Deji Oyenuga Vs International Computers Ltd (1991)

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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