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Home » Nigerian Cases » Supreme Court » Incar Nigeria Plc & Anor. V. Bolex Enterprises (Nig.) (2001) LLJR-SC

Incar Nigeria Plc & Anor. V. Bolex Enterprises (Nig.) (2001) LLJR-SC

Incar Nigeria Plc & Anor. V. Bolex Enterprises (Nig.) (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The facts of this case are rather simple. Unfortunately, however, the issues have been complicated not so much by the parties than by the two Courts below.

The 1st appellant in this appeal (hereinafter is referred to as the Company) had three landed properties each situate in each of three major cities in the country, that is, Lagos, Ibadan and Port-Harcourt. The Company desired to dispose of the three properties and engaged some estate surveyors to look for buyers. Sumbo Onitiri & Co. Estate Surveyors and Valuers (hereinafter is referred to as the Firm) was one of the firms of estate surveyors and valuers commissioned by the Company to look for buyers. In Exhibit dated 12th March 1990 addressed to the Firm, the Company wrote:

“SALE OF PROPERTIES

This is to inform you that it is our intention to put the following properties on sale:

  1. Plot 121/122,

Trans Amadi Industrial Layout

Port-Harcourt

Rivers State.

  1. KM 10, Old Lagos Road,

Ibadan,

Oyo State

  1. 10A, Ijora Causeway,

Ijora,

Lagos State.

You are hereby given instruction to look for prospective buyers for the Properties and communicate to us as soon as you get them.

Please note that similar instruction is given to other Estate Agents.

We shall advise you of the terms and conditions for the sale of the properties when necessary.”

In furtherance of the instruction given in the letter above, the Firm communicated to the Company the offers of a number of prospective buyers. It would appear the Company was not satisfied with these offers except one made by an unnamed buyer whose offer of N3.5m for the Port-Harcourt property was acceptable to the Company. The Firm requested for a formal acceptance of this offer by a board resolution of the Company. Pursuant to this request the Company’s Board on 7th November 1990 resolved as in Exhibit A. Exhibit A reads:

It was RESOLVED that the offer of N3.5 Million for the sale of Property at Plot 121/122 Trans Amadi Industrial Layout, Port Harcourt, from Sumbo Onitiri & Co., Estate Surveyor & Valuers, be accepted and that Management be authorised to endorse all Legal Transfer documents.”

“SALE OF PROPERTY AT PLOT 121/122 TRANS AMADI INDUSTRIAL LAYOUT, PORT HARCOURT, RIVERS STATE.

According to the evidence of PW1, Adesumbo Adeniyi Onitiri (undoubtedly the principal partner of the Firm), the arrangement with this prospective buyer fell through. PW1 testified at the trial of the action thus:

“By the time I wrote Exhibit ‘N’ the highest offer I had was N3.5 million. When I got the offer for N3.5 million, I requested for the board’s resolution, from the defendant. In order to have a clear mandate they gave the resolution which is tendered as Exh. ‘A’.

After Exhibit ‘A’ I asked the Company that made the offer to come and pay. They gave conditions that they are going to pay a deposit and after collecting the document from U.B.A. then they pay the balance. The Company that made the offer did not fulfill the condition.”

Following the failure of that transaction the Firm looked unsuccessfully for other buyers until plaintiff (who is respondent in this appeal) came on the scene. For, continuing his evidence above, PW1 testified further:

“We were receiving more offers. The plaintiff came with an offer and I accepted their offer of N4,000,000.00; they paid.”

