fee.”
“11 The plaintiffs fee in accordance with the scale of fee of the said Institute is N90,000.00 (Ninety Thousand Naira). Alternatively N90,000.00 is a reasonable fee.”
In the amendment sought by Mr. Bentley on page 30 of the record of appeal, paragraph 5 of the Amended Statement of Defence was amended to read:
Paragraph 10 of the Amended Statement of Claim is admitted.”
But by its paragraph 11 of the Amended Statement of Defence, the defendant averred thus:
“11 Paragraph 11 of the Statement of Claim (sic) is denied and further the defendants say that the plaintiff has never rendered a debit note in the sum claimed.”
What is now left on this issue is whether the fees will be in accordance with the scale of fees regulated by the Nigerian Institute of Chartered Architects or a reasonable fee. In his lead judgment, Ademola, J.C.A. said:
“I am still of the view that no other conclusion is open to the learned trial Judge but to find that in respect of the professional fees of the appellant no other scale of remuneration other than N. I. A. Scale of Fees is to be used.”
The other two Justices; Nnaemeka-Agu, J.C.A. (as he then was) and Kutigi, J.C.A. agreed with this conclusion. I also agree.
As to whether the appellant exceeded his authority, the learned Justice minced no words in coming to the conclusion that there was nothing either in the pleading or the evidence to suggest that he did. The learned Justice said:
“I am afraid that the question of appellant exceeding his authority is the creation of the learned Judge himself which has no basis in the pleadings at all as an issue in this case”
The final conclusion reached by the learned Justice of Appeal has led to this appeal on the question of quantum of damages. He concluded thus:
“I think it is agreed on both sides that the percentage of 1% based upon the N.I.A. Scale of Fees 1% on the total cost of development Exhibit P.2A6 which is N15,000.00 will be adequate and that sum is hereby awarded in favour of the appellant in this case and a further sum of N19.20 is awarded as expenses.”
I have gone through the briefs filed in the lower court to see if there was any agreement by the parties on the percentage of the total costs. I did not find such agreement. What the appellant submitted in his brief in the lower court in respect of the remuneration awarded is as follows:
“The award was based on the assumption that the scale fee was inapplicable and also that the plaintiff exceeded his brief. It has been argued that the trial Court was wrong on these two issues and these submissions are upheld, the plaintiff would be entitled to 3% of the estimated cost of construction that is N45,000.00 plus expenses and other incidentals. In the alternative, if the scale fee is applied and it is held that the plaintiff exceeded his mandate, he should be entitled to N15,000.00 as found by the Judge. The award of N2,500.00 made by the Judge is an arbitrary award.”
The respondent in its brief in the lower Court submitted:
“Indeed the trial Judge found that if the scale fee was applied and that the plaintiff exceeded his mandate his entitlement would be N15,000.00 but it is our submission that the figure is irrelevant in view of the fact that the scale fee was inapplicable in the case at hand. As a result the trial Judge had no reason to bear in mind the amount of N15,000.00 in arriving at the award which he made, and furthermore the award of N2,500 cannot be “arbitary” as so called following from the Directions to be followed as per Brickett, J. in Brewin v. Chamberlain, which the trial Judge was mindful of.”
With respect there was no agreement on both sides that the percentage of 1% shall be the award due to the appellant. The oral submission of Professor Kasunmu on page 92 of the record made it abundantly clear that the scale of charges of 3% was the basis of the claim. Since the lower court has found that N.LA. Scale of Fees should be used and that the Appellant did not exceed his authority, it appears to me that the only issue before the court was the percentage of the total costs of development.
The submission of the respondent’s Counsel to the effect that the learned Justices of the Court of Appeal “having had the opportunity of listening to both Counsel, it ought to be rightly presumed that their judgment on this award is right” appears to sidetrack the issue raised before the lower court and to negate the purpose of an appeal. There can be a presumption of facts, presumption of regularity. It will work injustice to presume that a judgment appealed against is right. Judgment must be based on facts and law. Even in law certain presumptions are rebuttable.
I agree with Professor Kasunmu in his submission that both the written brief and oral submission made in amplification of the written brief point conclusively to the fact that the award should be N45,000.00 i.e. 3% of the N.I.A. Scale of Fees.
In sum, the appeal is allowed, the judgment of the lower court together with the costs awarded is hereby set aside. There shall be judgment in favour of the appellant for the sum of N45,000.00 plus costs of N500.00 in favour of the appellant.
This record of appeal ought not to have been received from the lower court because so many pages of the record of proceedings in the court of trial are not legible. It is the duty of the lower court to ensure that records of appeal are typed correctly and are legible before they are certified as true copies of the proceedings. The Registrar of this court is under a duty to return to the lower court records of appeal which are not legible or badly compiled. The rules on the compilation of the records of appeal succinctly set out under Order 7 rule 2 Rules of the Supreme Court must be complied with.
Other Citation: (1991) LCN/2476(SC)
