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.

The Respondent raised a Preliminary Objection to grounds (i) and (ii) in the amended notice of appeal as well as Issue No 1 of the Appellant’s Brief and urged that the said ground and issue should be struck out because of the failure of the Appellant to formulate any issue from it and so the ground is deemed abandoned. Further – more, learned counsel for the Respondent argued that Ground (ii) of the Amended Notice of Appeal is invalid owing to its failure to comply with Order 3 Rule 2 (2), (3) and (4) Court of Appeal Rules which stipulate that if a ground alleges a misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated which was not done in the said ground (ii).

The Respondent adopted issues 2 and 3 as formulated in the Appellant’s Brief and conceded that the learned trial Judge was wrong in awarding interest on the judgment debt at the rate of 21% per annum from the date of judgment till full liquidation as raised in issue No 3. He said that the rate of interest that ought to have been awarded is 7 1/2 % per annum as provided for by Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules rather than 6% as argued by the Appellant.

The Appellant filed a Reply Brief in answer to the Preliminary Objection raised by the Respondent in connection with Grounds (i) and (ii) in the amended notice and issue No.1. Learned Counsel argued that even if an issue was not formulated from a ground of appeal, this should not constitute a ground for a preliminary objection but would be tantamount to abandoning the ground and all that is required is to strike out the said ground. I agree with this submission.

Learned counsel submitted quite strongly that Ground 1 of the Amended Notice of Appeal was not abandoned as issue No 1 was formulated from grounds (i) and (ii) in the Amended Notice.

In regard to the second objection, learned counsel argued that Ground (ii) which flows from Ground (i) of the Amended Notice of Appeal has sufficiently incorporated the particulars in the main body of the ground to such an extent that it cannot be safely and/or rightly said that anybody would be left in doubt as to the particulars upon which the said ground is based. Reliance was placed on AYUA VS. ADASU & ORS. (1992) 3 NWLR (PT. 231) 127 in submitting that it is not every failure to supply particulars of error separately that will be fatal and it is sufficient if the particulars of error are sufficiently embedded in the ground of appeal so as not to leave the other party or the court in any doubt as to the particulars upon which the ground is based.

Grounds (i) and (ii) of the Amended Notice of Appeal upon which the Preliminary Objections are based state:-

“(i). The learned Trial Judge erred in law in entering judgment in favour of the Plaintiff for the sum of N4,250,000.00 which decision was predicated on the grounds that the plaintiff was appointed and/or acted as Agent of the Defendant when:

(a) on the plaintiffs own documentary evidence, it (Plaintiff) only gave the Defendant unsolicited privileged information that the property was available for sale.

(b) It (Plaintiff) was never appointed an Agent but as again unsolicited putting pressure on the Defendant to purchase the property by giving the Defendant information on the property.

(ii). Even if (which is not admitted) the Plaintiff was ever appointed as Defendant’s Agent, the Plaintiffs appointment has been duly terminated with effect from 23rd January 1995 and the purchase of the property was a result of direct negotiation between the defendant and the Vendor.”

In dealing with the objections raised by the learned counsel for the Respondent, the most important thing to note is that the number of issues need not correspond with that of the grounds of appeal. Several grounds may raise one issue whereas in some cases, one ground may raise one issue. However the issues formulated must have a direct bearing with the grounds of appeal. See: FABIYI VS. ADENIYI (2000) 6 NWLR (PT 662) 532; DANTATA VS MOHAMMED (2000) 7 NWR (PT 664) 176; BIOCON AGRO CHEMICALS (NIG) LTD VS. KUDU HOLDING LTD (2000) 15 NWLR (PT 691) 493; NNUBIA VS. A-G. RIVERS STATE (1999) 3 NWLR (PT 593) 82. Learned Counsel for the Appellant in reply to the objection on the abandonment of ground 2 submitted that issue No 1 is distilled from Grounds 1 and 2 of the Amended Notice. I have examined the said issue and I agree with learned counsel’s submission that issue 1 is related to Grounds 1 and 2 of the Amended Notice of Appeal. I also hold that Ground 2 is not an incompetent ground of appeal as the particulars are embedded in the ground and the said ground has not been abandoned as issue 1 bears direct relevance to the complaints raised in Grounds 1 and 2. I hold that the preliminary objections taken on issue 1 and the purported abandonment of Ground 1 are baseless and I dismiss them.

