J.A.O. Odufunade V. Antoine Rossek (1962)
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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 introduc-tion 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 defen-dant’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:-
“(a)The learned trial Judge erred in law in holding that the compul-sory acquisition of the subject-matter of the action operated to deprive the appellant of his right to commission.
(b)The learned trial Judge misdirected himself on the legal effect of an authority to “find a person ready and willing and able to take an assignment of the respondent’s leasehold interest in the properties in question.”
Mr. Dike, for the plaintiff quoted Dennis Reed Ltd. v. Goody (supra) for his argument that the plaintiff had done what was required of him to earn his commission – on which something will be said later in this judgment. He also distinguished between the present case and that of G. T. Hodges and Sons etc. by pointing out that there the hotel owner asked in negotiation before the compulsory acquisition much more than he got later as an award of compensation after the compulsory acquisition, whilst in the present case the de-fendant got a fair price by negotiation and did not go to Court for more.
Mr. David, for the defendant, argued that he had to accept the amount arrived at under the rules of valuation acted on by Government-which does not quite meet Mr. Dike’s argument. On the point whether the plaintiff earned his commission, Mr. David relied on G. T. Hodges and Sons etc., and quoted from Thompson v. British Berna Motor Lorries Ltd. for the proposition that compulsory acquisition is a negation of contract. He also cited Ackroyd and Sons v. Hasan, (1960) 2 W.L.R., 810. He submitted that on the authorities the judgment was right.
In Ackroyd and Sons v. Hasan, the most recent of the cases cited in ar-gument, the judgment of Upjohn, L.J., states at p. 813, that:-
“When an agent claims commission from a principal, there are certain principles of law applicable which cannot be doubted. First, when an agent claims that he has earned the right to commission, the test is whether upon the proper interpretation of the contract between the principal and the agent the event has happened upon which commission is to be paid. Secondly, there are no special principles of construction applicable to commission contracts with estate agents. Thirdly, contracts under which a principal is bound to pay commission for an introduction which does not result in a sale must be expressed in clear language.”
The present claim has to be examined in the light of those principles. In exhibit A the defendant’s solicitors, on his behalf:-
“undertake to pay Mr. J. A. Odufunade commission of 10 per cent on any amount paid by a client introduced by him who is willing and ready to take an assignment of lease at 14 Moloney Street,” etc. (meaning the Kit Kat).
In exhibit B the solicitors:-
“authorise (him)….. to act as agent in introducing prospective clients for the assignment of the lease of the property at 14 Moloney Street ……. for negotiation as to rent.”
The aim of exhibit B was apparently to assure persons whom the plaintiff might approach, that he was authorised to do so, and anyone who was interested could get in touch with the solicitors of Mr. Rossek, the defendant. It is exhibit A, rather, which governs the matter. Clearly the argument that the plaintiff was merely employed to advertise the Kit Kai is not warranted; nor can it be said that the plaintiff earned his commission by introducing the Federal Lands Officer. The question is, did the plaintiff introduce a client who was willing and ready to take an assignment of the defendant’s lease? If he did, he earned his commission of 10 per cent on any amount paid by that client; otherwise he did not earn it.
An assignment of a lease normally means a transfer by the lessee of his entire term, or of the entire residue of it, to another; and that means a contract by which the lessee sells his term to a purchaser. No authority has been cited to the effect that when Government, acting under statutory powers of compulsory acquisition, acquires a lessee’s term, there is an “assignment” of his interest to Government.
Other Citation: (1962) LCN/0948(SC)