It would appear that the plaintiff made an offer in writing to the Firm on 2nd January, 1991. There is no averment in the pleadings nor was there evidence that this offer was ever communicated to the board resolution of the Company as was the practice with previous offers. Nor was there evidence that the Company, by board resolution, accepted plaintiff’s offer. What was pleaded, and proved, was that plaintiff’s offer was reacted to by the Firm, making its own offer as per Exhibit dated 4th January 1991 which reads:

“RE: SALE OF PLOT 121/122 TRANSAMADI INDUSTRIAL LAYOUT, PORT HARCOURT

  1. DESCRIPTION: A purpose built industrial premises developed with factory structures, office block and staff canteen all on 4.27 acre site.
  2. LOCATION: Plot 121/122 Trans Amadi Industrial Layout, Port Harcourt
  3. LETTABLE SPACE: Factory Structures 1358sm Warehouses – 278sm Office 321sm Canteen 96sm Gate House 15sm
  4. TITLE: 99 years with 80years unexpired
  5. PRICE: N4m (Four Million Naira)

TERMS OF PAYMENT: A Certified Bank Cheque for N4m in favour of INCAR NIGERIA PLC.

Looking forward to your prompt response.”

The plaintiff accepted the offer in Exhibit B on 25th January, and sent to the Firm a cheque issued in the name of ‘UNITED BANK FOR AFRICA PLC’. The Firm acknowledged receipt of the cheque on the same date, that is, 25th January 1991 and on the same date wrote Exhibit C to the Company. Exhibit C reads:

“RE: PLOT 121/122 TRANS AMADI INDUSTRIAL LAYOUT, PORT HARCOURT

Further to our various discussions in respect of the above, please find enclosed our cheque for N4m. (Four Million Naira) being the purchase price on the above property. The buyers are Bolex Holdings Limited and will be grateful if an official receipt is issued in favour of Bolex Holdings.

We wish to reiterate that we have been able to obtain a higher figure of N4million as opposed to the N3.5m the Board approved in its meeting of 7th November, 1990 due to the upward trend of the economy and our relentless effort in seeing to the logical conclusion of the sale to your best interest.

We hope you will settle our fees of N250,000 (Two Hundred and Fifty thousand Naira) inclusive of traveling and advertisement expenses soonest.”

Representatives of the Firm and the Company met and it would appear the purchase price of N4m was unacceptable to the Company who requested for additional N200,000.00. The Firm conveyed this development to the plaintiff who agreed to pay N4.2m. as purchase price to the Company. In consequence, the Firm wrote Exhibit D to the Company. Exhibit Dreads:

“RE; PLOT 121/122 TRANS AMADI INDUSTRIAL LAYOUT, PORT HARCOURT

Further to the meeting of Friday 1st February, 1991 in respect of the above between the Managing Director of Incar and Mr. Onitiri A. A, and the insistence of the Managing Director that Bolex Enterprises Nigeria Limited should increase their offer by N200,000.00. I wish to confirm that Bolex Enterprises Nigeria Limited has now accepted to pay the N200,000.00. Thus making the sale price N4.2m.

We expect to have official receipt of the N4m already paid and the balance will be paid on execution of the legal transfer documents.”

Meanwhile, the Company had received other offers in respect of the Port-Harcourt property, one of which was from the 2nd appellant. The Company eventually sold the property to the 2nd appellant for N4.25m – see Exhibit Z, and put the 2nd appellant in possession.

Being aggrieved by this development the plaintiff on 14/2/91 instituted the action leading to this appeal claiming against the Company:

“(a) An Order of specific performance against the defendant compelling the defendant to honour the contract of sale entered into by the parties for the sale of Plot 121/122 Trans Amadi Industrial Layout Port Harcourt Rivers State, which property is registered as No 40 at page 40 in volume 20 of the Lands Registry in the Office at Port Harcourt, Rivers State and which Land is more particularly, delineated on plan number Port Harcourt 607 attached to a lease dated 23rd day of May, 1974.

(b) An Order directing the defendant to execute in favour of the plaintiff a Deed of assignment of the residue of the term unexpired which term was granted to the defendant by a lease dated 23rd May, 1974.

(c) An Order directing the defendant to assist and or provide all documentation necessary to enable the plaintiff obtain the Governor’s consent to the Deed of Assignment.”

The writ was accompanied by a statement of claim and a motion for interlocutory injunction filed on the same date.