ISSUES IN THE SUBSTANTIVE APPEAL

The Respondent adopted the issues formulated by the Appellant.

Since the Preliminary Objections failed and have been dismissed, the Respondent must stand or fall by the issues formulated by the Appellant.

The Respondent made an important concession on the award of 21% interest on the judgment debt which he said was wrong but should have been awarded 7 1/2% interest rate per annum as provided under Order 38 Rule 7 of the High Court of Lagos (Civil Procedure) Rules while the Appellant maintained that the interest which the judgment debt can attract is 6%. These are the arguments which were proffered on issue No.3 in the Appellant’s brief.

Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules 1994 states as follows:

“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding seven and half per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards” (Underling mine for emphasis)

The award of interest post judgment is statutory and has its source in the rules of court which in the instant case can be found in Order 38 Rule 7 High Court of Lagos State (Civil Procedure) Rules 1994. It lies entirely at the discretion of the trial court after delivery of judgment. However, the maximum interest that could be awarded on the judgment debt in the instant case is 7 1/2% per annum from the date of judgment until the whole judgment debt is liquidated. The learned trial Judge was therefore in error when he awarded 21% interest per annum upon the judgment sum from 21/12/95 until it is liquidated. See: BERLIET NIGERIA LIMTED V. KACHALLA (1995) 9 NWLR (Pt. 420) 478; HIMMA MERCHANTS LIMITED V. ALIYU (1994) 5 NWLR (Pt.347) 667; EKWUNIFE V. WAYNE (WEST AFRICA LIMITED (1989) 5 NWLR (Pt. 122) 422; N.I.D.B. V. DE-EASY LIFE ELECTRONICS (1999) 4 NWLR (Pt.597) 8.

Dealing with Issue No.1 in the Appellant’s Brief, learned Counsel referred to paragraph 15 of the Affidavit in support of the summons for summary judgment and submitted that this material fact in itself raises triable issues which should have necessitated a full consideration by the learned Trial Judge of all the issues in controversy between the parties and the issues which should have agitated the mind of the learned Judge are:

1. Why did the Defendant withdraw its mandate from the Plaintiff?
2. Is there a possibility that the Defendant’s said withdrawal was occasioned by a delay or failure of consideration on the part of the Plaintiff in the provision of his professional services in this regard?
3. Can it be rightly said that the Defendant as a contracting party does not deserve the right to repudiate, cancel or otherwise determine a contract made between it and the Plaintiff?
4. Could the Plaintiff be rightly said to have fully, effectively and totally discharged his own obligation under the contract made between it and the Defendant to make the Defendant’s said withdrawal of its mandate of no effect?

Learned Counsel submitted that these issues could not be adequately addressed by the learned trial Judge by entering a summary judgment arguing that in NISHIZAWA V. S.W. JETHWANI LTD (1984) 2 S.C. 234, the Supreme Court clearly established a balance between the need to summarily determine a claim and that of ensuring a fair and judicious determination of the issues in controversy by a trial Judge. It was submitted for the Defendant that the questions which its action of withdrawal of the Plaintiffs mandate raised could not be effectively determined by the trial Judge at the state of his consideration of the Plaintiffs application for summary judgment and therefore amounted to a premature consideration of the issues for determination. It was further contended that the failure by the Defendant to respond by way of affidavit in an application under Order 10 Rule 3 does not automatically entitle the Plaintiff to judgment as per his claim or otherwise absolve him of the responsibility in law to establish his case by credible, supportable and convincing evidence.

