Churchgate Nigeria Limited V. C. Darl Uzu (2005)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS J.C.A.

The Plaintiff who is the Respondent to this Appeal sued the Defendant/Appellant in the High Court of Lagos State in Suit No. LD/3685/95 claiming the following reliefs which were reproduced in paragraph 23 of the Statement of Claim:

(i) Declaration that the decision of the Defendant withdrawing its mandate to the Plaintiff to assist in securing the property comprising

a. a complex of 24 bay warehouse,

b. an abandoned storey building with an area of about 7.129 hectares excluding an uncompleted office block erected on a portion of the premises covered by certificate of occupancy registered as NO. 5 at page 5 in volume 1980 of the Land Registry in the office at Lagos (“The Property”) was a ploy to deny the Plaintiff of its fee being 5% of the sale price which the Plaintiff has earned for the services rendered by the Plaintiff in causing the purchase of the property by the Defendant.

(ii) Declaration that the purchase of the Defendant (sic) was as a result of efforts and exertions of the Plaintiff and that the Plaintiff was the effective cause of the purchase of the property by the Defendant.

(iii) The sum of N4, 250,000.00 (Four Million two hundred and fifty thousand naira) being 5% of N85, 000,000.00 (Eighty Five Million Naira) paid by the Defendant for the property as professional fees due to the Plaintiff from the Defendant for services rendered by the Plaintiff to the Defendant towards the purchase of the property by the Defendant with interest thereon at the rate of 21% per annum from the 7th day of February, 1995 until payment.

(iv) ALTERNATIVELY the sum of N4, 250,000.00 (Four Million Two Hundred and Fifty Thousand Naira) being the sum payable to the Plaintiff by the Defendant upon the Plaintiff being the effective cause of the purchase of the property by the Defendant but which the Defendant purported to prevent the Plaintiff from receiving from the Defendant and interest thereon at the rate of 21% per annum from the 7th day of February, 1995 until payment.

A memorandum of appearance was entered on behalf of the Defendant but no statement of Defence was filed. The Plaintiff then brought an application under Order 10 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules for summary judgment. The application was supported with an affidavit to which exhibits were attached praying the court below for leave to enter judgment against the Defendant as per the Plaintiffs claims in the Statement of Claim. By its ruling delivered on 21st December 1995, the Learned Trial Judge entered judgment in favour of the Plaintiff for the sum of N4, 250,000.00 (Four Million Two Hundred and Fifty thousand Naira) as his professional fees for services rendered as well as interest on the said judgment sum at the rate of 21% per annum from the date of judgment until liquidation.

The Defendant being dissatisfied with the judgment appealed against it and filed an amended Notice of Appeal dated 2nd December, 1997.

After the Plaintiff obtained judgment, he brought an ex parte application for an order of Garnishee against 10 (ten) banks which was granted on 28th December 1995. On 8th January, 1996, the Defendant brought an application praying the lower court to set aside the summary judgment of 21st December 1995 and for an order discharging the Garnishee Order dated 28th December, 1995 and also for an order granting the Defendant leave to defend Plaintiffs claim and to extend the time within which to file its defence. The lower court on 1/2/92 refused to set aside the summary judgment as well as the application for leave and extension of time to file its defence and dismissed the application to discharge the Garnishee order nisi dated 28/12/95. The Defendant also appealed against this Ruling. Three issues were formulated for determination in the substantive appeal while a single issue was formulated in the appeal against the Ruling.

The issues raised in the substantive appeal are:-

1. Whether the Plaintiff was still entitled to the sum of N4,250,000.00 as fees after the Defendant’s withdrawal of its mandate.
2. Whether the Plaintiff has established a supportable claim to 5% Agency Fee having regard to his letter of offer which made the same subject negotiable.
3. Whether the Trial Judge was right in awarding interest at the rate of 21% per annum from the date of judgment until liquidation.

The issue for the appeal on the Ruling of 1/2/96 is:-

Whether the Learned Trial Judge was right in dismissing and/or otherwise refusing the Defendant’s application to set aside its default judgment of 21st December, 1995.