Pleadings having been filed and exchanged the action proceeded to trial. In the course of the trial, the 2nd appellant was, on the application of the plaintiff, joined as 2nd defendant in the action. The plaintiff, with leave of Court amended the reliefs sought by it to read:

“(A) A declaration that the plaintiff is the equitable owner of the premises known as Plot 121/122 Trans Amadi Industrial Layout Port Harcourt, Rivers State, which property is registered as No. 40 at page 40 in Volume 20 of the Lands Registry in the Office at Port-Harcourt Rivers State and which Land is more particularly delineated on plan number P.H. 607 attached to a lease dated 23rd of May, 1974.

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(B) An Order of specific performance against the 1st defendant compelling the 1st defendant to honour the contract of sale entered into by the plaintiff and the 1st defendant for the sale of plot 121/122 Trans Amadi Industrial Layout Port Harcourt, Rivers State, which property is registered as No. 40 at page 40 in Volume 20 of the Lands Registry in the office at Port Harcourt, Rivers State and which land is more particularly delineated on plan number PH. 607 attached to a lease dated 23rd of May, 1974.

(C) An Order directing the 1st defendant to execute in favour of the plaintiff a deed of Assignment of the residue of the term unexpired which term was granted to the 1st defendant by a lease dated 23rd of May 1974.

(D) An Order directing the 1st defendant to assist and or provide all documentation necessary to enable the plaintiff obtain the Governor’s consent to the Deed of Assignment.

(E) An Order directing the 2nd defendant to vacate the premises of the plaintiff to wit plot 121/122 Trans Amadi Industrial Layout Port Harcourt which the 2nd defendant now occupies in violation of an existing Court order dated 24th April 1991, which order restrains the 1st defendant from putting the 2nd defendant in occupation of the said premises.”

The plaintiff and the Company, with leave of Court, amended their pleadings. The 2nd appellant also filed its statement of defence. The trial proceeded to conclusion and learned counsel for the parties addressed the Court.

In a reserved judgment, the learned trial Judge found –

  1. “By Exhibit H, which is the genesis of this case the 1st defendant gave a mandate to Sumbo Onitiri & Co. to sell three of its properties namely plot 121/122 Trans Amadi Industrial layout, Port Harcourt; KM.10 Old Lagos Road, lbadan, Oyo State and 10 A Ijora Causeway, Ijora, Lagos. This mandate for the PW 1 to find prospective buyers was on the 12th March, 1990.”
  2. “There is evidence that in October, 1990 PW1 introduced another purchaser. The PWI did not indicate the name or person of the purchaser. The offer this time was for the sum of N3.5 million. PW 1 also requested for the Board’s Resolution accepting this offer for N3.5 million. Following this offer the Board met and adopted the resolution dated 7th November, 1990 which is tendered as Exhibit A. It stated that the offer of N3.5million brought by the PW1’s firm be accepted.”
  3. “It seems to me that it (Exhibit U) was not sent to the PW1 along with Exhibit A for if it was the mistake could not have been made. I quite agree with the PW1 that the resolution of the board when he phoned was sent across without any covering letter.” (brackets mine)
  4. “It is therefore not correct that Exhibit A was an acceptance made in relation to a specific offer. It was for offer of N3.5million made by a firm and the Board Resolution to accept the offer….”
  5. “I find as a fact that the PW1’s firm having been given the mandate as in Exhibit A to sell the property and accept the sum of N3.5million that the PWI received the increased offer of N4 million which he accepted on behalf of the 1st defendant who had mandated him to accept N3.5million on their behalf having thus accepted on the 1st defendant’s behalf the sum of N4 million as opposed to the N3.5million the property was then sold on that date of acceptance by PW 1.
  6. ‘It is clear that the PW1 thus had mandate as in Exhibit A to sell the property at N3.5million. This mandate was never terminated and had not been withdrawn ….”
  7. “As at the 28th January, 1991 when the plaintiff issued the cheque and the 1st defendant received Exhibits C, F & T the contract was completed and concluded.”
  8. “I am satisfied that Mr. J. O. Emmanuel is both a director in the 1st defendant’s company and also the 2nd defendant’s company and in fact the Chairman.”
  9. ‘Thus from the evidence before the court and the documentary evidence Sumbo Onitiri & Co. was an agent of the 1st defendant by virtue of Exhibits A & H.” “Exhibit A thus is a direct instruction to Sumbo Onitiri & Co. to sell the property in dispute at a reserved price of N3.5million. Exhibit A also directed the management to accept same once it is sold at N3.5million from Sumbo Onitiri & Co.”