In reply Learned Counsel for the Respondent submitted that the Estate Agent’s business is to provide the information and the necessary advice to link a vendor to a purchaser and where his effort results in a sale he has earned his commission. Reference was made to paragraphs 5 to 14 of the affidavit in support of the Summons for Summary Judgment and Exhibits CDU1 to CDU7 attached thereto. Counsel argued that the depositions in the said paragraphs were not challenged at the Court below and despite the attempt by the Appellant to sidetrack the Respondent, the circumstances of the transaction confirms the fact that it was the information and advice given by the Respondent to the Appellant that culminated in the purchase of the property by the Appellant. The Appellant had resolved to purchase the property for N85,000,000.00 (the same price mentioned by the Respondent’s letter) and so the purpose for writing the letter on 23rd January, 1995 withdrawing the mandate was to avoid its obligation of paying commission to the Respondent. It was submitted on behalf of the Respondent that the Appellant having derived benefit from the effort of the Respondent is estopped from withdrawing the mandate it earlier gave to the latter. Learned Counsel for the Respondent concluded his argument on issue 1 by submitting that the case of NISHIZAWA V. JETHWANI supra cannot assist the Appellant because it is the so called defence of withdrawing the Respondent’s mandate that Aniagolu J.S.C. had in mind when he stated in that case at page 234 that:

“…a Defendant who has no real defence to the action should not be allowed to dribble and frustrate the Plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness”.

Order 11 Rules 1-3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 provide as follows:

“Order 11 Rule 1 (a) Where the defendant appears to a Writ of Summons specially indorsed with or accompanied by a Statement of Claim under Order 4 rule 4, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge thereupon, unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the remedy or relief claimed.

(b) If on the hearing of any application under this rule it shall appear that any claim which could not have been specifically indorsed under Order 4, rule 4, has been included in the indorsement on the Writ the Judge may, if he shall think fit, forthwith amend the indorsement by striking out such claim which had been included in the indorsement, and allow the action to proceed as respects the residue of the claim.

(c) Where the plaintiffs claim is for the delivery up of a specific chattel (with or without a claim for the hire thereof or for damages for its detention) the Judge may make order for the delivery up of the chattel without giving the defendant any option of retaining the same upon paying the assessed value thereof, and such order if not obeyed may be enforced by a Writ or a Writ of delivery.

2. The application by the plaintiff for leave to enter final judgment under rule 1 of this Order shall be made by summons returnable in Chambers not less than four clear days after service, accompanied by a copy of the affidavit and exhibits referred to therein.
3. (a) The defendant may show cause against such application by affidavit, or the Judge may allow the defendant to be examined upon oath.

(b) The affidavit shall state whether the defence alleged goes to the whole or to part only and (if so), to what part of the plaintiffs claim.

(c) The Judge may, if he thinks fit, order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies, of or extracts therefrom.”

In the specially endorsed Writ, the Plaintiff attached the Statement of claim and pleaded in paragraphs 3, 4,5,6,7,9,10,11,12,13 and 14 as follows:

“3. By a letter dated 15th November 1994, the Plaintiff introduced to the Defendant for purchase by the Defendant a property comprising

(i) a complex of 24 bay Warehouse

(ii) an abandoned storey building with an area of about 7.129 hectares, excluding an uncompleted office block on a portion of the premises (“The Property)”

