MIKE ACHORU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2010)

MIKE ACHORU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION

(2010)LCN/3576(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of February, 2010

CA/A/280/2008

RATIO

PLEADINGS: PURPOSE OF PLEADINGS

It is only during trial when evidence is adduced to support the facts pleaded that the Court can know whether it in fact has jurisdiction or whether in fact there is a proper cause of action”.

Per Belgore, J.S.C (as he then was) in Egbue v. Araka (1988) 3 NWLR (Pt.84) 598 at 609.

A mere general denial of paragraphs in a statement of claim does not constitute a proper traverse. The defendant must deny specifically each allegation of fact in the plaintiff’s statement of claim. Every allegation if not specifically or generally denied or by necessary implication stated to be admitted, shall be taken as established at the hearing. Elendu v. Ekwoaba (1998) 10 SCNJ 51 per Onu, J.S.C.

The law is that in determining whether issue has been joined on a point, it is not proper to consider a particular paragraph of the statement of defence in isolation of the other paragraphs. This is so because those other paragraphs may contain averments which amount to specific denial in the sense that they put up a case different from that of the plaintiff although not directly mentioning the paragraphs of the statement of claim being denied or disputed. Per Uwaifo, J.S.C in Eke v. Okwaranya (2001) NSCQR 239 at 255; Ajao & ors. V. Alao & ors (1986) 2 NSCC 1327 (SC). PER MARY U. PETER-ODILI, J.C.A

ACTION: WHAT CONSTITUTE A TRAVERSE

To constitute a traverse, it is not necessary that every paragraph of the statement of claim be specifically denied. The rule in Lewis & Peat (N.R.I) Ltd. v. Akhimien is that a plea that the defendant is not in a position to admit or deny ‘paragraphs of the statement of claim’ is not a sufficient denial – is applicable only where the defendant’s pleading is ambiguous, and not clearly cut out.

In order to raise an issue of fact that will then go to trial, there must be a proper traverse and that transverse must be made either expressly, or by necessary implication. A refusal to admit or deny does not raise an issue of fact, and in effect neither here nor there. PER MARY U. PETER-ODILI, J.C.A

PLEADINGS: AIM OF ORDERING PLEADINGS

The aim of ordering pleadings is, and has always been, to secure from the defendant as many admissions as the facts and circumstances of each or the issues in question. Olale v. EKwelendu (1989) 4 NWLR (pt.115) 326 at 360; Overseas Construction Co. (Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd. & anor (1985) 3 NWLR (pt. 13) 407 at 418; Lewis and Peat (N.R.I.) Ltd. v. AKhimien (1976) 1 AllNLR (pt.1)460 PER MARY U. PETER-ODILI, J.C.A

WORDS AND PHRASES: MEANING OF ADMISSION

Admission has been defined by the Blacks Law Dictionary 5th Edition at page 44 as:

‘Confessions, Concessions and voluntary acknowledgment made by a party of the exercise of certain facts’.

Deducing from the definition in my view it follows that there are numerous legal consequences of admission by the defendant and which would serve in favour of the plaintiff. In other words:

it shifts the burden of proof off the plaintiff
it exonerates the plaintiff
it aids the plaintiff’s case
it makes light the burden expected or placed on the plaintiff.

See the case of Oguanishu v. Chiegboka (2003) 25 WRN 113. PER MARY U. PETER-ODILI, J.C.A

CONTRACT: WHAT AMOUNTS TO AN OFFER

An offer is a definite undertaking made with the intention that it shall become binding on the person making it as soon as it is accepted by the person whom, it is addressed to.

See Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (pt.249) page 1969. PER MARY U. PETER-ODILI, J.C.A

AGENCY: REQUIREMENT FOR A REAL ESTATE AGENT TO SUCCEED IN A CLAIM FOR COMMISSION

in order for a real estate agent to succeed in a claim for a commission, it is not enough merely to show that he introduced a purchaser but he must also show that the introduction was an efficient cause in bringing about the sale of the property. See the case of N.P.M.C. v. Alli Balogun (1961) LLR 69. PER MARY U. PETER-ODILI, J.C.A

JUSTICES

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

MIKE ACHORU
(Doing business under the name and style of Achoru Associates) Appellant(s)

