Mike Achoru V. Decagon Investment Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

FACTS IN BRIEF:

This is an appeal against the judgment of the High Court of the Federal Capital Territory, presided by Hon. Justice Peter O. Affen, delivered on the 31st of January, 2013, dismissing the appellant’s claim as agency fees from the respondents for the sale of Plot 1301, Central Area, Cadastral Zone, plus interest; by a notice of appeal filed 19th of April, 2013.

The grounds of appeal without the particulars are:

1. The honourable trial court erred in law when it held that the appellant failed to prove by credible evidence that he actually acted as agent for the respondents as vendor.
2. The honourable trial court erred in law when it held that the appellant not having replied to the respondents’ counter offer of 3% of the offer value maximum, that there was no agency relationship whether oral or otherwise between the appellant and the respondents entitling the appellant to 105 agency fee.
3. The judgment of the trial court is against the weight of evidence before it.

The two issues as formulated by both the appellant and the respondent are the same/except for the wordings; so the issues as formulated by the appellant suffice for the determination of this appeal.

They are:

1. Whether the trial court erred in law when it held that there was no agency relationship between the appellant and the respondents in the peculiar facts and circumstances of the suit (Ground 1).
2. Whether the appellant is entitled to the reliefs sought (Ground 2).

ISSUE ONE:

Whether the trial court erred in law when it held that there was no agency relationship between the appellant and the respondents in the peculiar facts and circumstances of the suit.

G.N. Enye Esq., submitted that the appellant did not plead formal agency mandate from the respondents, but rather an implied and oral one, as per paragraphs 6-12, Exhibits and the interactions between the appellant and Independent National Electoral Commission, INEC, as per pages 67-75 of the records.

That this was admitted by the respondents in paragraphs 7, 9, 11, 12, 13, 14, 15 and 16 of DWs statement on oath; and are not in issue; learned counsel referred this court to BAYERO V MANASSARA & SONS NIG. LTD (2007) All FWLR part 359 at 1317 on the definition of agency; and contended that evidence available shows the appellant contacted the respondents, and was allowed to obtain pictures, measurements and sketches and title documents of the property which he used to write, introducing INEC to the property, as per pages 68 and 69 of the records; as well as Exhibits P6, P2, P7, P10 and P12 making it clear that the appellant alone acted as an agent between INEC and the respondents.

That the trial court ignored the fact that the respondents did not deny any of the exhibits before the court, and therefore were further estopped from denying same; he referred the court to SALAWU V YUSUF (1995) 1 NWLR part 374, and Sections 20, 23, 27, 145, 146, 169 and 123 of the Evidence Act on the effect of admitted facts, which require no proof.

That also the Defence Witness (DW) admitted at paragraph 9 of his statement on oath being contacted by the Plaintiff’s Witness (PW) over the property in question informing him of the purchase price of N1,200,000 000, as per page 379 of the record; and DW further admitted at paragraphs 11 and 12 of his statement on oath that PW brought persons to inspect the property; failing to deny any of those persons were INEC officers as alleged by PW in his statement on oath at paragraphs 18, 21 and 22 as per page 69 and 70 of the records.

Learned counsel contended that despite the appellant’s refusal to accept the respondent’s counter offer of 3% agency fee as per paragraph 14 of DW’s statement on oath, the respondents did not call off the transaction as threatened, but continued with INEC.

That INEC having been introduced to the respondents there was no other agent involved, as there was an implied admission of agency by the counter offer in Exhibit P8; and the acceptance of the N700,000,000 as the price is further evidence of admission of agency of the appellant who negotiated the property for the said sum.