4. The Defendant by a letter dated November 21, 1994 indicated its acceptance and interest in the purchase of the property and requested that the Plaintiff arrange for inspection of and visit to the property.
5. On the 23rd day of November 1994 the Plaintiff took the Defendant to visit and inspect the property which is situate at Plots 1 and 2, Block D in Isolo Industrial Estate, Isolo, Lagos State covered by Certificate of Occupancy registered as No. 5 at Page 5 in Volume 1980 of the Land Registry in the office at Lagos.
6. The Plaintiff avers that after the said visit and inspection the Defendant by its letter dated 24th November 1994 written to the Plaintiff restated its interest in the purchase of the property and informed the Plaintiff that the Defendant will pay the sum of N35,000,000.00 (Thirty Five Million Naira) for the purchase of the property which offer was turned down by Nigeria Reinsurance Corporation Plc (“Nigeria Re”) the Vendor.
7. The Plaintiff by his letter dated November 29, 1994 gave the Defendant expert advice on and further information as to special benefits and advantages which the ownership of the property would confer including the property being a unique investment opportunity, a remote possibility of ever having such a prime property of that magnitude in the location and the immense gain on the purchase price at which the seller was offering the property in relation to the market value of the property. The Plaintiff shall at the trial of this suit rely on his said letter of November 29, 1994, and notice is hereby given to the Defendant to produce the original of the said letter at the trial of this suit.
8. The Plaintiff avers that after his said letter of 29th November, 1994, the Plaintiff through Mr. G.O.C. Okorocha attended a meeting at the instance of the Defendant with Messrs A.N. Okonji and Ben Azi of the Defendant company and pursuant to the said meeting held further negotiation with Nigeria Re.
9. The Plaintiff held further negotiation with the seller who only conceded to sell such part of the property as the Defendant’s budget could cover and the Plaintiff by his letter dated December 8, 1994, informed the Defendant of the decision of the seller to sell the property in parts rather than the whole of the property for less than the fixed price of N85, 000,000.00 (Eighty Five Million Naira). The Plaintiff shall at the trial rely on his said letter of December and the attached sketch plan and notice is hereby given to the Defendant to produce the original of same at the trial of this suit.
10. Defendant by its letter dated 29th December 1994 to Nigeria Re through the Plaintiff offered N75, 000,000.00 (Seventy Five Million Naira) for the property which offer was not accepted by Nigeria Re- Insurance.
11. The Defendant by its letter dated 23rd January, 1995 informed the Plaintiff of its purported withdrawal from the purchase of the property and of its purported withdrawal of its mandate ‘direct or implied’ to the Plaintiff to assist in securing the purchase of the property for the Defendant.
12. The plaintiff asserts that barely two weeks after the purported withdrawal of the Defendant from the purchase of the property and its mandate to the plaintiff and having sought obtained and utilized the plaintiffs efforts, information, services, opinion and exertion the Defendant by a letter dated February 6, 1995 wrote directly to Nigerian Re offering to buy the property and Nigeria Re by a letter dated February 7, 1995 Ref NR/P&M/EAIIVao/95 accepted the Defendant’s offer. Notice is hereby given to the Defendant to produce the original of Nigeria Re’s said letter and its letter of February 6, 1995 to Nigeria Reinsurance at the trial of this suit.
13. The Plaintiff further asserts that the Defendant bought the property in consideration of the sum of N85,000,000.00 (Eighty Five Million Naira) as initially (sic) and at all material to the subject matter of this suit stated by the plaintiff and sum was paid for the property by the plaintiff (sic) to Nigeria Re.

These facts were repeated in paragraphs 6,7,8,9,10,11,12,13,14,15,17 and 18 of the affidavit in support of the summons for liberty to enter judgment against the Defendant. The Memorandum of sale was annexed to the affidavit as Exhibit “CDU 11”.

