IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL
TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO. 13 GUDU, ABUJA
BEFORE HIS LORDSHIP:
HON. JUSTICE A. M. TALBA
SUIT NO: FCT/HC/G/13/CV/03/2005
ON THE 26TH DAY OF MAY, 2011
BETWEEN:
A. ISMAIL GADZAMA ESQ.
--- --- --- --- --- PLAINTIFF
AND
INCORPORATED TRUSTEES
OF SOCIETY FOR FAMILY HEALTH
--- --- --- DEFENDANT
Judgment
By the endorsement on the writ and paragraph 28 of the statement
of claim, the plaintiff claim against the defendant as follows:
(a)
A declaration that on the premises aforesaid that there is a
legal valid and subsisting agency contract between
defendant and plaintiff for which the plaintiff located and
negotiated for the purchase of property Plot 673 PortHarcourt Crescent Garki II, Abuja by the defendant.
(b)
A declaration that the plaintiff is entitled to customary
agency fee of N19,000,000.00 being 5% of N380,000,000.00
purchase price paid by the defendant for property Plot 673
Port-Harcourt Crescent Garki II Abuja.
Or in the alternative to (b) above.
©
A declaration that the plaintiff is entitled to customary
agency fee of 5% of the purchase price whatsoever paid by
the defendant on property Plot 673 Port-Harcourt Crescent
Garki 11 Abuja.
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(d )
An order of the Honourable Court directing the defendant to
pay the plaintiff forthwith agency fee as may be appropriate
and applicable under paragraph (b) or (c) above plus
interest at commercial Bank rate from the date of payment
of purchased price on property Plot 673 Port-Harcourt
Crescent Garki II Abuja to the date the Honourable Court
became seized of this suit and thereafter interest at Courts
rate until judgment debt is realized or liquidated.
(e )
An order for cost of this suit.
(f)
A statement and an order upbraiding in strong terms
defendants dishonest and reprehensible conduct and
condemning the errant defendant to penal costs and
damages as this Honourable Court of Justice may deem
appropriate in the pertinent and peculiar circumstances of
this case.
In an attempt to establish its case the plaintiff called four witnesses
and also tendered in evidence 14 exhibits marked as Exhibits A to N.
In response to the plaintiffs claim the defendant filed their statement
of defence which was amended with leave of court on the 16th day of
October, 2006. The defendant called one witness and through him
the defendants tendered ten (10) exhibits marked as exhibits O, P, Q
and R1 to R7.
In their final address the defence counsel formulated three issues for
determination:
( 1)
Whether from the totality of the evidence before this
Honourable Court, there was a contract between the Plaintiff
and the Defendant for the plaintiff to source for the
defendant, a commercial property within Garki II, Wuse II or
Maitama Districts of Abuja Metropolis of a value of not more
than N300 million.
3
( 2)
Whether the plaintiff sourced for the Defendant the property
known as Plot 673, Port-Harcourt Crescent, Garki II Abuja.
( 3)
Whether the plaintiff is entitled to the remedies claimed in
this suit.
U.H. Azikiwe of counsel for the defendant submitted that on the
totality of the evidence before this Honourable Court, the plaintiff has
not shown by any credible evidence that there was in existence any
contract between him or his law firm and the defendant, for the
plaintiff to source for the defendant, a commercial property within
Garki II, Wuse II or Maitama Districts of Abuja Metropolis. It is his
submission that the plaintiff has failed to establish that either himself
or his law firm was appointed as an agent by the defendant
regarding the purchase by the defendant of the property known as
Plot 673, Port-Harcourt Crescent, Garki II Abuja.
The learned counsel argued that It is an established principle of law
that in order to prove the existence of a valid and enforceable
contract, all the essential elements of a contract must be present viz,
offer, acceptance, consideration and intention to create legal
relations. Thus, an agency relationship such as that alleged to have
existed between the plaintiff and the defendant with regard to the
purchase by the defendant of the property known as No. 673, PortHarcourt Crescent, Garki II, Abuja cannot exist just because the
plaintiff chose to himself and agent of the defendant. In the case of
Pascutto V Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) 467 at
485 Iguh JSC stated that apart from the constitution of agency by
estoppel, the relationship of principal and agent may and is often
constituted by agreement. In the case of Sona Breweries Plc V. Sir
Shina Peters & Anor. (2005) 1NWLR (Pt. 908) page 478 particularly
at 488, paras B – E, the Court of Appeal restated the elements of a
valid contract thus:
“Before any contract or agreement can be said to have come
into existence, in law, there must be an unmistaken and precise
offer and an unconditional acceptance of the terms mutually
agreed upon by the parties thereto. In order words, the parties
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to the agreement must be in consensus ad idem as regards the
terms and conditions freely and voluntarily agreed upon by
them. Both sides to the contract must be clear as to what the
fundamental and crucial terms of the agreement connote
before the agreement can be said to come into legal effect. If
the terms of the contract are:
Uncertain or vague as to ascertainment with reasonable degree
of certainty, there can never be a valid agreement known to
law which can be said to offer itself for enforceability.”
See also Pan African Bank Ltd V. Ede (1998) 7 NWLR (Pt. 558) 4222;
Ezenwa V. Ekong (1999) 11 NWLR (Pt. 625) 55.
In the case of Green Finger Agro Industrial Enterprises. Ltd V. Musa
Yusufu (2003) NWLR (Pt. 835) p. 488 at pp. 510-511, paras. F – A;
511, paras. D – H(), the Court of Appeal held that:
“A contract is a result of the mutual assent of the parties to
certain terms and there is no enforceable contract unless the
terms are ascertainable, either expressly or by necessary
implication. In effect, if the terms of a contract are settled or
uncertain or vague that they cannot be ascertained with
reasonable certainty, there will be no valid contract enforceable
in law unless the uncertain part of the contract is unsubstantial
and can be separated from the vital parts thereof.”