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

MARY U. PETER-ODILI, J.C.A (Delivering the Leading Judgment) This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja presided over by Honourable Justice M. A. Nasir, delivered on the 22nd day of July, 2008 dismissing the suit of the appellant as plaintiff. The Appellant took out a writ of summons dated the 6th day of July, 2007 initially against the Respondent and three others namely:
Prof. Maurice Iwu (Chairman INEC), Decagou Investment Ltd. and Engr. Adams Ibrahim. Before hearing commenced, the Appellant discontinued the suit against the three (3) leaving only the Independent National Electoral Commission (INEC) as the only defendant now respondent.
I would recast the grounds of appeal without the particulars and they are viz:
GROUND 1:
The Learned trial Judge erred and misdirected herself in law when she held that no agency relationship has been created or established between the plaintiff and the defendant, thus disentitling him to his agency considering and appreciating the plaintiff’s cause of action and/or the nature of his suit.
GROUND 2:
The Learned trial Judge erred in law when she placed the burden of adducing evidence or further evidence in proof of the facts which were either admitted or denied by the defendant.
GROUND 3:
The Learned trial Judge erred in law in not properly evaluating the evidence of the plaintiff and the defendant (i.e the PW1 having excluded the evidence of the DW2 and DW3) based on the pleadings and thus arriving at a perverse decision, by giving weight to the evidence of the DW1 while not giving weight to the evidence of PW1.
GROUND 4:
The Learned trial Judge erred in law and misdirected herself when she held “I do not believe as alleged by PW1 that one senator Farukunmi had the mandate of the defendant to negotiate with the plaintiff, or indeed to appoint him (plaintiff) as agent in the transaction for the purchase of the warehouse. All the letters written to the defendant were either addressed to the Chairman or Secretary of the commission and not anybody”.
GROUND 5:
The judgment is against the weight of evidence.
FACTS:
The Appellant as Plaintiff in the Lower Court claimed against the Respondent as follows:-
1. The sum of N70,000,000.00 (Seventy Million Naira) being 10% of the purchase price of Plot 1301 Central Area Cadastral Zone AO Abuja known as the Mercedes place.
2. 10% interest on the judgment sum from the date of the judgment till the judgment sum is liquidated.
The Appellant as plaintiff filed a 38 paragraph Statement of Claim and a 39 paragraph witness Statement on oath required by the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004. The Respondent filed a 21 paragraph Statement of Defence. The Appellant filed a reply to the Respondent’s Statement of defence. The Appellant called two witnesses while the Respondent called 3 witnesses. The learned trial Judge in her judgment dismissed the claim of the Appellant and the Appellant being dissatisfied brought this appeal.
On the 11/1/2010, day of hearing, Mr. Nwakor, learned counsel for the Appellant adopted their Brief filed on 23/3/09 and a Reply Brief of 28/4/09 urging the Court to apply Section 16 of the Court of Appeal Act.
In the Appellant’s Brief, the Appellant formulated four issues for determination which are as follows:-
1. Whether from the pleadings and evidence adduced at the trial, the Lower Court was right to have dismissed the suit of the Plaintiff.
2 What is the effect of the Respondent not joining/properly joining issues with the Appellant on material averments contained in Appellant’s Statement of Claim or put in other words, what is the effect of the respondent not denying material averments contained in the Statement of Claim by their statement of defence.
3. Whether the trial Court was right to have given weight to the evidence of the DW1 which was contradictory and at variance with the Respondent’s pleading.
4. Whether the trial Judge was not making a case for the defendant, different from what was placed before it by the parties.
Mr. Umar, learned Counsel for the Respondent adopted the Respondent’s Brief filed on 25/3/09 in which they couched two issues for determination and they are:-
(i) Whether Appellant sufficiently pleaded and proved the terms and conditions of Agency relationship with the Defendant and/or adduced to be entitled to his claim that a contract existed between the parties.
(ii) If the answer to the issue above is in the affirmative whether the Plaintiff sufficiently pleaded and proved the damages actually suffered by him.
For a simpler and free flow, I shall make use of the issues as framed by the Appellant but not in the order enumerated. The consideration would therefore start with issue No.2, the issues 3 and 1 together and then issue No.4.
ISSUE NO. 2:
What is the effect of the Respondent not joining/properly joining issues with the appellant on material averments contained in Appellant’s statement of Claim or put in other words, what is the effect of the respondent not denying material averments contained in the statement of claim by their statement of defence.
Mr. Nwakor, learned Counsel for the Appellant contended that the admission in paragraph 2 of the statement of defence includes paragraphs 15 – 17 and 26 of the statement of defence and not just those paragraphs chosen by the Court. That a careful study of the statement of defence, other material averments in the Appellant’s statement of claim and upon which his claim rest were not denied by the Respondent in the Statement of Defence. He referred to paragraphs 1, 12, 13, 23, 27, 34,35 and 37 of the Statement of Claim. That since the defendant/Respondent failed to admit or deny those averments in the Statement of Claim, he is deemed to have admitted them. He cited Salami v. Oke (1987) 1 NWLR (pt. 63) 1 at 17; Olale v. Ekwelendu (1984) 1 NWLR (pt.115) 326; Egbu v Araka (1988) 1 NWLR (pt. 84) 598 at 609; Lewis Peat (NRI) v. Akhimien (1976) SC 167; Orji v. Emovon (1991) 1 NWLR (pt. 168) 476; Ajao v. Ajao (1986) NSCC 1327; Akintola v. Sholano (1986) 2 NWLR (pt. 24) 598.
Learned Counsel for the Appellant said that a pleading in the statement of defence that the defendant denies a paragraph of a statement of claim and put the plaintiff to the strictest proof amounts to insufficient traverse. He referred to Daniyan v. Iyagin (2002) 7 NWLR (pt. 766) 346; Ibeanu v. Ogbude (1998) 9 SC 88; Elendu v. Ekwoaba (1998) 10 SCNJ 51 at 61.
That the learned trial Judge erred in not following the long list of decided authorities placed at her disposal on pleadings and therefore came to a wrong and perverse legal conclusion.
in response learned Counsel for the Respondent said that, there was failure on the part of the Appellant to plead the terms of the contract including the conditions of the agency relationship between the parties which is fatal to the case of the Appellant. He cited NITEL v. Oshodi (1999) 8 NWLR (pt. 616) 528 at 541.
Mr. Umar for the Respondent further contended that their Statement of defence effectively joined issues with the appellant on material averments and so the position of the Appellant that the Respondent had admitted salient points which no longer needed proof did not represent the fact on ground. He cited Duruaku Eze v. Okwaranya 6 NSQR (pt. 1) 239 at 255.
In reply on point of law, learned Counsel for the Appellant said facts are needed to be pleaded but not law, statutes or sections thereof and so Exhibit ‘C3’ titled Nigeria Institute of Estate Surveyor and Valuers Scale of Professional Charges, 3rd Edition being evidence did not need to be pleaded. He cited Tsokwa v. Union Bank Limited (1996) 44 LRCN 219 at 2203.

