Wemabod Estate Limited V. Adesoye Simeon Osinuga(1994)

LawGlobal-Hub Lead Judgment Report

EMMANUEL OLAYINKA AYOOLA, J.C.A.

 The respondent (“the Plaintiff”) sued the Appellant (“the defendant”) on a contract. He claimed the sum of N300,805.00 specified, in his statement of claim filed with the writ of summons which superseded the writ, as made up of the following:-
“21.1. N65,625.00 for Professional Services rendered;
21.2. N35,000.00 as loss of profit of work carried to stage III of the contract;
21.3. N250 referred for re-allocation form;
21.4. Interest on the total sum of N300,875 with interest thereon at 13% per annum from 7/7/83 till total liquidation of the debt, from the Defendant for breach of contract.”

In November 1986, the plaintiff applied for summary judgment pursuant to 010 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules (the Rules). He stated in his affidavit among other things that:
(1) there was an agreement between the plaintiff and the defendant whereby a consultancy contract was entered into, by which the defendant engaged the plaintiff, to perform some services in relation to a proposed renovation/redevelopment of its property lying, situate and being at Murtala Muhammed Way, Ebute Metta, Lagos;
(ii) pursuant to the Agreement work was done for the defendant by the plaintiff; and,
(iii) on account of such services rendered in performance of the contract, the defendant was indebted to the plaintiff in the sum now claimed and has refused to pay the plaintiff the said sum despite repeated demands. The affidavit was accompanied by several documentary exhibits.

The Estate Surveyor of the defendant in an affidavit filed on behalf of the defendant to show cause against the application stated that it was admitted that there was a contract as alleged by the plaintiff and that the plaintiff “did some work on the renovation/redevelopment of one of its properties in respect of which the Defendant/Respondent is owing the Plaintiff/Applicant some money.” In paragraphs 6 and 7 of the affidavit the facts were deposed to by him “that the job was still on the drawing board when it had to be suspended and “that the amount of work done on the property by the Plaintiff/Applicant has not been quantified and evaluated in order to know the financial commitment of the defendant/respondent.”

It was stated that the defence goes to the whole of the claim.

In a short judgment, the learned Judge (Agoro J.) refused leave to defend on the ground that the facts deposed to in the affidavit filed on behalf of the defendant did not seem to be sufficient to entitle the defendant to defend the substantive action. He entered judgment in favour of the plaintiff in the sum claimed with costs.

The defendant has appeals from that judgment. In the brief of argument filed by counsel on its behalf, three issues for determination were formulated thus:-
(a) Did the plaintiff have any locus standi to institute the action?
(b) Was the learned trial Judge right to have given judgment for an unliquidated sum?
(c) On a proper consideration of the facts before the learned trial Judge, was he right to have refused the defendant leave to defend the action on the merits?”

Learned Counsel for the plaintiff agreed that those are the issues that properly arise for determination.

The law is now fairly well settled that leave to defend must be given unless there is no real substantial question to be tried.

There would be a real substantial question to be tried whether that question is one of fact or one of law, when the issue raised causes a reasonable doubt to the plaintiff’s entitlement to judgment. In Jones v. Stone (1894) AC 122, it was said that the power to give summary judgment under an order similar to 0.10 is “intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay.”

A fair probability that the defendant has a bona fide defence would suffice for the exercise of discretion to grant leave to defend. In a recent case, this court had occasion to consider 0.10 and said (per Uwaifo, J.C.A.):
“The purpose of the procedure under Order 10 is not to drive the defendant who shows he has a triable issue from judgment seat. It is to come in the interest of justice to the aid of the plaintiff whose claim is patently unassailable and where all the facts relied on by the defendant, assuming them to be in favour, do not amount to a defence in law.” See Savol West Africa Ltd v. National Bank of Nigeria Ltd & Ors. (CA/L/48/88: Unreported: 1994)

The main question in this case is whether the Judge was right when he held that the facts deposed to in the defendant’s affidavit do not seem to be sufficient to entitle the defendant to defend, but counsel for the defendant had launched into a discourse of the architect’s role in the execution of a building contract. In order to put the issues on this appeal in proper focus, it is expedient to observe that the proper place to put forward facts showing that the defendant has a good defence to the action is before the trial Judge who is vested with discretion to grant leave to defend. Where such leave has however been refused, it should be open to the defendant on an appeal from such refusal, to show that the legal result of the facts disclosed in his affidavit entitle him to defend the action.

On this appeal, the defendant’s counsel has sought to show that the propositions of law, extracted from authoritative books on building and engineering contracts, which apply to the facts of this case are as follows:-
(a) Where work is done on approval, or is in the nature of a proposal, sketch or design submitted for approval, the Architect may have no claim unless the design is actually approved or used in effect such designs are in nature of offers or tenders.
(b) Where an architect is engaged on the basis of the scale fees but the project is abandoned before completion, he is not entitled to recover the scale fees but only his fair charges, for the work actually done, i.e. on a quantum meruit.
(c) In considering the amount to be paid to an Architect on a quantum meruit for partial services on an abandoned project, it is not appropriate to calculate his remuneration based on a percentage of the estimated cost of works which had been abandoned or on time basis;
(d) When an architect contracts to perform an entire work, e.g. to prepare drawings and superintend the Whole work for a certain sum, whether fixed on the basis of a commission on the outlay or otherwise, his charges are not recoverable until the whole work is complete, unless express provision is made for payment by instalments.
It is argued, that “applying the above rules to the facts of this case, it is readily apparent that there are serious issues, both of fact and of law to be determined at the trial.”

It is manifest from the facts deposed to in the affidavit filed on behalf of the defendant and those facts in the plaintiff’s affidavit admitted by the defendant that the main question in the case is as to the method of computation of the plaintiff’s entitlement. The plaintiff says that the amount owing to him by the defendant is the amount computed on scale fees basis, but the defendant while agreeing, it would appear that some money is due to the plaintiff, contends that such money can be ascertained only upon the basis of actual work done by the plaintiff. The material facts were before the learned Judge that the plaintiff was engaged on the basis of the scale fees. In exh. A which is said to form the basis of the contract between the parties the defendant had written:
“On commissioning, your terms of engagement and fees would (be) based on the conditions laid down by the federal Military Government Circular No. W95356/Vol.I/208 of 26th June, 1975 (Scale of fees payable to consultants for public work;”