See also Okoebor V. Eyobo Engineering Services (Nig.) Ltd (1991) 4
NWLR (Pt. 187) 553; Alfortrin Ltd V. A.G. Federation (1996) 9 NWLR
(Pt. 475) 634.
In this case, there is no reliable evidence of any offer, acceptance,
consideration or any fact of an intention to create legal relations
between the plaintiff and the defendant. The basis of the claim by
the plaintiff is the alleged conversation between Mr. S.S. Mshelia and
late Mr. Sunny Uriri. Mr. Odogwu, the defendant’s witness not only
denied that such conversation could have taken place but stated that
the defendant did not at any time ask late Mr. Uriri to instruct the
plaintiff to source for property for it; that it (the defendant) does not
5
issue instructions of an official nature orally and that if it considered
it necessary to respond to the plaintiff’s various unsolicited invitations
to treat letters, it would have done so only in writing; and that the
defendant received from several persons and organizations,
unsolicited offers and proposals to it to purchase the same property
at Plot 673, Port-Harcourt Crescent, Garki II, Abuja. Learned counsel
submitted that the evidence of the defendant in rebuttal of the
assertion by the plaintiff of the conversation with late Mr. Uriri shifted
the burden to the plaintiff to establish not only the conversation with
late Mr. Uriri but also, that Mr. Uriri had the authority to bind the
defendant.
There was no evidence to corroborate the viva voce
evidence of PW2, Mr. Mshelia on his conversation with late Mr. Uriri.
The plaintiff failed to prove that the defendant either appointed him
an agent or even respond to his numerous unsolicited letters which
we submit, were mere invitations to treat. The plaintiff has the onus
to prove the existence of any contract with the defendant, but has
failed to discharge that burden. Under cross-examination on 8th
October, 2008. The plaintiff admitted the following facts.
(i)
That there was no agreement between the
defendant and himself regarding payment of fees
payable to him or his firm.
(ii)
That by his letter dated 20th September, 2004
(Exhibit D) he asked for 10% for legal and agency
fees, but there was no response from the defendant
regarding Exhibit D.
(iii)
That there was no written response from the
defendant to all his letters in respect of this matter.
(iv)
That he was not present when Mr. Sunny uriri
purportedly instructed his junior partner, Mr.
Msheilia to source for a property for the defendant.
(v)
That he did not prepare conveyance documents in
respect of the property.
6
Mr. Azikiwe submitted that assuming without conceding to the fact
that plaintiff and Mr. Uriri had any discussions regarding the subject
matter of this suit (unfortunately, Mr. Uriri is dead and cannot tell his
side of his story) such discussions were strictly between the plaintiff
and Mr. Uriri and never culminated into a contract with the
defendant. Furthermore, the plaintiff being a legal practitioner knew
that where parties have not agreed on the essential terms of a
transaction, there is no contract between them. Exhibits D and F
show not only that the plaintiff and the defendant did not discuss or
negotiate the essential terms of the transaction but also, that the
parties did not agree on any terms at all including any fees payable
to the plaintiff. In Exhibit D the plaintiff sated that:
“Further, 10% of the purchase price will be advanced to
us to cover agency fee and legal fees i.e. our professional
fees. Consequently, you may wish to further instruct us
on the conduct of a search on the Title Deeds for the
property, which will be charged at the prevailing rate.”
As already noted above, the defendant never responded to
Exhibit D and, therefore never instructed the plaintiff as
requested. In the last paragraph of Exhibit F which is a letter
dated 22nd September, 2004, the plaintiff stated that:
“We shall be obliged to hear from you as timeously as
possible if this new offer is accepted to you enable (sic)
us communicate your (sic) acceptance to the landlord’s
agent.
Thank you.”
As admitted under cross examination, the defendant never
responded to the letter and never instructed the plaintiff as
requested in the letter.
Again he submitted that another factor that demonstrates that the
plaintiff and the defendant never entered into any contract is that
although the plaintiff alleged that Mr. Sunny Uriri (deceased) orally
7
instructed him through Mr. Mshelia and subsequently sent Exhibits D,
F, I, J and K to the defendant which were marked for the attention of
Mr. Uriri, the plaintiff failed to show any evidence of any response to
any of the letters by Mr. Uriri to whom the letters were addressed. It
is significant to note that the same Mr. Uriri wrote two letters,
Exhibits A and B to the plaintiff in respect of another property known
as Plot 569 Thomas Sankara Street, Asokoro, Abuja which the
defendant then rented but was being managed by the plaintiff. The
crucial question therefore is why did Mr. Uriri not write to the plaintiff
regarding the purported instructions to the plaintiff even though five
(5) letters had been addressed to him? The clear answer to this
question is that Mr. Uriri never instructed the plaintiff to source for
the defendant, a commercial property within Garki II, Wuse II or
Maitama Districts of Abuja Metropolis of a value of not more than
N300 million.
There is yet another feature in the evidence of the plaintiff which
makes it improbable. The plaintiff stated that Mr. Uriri had visited his
offices on Friday, the 10th September 2004 to confirm from him the
proper person to whom rents regarding the property at Plot 569
Thomas Sankara Street, Asokoro, Abuja were payable. The question
that begs for an answer is why did Mr. Uriri did not discuss the
defendant’s alleged instructions with the plaintiff but decided to
discuss the instructions with Mr. Mshelia (who admitted under cross
examination, that he is an Associate in the plaintiff’s law firm) after
both of them had left the plaintiff’s offices? The answer is that the
evidence of the alleged discussions between Mr. Uriri and Mr. Mshelia
is an afterthought concocted around a deceased person whose
counter evidence the plaintiff knows, would not be available to the
court.