It is now trite law that a defendant is not bound to deny an averment in the statement of claim in respect of an issue which he knows nothing about. It is not mandatory for any pleader to employ the word ‘deny’ before he can effectively join issue with his adversary. What is expected is that a party should put up a case inconsistent with that of his opponent as it is a pre-requisite of our system of adjudication to avoid the element of surprise. Consequently, adequate notice of issues that are to be canvassed before the Court and adjudicated upon must be given to enable parties prepare for and meet them. See Salami J.C.A (as he then was) in Orji v. Emovon (1991) 1 NWLR (pt. 167) 476 at 487; Overseas Construction (Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (pt. 13) 407; Lewis & Peat Ltd. v. Akhimien (1976) 7 SC 157; Folami v. Cole (1986) 2 NWLR (pt. 22) 367; Owosho v. Dada (1984) 7 SC 149 at 164; Federal Housing Authority v. Somner (1986) 1 NWLR (pt. 17) 533; Ehimare v. Emhonyon (1985) 1 NWLR (pt. 2) 177.

I shall refer to some guiding principles as enunciated by the Supreme Court and even by this Court.
“No pleading should be a Trojan horse waiting in ambush for an unsuspecting opponent, it is rather a guide to the other party to know what he has to meet.

The purport of pleading is to indicate facts, material facts, on which the party pleading relies for his case. He is not to aver evidence by which those facts are to be proved. The law has not placed on a party to a civil litigation more obligation in his pleading than the rules require. Once a cause of action is clearly manifested and the other party is identified and some fact material to founding jurisdiction are shown, the court should assume jurisdiction.
It is only during trial when evidence is adduced to support the facts pleaded that the Court can know whether it in fact has jurisdiction or whether in fact there is a proper cause of action”.
Per Belgore, J.S.C (as he then was) in Egbue v. Araka (1988) 3 NWLR (Pt.84) 598 at 609.
A mere general denial of paragraphs in a statement of claim does not constitute a proper traverse. The defendant must deny specifically each allegation of fact in the plaintiff’s statement of claim. Every allegation if not specifically or generally denied or by necessary implication stated to be admitted, shall be taken as established at the hearing. Elendu v. Ekwoaba (1998) 10 SCNJ 51 per Onu, J.S.C.
The law is that in determining whether issue has been joined on a point, it is not proper to consider a particular paragraph of the statement of defence in isolation of the other paragraphs. This is so because those other paragraphs may contain averments which amount to specific denial in the sense that they put up a case different from that of the plaintiff although not directly mentioning the paragraphs of the statement of claim being denied or disputed. Per Uwaifo, J.S.C in Eke v. Okwaranya (2001) NSCQR 239 at 255; Ajao & ors. V. Alao & ors (1986) 2 NSCC 1327 (SC).
To constitute a traverse, it is not necessary that every paragraph of the statement of claim be specifically denied. The rule in Lewis & Peat (N.R.I) Ltd. v. Akhimien is that a plea that the defendant is not in a position to admit or deny ‘paragraphs of the statement of claim’ is not a sufficient denial – is applicable only where the defendant’s pleading is ambiguous, and not clearly cut out.
In order to raise an issue of fact that will then go to trial, there must be a proper traverse and that transverse must be made either expressly, or by necessary implication. A refusal to admit or deny does not raise an issue of fact, and in effect neither here nor there.