On these findings of fact, among others, the learned trial Judge found for the plaintiff and entered judgment in his favour He found that “the plaintiff has in fact established its case in relation to reliefs two and three of the claims before the court against the 1st defendant,” and adjudged that “the plaintiff therefore will be entitled to judgment sought on those two reliefs …” He also adjudged that the Plaintiff claim in respect of the first reliefs succeeded and decreed specific performance against the Company. The other reliefs claimed by plaintiff were equally granted.

Quite naturally, the Company and the 2nd appellant being dissatisfied with the judgment of the trial court appealed to the Court of Appeal. In the lead judgment of Onalaja JCA with which Okezie and Rowland, JJCA expressed consent, the findings of the trial court were affirmed, particularly the finding that there was a concluded sale of the property in dispute on 28th January 1991. The two defendants each has now further appealed to this court.

Pursuant to the rules of this court, the two appellants and the plaintiff/respondent filed and exchanged their respective briefs of argument. For the purpose of this appeal, the two appellants relied on their amended joint brief of argument filed on 6/12/2000 and a reply brief filed on 10/12/98. The plaintiff relied on two briefs filed on its behalf on 29/4/97 and 20/2/98. Learned leading counsel for the parties proferred oral arguments at the oral hearing of the appeal.

Mr. Joseph, SAN, learned leading counsel for the two defendants/appellants opined that the main issue in this appeal was the construction of Exhibit A. He referred to part of the evidence of Adesumbo Onitiri (PW1) and submitted that the court was not bound to accept the witness’s construction of Exhibit A that it gave him (witness) power to sell the disputed property to anyone who offered N3.5m or above. Counsel submitted that on its true construction Exhibit A did not confer power on PW1 to sell. Learned counsel argued that PW1 knew the limit of his authority. He submitted that, on the evidence of PW3 (Mr. Ajose-Adeogun), solicitor to the plaintiff, plaintiff too was aware of the limit of the authority of PW 1. He submitted that Exhibit H regulated the relationship between the Company and the Firm. Learned Senior Advocate urged the court to allow the appeals, set aside the judgments of the two courts below and dismiss plaintiff’s claims.

Mr. Ayanlaja, SAN learned leading counsel for the plaintiff opined that the main issue for determination was the nature of the authority given to the Firm by the Company as discernible from Exhibits H and A. He submitted that the two documents must be construed together in order to determine the limit of the authority given by the Company to the Firm in respect of the disputed property. Counsel urged the court to take into consideration the circumstances of the dealing between the Company and the Firm. Learned counsel conceded it, and rather candidly too, I venture to say, that the mandate in Exhibit H was for the Firm to find buyers for the properties named therein for the approval of the Company and that the mandate was not for the Firm alone as there were other firms equally commissioned. Learned counsel also conceded that the ultimate voice as to sale was that of the Company. Counsel referred to Exhibit A and argued that it gave power to the Firm to sell the property in dispute. He urged the court to dismiss the appeals of the appellants.

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In their joint brief of argument filed on 6/12/2000, the appellants formulated three questions calling for determination in this appeal, to wit:

“1. What is the true construction of Exhibit A in the circumstances of this case alternatively does Exhibit A confer a mandate on Sumbo Onitiri & Co. (PW 1’s firm) to offer and or accept any offer of the property in dispute to any prospective buyer who is willing to purchase same at any price not below N3.5million.

  1. Whether or not the decision of the Court of Appeal shows a proper exercise of its appellate jurisdiction in the circumstances herein.
  2. Whether even if there was a contract between the plaintiff and the 1st defendant (which is denied), such contract is void for contravention of the Land Use Act.”