In the case of Mark Iroagbara V. David Ufomadu, (2001)
11NWLR (Pt. 724) 465 at 471 paras. A – F) Pats – Acholonu
J.C.A (as he then was stated that:
“When evidence is improbable, it can be easily dismissed
as untrue as probability has always been the surest road
to the shrine of truth and justice. The balance of
8
probability will thus reflect also the balance of truth.
When this happens, it becomes the balance of justice.”
In the light of the foregoing facts, he urged the court to hold that the
plaintiff has failed to establish the existence of any contract between
him and the defendant for the plaintiff to source for the defendant, a
commercial property within Garki II, Wuse II or Maitama Districts of
Abuja Metropolis of a value of not more than N300 million or at all.
The defendant’s evidence is credible, unchallenged and should be
believed.
He urged this Honourable court to believe the evidence of the
Defendant that it sought out and dealt with the firm of Diran Adetunji
and Associates and that it did not any time either through Sunny Uriri
(deceased) or otherwise instruct the plaintiff to source for any
property on its behalf.
On Issue No. 2 Mr. Azikiwe submitted that it follows from the
submissions on issue No. 1 above that there was no contract
between the plaintiff and the defendant, that the plaintiff did not
source for the defendant, the property known as Plot 673, PortHarcourt Crescent, Garki II Abuja. The plaintiff like several other
persons and organizations was on a frolic of his own speculative
business and was never appointed an agent of the defendant. The
defendant sought out, found and dealt directly with the Diran
Adetunji and Associates, estate agents for the owners of the said
property situate at Plot 673. Port-Harcourt Crescent, Garki II, Abuja
and the owner of the property himself. Alhaji (Dr.) S.A. Adegunwa,
OFR. The Chairperson of the Board of Trustees of the Defendant,
the Honourable Justice (Mrs.) Ifeyinwa Nzeako met directly with the
owner of the property and concluded the negotiation for the
purchase of the property, including the price at which the property
was eventually bought and the payment terms. Exhibits “R5 and R6”
being the evidence of payment of agency fees to the said firm of
Diran Adetunji and Associates support the evidence of the defendant.
Furthermore, there is no credible and independent evidence or any
evidence at all of any transactions between the plaintiff and Diran
9
Adetunji & Associates or the owner of the property himself, Alhaji
(Dr.) S.A. Adegunwa, OFR as to suggest that the plaintiff might have
been representing the defendant or a prospective purchaser of the
property. In contradistinction to the assertions of the plaintiff, there
is the uncontroverted evidence of Mr. Joseph Odogwu, the
defendant’s witness which he gave under cross examination thus:
“What I know is that we went round Abuja to buy a
property and the news went round. So we received
offers. One of the places I went to is Port-Harcourt
Crescent No. 8. There was a signboard with fliers. We
went in, took the fliers from the security and we called
Diran Adetunji & Associates. From then the news went
round. We did not visit other places when we saw that
one. We did not reply to all the offers that came to say
we were not interested in the property. Diran Adetunji
exchange of correspondence and discussions between the
landlord, Diran Adetunji and the Board of Trustees of the
defendant which I am aware of.
The uncontroverted evidence of DW1 that Diran Adetunji &
Associates by a signboard, advertised to the whole world the
offer for sale of the property, the subject matter of this suit,
that the officers of the defendant went into the premises and
took one of the fliers from the security, that Diran Adetunji
made an offer to the defendant, and that there was exchange
of correspondence between Diran Adetunji & Associates and
the defendant has effectively and fully rebutted the assertion
by the plaintiff that he sourced the property for the defendant.
He urged this Honourable court therefore, to resolve this issue in
favour of the defendant and hold that the plaintiff did not source for
the defendant, the property known as Plot 673, Port-Harcourt
Crescent, Garki II, Abuja.
On Issue No. 3, He submitted that it has long been settled that a
claim for damages in cases based on contracts cannot succeed where
there is no proof of the contract and breach of same. In the case of
10
Union Beverages Limited Vs M. A. Owolabi (1988) 1 NWLR (Part. 68)
128 at 136 (e) the Supreme Court held that:
“Liability in the law of contract is limited to legal
obligations created by mutual agreement between the
contracting parties and does not admit of enforcement of
gratuitous promises.”
See Berliet Nigeria Limited Vs. Mordi Francis (1987) 2 NWLR (Part 58)
6 73
In the instant case, the plaintiff failed to prove that there was any
contract between him and the defendant for the plaintiff to source for
the defendant, a commercial property within Garki II, Wuse II or
Maitama Districts of Abuja Metropolis. Equally too, the plaintiff failed
to prove breach by the defendant of any such contract. The claim by
the plaintiff for agency fee of N19,000,000.00 being 5% of
N380,000,000.0 purchase price paid by the defendant for property
Plot 673, Port Harcourt Crescent, Garki II, Abuja must therefore, fail
and he urged this Honourable to dismiss the claim in its entirety.
He urged the court to reject, the claims for declaratory remedies and
all other claims contained in the plaintiff’s statement of claim.
The plaintiff being a legal practitioner is prohibited from acting as a
commission agent. It is his further submission that even if for
purposes of argument only that there was a contract between the
plaintiff and the defendant that was breached by the defendant,
which facts are not conceded whatsoever, the machinery of this
Honourable court or any judicial process cannot avail the plaintiff for
the purpose of obtaining any redress. And such contract is illegal,
unlawful or it is against public policy to enforce it in any manner.
