Hunmuani Ajoke V. Amusa Yesufu Oba & Anor (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J 

The plaintiff is dissatisfied with the judgment dismissing his claim which Dickson, J., gave on 9th February, 1959 (in Lagos Suit No. 103/58).

The claim is for commission under an agreement dated 30th August, 1956; there are two exhibits of that date: –

Exhibit A reads as follows:-

“We Messrs David & Moore, Solicitors of 13 Catholic Mission Street, Lagos acting on the instructions of our Client Mr. Antonio Roses’ hereby undertake to pay Mr. J. A. Odufunade commission of 10% on any amount paid by a Client introduced by him who is willing and ready to take an Assignment of the lease at 14 Moloney Street, Lagos or with the 3 plots of land immediately adjoining it on King George V Road, Lagos.

Dated at Lagos this 30th day of August 1956.”

Exhibit B reads as follows:-

“We Messrs David & Moore, Solicitors of 13 Catholic Mission Street, Lagos acting on the instructions of our Client Mr. Antonio Rossek hereby authorize Mr. J. A. O. Odufunade of 43 Kakawa Street, Lagos to act as Agent in introducing prospective Clients for the Assignment of the lease of the property at 14 Moloney Street, Lagos or with the 3 plots of land immediately adjoining it on King George V Road, Lagos for negotiations as to rent.

This authority is valid for 14 days as from its date.

Dated at Lagos this 30th day of August, 1956.”

The plaintiff saw the Chief Federal Lands Officer, and wrote to him on 3rd September, 1956, mentioning the defendant as the person who had the last say. In answer to that officer’s letter of the 12th, he wrote on the 15th to say that he had passed it on to the defendant’s solicitors. They wrote to that officer giving him information about the premises: (14 Moloney Street in exhibit A and exhibit B is a mistake for 8,10,12 Moloney Street, apparently known as the Kit Kat. Nothing turns on it in the case.)

Government did not negotiate at any time before compulsory acquisition: Upon consideration, it was decided to acquire compulsorily so as to obtain a freehold title and avoid having to negotiate with several freehold and leasehold owners. The Notice of Acquisition was published in the Gazette on 20th December, 1956. Thereafter, the defendant’s solicitors put in a claim on his behalf; there were discussions between chartered surveyors on his be-half and officers of Government, and agreement was reached on £8,537 for his interest in the Kit Kat, and another sum for his interest in the adjoining 51 King George V Road, which may be ignored, for the appeal is confined to the amount paid on the Kit Kat. As he had expert advisers and did not go to Court for more, it can be safely inferred that the amount was fair, and that the defendant obtained as much as his Kit Kat interest was worth. However, owing to his interest being acquired compulsorily, the defendant resisted the plaintiff’s claim to compensation, so the plaintiff sued; but he lost.

The learned trial Judge cites a number of cases:- Dennis Reed Ltd. v. Goody, (1950) 1 All E.R. 918; Nightingale v. Parsons, (1914) 2 K.B. 621; Toulmin v. Millar, 58 L.T. 96, for what Lord Watson said; G. T. Hodges and Sons v. Hackbridge Park Residential Hotel Ltd., (1940) 1 K. B. 404; Thompson v. British Berna Motor Lorries Ltd., 33 T.L.R. 187. The reasoning of his judgment is that commission is not payable at the moment of introduction; the introduction here did not result in an assignment of the lease, for Government decided on compulsory acquisition-and that could not be described as an assignment, for an assignment contemplates a reversion at the end of the term, whilst here the reversion was extinguished; that (in the words of Lord Watson in Toulmin v. Millar) “in order to found a legal claim for commission there must be a contractual relation. between the introduction and the ultimate transaction of sale” – but that was not the case here: here it was a case of compulsory acquisition, not a case of getting the defendant’s interest by contract; so commission was not payable.

One of the grounds of appeal is that the judgment is against the weight of evidence -which is not apposite in a case such as the present one where the defendant called no evidence. The other grounds are:-