In this issue No. 2, while the Appellant has stood on the point that the necessary facts were pleaded by them and that the Respondents/Defendants had either admitted the relevant facts or put up a half hearted denial which did not amount to proper traverse thereby came to admission in effect. I shall recast some of the relevant portions of the Statement of Claim and the Statement of Defence for a fuller appreciation into what category the particular pleading falls into. For the Statement of Claim which is copious I shall quote almost everything viz:-
STATEMENT OF CLAIM:
1. The plaintiff is engaged in the business of estate surveyors, valuers, estate agents, property agents and consultants in Abuja and other parts of Nigeria and a member of Nigerian Institution of Estate surveyors and Valuers.
2 The plaintiff avers that on or about the 23rd of February, 2006, Mr. Charles Chigbu, his Abuja Officer Manager and one Razak Omokide and employee of the firm went to the office of the 1st defendant i.e its headquarters at Maitama Abuja, and met with its Director of works and Estates, one Architect Bara M. Edoghotu with a discussion and oral proposal for the procurement of a central warehouse for the 1st defendants, as against the multiple location of small stores of the 1st defendant scatted all over Abuja.
3 That at the meeting, the said director of works and Estates of the 1st defendant – Arc. Bara M. Edoghotu said that 1st defendant, has plans of building a warehouse in Abuja but for non allocation of land, upon which the plaintiff informed him that as agents and property consultants, they can procure an already built warehouse with offices for the 1st defendant within the FCT, Abuja at a fee.
4 That sequel to paragraph 3 above, the director works and Estates – Arc Bara M. Edoghotu asked the plaintiff to put in a formal written proposal addressed to the National Secretary of the lst defendant on the above subject matter proposing of such property and give him a copy of the said letter.
5 The plaintiff avers that having waited to respond to the letter of 24th February, 2006, they promptly submitted a proposal, addressed to the National Secretary of the 1st defendant for purchase by the 1st defendant of a warehouse at Utako District, Abuja. The plaintiff pleads the letter/proposal of 24th February, 2006 and gives the 1st defendant notice to produce same at the hearing of this suit.
6. The plaintiff avers that having waited for response to the letter of 24th February, 2006, he resubmitted the same proposal to the 1st defendant but this time addressed to the 2nd defendant, its Chairman , Prof Maurice Iwu. The resubmitted proposal was dated 2nd May, 2006 but received on 9th May, 2006 and is hereby pleaded. The 1st defendants given notice to produce same at the hearing of this suit.
7. The plantiff avers that about a week after the resubmission of the proposal to the 2nd defendant , Chairman of the 1st defendant, one Mr. Hassan of the works and Estate department of the 1st defendant called the plaintiffs Abuja Office Manager – Charles Chigbu inviting him to their office for the inspection of the warehouse as proposed to defendant by the plaintiff.
8. The plaintiff avers that in company of officials of the 1st defendant they carried out an inspection of the warehouse in Utako District Abuja, wherein the 1st defendant rejected the choice of the warehouse, complaining that the premises of the warehouse will not allow for easy manouvering of vehicles and therefore not suitable. The officials of the 1st defendant who came for the inspection that included senator Farukumi, Engr. Ochulor, Arc. Bara M. Edoghotu, Engr. Okpara and Mr. Hassan, then instructed him to immediately source for another warehouse and timeuosly in view of the coming election, and propose same to the 1st defendant.
9. The plaintiff avers that sequel to paragraph 8 above, his Abuja Office Manager,Charles Chigbu sought and found another warehouse/property located at plot 1031, Central Area Cadastral Zone AO Abuja, known as the Mercedes place belonging to the 3rd defendant, whose chairman is the 4th defendant.
10 The plaintiff avers that his Abuja Office Manager,Charles Chigbu met with the 4th defendant and one Mr. Nagir informing them that he has a reputable organization interested in buying their warehouse/property. The 4th defendant and the said Mr. Nagir conducted him and Mr. Razzak Omakide around the property wherein the plaintiff took photographs, sketches and measurement of the building and also collected photocopy of the old certificate of occupancy of the property as the recertified copy was not yet out. The 4th defendant finally informed the plaintiff that the asking price for the property is N1.2billion.
11. The plaintiff avers that on the 30th May, 2006 they wrote a proposal to the 1st defendant in respect of warehouse/property – Plot 1031 Central Area Cadastra, Zone AO Abuja – (the Mercedes place) belonging to the 4th defendant, attaching all the documents mentioned in paragraph 10. The proposal dated 30th May, 2006 is pleaded and the 1st defendant is given notice to produce same at the trial.
12. That after submitting the said proposal on the 30th May, 2006 Mr. Hassan of the Works/Estate Department on the instruction of the Director works/Estate of the 1st defendant – Arc. Bara M. Edoghotu, invited the Abuja Office Manager of the plaintiff to their office wherein the said Director informed the plaintiff that the committee set up for the purchase of INEC warehouse chaired by one Senator Farukumi would want to inspect the new warehouse which the plaintiff had proposed in their proposal of 30th May, 2006.
13. The plaintiff avers that Arc. Bara M. Edoghotu referred them to the assistant Director Works/Estate – Engr. Okpara, who is also the secretary of the committee who confirmed that the proposal was minuted to him by arc. Bara M. Edoghotu. The said Assistant Director Engr. Okpara then took the plaintiff to the office of Senator Farukum, the chairman of the committee for the purchase of the warehouse who in turn informed the plaintiff that the committee will visit and inspect the property the next day at 11:00am and implored the plaintiff to be in his office latest 10:30am for the visit.
14 The plaintiff avers that sequel to paragraph 14 above the plaintiff immediately informed the 4th defendant that the proposed buyers of their property will visit the property the following day about 11:00am asking him to be around for the inspection.
15. The plaintiff avers that the next day the property was inspected, the Abuja Office Manager , Charles Chigbu and Mr. Razzak Omokide represented the plaintiff, one Mr. Aminu represented the 3rd and 4th defendants, while Senator Farukumi, Engr. Ochulor, Arc. Bara M. Edoghotu, Engr. Okpara, Mr. Hassan and 4 others represented the 1st defendant INEC. The 1st defendants officials expressed satisfaction which the said property as meeting their requirements and promised to get back to the plaintiff.