The plaintiff /Respondent satisfied the condition laid down under Order 11 to be entitled to summary judgment as the Appellant failed to file a Counter-Affidavit as required under Order 11 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules to show cause against the application for summary judgment. At the time the learned trial Judge heard the application for summons for liberty to enter judgment against the Defendant, the latter had not taken any further step beside entering appearance. It was after the Decree nisi had issued to garnishee the accounts of the Appellant in the 10banks that prompted the Appellant to file the application seeking to set aside the summary judgment given on 21/12/95 and to discharge the Garmishee order nisi dated 28/12/95. It was in this same application that the Appellant sought leave to defend the suit. The situation in the present appeal is completely different from what took place in NISHIZAWA LIMITED v JETHWANI (1984) All NLR 470. In that case a specially endorsed writ was taken out against the defendant, the amount owing was N3,123,466.20. The defendant entered appearance to the writ. After the defendant had entered appearance to the writ the plaintiff by notice of motion applied under Order 10 rules 1 and 2 and Order 40 rule 1, High Court of Lagos Civil Procedure Rules for an order empowering the plaintiff/appellant to enter judgment against the defendant/respondent as upon the writ of summons and statement of claim. The motion was supported by affidavit verifying the facts pleaded in the statement of claim. The defendant did not file any counter-affidavit showing cause against the application but instead filed a statement of defence. When the motion came up for the order empowering the plaintiff to enter judgment against the defendant as upon the writ of summons and statement of claim, the learned trial Judge refused the application and granted leave to defend. The plaintiff was dissatisfied and took the matter to the Court of Appeal but the appeal was dismissed. On a further appeal to the Supreme Court the appeal was allowed. The Supreme Court considered the provisions of Order 10 Rule 3 (a),(b) and (c) which are in pari material with Order 11 Rules 3 (a),(b), and (c) of the Lagos High Court of Lagos State (Civil Procedure) Rules 1994 and in the lead judgment of Obaseki J.S.C. he stated at page 483 thus:

“With the guidelines given by Order 10 rule 3(a),(b) and (c) in mind, a statement of defence simpliciter is not a manner of showing cause against a statement of claim verified by affidavit. The only problem is whether the judge or court can shut his or its eyes against the statement of defence. The clear answer is that faced with the difficult task of deciding that the defendant has no defence to the action, he cannot shut his eyes against it. This must not be taken as elevating a statement of defence to the requirement of the rule. If the defendant wants to elevate the facts pleaded to that requirement, he must depose them on oath in an affidavit. If the plaintiff in his statement of claim alleges that the defendant owes a sum of money and the defendant denies it in the statement of defence, then if in the application for summary judgment the plaintiff deposed to an affidavit verifying the facts and proceeded to exhibit the agreement for the loan and the receipt given by the defendant as evidence for the loan, it is idle to think that a bare statement of defence denying the loan will amount to a good defence under Order 10”

There is no doubt that it was the Respondent who drew the Appellant’s attention to the availability of the property for sale when he wrote Exhibit “CDU1” on 15/11/94 to the Appellant in which he gave the following information:

“Sale Price

N85 million (Eighty Five Million naira)

Agency Fee

We are entitled to 5% commission on the sale price.

However we are amenable to a negotiated fee” The Appellant replied through Exhibit “CDU2” on 21/11/94 to the

Respondent stating as follows:

“Dear Sir,

RE: CHOICE WAREHOUSE PROPERTY

We refer to your letter of offer for sale of a 24 Bays Warehouse complex with a storey building (2 units of 2- bedroom flats) located in a built up area of Lagos. We wish to inform you that we are interested in the purchase of the above mentioned property. To this end, kindly arrange for our inspection/visit to the warehouse premises.

Thanking you

Yours faithfully

For: CHURCHGATE (NIGERIA) LIMITED

signed: R.S. VALECHNA

EXECUTIVE DIRECTOR”

On 23/1/95 the Appellant wrote a letter to the Respondent informing him of the Company’s withdrawal from the transaction and also any mandate given to the Respondent to assist in securing the property for the Appellant. This letter was also annexed to the affidavit in support of the summons for liberty to enter judgment for the Plaintiff as Exhibit “CDU8” and it reads:

“23rd January, 1995

Mr. G.O.C. Okorocha

Darl Uzu & Associates

4 Lalupon

S.W.Ikoyi

P.O. Box 10857

Marina, Lagos.

Dear Sir,

RE: SALE OF WAREHOUSE ON PLOTS 1 & 2 BLOCK “D” ISOLO INDUSTRIAL ESTATE, ISOLO, LAGOS

We refer to our letter dated 29th December 1995 to Nig. Reinsurance Plc through you and that Company’s reply dated January 10, 1995. As per the reply above mentioned, the Vendor (NRC PLC) has rejected our offer which was conveyed through you and their non-specific counter-offer is completely unacceptable to us. In the light of the above, and upon the directive of our Board, we hereby withdraw from this transaction and also any mandate to you (direct or implied) to assist in securing this property on our behalf.