As stated earlier in this judgment the plaintiff relied on two briefs dated 29/4/97 and 20/2/98 respectively which briefs were in reply to earlier briefs filed by the appellants which earlier briefs the appellants no longer rely on. In the brief dated 29/4/97, the plaintiff raised objection to two issues raised by the appellants in their joint brief of 17/2/97 (now discarded). The two issues were:

“(i) What is the effect of the phrase “Subject to contract” contained in Onitiri’s letter of offer dated 4.1.91 (Exhibit B) of communication between the plaintiff and the 1st defendant.”

X X X X X X X X X X X X X X X X

(iv) “Whether even if there was a contract between the plaintiff and the 1st defendant, such contract is void for contravention of the Land Use Act.”

Issue (1) is not now one of the issues formulated by the appellants in their brief of 6/12/2000. No useful purpose will, therefore, be served by considering the objection to the said issue (1). On issue (iv), it is true that that issue did not form the basis of the action at the trial court nor was it raised by either appellant in the Court of Appeal. No leave has been sought nor obtained by the appellants to raise a new issue before us. Therefore issue (iv) in the appellant’s brief of 17/2/97 which is now Question 3 in their brief of 6/12/2000 is incompetent and will accordingly be struck out.

In its brief of 20/2/98, the plaintiff again raised a preliminary objection to the effect that grounds 1 – 5 in the notice of appeal of the 2nd appellant were not available to it as they related to part of the judgment of the Court of Appeal not affecting the 2nd appellant and that the issue (2) formulated in 2nd appellant’s brief of 11/6/97 predicated on grounds 6 and 7 was too general and could harbour in its trail complaints about orders not made against the 2nd appellant. I have read grounds 1 – 5 in the 2nd appellant’s notice of appeal; they relate to Exhibit A and its effect on the contract said to exist between the plaintiff and the Company over the disputed property, the existence of which contract is said to nullify the sale of the said property made by the Company to the 2nd appellant. I cannot see how it can be said that the 2nd appellant is not concerned with the existence of the alleged contract between the plaintiff and the company. I think grounds 1 – 5 are available to the 2nd appellant.

As Issue (2) in the 2nd appellant’s brief of 11/6/97 is no longer before us, no useful purpose will be served by considering the objection to it. I overrule the objections of the plaintiff contained in its brief of 20/2/98.

I now return to the appeals on hand. I agree with learned Senior Advocates appearing for both parties that the main question arising in these appeals is whether the two courts below were right in holding that on the basis of Exhibit A, the Firm had an agency to sell the property in dispute on behalf of the Company. Indeed, that all along was the issue arising in the case. The learned trial Judge rightly, in my humble view, put the questions to be determined as follows:

  1. Whether Sumbo Onitiri & Co. was still the agent of the 1st defendant as by the 29th January, 1991.
  2. If they were, had they any authority to sell this property in dispute. i.e. does their mandate include accepting offers made on behalf of their principal;
  3. Was there any binding contract between the plaintiff and the 1st defendant.”

It is the resolution of these questions, particularly 2 and 3 that determines the dispute between the parties, having regard to the pleadings of the parties and the evidence adduced at the trial.

It is not in dispute that the Company commissioned the Firm to look for buyers for its properties. Exhibit H is clear on this point and to that extent PW 1’s Firm was and remained an agent of the Company as long as its properties mentioned in Exhibit H remained unsold and not withdrawn from sale. The Firm however is not on the basis of Exhibit H, an agent of the Company for the purpose of concluding a contract of sale of the property in dispute.

