Mr. Oliver Onwubiko V. Mr.victor A. Mkpong (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

The Plaintiff now Respondent sued the Defendant/Appellant and claimed the following reliefs in paragraph 14 of the Statement of Claim:

(a) The sum of $13, 000, 000.00 (Three Million Naira) only being the ten percent (10%) agency fee for the purchase price (N30,000.00) of the property at Plot D31, Ewet Housing Estate, Uyo.

(b) Damages of N550, 000.00

(c) Cost of this action.

The claim was denied in a 9 paragraph Statement of Defence. The Plaintiff filed a Reply to the Statement of Defence, thereafter the case was set down for hearing with the Plaintiff testifying as PW1 and tendering some Exhibits. He called Ubong Udofia who gave evidence as PW2 and Rose Akpan Friday as PW3. The Plaintiff closed his case after he and the other two witnesses had been cross-examined. The Defendant then testified but called no other witness before closing his case after being cross-examined. Parties addressed the court and the case was reserved for judgment on 9/3/2009.

In her judgment the learned trial Judge reviewed the evidence both oral and documentary and found that the Plaintiff made the offer to sell the property to the Defendant on behalf of the landlord and so the plaintiff was the agent of the landlord. Despite this finding the learned trial Judge entered judgment in favour of the Plaintiff for N3, 000, 000.00 being 10% agency fee for the purchase of the property situate at Plot D31, Ewet Housing Estate, Uyo and awarded costs of N5,000.00 against the Defendant.

Being dissatisfied with the judgment, the Defendant filed his Notice of Appeal on 27/3/2009 containing the omnibus ground of appeal which was later amended by filing two additional grounds. In the Appellant’s brief which was deemed filed on 12/1/2011, two issues were formulated as follows:

1. Whether the Respondent is entitled to the award of his claims having been adjudged not to be agent of the Appellant.
2. Whether the Appellant had by his conduct accepted to pay the agency fees.

The Respondent’s application to amend his claim was struck out on 12/1/2011. On 24/9/2009 he filed a Respondent’s Notice under Order 9 Rule 2 CAR 2007 to contend that the judgment should be affirmed on ground other than that relied on by the court below. In his brief of argument, the following two issues were also formulated:-

(i) Whether there was any contractual obligation of payment of Agency fee (of 10% of purchase price payable) between the Appellant and the Respondent in the sale of the property at Plot D31, Ewet Housing Estate, Uyo?

(ii) Whether the Respondent though adjudged to be an agent of the landlord (vendor) can enforce against the Appellant’ his right to the contract of payment of 10% (Agency fee) of purchase Price Payment on the Property?

The crux of this appeal centers on the construction of Exh’ “B”. The respondent admitted writing Exh. “B” to the Appellant in which he described himself as agent of the landlord (vendor). Exhibit “B” dated 18th July, 2007 was written by the Respondent to the Appellant and it reads:

We refer to our joint inspection of the above mentioned property at our Premier Ewet Housing Estate Uyo to offer to sell to you on behalf of the Landlord, an estate of low density residential houses which details are as given below.

PROPERTY DESCRIPTION/LOCATION