Sdv Nigeria Limited V. Philip Kayode Olusegun Ojo & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of HON. JUSTICE OLAYINKA GBAJABIAMILA of the Lagos State High Court sitting at Ikorodu delivered on the 24th December, 2013 wherein the trial Court awarded to the 1st Respondent the sum of $1, 250,000.00 (One Million Two Hundred and Fifty Thousand Dollar) or its naira equivalent as agency/commission fee and cost of N100,000.00. Dissatisfied with the said judgment the Appellant who was the defendant at the trial Court filed a Notice of Appeal on the 25th February, 2014 setting out Seven (7) Grounds of Appeal.

The brief facts are that the 1st Respondent is a registered estate Agent who claimed that he introduced a property up for sale to one Adebola Adejobi who subsequently brought the property to the attention of the Managing Director of the Appellant. The Appellant subsequently purchased the property thus the 1st Respondent’s claim for commission or agency fees. The claim was contested and after hearing of parties, the trial Court entered judgment for the Claimant.

The Appellant’s brief settled by C.A.

Candide – Johnson, SAN dated 4th day of February, 2016 was filed on the same day. The Appellant also filed a reply dated 15th February, 2016. The 1st Respondent’s brief settled by Chief A.A. Aribisala, SAN dated 3rd February 2016 was filed on the 4th February, 2016. The 2nd respondent did not file any brief.

The Appellant distilled 4 issues for determination as follows:

1. Whether there was any agency or contractual relationship between the Appellant and the 1st respondent?
2. In the absence of any or contractual relationship between the Appellant and the 1st respondent, whether the award of $1, 250,000.00 (one million two hundred and fifty thousand dollar) or the naira equivalent as agency commission/fee in favour of the 1st Respondent was right?
3. Whether the learned Judge was right when he found that the Appellant was the disclosed principal of Mr. Adejobi, who the 1st respondent alleged was his connection to the Appellant?
4. Whether the decision of the learned Judge should be set aside for failure to properly evaluate and analyse evidence and for contravening Section 294 (1) of the Constitution of

the Federal Republic of Nigeria (1999 as amended).

The 1st Respondent on his part raised a Preliminary Objection and formulated three (3) issues namely:

1. Whether the services of the 1st Respondent, a chartered Estate Surveyor and Valuer, was employed by the Appellant company to introduce a property to the company for the purpose of the Company acquiring same for her use.
2. If the above poser is answered in the affirmative, whether the 1st Respondent carried out the said instructions of the Appellant to entitle him to the award of the sum of USDI, 250,000.00 as commission by the lower Court?
3. Whether the judgment of the lower Court should be set aside by this Honourable Court for the alleged failure of the learned trial judge to properly evaluate evidence led in this case and for delivering the said judgement outside 90 days laid down by Section 294(1) of the Constitution?of the Federal Republic of Nigeria, 1999?

?The Preliminary objection taken by the 1st Respondent is dated 8th May, 2016 filed same day and supported by an affidavit of 25 paragraphs which was duly sworn to by one Olayinka Ajenifula,

a Legal practitioner with A.O.S. Practice (Legal Practitioners) solicitors to the 1st Respondent. There are 6 annexures attached to the affidavit and marked as Exhibit 1 to 6. Arguments in support of the preliminary objection are incorporated in the 1st Respondent’s brief at pages 1-7 of 1st Respondent’s brief. The Appellant’s reaction is in a counter affidavit of 9 paragraphs duly sworn to by one Adedolapo Adewole, Associate Counsel in the firm of Strachan Partners, counsel to the Appellant. Arguments in support of the counter affidavit are in the reply Brief of the Appellant, pages 2 – 6.

The 1st Respondent sought for the following in the Preliminary objection:

“That the Appellants Notice of appeal dated 25th February, 2014 (at pages 1184-1192) of the Records and all processes filed by the Appellant pursuant thereto be struck out.”

The grounds upon which the objection was taken are namely:

1. Judgment was delivered by the lower Court, in favour of the 1st Respondent on the 24th December, 2013.
2. After the delivery of judgment by the lower Court, Counsel to the 1st Respondent became aware that while

proceedings were being conducted at the Court below. The Appellant had applied, since 2012, to the Corporate Affairs Commission (CAC) and changed its name from SDV Nigeria Ltd to Bollore Africa Logistic Nigeria Limited.