The plaintiff being a legal practitioner is under the rules of
professional conduct for legal practitioners, 2007 (“The rules”)
expressly forbidden from acting as a commission agent. Rule 7 (1) of
the rules of professional conduct for legal practitioners provides that:
“Unless permitted by the General Council of the Bar a
lawyer shall not practice as a legal practitioner at the
same time as he practices any other profession.” Sub
11
rule (2) (a) of said rule 7 expressly forbid a lawyer,
amongst other activities, to do the business of a
commission agent.”
A commission agent is defined in the chambers 20th Dictionary
(at page 253) “as one who transacts business for another for a
commission. As already mentioned, both the plaintiff and Mr.
Mshelia admitted that they never prepared any documentation
in respect of the sale of the property which is the subject
matter of this suit. The claim of the plaintiff is that his law firm
sourced the property for the defendant for a commission of 5%
of the purchase price of the property. It is also not in dispute
that the plaintiff is not an Estate agent. The plaintiff has not
claimed that he performed any services for which he is entitled
to be paid under the Legal Practitioners Act. The alleged
transaction the basis of this suit is ex facie and by the evidence
adduced in support of the plaintiff’s case, illegal or contrary to
public policy. We rely on the decision of Iguh, JSC in the case
of Alao Vs African Continental Bank Limited (1993) 3 NWLR
(Part 542) 339 at 370 where the learned Lord held that:
“A transaction or contract, the making or performance of
which is expressly or impliedly prohibited by statute is
illegal and unenforceable. Where a contract made by the
parties is expressly forbidden by statute, its illegality is
undoubted and no court ought to enforce or allow itself to
be used for the enforcement of alleged obligation arising
thereunder…………………………………………………………………
……………………………….’but once illegality is brought to
the attention of the court it overrides all questions of
pleadings, including any admission made therein.”
See also the cases of:
Onyiuke Vs Okeke (1976) 3 SC1
12
Ajaokuta Steel Company Limited & 2 Others Vs Corporate
Insurers Limited (2004) 16 NWLR (Pt. 899) 369 at 393 (C
– H), 399 (E – F).
He urged this Honourable Court therefore, to resolve this third issue
against the plaintiff and to hold that he is not entitled to the sum of
N19,000,000.00 being 5% of N380,000,000.00 purchase price paid
by the defendant for property Plot 673, Port Harcourt Crescent, Garki
II Abuja, any commission arising from the subject matter of this suit
or any other remedies claimed in the suit.
In conclusion, he urged this court to dismiss this suit with substantial
costs, the plaintiff having failed to establish the existence of any
contract between him and the defendant for the plaintiff to source for
the defendant, a commercial property within Garki II, Wuse II or
Maitama Districts of Abuja metropolis of a value of not more than
N300 million; there being no credible evidence that the plaintiff
sourced for the defendant, the property known as Plot 673, Port
Harcourt Crescent, Garki II, Abuja; the plaintiff not being entitled to
any of the remedies claimed in the suit and the plaintiff’s claim
offends the provisions of rule 7 (1) of the rules of professional
conduct for legal practitioners.
In response to the defendants final address, the plaintiffs counsel in
his address he also formulated three issues for determination:
( 1)
Whether from the totality of the evidence before this
Honourable Court, there was a contract between the plaintiff
and the defendant for the plaintiff to source for the
defendant, a commercial property within Garki II, Wuse II or
Maitama Districts of Abuja metropolises of a value of not
more than N300 million.
( 2)
Whether the plaintiff sourced for the defendant the property
known as Plot 673, Port Harcourt Crescent, Garki II Abuja.
( 3)
Whether the plaintiff is entitled to the remedies claimed in
this suit.
13
Ngwu Pascal submitted that there is express and implied agency
contract between the plaintiff and the defendant to source and
identify suitable commercial property for the defendant within
Maitama, Wuse II, and Garki areas of Abuja. Mr. Sunny Uriri (now
deceased) instructed the plaintiff to source for the defendant a
commercial proper for purchase specifically in Maitama, Wuse 2,
and Garki areas of Abuja. The law of agency is premised on the
legal maxi qui facit per SE (he who act by another act by himself)
He referred to Chapter 3 on Agency at page 112 By J. Olakunle
Orojo Vol. I Nigeria Commercial Law and Practice 1983. The
learned Author at pages 112 and 113 defined Agency as:
1. “ . . . the relationship between two persons, one whom
expressly or impliedly consent that the other should represent
him or act on his behalf, and the other of whom similarly
consent to represent the former or so to act on.
2. An agent is a person who is authorized to act for a principal
and has agreed to act and who has power to effect the legal
relations of his principal with a third party.
3. . . . the relationship which arises whenever one person (the
agent) acts on behalf of another (the principal) and has the
power to affect the principal’s legal position with regard to a
third party.
4. Agency is the relationship which arises when a person called
the agent acts on behalf of another called the principal,
whereby the latter undertakes to be answerable for the lawful
acts the former does within the scope of his authority.
5. The relationship of agency exists between two persons one of
them (the agent) is considered in law to represent the other
(the principal) in such a way as to be to affect that other’s legal
position in respect of third parties by the making of contracts or
the disposition of property.
14
6. The fiduciary relation which results from the manifestation of
consent by one person to another that the other shall act on his
behalf and subject to his control, and consent by the other so
to act.
7. The relationship of principal and agent can only be established
by the consent of the principal and agent. They will be held to
have consented if they have agreed to what amounts in law to
such a relationship, even if they do not recognize it or disclaim .
. . . the consent must, however, have been given by each of
them either expressly or by implication from their words and
conduct.”