16. The plaintiff avers that sometime in June 2006, Arc. Bara M. Edoghotu called the Abuja Office Manager – Charles Chigbu to his office to take some valuers to the property informing the plaintiff that no government agency buys properties without valuation from the Federal Ministry of Housing and Urban Development and that a letter had been sent to the Federal Ministry of Housing of Urban Development for that purpose. The plaintiff pleads the letter by the 1st defendant requesting the Federal Ministry of Housing of Urban Development to valuate property on Plot 1031 Central Area Cadastral AO, Abuja and gives the 1st defendant notice to produce same at the hearing.
17. The plaintiff avers that the Abuja Office Manager – Charles Chigbu took the team of valuers from the Federal Ministry of Housing of Urban Development led by one Mr. Chris, who inspected the property in his presence and Mr. Aminu the representative of the 3rd and 4th defendant.
18. The plaintiff avers that after the inspection, Sen. Farukumi – Chairman of the committee requested the plaintiff to negotiate with the 3rd and 4th defendants the least price they will accept on the property or better still that the plaintiff should offer the 3rd and 4th defendants N700million. The plaintiff did as requested orally but the 4th defendant directed the plaintiff to put same in writing.
19. The plaintiff avers that the Abuja Office Manager – Charles Chigbu went back to Senator Farukumi with the response of the 3rd and 4th defendants and requested that the 1st defendant themselves should make a written offer of M700million to the 3rd and 4th defendants but he told him that, the 1st defendant cannot make a written offer since the Ministry of Housing and Urban Development have not advised them, but that the plaintiff should go ahead and make an offer of N700million, to the 3rd and 4th defendants since he is the person who has been dealing with both parties i.e the defendants in respect of the warehouse/property.
20. The plaintiff avers that sequel to paragraph 19 above, they made an offer to the 3rd and 4th defendants dated 21st June, 2006 for the sum of N700million which the 3rd and 4th defendants accepted by its letter to the plaintiff of 1st July 2006. The plaintiffs plead the letter of 21st June, 2006. And the reply of 1st July, 2006 and give the 3rd and 4th defendants notice to produce the letter of 21st June, 2006 at the trial.
21. The plaintiff avers that in the said letter of offer made to the 3rd and 4th defendants, the plaintiff requested for 10% of the purchase price of the property as his commission but the 3rd and 4th defendant rather offered to pay 3% of the purchase price.
22. The plaintiff avers that they communicated the acceptance of the 3rd and 4th defendants of the offer N700million to the 1st defendant, vide a letter of 3rd July, 2006 and in the said letter informed the 1st defendant that they were entitled to 10% of the purchase price from the 1st defendant as commission in line with the custom of Estate agency. Senator Farukumi later called the Abuja Branch Manager and thanked him and equally informed him that he knows that it is the practice to pay agency fees in such transactions. The plaintiff pleads the said letter of 3rd July 2006 and gives the 1st defendant notice to produce same at the hearing.
23. The plaintiff avers that sometime in August 2006, Senator Farukumi informed the plaintiffs that due to Federal Government new policy in due diligence and openness in procuring government business that the 1st defendant is constrained to publish in a newspaper their intention to buy a warehouse in Abuja, but since the plaintiffs have been acting for them, and have shown them the warehouse i.e (Mercedes Place) they will still buy the same warehouse.
24. The said Senator Farukumi asked the plaintiff to formally register as contractors with the 1st defendant to make it easier for the plaintiff and then resubmit the proposal in respect of the same warehouse/property with the receipts of registration as contractors as their prequalification/bid and the plaintiff complied accordingly. The plaintiff pleads the newspaper publication in Thisday of 24th August, 2006, and his letter/proposal entitled pre-qualification for the purchase of a warehouse in Abuja FCT, addressed to the secretary of the 1st defendant dated the 4th September, 2006, and gives the 1st defendant notice to produce the original at the hearing.
25. The plaintiff avers that after the 1st defendant received their submission as in above for the purchase of the said warehouse, Engr. Okpara Deputy Director Works/Estates/Secretary of the committee called the Abuja Office Manager – Charles Chigbu informing him that the transaction has reached almost its final stages as the chairman of the 1st defendant i.e the 2nd defendant – Prof Maurice Iwu, would in person with other members of the Committee come for a final inspection after which he is sure the deal will be concluded and requested him to come to lead them.
26. The plaintiff avers that the Abuja Office Manager – Charles Chigbu, Mr. Razzak Omokide, the chairman of the 1st defendant and members of the committee did inspect the warehouse/property (Mercedes place) at plot 1031 Central Area Cadastral Zone AO Abuja, and the 2nd defendant – chairman showed his satisfaction and asked the committee in his presence to finish the negotiation therein.
27. The plaintiff avers that later on the same day, the Abuja Office Manager – Charles Chigbu took the 4th defendant, who was not present at the time of inspection, to meet with Engr. Okpara the Secretary of the committee where he formally introduced both parties as the purchasers on one hand and the seller on the other hand. All parties exchanged business cards and telephone numbers with assurances that the transaction will be effected.
28. The plaintiff avers that on the 6th October, 2006 one Barrister Auta and Hajia Awa of the Legal Department of the 1st defendant, came to the plaintiffs Abuja Office on the instruction of the 1st defendant to ask for certain documents relating to the said property/warehouse in order to
conduct a search of it in the land Registry. The said documents were listed in the handwriting of Barrister Hajia Awa with their phone Nos. therein. The plaintiff pleads the hand written document and will rely on same.
29. The plaintiff avers that the Abuja Office Manager – Charles Chigbu informed the lawyers that what he has is the old certificate of occupancy, which will enable them conduct a search of the warehouse/property at the land registry, while other documents/information listed by them is discoverable on the conduct of the search, and consequently gave them the old certificate of occupancy.
30. The plaintiff avers that on or about the 13th of October, 2006 the Abuja Office Manager – Charles Chigbu went to the 1st defendants’ office to know the extent of the transaction and was handed a letter dated 2nd October, 2006 by Mr. Hassan of one office of the 1st defendants Director/Work/ Estate indicating that the 1st defendant is well disposed to purchasing the proposed property /warehouse (the Mercedes Place).