Question 2 is the crucial question. The plaintiff and PW1 relied on Exhibit A as giving the latter the mandate to sell. The Company’s contention is that Exhibit A has no such effect and that the only mandate to PW1’s Firm in Exhibit H was to look for buyers for the properties listed therein. There is no dispute as to the limit of the authority or mandate or agency given to PW 1’s Firm in Exhibit H. The agency was to look for buyers. And it was not even a sole agency for that matter; other estate management firms were equally involved. Each was to scout round for prospective buyers and communicate offers received to the Company for acceptance. It was only when the Company had accepted an offer communicated to it that a contract existed between the Company and the offeror. This clearly was also PW 1’s understanding of Exhibit H as borne out by Exhibits L, and N and the evidence of PW 1 where he said:

“All the offers received so far I was communicating to the General Manager of the defendant Company. This is one of the letters I wrote concerning one of the offers I got. Ajose-Adeogun seeks to tender it. Chief Akerele does not object, admitted and marked Exhibit ‘N’.”

On the basis of Exhibit H PW1 ‘s Firm would have no authority to issue Exhibit B. His mandate would enjoin him to refer plaintiffs letter of 2nd January 1991 to the Company for its acceptance or rejection of the offer contained in that letter. But PW 1 testified to the effect that Exhibit A empowered him to issue Exhibit B. Did it Construction of Exhibit A is a matter of law for the Court to decide. B Exhibit A is clear and unambiguous. I have already quoted it in full in the earlier part of this judgment. I can find nothing in it empowering PW 1’s Firm to sell the property in dispute to any buyer of its choice who offered N3.5m. I think it was mischievous, if not fraudulent, of PW 1 to claim that Exhibit A went beyond acceptance of an offer he communicated to the Company in October 1990. Hear what he said in evidence which, for ease of reference, I will quote here again:

“By the time I wrote Exhibit ‘N’ the highest offer I had was N3.5 million. When I got the offer for N3.5 million, I requested for the board’s resolution, from the defendant, in order to have a clear mandate. They gave the resolution which is tendered as Exh. ‘A’.

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After Exhibit ‘A’ I asked the Company that made the offer to come and pay. They gave conditions that they are going to pay a deposit and after collecting the document from V.B.A. then they pay the balance. The Company that made the offer did not fulfill the condition.” Again, under cross-examination, he testified:-

“Q.: Look at Exhibit H. That is the letter of instruction of defendant to you for the disposal of the property.

A.: Yes.

Q.: Read the whole of Exhibit H. The instruction there is for you to communicate to them any time you have prospective buyers.

A.: Yes

Q.: Each time you had a buyer you communicated to the defendant.

A: Yes.

Q.: Your letter Exhibit M is one of such communications.

A.: Yes. It is for inspection.

Q.: Also Exhibits L, N and also the letter of 3/12/90

A.: Exhibit L is correct, Exh. N is also correct. The 3/12/90 was written also by me to defendant.

Chief Akerele seeks to tender the letter of 3rd December, 1990. Mr. Ajose-Adeogun does not object. It is admitted and marked Exhibit ‘P’.

Q: – Look at Exhibit N. second paragraph was that resolution sent to you.

A: It was sent.

Q: You got another buyer who was prepared to pay N3.5 million.

A: Yes.

Q: You also requested for Board of Director’s resolution. Look at Exhibit A.

A: Yes.

Q: That resolution was passed for you to receive N3.5 million from Teericon a particular Company that offered N3.5 million

A: No. It was for me to receive N3.5million from whoever that can pay that N3.5million.”

In the light of his evidence, could PW 1 have honestly believed that Exhibit A was a blank mandate to him to sell to anyone who would offer N3.5million or above without further reference to the Company I do not think so. PW1 is a fellow of the Nigerian Institute of Valuers and has been in practice for over 15 years as at April 1991 when he testified.

Strangely enough such an experienced estate agent did not mention Exhibit H in his evidence in chief as being the genesis of his relationship with the Company. He lied so unashamedly in his evidence that I am surprised the learned trial Judge ascribed credence to his evidence. One must be gullible indeed to believe him when to a question by counsel in cross-examination:

“Q: Exhibit A has nothing to do with the plaintiff he answered:

Ans.: that is the mandate. It has nothing to do with the plaintiff. It is the mandate to sale (sic)”

This is an experienced estate agent who knew how he came by Exhibit A, still claiming that Exhibit A was a mandate to him to sell to anyone, his real mandate Exhibit H, notwithstanding. Why did PW1 behave the way he did in this case Was it the lure of commission to be received on the transaction I will rather not hazard a guess.