He said it is abundantly evident that Mr. Sunny Uriri (the then
Administrative Manager) of the defendant not only instructed the
plaintiff but both Mr. Joseph Odogwu (DW1 the Deputy Managing
Director of the defendant) demanded that they be taken on a guided
tour of the commercial properties they had instructed the plaintiff to
source for the defendant. The plaintiff (PW4) and (PW3) on Monday
the 20th of September 2004 took both DW1 and Sunny Uriri on a
guided tour of the property lying and situated on Plot No. 673 Port
Harcourt Crescent Garki, Abuja.
The plaintiff counsel submits that even if and which is not conceded
that Mr. Sunny Uriri (now deceased) and who was the Administration
Manager of the defendant) had no authority or power to contract on
behalf of the defendant, the DW1 (Mr. Joseph Udogwu (the Deputy
Managing Director of the defendant) having requested for a guided
tour and indeed accompanied PW4 and PW2 to Plot No. 673 Port
Harcourt Crescent Garki Abuja have expressly ratified and sanctioned
the agency contract between the plaintiff and the defendant.
It is submitted that the defendant being a responsible organization
had impliedly or expressly instructed the plaintiff by the two senior
staff to source and identify the landed property which it eventually
purchased and now occupies as it National Headquarters in Nigeria.
15
It is submitted further that where a person by words or conduct has
allowed another to appear to the out side world to be his agent with
the result that third parties deal with him as his agent, he cannot
afterward repudiate this apparent agency if to do so would cause
injury to third parties. See the case of Falodun Vs Bentworth Finance
(Nig. Ltd (1969) NCCR 230. The defendant has undoubtedly held out
Mr. Sunny Uriri (now deceased) as its agent with actual or ostensible
authority to enter into contract with the plaintiff to source and
identify suitable commercial property for the defendant in Abuja.
The apparent authority is not a “real” or “actual” authority but one
which is presumed from the act of a person who has placed another
in a situation in which according to the ordinary usage of mankind
that other is understood to represent and act for the person who has
placed him so.
In the case of Ghandi Vs Pfizer International Products Ltd (supra). It
was held that where an agent had ostensible authority to enter into a
contract on behalf of his principal, the principal was bound by the
contract so made, even where the agent had misappropriated the
money given in consideration of the contract unless there is evidence
of fraud or the money was paid to a person who clearly had no
authority to receive it.
Similarly in John Holt & Co. Ltd Vs Lafe (1939) 15 NIR 14 it was held
that it is within the apparent scope of the agents authority to bind his
principal to an oral agreement. It is undisputed fact that Mr. Sunny
Uriri (The Administrative Manager of the defendant) had orally
instructed the plaintiff to source for the defendant a commercial
property within Abuja and have therefore bound the defendant to
contract with the plaintiff.
The oral instruction of Mr. Sunny Uriri was ratified by Mr. Joseph
Udogwu (DW1) who accompanied Mr. Sunny Uriri, PW2 and PW4 on
a guided tour of the property known as Plot No. 637 Port Harcourt
Crescent, Garki Abuja is precluded from denying that Mr, Sunny Uriri
had no authority to enter into contract with the plaintiff.
16
It is the law that apparent authority may arise in two ways:
( 1)
The agent may have no authority at all, indeed no
relationship of principal and agent, but he may be placed in
such a situation that he appears to third parties to have
authority.
( 2)
The agent may have been duly appointed agent with limited
authority to do only certain act. If the agent exceeds the
authority and the third party does not know of the restriction
the principal had place on the Agent, he will be deemed to
have given ostensible or apparent authority to the agent to
do even those acts which he had apparently allowed but had
secretly forbidden him to do in the case of Ogunsuki V Lukan
(1968) NCCR 413, it was held that where a person behave in
such a way as to lead another person to believe that he has
authorized a third person to act on his behalf and such
person in that belief enters into the transaction with the
third person within the scope of such ostensible authority,
the first mentioned person is estopped from denying the fact
of the third person agency, and it is immaterial whether the
later had no authority whatever in fact or whether he acted
in excess of his actual authority. The court has gone all to
protect the third party even where the agent is acting for his
own benefit and not that of his principal and indeed where
the agent is acting against the interest of this principal.
It is trite law that the holding out must be a particular individual who
says he relied on it or under such circumstance of publicity as to
justify the inference that he knew of it and acted on it. Where there
is a representation to a number of persons, only those who rely on it
can make the principal liable.
In the instance case both PW2 and PW4 have acted on the oral
instruction of Mr. Sunny Uriri and his employer (the defendant)
cannot now be heard to say that it never gave Mr. Sunny Uriri
authority to enter into agency contract with the plaintiff.
17
The defendant in its futile effort in its written argument have asked
why Mr. Sunny Uriri have written letters to the plaintiff in respect of
Plot No. 569 Thomas Sankara, Asokoro Abuja but have not likewise
communicated with the plaintiff in respect of Plot No. 673 Port
Harcourt Crescent, Garki Abuja.
The defendant is economical with the truth in this respect, in that it is
not always that Mr. Sunny Uriri communicates with the plaintiff in
writing. It is admitted fact, for example that Mr. Sunny Uriri didn’t
write the plaintiff to enquire to whom rent for No. 569 Thomas
Sankara Asokoro should be paid. It is submitted that the defendant
neglecting or refusing to respond to any of the plaintiffs letters, does
not mean that there was no relationship between the plaintiff and the
defendant. It is further submitted that the neglect of the defendant
to communicate with the plaintiff and their silence must be construed
to mean that they have ratified the act and deeds of Mr. Sunny Uriri
as their agent (muteness)
See the case of Mutual Aids Society Ltd Vs Akerele (1965) 4 NSCC
286 at 271 where it was held: Even if it were assumed that the
auctioneer was exceeding his authority in publishing a Notice of Sale
of the plaintiff house, the silence of the defendant over the Notice of
Sale is implied ratification of it on their behalf and it was not open to
them to contend that the auctioneer did not act within the scope of
his authority.