The plaintiff pleads the said letter. The plaintiff acknowledged the 1st defendants letter in his of 16th October, 2006 which is equally pleaded and notice given to the 1st defendant to produce same at the trial.
31. The plaintiff avers that on the 17th October, 2006, Mr. Hassan called the Abuja Office Manager – Charles Chigbu again to the office of the 1st defendant, and handed him yet another letter dated same 17th October, 2006 requesting some information/documents therein mentioned to be submitted on or before the 19th October, 2006. The plaintiff pleads the 1st defendants letter of 17th October, 2006.
32. The plaintiff avers that on receiving the above letter the Abuja Office Manager – Charles Chigbu immediately approached the 4th defendant with the said letter requesting for the said document, but got the shock of his life when the 4th defendant informed him that the 1st defendant had given a similar letter to another firm whom he had released the documents to.
33. The plaintiff avers that after the incident as in paragraph 32, the Abuja Office Manager – Charles Chigbu made several effort to see all the officers he had been dealings with in respect of the property/warehouse and they all started to evade him to the extent that he was stopped from coming into their offices and that of the 1st defendant.
34. The plaintiff avers that he knows of a fact that the 1st defendant finally bought the said property from 3rd and 4th defendant at the sum of N700million which he offered the 4th defendant and accepted by both parties. The plaintiff further avers that the 1st defendants are now in occupation of the said property/warehouse having purchased same.
35. The plaintiff avers that it was his firm that introduced the 1st defendant to the 3rd and 4th defendants and negotiations for the purchase of the warehouse/property proceeded on the basis of this introduction and they were the person who put in motion all the instrumentality and causal effect that ultimately led to the sale and purchase of the property/warehouse.
36. The plaintiff avers that by the transaction between his firm and the 1st, 2nd, 3rd and 4th defendants they acted as their agents that led to the sale and purchase of the property /warehouse and thereby entitled to commission.
37. The plaintiff avers that by custom of estate agency and as equally obtainable in the profession/trade of the Nigeria institution of Estate Surveyors and valuers, (which he is a member) professional scale of fees, he is entitled to 10% of the purchase price from the 1st defendant as commission, and equally entitled to a further 10% of the purchase price from the 3rd and 4th defendants as commission and not less for bringing the parties together upon which the property/warehouse was sold.
The Statement of Defence would be re-captured below as follows:-
1st AND 2nd DEFENDANTS STATEMENT OF DEFENCE:
1. SAVE and EXCEPT as hereinafter expressly admitted the 1st and 2nd Defendant deny each and every material allegation of facts contained in the statement of claims as though same were herein set out and traversed seriatim.
2. The 1st and 2nd Defendants admits paragraphs 1, 2, 3, 4, 5, 6, 7, 8,9,11, 12,15,16,17, 25, 26 of the plaintiff’s statement of claims to the extent that all the transactions that took place as a result, were no more than negotiations to enter into contractual relationship between the Defendants and the Plaintiff which at the end failed.
3. The 1st and 2nd defendants deny paragraph 4, 18, 19, 20, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37 and 38 of claim and put the plaintiff to strictest of proof thereof.
4. In answer to paragraph 10 of the plaintiff statement of claim, the 1st and 2nd defendants put the plaintiff to strictest of proof thereof.
5. The 1st and 2nd defendants in answer to paragraph 18 and 19 of the plaintiff’s statement of claim aver that it was the plaintiff that offered to sell the said property to the 1st defendant at the price of N700,000.000.00 (Seven hundred million naira only).
6. The 1st and 2nd defendants in answer to paragraph 30 of the plaintiff’s statement of claim aver that the plaintiff never made any offer of purchase the property at the cost of N700,000.000.00 (Seven hundred million naira only) to the 3d and 4th defendants in the name of the 1st defendant.
7. In answer to paragraph 21 of the plaintiff statement of claim, the 1st and 2nd defendants put the plaintiff to strictest of proof thereof.
8. The 1st and 2nd defendants in answer to paragraph 22 of the plaintiff’s statement of claim aver that the 1st defendant did not accept of sale of the property made to it by the plaintiff vide its letter dated 3rd July, 2006 same being made before the prequalification bids.
9. The 1st and 2nd defendants in answer to paragraph 23 of the plaintiff’s statement of claim aver that all government Ministries, Parastatals and Agencies must comply with due process and prequalification for financial bids for all contracts.
10. In answer to paragraph 24 of the plaintiff’s statement of claims, the 1st and 2nd defendants aver that contractors’ registration with the commission was part of the pre-qualification requirements as advertised by the 1st defendant.
11. In answer to paragraph 27 of the plaintiff’s statement of claim the 1st and 2nd defendants put the plaintiff to the strictest of proof thereof.
12. The 1st and 2nd defendants in answer to paragraph 28 and 29 of the plaintiff’s statement claims aver that the 2 legal officers of the commission on a visit to the plaintiff discovered that the plaintiff did not possess the necessary legal documents and authority to sell the property.
13. The 1st and 2nd defendants further aver that 3 firms qualified to submit financial bids for the sales of the property and two firms namely; the plaintiff and Mohammed Mohammed & Co. presented the same property to the 1st defendant which is plot 1037 CBD Abuja.
14. The 1st and 2nd defendants aver further and in answer to paragraph 31 and 32 that the 1st defendant requested the 3rd and 4th defendants to name their authorized agent with whom the 1st defendant shall negotiate the sale of the property with and that Mohammed Mohammed & Co. was so named by the 3rd and 4th defendants as their authorized and lawful agent.
15. In answer to paragraph 30 of the plaintiff’s statement of claim, the 1st and 2nd defendants aver that the 1st defendant letter of 2nd October, 2006 to the plaintiff did not in any way accept the offer of the plaintiff to the 1st defendant to purchase the property at N700,000.000.00 (Seven hundred million naira) and that the plaintiff is not entitled to 10% of the total property price as its agency fees. All that the said letter said was no more than an intention by the 1st defendant to begin negotiation with the plaintiff.
16. The 1st and 2nd defendants in answer to paragraph 33 of the plaintiff’s statement of claim aver that the 1st defendant stopped dealing with the plaintiff when the 3rd and 4th defendants named Mohammed Mohammed and Co. as their lawful agent to sell the property on their behalf.