Thanking you.

Yours faithfully,

For: CHURCHGATE NIGERIA LIMITED

signed: BEN O. AZI”

Despite Exhibit “CDU8” the Appellant proceeded later to execute a Memorandum of sale with Associated Textile Manufacturing Company Limited (ATMC) and Nigeria Reinsurance Corporation Plc (Nig-Re) which was annexed as Exhibit “CDU11” to the summons. Clauses 1 and 2 of the Agreement provided –

1. “The parties hereto affirm the sale of the Warehouses on Plots 1 and 2, BLOCK D, Isolo Industrial Estate, Isolo, Lagos State (being the premises covered by Certificate of Occupancy No registered as No.5 at Page 5 in volume 1980 of the Land Registry in the office at Lagos) by ATMC acting through Nig-Re to CNL as per the terms of CNL offer letter dated February 6, 1995 and Nig-Re acceptance letter thereto dated February 7, 1995 ref: NR/P&M/EA1/vao/95
2. The parties affirm that the consideration for the said sale is in the Gross sum of N85,000,000.00 (Eighty-Five Million Naira) paid by CNL to Nig-Re (which received same on behalf of ATMC) the receipt whereof Nig-Re and ATMC hereby acknowledge”

With this state of affairs, there is no doubt that the appellant was only trying to sidetrack the Respondent so as to avoid paying the commission which the Respondent was entitled to and this was the real reason why the Appellant wrote Exhibit “CDU8”. The attempt to say the least is unconscionable. The property was purchased by the Appellant for the same price of N85 million mentioned in the Respondent’s letter of introduction within two weeks of intimating the Respondent that the Appellant was withdrawing from the transaction. I agree with the Respondent’s submission that the purpose of writing the letter was to avoid its obligation of paying commission to the Respondent. In contracts of agency, the agent whose services have been improperly dispensed with has a number of remedies open to him. He may sue on the contract for his commission, either if his work is completed or if the agreement was to pay him in any event. He may sue on a quantum meruit for the value of the services already rendered, or he may bring an action for damages. The measure of damages will be the amount that the agent might reasonably have earned under the contract had he not been prevented from continuing to act. See: MAGREGOR ON DAMAGES 14th EDITION PARA 966 at page 651. LYNDALE FASHION MANUFACTURERS v RICH (1973)1 W.L.R.73; INCHBALD v WESTERN NEILGERRY COFFEE CO. (1864) 17C.B (N.S) 733 Having derived benefit from the effort of the Respondent the Appellant is estopped from withdrawing his mandate. See; JOE IGA v EZEKIEL AMAKIRI & ORS (1976) 11 S.C.1 Having made up its mind to purchase the property, it was left for the Appellant to negotiate with the Respondent on what percentage commission it would pay to the Respondent. Since the Appellant failed to do this before terminating the contract and since it did not take immediate steps to have the matter heard on the merits, it must pay the 5% commission stipulated in the Respondent’s letter (Exhibit CDU1) of 15/11/94. The Appellant had no real defence to the action by the Respondent. See NAL V. MACUALAY (1986) 5 NWLR (P. 40) 216 where the dictum of Aniagolu J.S.C. in NISHIZAWA LIMITED V. S.N. JETHWANI supra was applied. The Respondent clearly established a supportable claim to his 5% agency fee and the learned trial Judge was right in entering judgment in his favour based on the 5% commission of the purchase price.

Save for the 21% interest which was given on the judgment debt the main appeal has no merit and is dismissed. The judgment which the lower court should have entered for the Plaintiff should be:

Judgment is entered in favour of the Plaintiff in the sum of N4,250,000.00 and interest at the rate of 7 1/2% per annum from 21/12/95 until the whole judgment debt is liquidated.