Learned counsel said, it is uncontroverted fact that the plaintiff saw
plot No. 673 Port Harcourt Crescent on the 15th of September 2004
and took the defendant’s senior staff on a guided tour on the 20th of
September 2004.
The defendant’s only witness stated in his
witnesses statement and orally that they met the appointed agent of
the landlord (Alhaji Dr. S.A. Adengunwa OFR) in the month of
November 2004, two whole months after the plaintiff had taken the
defendants senior staff on a guided tour of the property.
On Issue No.2
18
Plaintiffs counsel submitted that all of the PW1 (Joseph Bali) PW2
(Sughyel Mshelia) and the plaintiff (PW4) have in their separate
witness statements and in their oral testimony before this court
stated that the plaintiff mobilized PW1 and PW2 to comb all of
Maitama, Wuse and Garki Areas of Abuja and on the 15th of
September 2004. All of PW1, PW2 and PW4 saw the property lying
and situated at Plot No. 673 Port Harcourt Crescent Garki II on the
16th September, 2004 and on which property was affixed the name
and address of the Landlord’s agent (Diran Adetunji & Associates)
and that the plaintiff copied the address of the landlord’s agent, the
plaintiff promptly contacted the Estate firm of Messrs Diran Adetunji
& Associate (the landlord’s agent) on the same day namely the 16th
of September 2004 in writing and demanded the price of the
property. The Estate firm of Messrs Diran Adetunji & Associate
(Landlord’s agent) offered the property in writing on the very same
day to the plaintiff for the sum of N450,000,000.00.
The plaintiff informed the defendant of the availability of this
property for sale in writing and enclosed photocopy of the letter of
the landlord’s agent on the 16th of September 2004. Both the letter
of the plaintiff and the letter of the landlord’s agent are before this
Honourable Court as exhibits. Mr. Samuel Surhyel Mshelia (PW2) in
his witness statement and in oral evidence on oath have said that he
personally delivered the plaintiff’s letter to the defendant and the
defendant instructed him to go to the office of Diran Adejunji &
Association (The landlord’s Agent) and negotiate for the defendant
the price of the property from N450,000,000 to N300,000,000 and
which instruction the PW2 promptly attended to and successfully
secured the reduced price of N300,000,000 and informed the
defendant in writing of this development. Both of PW2 and PW4
have deposited in their witness statement and in their oral testimony
that they promptly informed the defendant in writing that the
landlord’s agent have agreed to offer to the plaintiff No. 673 Port
Harcourt Crescent, Garki II for the sum of N300,000,000.00, the
plaintiff enclosed photocopy of the letter of the landlord’s agent to
the defendant.
The landlord agent withdraw his offer of
N300,000,000 and informed the plaintiff on the 17th of September
2004 and made a new offer of N380,000,000.00 to the plaintiff and
19
of which offer the plaintiff informed the defendant by a letter dated
20th September 2004.
The defendant on the same day, namely the 20th of September 2004
requested the plaintiff (PW1) and (PW2) to take them on a guided
tour of the commercial buildings, they sourced for the defendant in
Wuse 2 and Garki areas of Abuja. Both PW2 and PW4 took Mr.
Sunny Uriri (now deceased) and DW1 (Mr. Joseph Odogwu) on a
guided tour of the commercial building at No. 678 Port Harcourt
Crescent Garki II and other properties at Wuse II, Abuja. It is in
evidence that both Mr. Sunny Uriri (now deceased) and DW1 (Mr.
Joseph Odogwu) preferred the property situated at Plot No. 673 Port
Harcourt Crescent Garki II Abuja.
It was after the plaintiff and PW1 have shown the two senior staff of
the defendant and secured the final selling price of the property at
No. 673, Port Harcourt Crescent that the defendant secretly went
behind the back of the plaintiff and contacted the agent of the
landlord in the month of November 2004 and paid for the property
which they now occupy as their national Headquarters.
It is uncontroverted evidence that the defendant did not know of the
existence and availability of Plot No. 673 Port Harcourt Crescent for
sale until the plaintiff have informed it in writing on the 15th of the
September 2004 and took its senior staff (Mr. Sunny Uriri and Mr.
Joseph on a guided tour on the 20th of September 2004.
He urged the court to resolve issue No. 2 in favour of the plaintiff
and to hold that it was the plaintiff that source and identified the
property known as Plot No. 673 Port Harcourt Crescents, Garki II to
the defendant.
On Issue No. 3 Learned counsel argued that
It is uncontroverted evidence as adduced by PW1, PW2 and PW4 that
there is a binding contract between the defendant and the plaintiff in
respect of the property lying and situated at Plot No. 673 Port
Harcourt Crescent Garki II, Abuja Mr. Peter Neple (PW3) a registered
20
and licensed Estate Surveyor and valuer have testified for the plaintiff
that Estate Surveyors Law does not preclude the plaintiff who is a
lawyer from claiming fees or commission on land or building in which
he has played the role of an agent.