17. The 1st and 2nd defendants admit paragraphs 34 of the plaintiff’s claim to the extent that the 1st defendant purchased the property from the authorized and lawful agent of the 3rd and 4th defendants and met all its legal obligations.
18. in answer to paragraphs 36 and 37 of the plaintiff’s statement of claim the 1st and 2nd defendants aver that the 1st defendant commenced negotiations with the plaintiff to purchase the Warehouse, when it discovered that the plaintiff lacked the authority of the owners to sell the property, the 1st defendant stopped dealing with the plaintiff and there is no agency relationship between the plaintiff and the defendants.
19. In answer to paragraph 38 of the plaintiff’s statement of claim, the 1st and 2nd defendants aver that the plaintiff is not entitled to any agency fees from the defendants as the plaintiff never had any agency relationship with the defendants.
20. That the 1st and 2nd defendants shall rely at the trial of this suit on all the papers that the plaintiff pleaded in his statement of claim.
21. TAKE NOTICE that the 1st and 2nd defendants may, before or at the trial of this suit raise objection to the competency of the suit and contend that the Honourable Court lacks the jurisdiction to entertain this suit and shall urge that it be dismissed and/or struck out on the grounds that:
Considering the two pleadings side by side, it can be seen that the Statement of Defence lacked the necessary traverse where traverse were to be made. Paragraphs 3 & 7 of the Statement of Defence generally denied paragraphs 4, 18, 19, 20, 22, 23, 24, 27 – 38 of the Statement of Claim. In paragraph 11 of Statement of Defence Defendant just put Plaintiff on strictest proof in respect to paragraph 27 of the Statement of Claim.
Contradictory in some aspects and in some instances admissions were made in crucial areas. What one can see is that the defendant did not specifically deny each allegation of fact in the plaintiff’s pleadings which situation gave the plaintiff the sway or pride of place to have his pleadings set the stage and agenda for the trial. The half spirited attempt by the Respondent to call to question the none pleading of the document, the Estate Surveyors and Valuers Scale of Professional Charges 3rd Edition – Exhibit C3 goes to no issue since that fact embedded in the document was properly pleaded in paragraph 37 of the statement of claim. I rely on Elendu v. Ekwoada (1998) 10 SCNJ 51; Ajao & ors. V. Ajao (1986) 2 NSCC 1327.
In the prevailing circumstances I resolve this issue in favour of the Appellant.
ISSUES 3 AND 1:
Whether the trial Court was right to have given weight to the evidence of the DW1 which was contradictory and at variance with the Respondent’s pleading?
Whether from the pleadings and evidence adduced at the trial, the Lower court was right to have dismissed the suit of the Plaintiff.
Mr. Nwakor for the Appellant said, it is trite law that parties are bound by their pleading and evidence which is at variance with the averments in the pleading goes to no issue and should be disregarded. That the defendant did not deny the material averments pleaded in the statement of claim which constituted the plaintiff’s cause of action and thus deemed admitted. That despite the fact that the statement of defence failed to meet the plaintiff’s claims, the evidence of the DW1, the only witness of the defendant went to no issue not having been pleaded. He referred to the evidence of DW1 and the relevant paragraphs of the Statement of Defence viz paras 7, 8, 9, 11, 21, 22 – 24. He referred to the cases of: Okhuarobo v. Aigbe (2002) 31 WRN 30; Morohunfola v. K.S.C.T. (1990) 7 SC (pt. 1) 40; Odofin v. Mogaji (1978) 3 SC 91; Woluchem v. Gudi 2 LC 132; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71; Olatunji v. Adisa (1995) 2 SCNJ 90 at 101 – 102; Otagbore v. Romaine (1982) All NLR.
Respondent through counsel, Mr. Umar said the Appellant was duty bound to prove the existence of the contract agency with the Respondent and the Appellant’s failure to prove same was fatal. He cited UBA Ltd. v. Tejumola & sons Ltd. (1988) 1 NSCC 945 at 956; Udegbunam v. FCDA (1996) 5 NWLR (pt. 449) 474 at 486.
Learned Counsel for the appellant submitted that the case of the Appellant as borne out in his pleadings and evidence is that the Appellant as estate agent (member of the Nigeria Institution of Estate Surveyors and Valuers) introduced a property known as Plot 1031, Central Area Cadastral Zone AO, Abuja called the Mercedes Place to the Respondent who was desirous of purchasing a warehouse for their use. That the property was inspected by the respondent’s officers led by one Senator Farukumi who is the Respondent’s committee Chairman for the purchase of the warehouse.
The Respondents expressed satisfaction with the property consequent upon which the Respondent asked the Appellant to take valuers from the Federal Ministry of Housing & Urban Development to value the property. That in the mean time the acceptance of the owners of the property for the purchase price of seven hundred million naira (N700,000.000.00) at the instance of the respondents – Senator Farukumi (Chairman of Respondent committee for the purchase) was communicated to the Respondent together with the appellants entitlement to 10% of the said purchase price in line with the professional scale of charges of The Nigeria Institution of Estate surveyors and Valuers. The Appellant was asked by the same Respondents Chairman for the purchase of the warehouse, to register as a contractor with the respondent and re-submit his proposal with the same property which he had already shown them in response of the newspaper advertisement of their intention to purchase a warehouse, and since it was the Appellant who showed/introduced them to the property, that they will still deal with him on that basis. The appellant complied.
Appellant further stated that the appellant after receiving the submission/prequalification documents as instructed, the Respondent continued to deal with him as he was called yet again to take members of the Respondent’s committee this time with the Chairman of the respondent, Prof Maurice Iwu for final inspection, this he did and at the said inspection, Prof. Maurice Iwu showed great satisfaction with the property and asked that negotiation for the property be concluded. That equally the case of the Appellant is that at that final inspection of the property, the owners of the property was not there, and he later brought the owners to meet the Respondent that is one Engr. Okpara – Secretary of the Respondents Committee for the purchase of the warehouse, and introduced both parties i.e purchaser on the one part and the seller of the other part.
Mr. Nwakor further stated that, it was Appellant alone who not only introduced the respondent to the property which they bought, but he went a step ahead, to introduce the Respondent to the owner of the property upon which negotiation for the purchase of the property proceeded, and that it was appellant who put in motion all the instrumentality and causal effect that ultimately led to the purchase of the property by the respondent and no other thus entitling the Appellant to 10% Commission of the purchase price in line with the custom of Estate Agency and the scale of charges obtainable with the Nigeria Institution of Estate Surveyors and Valuers scale of professional charges.