THE INTERLOCUTORY APPEAL

The Appellant filed two grounds of appeal against the Ruling of 1st February, 1996. Instead of incorporating the issues in the interlocutory appeal into the main brief, the Appellant filed a separate brief. The Respondent filed the same preliminary objections against the grounds of appeal stating that the Appellant abandoned Ground (i) of the Amended Notice owing to its failure to formulate any issue on it and that the arguments canvassed in the brief bear no relationship to the issue formulated pursuant to Ground (ii) of the Amended Notice of Appeal. The grounds in the Amended Notice of Appeal state:

1. The Learned Trial Judge erred in law in refusing to set aside the Garnishee Order Nisi made on 21st December, 1995 when same was irregularly filed and granted in that the conditions precedent to the commencement and issuance of a Garnishee Order as provided in Section 74(1) of the Sheriff and Civil Process Law (Cap 127) Laws of Lagos State have not been complied with.
2. The Trial Judge erred in law in refusing to set aside the default Judgment made on 21st December, 1995 on the ground that the Defendant has no defence to the Plaintiff’s claim when by the documents placed before the court, the following triable issues are raised among others.

(a) Whether there was any agreement between the parties on the payment of N4, 250,000.00 as Agency fee to the Plaintiff.

(b) Whether the Plaintiff was ever appointed as Agent by the Defendant

(c) Whether even if the Plaintiff was appointed as Agent, he could still claim any Agency fee after the valid determination of his appointment.

Although one issue was formulated for determination, there are no arguments in respect of the garnishee proceedings and so the ground is deemed abandoned and is accordingly struck out. See: CHUKWUOGOR V. OBUORA (1987) 3 NWLR (Pt. 61) 454. The triable issues listed as (a) – (c) to ground (ii) cannot by any stretch of imagination be taken as particulars to that ground. They ought to have constituted issues for determination which should have been formulated from appropriate grounds of appeal. What is more, there is a strong submission made by the Respondent that the interlocutory appeal is incompetent since the application to set aside the judgment on which the interlocutory appeal is based was not filed within six days of the default judgment and there was no application for extension of time to apply to set aside the judgment. No answer was given in the Reply Brief to this submission. Order 25 Rule 15 of the High Court of Lagos State (High Court) Civil procedure Rules 1994 gives the High Court power to set aside any judgment of the court which has been given by default. It provides:

“Any judgment by default, whether under this order or under any other of these Rules, may be set aside by the Court or a Judge in Chambers, upon such terms as to cost or otherwise as such Court or Judge in Chambers may think fit, and where an action has been set down on motion for judgment under rule 11 of this Order such setting down may be dealt with by the court or a Judge in chambers in the same way as if judgment by default had been signed when the case was set down.”

Order 33 Rule 4 High Court of Lagos State (Civil Procedure) Rules allows for the setting aside of a default judgment and it stipulates as follows:

“Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within six days after the trial or within such larger period as the court may allow”

For an application to set aside default judgment to be competent, it must be filed within six days of the trial, failing which there must be a prayer for extension of time within which to so apply. See: C.O.P V. IHEABE (1998) 11 NWLR (Pt.575) 666; EASTERN BREWERIES PLC V. INUEN (2000) 3 NWLR (Pt. 650) 662. Judgment was delivered on 21/12/95 and the application to set it aside was filed on 8/1/96 which is 18 clear days after trial. For the application to be competent there must be a prayer for extension to apply to set aside the judgment and the affidavit in support must explain why the application to set aside the judgment was not brought within time. If this had been done, the submissions made by learned counsel for the Appellant regarding the conditions which applicant must satisfy in an application to set aside a default judgment would then merit a consideration. The inevitable conclusion which I have reached is that the interlocutory appeal is incompetent and the substantive appeal, save for the interest awarded on the judgment debt lacks merit and it is accordingly dismissed. There will be judgment in favour of the Respondent for N4, 250,000.00 with interest at the rate of 7 1/2% per annum from 21/12/95 until the entire judgment sum is liquidated. I assess costs of N5, 000.00 in favour of the Respondent against the Appellant.

Other Citations: (2005)LCN/1701(CA)