In general an agent is only entitled to the commission if he is the
effective cause of the transaction taking place. It is necessary to
show the introduction was an effective cause in bringing the letting
or the sale. An Estate agents duty is merely to find a purchaser or a
vendor of the property intended for sale or required for purchase and
an Estate agent employed to sale the property on commission basis
is entitled to his commission if the property is sold as a result of his
telling the purchaser it is for sale. See the case of Badawiv Vs Elder
Dempster Agencies Ltd. (1968) NCLR 394). See also Belov Menuwa
(1974) NCCR 481 at page 488. Where an agent obtains a price and
the principal negotiates a lower price or on different terms, the
question may arise who in fact affected the contract. If what the
principal did was merely a different way of carrying out the same
contract which he employed the agent to arrange, the agent may
nevertheless, be entitled to his commission.
On the whole
commission contract are subject to no peculiar principle of their own,
the law governing them is the law which governs other contracts of
agency and each case depends upon the terms of the agency. See
Bello V Manuwa (ante) per Odesany. J. at pages 489 – 490.
The plaintiff have proved beyond any reasonable doubt that there
exist a binding contract between the plaintiff and the defendant and
that it was the plaintiff who sourced and showed the defendant the
property lying and situated at Plot No. 673 Port Harcourt Crescent
Garki II. The plaintiff have equally proved that the defendant is in
breach of the contract and the plaintiff is entitled to agency fees of
N19,000,000.00 being 5% of the sale price of the property at
N380,000,000.00.
He urged the court to hold that the plaintiff is entitled to his fees of
N19,000,000.0 and all the reliefs sought in the writ of summons and
his statement of claim.
21
It is finally submitted on behalf of the plaintiff that the rules of
Professional conduct for legal practitioner 2007 does not prevent the
plaintiff to be agent in conveyance matters Mr. Peter Neple (PW3)
have in his written statement and oral evidence stated that the
plaintiff is not precluded from earning his fees or commission under
any law known to him. The case of Alov African Continental Bank
Ltd. (1993) 3 NWLR (Pt. 542) at page 30 relied upon by the
defendant that the plaintiff entered into an illegal contract is not only
irrelevant but the defendant in its evidence have not shown that the
purchase of Plot No. 673 Port Harcourt Crescent Garki II was illegal
and unlawful.
He urged the Honourable court to resolve issue No. 3 in favour of the
plaintiff and to hold that the plaintiff is entitled to the sum of
N19,000,000 being 5% of N380,000,000 the price paid by the
defendant for the property known as Plot No. 673 Port Harcourt
Crescent, Garki, Abuja.
In Conclusion:
He urged the Honourable Court to hold that the plaintiff have
conclusively proved his case against the defendant and is entitled to
all the reliefs and claims in the statement of claim.
From the facts in this case, the evidence led and exhibits tendered
when considered alongside the submissions made by the respective
counsels in this matter the only issue to be determined in my view is
simply thus:
Whether there is an agency relationship between the plaintiff and the
defendant. In determining this issue it is necessary to examine the
facts in this case in order to appreciate the real question in
controversy between the parties.
The case for the plaintiff is that on the 10th of September 2004 Mr.
Sunny Uriri came to the firm of the plaintiff to confirm the
appropriate person whose rents should be paid to in respect of a
property known as Plot 569 Thomas Sankara Street Asokoro Abuja
22
which the defendant had rented from the landlord Alhaji Mohammed
Zira. And same was managed by the plaintiff. The plaintiff advised
Mr. Sunny Uriri to pay directly to the landlord and he instructed Mr.
S.S. Mshelia to accompany Mr. Sunny Uriri to the landlord’s house.
The plaintiff was later informed by Mr. S.S. Mshelia that while they
were on the way to the landlord’s house Mr. Sunny Uriri enquired as
to whether the plaintiff’s firm could urgently source for the
defendants direct purchase a commercial property within Garki II,
Wuse II or Maitama Districts of Abuja metropolis of a value of not
more than N300 million.
On Monday the 13th of September 2004 the plaintiff detailed his staff
to search for and identify a suitable commercial building in
accordance with the description and cost value of the defendants
verbal instructions.
On the 15th of September 2004 the plaintiff’s staff identified property
at Plot 673 Port Harcourt Crescent Garki II Abuja Plot 1351
Darasalem Street Off Aminu Kano Crescent, Wuse II Abuja (known as
Jaleco Plaza) and another property at Wuse II. All the three
properties were inspected by the defendant who at the end of the
day preferred property at Plot 573 Port Harcourt Crescent Garki II
under the management of Diran Adetunji and Associates Estate
Surveyors and Valuers. The plaintiff said he held several discussions
with the Estate Agents Diran Adetunji and Associates in respect of
the property until he got a final offer price of N380 million for the
property. Which offer was communicated to the defendant.
The plaintiff said sometime in November 2004 he learned from Mr.
Sunny Uriri (now deceased) that the defendant had paid for the
property without paying him his agency fees. The plaintiff wrote
several letters of demand to the defendant demanding for his agency
fees of 5% of the purchase price of the property at Plot 673 Port
Harcourt Crescent Garki II all to no avail. The plaintiff also said in
December 2004 he received a phone call from Mr. Sunny Uriri
(deceased) who informed him that the defendant had paid agency
fees in respect of the transaction to Diran Adetunji and Associates,
the Estate Agents to the owner of the property. He (plaintiff) was
23
advised to see the defendants. On 5th of January, 2005 the plaintiff
met with Mr. J. Odogwu, General Manager, Finance and
Administration of the defendants who asked him to see Diran
Adetunji and Associates for their agency fee. The plaintiff met with
Diran Adetunji who told him that the defendant did not pay their
agency fee to him. The plaintiff said finally, that after sending a
formal bill of professional charges to the defendant he decided to
recover the agency fee through this action.