Having held that PW 1’s Firm was agent of the Company at all times relevant to this action, by virtue of Exhibit H would the Company be bound by Exhibit B written by the Firm to the plaintiff and plaintiffs acceptance of Exhibit B by Exhibit O I rather not think so. Plaintiff knew all along of Exhibit H and must therefore have known that PW 1 ‘s Firm had no mandate to write Exhibit B. Plaintiff was represented throughout negotiations with PW1’s Firm by a solicitor, Mr. Ladi Ajose-Adeogun who in his evidence as PW3 testified thus:

Q.: Apart from the Newspaper publication you also satisfied yourself with Exh. H.

A: This is one of the documents that persuaded me to know that Sumbo Onitiri was not a fake.

Q: With the Newspaper publication and Exhibit H you were aware of the relationship between Sumbo Onitiri and the 1st Defendant.

A: Yes, it suggests their relationship.

Q: You must have also seen the original of this document Exhibit A.

A: I have not seen the original of Exhibit A.”

PW3 made a turn around when he testified further thus:

Q.: You know as a legal practitioner that you have to call for the instrument appointing the agency.

A. Yes.

Q.: You called for Exhibit H and you saw it.

A.: To be fair I have never seen Exhibit H before but until today. I had seen Exhibit A before.

Q: It was Exhibit A that motivated you to go on.

A: It was not only Exhibit A.

Q.: You did not call for instrument appointing the agency

A.: He showed me proof and because of the publications in Newspaper and other things.”

PWI had, however, testified that the plaintiff was aware of the relationship his Firm had with the Company.

On the evidence before the court, both oral and documentary, it could not reasonably be found that PW1’s Firm at any time had general authority to sell the property in dispute without reference first to the Company for its acceptance of a particular offer. The concurring finding of the two courts below to the contrary is clearly perverse and will not be allowed to stand. That finding and other findings anchored on it are set aside. On the oral and documentary evidence adduced in this case there is nothing to suggest that the Firm had authority of the Company to make an offer as in Exhibit B for the sale of the property in dispute to anyone, the respondent inclusive. The Firm’s authority was to introduce buyers to the Company for the latter’s consideration to accept or not. The Firm had no authority to contract on the Company’s behalf. There is no evidence that respondent’s offer of 2nd January 1991 was ever communicated to the Company and accepted by the latter by Board resolution. That being so, the respondent has failed to prove that there was a valid contract of sale between it and the Company capable of being enforced by an order of specific performance.

The conclusion above is enough to dispose of these appeals. I need to make a short observation on the grant of relief (in favour of the respondent). On the evidence available, the property in dispute was sold to the 2nd appellant on 11th February 1991 – see Exhibit 1. The respondent knew, through its solicitor, as at 4/2/91 that the Company was going to sell the property to the 2nd appellant. The 1st appellant put 2nd appellant in possession after the sale to the latter of the property. This happened obviously in February 1991. And the fact that 2nd appellant was in possession was known to the respondent; PW3, its solicitor, gave evidence to that effect. The injunctive order of the trial court was not made until 24/4/91 restraining the 1st appellant from putting the 2nd appellant in occupation of the said property; an act that had been accomplished before the order was made. There was no shred of evidence that 1st appellant in defiance of the order of court put the 2nd appellant in occupation after 24/4/91. Yet relief (E) was granted by the trial court and affirmed by the court below. Any decision given without evidence in support must be perverse. The grant of relief (E) is clearly perverse.

I need say no more.

In conclusion, the appeals of the two defendants/appellants have merit and are, therefore, hereby allowed. The judgments of the two courts below are set aside. Plaintiff’s claims are dismissed with costs to the appellants assessed at N1,000.00 in the Court of trial; N3,000.00 in the Court of Appeal and N10,000.00 in this Court.


SC.50/1996

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