Kenneth Nwuba V. Mr. Ignatus Ogbuchi & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The case of the Plaintiffs/Respondents is that the 2nd Defendant contracted them to scout for possible buyers of her landed property situate at Ifite-Awka in Awka South Local Government of Anambra State in which they agreed for a payment of 10% of the purchase price of the property as – their agency commission.

The Plaintiffs/Respondents said that they got in touch with one Raphael Obiorah Okeke who eventually purchased the said property at the purchase price of Six million, Seven hundred thousand Naira (N6,7000,000.00). They alleged that at the end of the transaction, the 2nd Defendant refused to pay to them their agency commission and when they confronted her, she told them that she had since paid over their money to the 1st Defendant/Appellant for onward payment to them. They also alleged that the 1st Defendant/Appellant and 3rd Defendant have convinced to with-hold their agency commission of N670,000.00 and have refused to hand same over to them despite repeated demands:

The case of the 1st Defendant/appellant is that the 2nd Defendant briefed him as her counsel and instructed him to do everything within the law to get Charles Ozoekwe and his Lawyer Yin Nwabueze out of the way so that she could sell her property to the higher bidder. Thereafter, the 1st Defendant/appellant informed the 2nd Defendant that his professional fee for offering his professional service is 10% of all the money realized from the sale of the property to the high bidder that passed through him.

The 2nd Defendant paid N570,000.00 to the 1st Defendant/Appellant as his professional fee because the 1st Defendant/appellant allowed her a reduction of N100,000.00 on compassionate ground.

On the 6th day of November, 2002, the plaintiffs/Respondent commenced the action at the Awka High court of Anambra State against the 1st Defendant/Appellant and 2nd and 3rd Defendants under the undefended list procedure claiming for the sum of N670,000.00 as agency commission. The 1st Defendant/Appellant and 3rd Defendant filed a joint notice of intention to defend with a supporting affidavit while the 2nd Defendant filed a separate Notice of Intention to Defend with supporting affidavit. On 22/1/2003 the trial court ruled and transferred the suit to the general Cause List for trial. On 7th May 2004, after close of address by the parties, the trial court adjourned to 28/5/04 for judgment. On 4/6/2004, the trial court delivered its judgment in favour of the Plaintiffs/Respondents.

The 1st Defendant/Appellant being dissatisfied with the said judgment, appealed to this Court, and the learned counsel for him filed a brief of argument and formulated two issues for determination as follows:

“(1) Whether the trial Chief Judge was right in holding that the 2nd Appellant’s evidence or oral testimony in court was contradictory to an earlier affidavit evidence made or given, earlier in court by the said 2nd Appellant.

(2) Whether the learned trial Chief Judge was right in holding that the 2nd Appellant instructed the 1st Appellant to pay 10% commission of N670,000.00 (Six hundred and Seventy thousand Naira) to the respondents when there was no privity of contract between the respondents and the 1st Appellant and when there was no agent/principal relationship between the said 1st and 2nd appellants, on the issue of payment of 10% commission to the appellants.( sic)”

The learned counsel for the respondents formulated three issues for determination as follow:

“(1) Whether the trial Chief Judge was right in holding that the 2nd Defendant’s evidence or oral testimony in court was contradictory to an earlier affidavit evidence made or given earlier in court in the same proceedings by the said 2nd defendant.

(2) Whether the learned trial Chief Judge was right in holding that the 2nd Defendant instructed the 1st defendant/Appellant to pay 10% commission of N670,000.00 (Six hundred and Seventy thousand Naira) to the Respondents.

(3) Whether the appellate court will overturn the findings of facts by the lower court”

Issues 1 and 2 formulated for determination by both counsel are the same but the crux of this appeal is Issue 2 formulated for determination by both counsel.