The defence put up by the defendants is that it did not at any time
ask Mr. Sunny Uriri (deceased) to instruct the plaintiff to source for
property for it. And that the defendant does not issue instructions of
an official nature orally. The defendant did not consider it necessary
to respond to the plaintiffs various unsolicited letters. The defendant
received from several persons and organizations unsolicited offers
and proposals to it to purchase the same property at Plot 673 Port
Harcourt Crescent Garki II Abuja. One of such proposals was
received from Diran Adetunji and Associates who sent letters dated
6th September 2004 and 30th November 2004. And they ultimately
acted as the agent for the sale of the property. The defendant
contended that the plaintiffs like several other persons and
organizations were on a frolic of his; own speculative business and
was never appointed an agent of the defendant. The defendant
further contended that they dealt directly with Diran Adetunji and
Associates Estate Agents for the owner of the said property situate at
Plot 673 Port Harcourt Crescent Garki II Abuja. And the owner of the
property Alhaji (Dr.) S.A. Adegunwa OFR, and the Chairperson of the
Board of Trustees of the defendant, the Hon. Justice (Mrs.)
Ifenyinwua Nzeako met and concluded negotiation for the purchase
of the property, including the price and the payment terms. The
payment terms were that the defendant being a non profit
organization without profit base cash flow would pay the purchase
price in two installments.
The defendant maintained that it did not under any circumstances
instruct any person, firm or organization including the plaintiff to
assist it in locating or negotiating for any property within or outside
24
the Abuja metropolis for any given price or for the purpose of a
commercial office.
Now having set out the facts of the case, as presented by the parties
in this case, it is apt to proceed to determine the issue raised being
the main issue for determination i.e. whether there is an agency
relationship between the plaintiff and the defendant. It is not in
dispute that the case for the plaintiff is predicated on the discussion
between Mr. Sunny Uriri (deceased) and Mr. S.S. Mshelia. In
paragraph 4 of the plaintiff’s witness statement on oath he stated
thus:
“I was informed by S.S. Mshelia Esq. that while they were on
the way to the landlord’s house, Mr. Uriri enquired as to whether the
plaintiff firm could urgently source for the defendants direct purchase
a commercial property within Garki II, Wuse II or Maitama Districts
of Abuja metropolis of a value of not more than N300 million>”
From a reasonable man point of view, a clear analysis of this piece
of evidence would reveal that the plaintiff got his information from
Mr. S.S. Mshelia. He was not there when Mr. S.S. Mshelia had the
discussion with Mr. Uriri. And Mr. Uriri is now deceased so he cannot
confirm to the court whether indeed he had the discussion with Mr.
S.S. Mshelia. And more so the discussion was to the effect that Mr.
Uriri enquired as to whether the plaintiff firm could urgently source
for the defendants direct purchase a commercial property within
Garki II Wuse II or Maitama District of Abuja metropolis of the value
of not more than N300 million naira. In other words Mr. Uriri was
not giving an instruction to Mr. S.S. Mshelia rather he was making an
inquiry. The question left to be answered is: how then can an
inquiry turn out to be an instruction thereby creating an agency
relationship?
In sona Breweries Plc. Vs Sir Shina Peters & Anor (supra) the Court
of Appeal held:
“Before any contract can be said to have come into existence in
law there must be an unmistaken and precise offer and an
25
unconditional acceptance of the terms mutually agreed upon by the
parties thereto . . . “
DW1, Mr. Odogwu denied that such conversation between Mr. S.S.
Mshelia and Mr. Uriri ever took place. And that the defendant did not
instruct Mr. Uriri at any time to instruct the plaintiff to source for
property for it. And that the defendant does not issue instructions of
an official nature orally. I am inclined to agree with the submission
of the learned defence counsel that the plaintiff was on a frolic of his
own speculative business. The inquiry made by Mr. Uriri could not
have culminated into an instruction. The plaintiff simply jumped into
conclusion and assumed that Mr. Uriri had instructed Mr. S.S. Mshelia
to source for a property for the defendant. The fact that the
defendant refused to respond to all the letters written to them by the
plaintiff more particularly Exhibit D, F, J, K, & L. That shows that the
defendant never intended to enter into any contractual relationship
with the plaintiffs.
The plaintiff is a meddlesome interloper (busy body). I am not
unmindful of the fact that learned counsel for the plaintiff submitted
that the defendants Deputy Managing Director who testified as DW1
requested for and was conducted on a guided tour of the property
which is the subject matter of this suit and that the defendant had
thereby ratified the alleged agency contract that existed between the
plaintiff and late Mr. Uriri. But however I could not lay hands on any
evidence to prove that DW1 requested and/or was taken on a guided
tour of the property which is the subject matter of this suit.
In fact on 3rd June 2009 when DW1 testified under cross examination
he stated thus:
“ . . . I don’t know the plaintiff in this case. I never came
across anybody from the office of the plaintiff.”
This piece of evidence has not been contradicted by the plaintiff. It
is settled law that unchallenged evidence are deemed to stand and
can be admitted as the true facts. It is also settled law that the
submission of counsel cannot be substituted for evidence and no
26
amount of brilliance shown in a counsel’s address can make up for
the lack of evidence needed to prove and establish or to disprove and
demolish points in issue. See Atanze Vs Attah (1999) 9 NWLR (Pt.
620) 633.
In view of the foregoing it is my view that there was no
agency/contractual relationship between the plaintiff and the
defendant. The plaintiff had failed to prove his claim against the
defendant and ought to suffer the fate of dismissal.
Accordingly, the plaintiff’s claims are hereby dismissed.
Signed:
HON. JUSTICE A.M. TALBA – PRESIDING JUDGE
26/5/2011
Pascal Ngwu for the Plaintiff.
U.H. Azikiwe for the Defendants.