That following from the above stated case of the Appellant, the question that begs for answer is: who is an estate agent/what his duty is.
He cited the case of Badawi v. Elder Dempster Agencies Ltd. (1968) NCLR 394.
Learned Counsel for the Appellant stated that Exhibit ‘B4′, is a tacit admission that it was the Appellant who introduced the respondent to the property and that the Respondent was disposed to purchasing the property.
That any further negotiation can only be in respect of the commission/fees of the Appellant, since the Appellant had in fact and law done all that is required of an estate agent to wit: informing the Respondent that there is a vendor for a property and going even further to bring both parties together upon which the transaction was consummated. He said this act of the Appellant was the effective cause of the transaction taking place and bringing about the purchase of the property by the Respondent thus entitling him to his commission. He cited Miller Son & Co v. Radford (1903) 19 T.L.R. 575 at 576; Erabor v. Incar (Nig.) (1973) NCLR 273.
That the Appellant did all that was required of him as an estate agent setting the ball in motion for the Respondent to purchase the property in issue and therefore entitled to his commission. That the Respondent cannot hide under the cloak that a certain Mohammed & Co was introduced by the landlord as his sole agent.
In response learned Counsel for the Respondent stated that during the trial the Appellant called two witnesses to prove that he acted as an agent to the Respondent, but the testimonies of these witnesses rather than strengthen the Appellant’s case further weakened it as none of the witnesses called was able to give concrete and reliable evidence as to the terms and conditions of agency contract between the Appellant and the Respondent. He referred to the testimony of PW2 under cross-examination when he said he did not know the relationship between the plaintiff and the defendants in the case. That the Appellant tendered a series of documents as exhibits but he did not relate those documents to any specific aspect of his case as he just dumped the documents on the trial court without more.
He cited Lawan v. Terab (1992) 3 NWLR (pt. 231) 560 at 590 G – H.
That unlike the Appellant’s witnesses the Respondent led credible, strong, compelling and reliable evidence to disprove the allegation that the Appellant acted as the agent of the Respondent. He referred to the evidence of DW1. He stated on that Appellant failed to plead the existence of the contract of service. He cited Amodu v. Amode & anor (1990) 5 NWLR (pt. 105) 356 at 373.
In reply on points of law learned counsel for the Appellant said that the appellant did not need to plead and give evidence of letters specifically appointing him as agent, with specific terms and conditions inclusive of remuneration. He cited Halsburys’ Laws of England 4th Edition para 719; Niger Progress Ltd. v. North East Line corporation (1989) 2 NSCC 211 at 226-227.
In answering the two questions raised in Issues 3 and 1, I shall recast some portions of the judgment of the learned trial Judge and they are thus:-
“In the present case the plaintiff testified that he remembered making a proposal to the defendant for lease/outright purchase of a strategically located built warehouse 1301, Central area Cadastral Zone AO, Abuja known as the Mercedes Place and there was acceptance by the defendant and the plaintiff located the warehouse for the defendant.
The evidence of PW1 is to the effect that he entered into an agency contract with the defendant to procure a warehouse. So many correspondences followed this agreement Exhibit A2 in particular which deals with the property i.e Mercedes Place is as follows:
“30th May, 2006.
The Chairman,
Independent National Electoral Commission,
INEC – Headquarters,
Plot 432, Zambezi Crescent,
Maitama,
Abuja
Dear Sir,
PROPOSAL FOR THE OUTRIGHT PURCHASE OF A PURPOSE BUILT AND STRATEGICALLY LOCATED WAREHOUSE AT PLOT 1031.
CENTRAL AREA, CADASTRAL ZONE AO, ABUJA FCT.
Further to our proposal dated 2nd May, 2008 we forward herewith another proposal to your reputable organization a second warehouse (well built and strategically located) now in the market to outright sale.
We sincerely hope you will find it in order and look forward to hearing from you.
Many thanks.
Yours faithfully,
For: Achoru Associates
Signed by Charles N. Chigbu”.
The defendant through DW1 denied entering into any agency relationship with the plaintiff. DW1 had however admitted in his evidence that:
“The commission was desirous of purchasing a warehouse…,that
“That plaintiff was introduced to me by a friend as there was a desire of the commission to purchase a warehouse for storage of electoral materials…”
It is a fact before this Court that there was a desire by the Defendant (INEC) to procure a warehouse.
That the plaintiff made a proposal to the defendant regarding the warehouse. See Exhibit A. However, going by the definition of agency and how it can be created, has the plaintiff in this case discharged the burden placed on him to establish by credible evidence that indeed an agency relationship existed between him and the defendants?
PW1 has testified that he was introduced to one Arch. Bara Edoghotu (DW1). DW1 accepted this in his evidence in chief.
PW1 also testified that one Senator Farukumi who is a Commissioner and Chairman Committee on the purchase of INEC properties instructed him to make an offer to the owners of the property i.e Decagon Investments Ltd. which he PW1 proceeded to do as per Exhibit ‘A4’.
Indeed from the evidence, PW1 went on reporting all transactions between him and the owners Decagon Investment to the said senator Farukumi. The question further is, between Arch. Bara Edoghotu (DW1) and Senator Farukumi, who had authority to negotiate on behalf of the defendant? It is trite law that the burden of proof was on the plaintiff who asserted the existence of this positive fact.

It is one thing to aver a material fact in issue in ones pleading and quite a different thing to establish such fact by evidence.
Thus, where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such facts to establish the same by evidence. See A.C.B. Plc. v. Odukwe (2005) All FWLR (pt. 276) page 806.
See Sections 135, 136 and 137 of Evidence Act.

Indeed, the defendant in paragraph 2 of its amended statement of defence has admitted paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9,11,12 and 25 of the statement of claim. It is trite law that what is admitted needs no further proof. But such admissions must be direct and unequivocal. See Owosho v. Dada (1984) 7 SC page 149. I will be quick to add however, that a plaintiff still had the onus of proving his case ‘admissions or no admissions’. See the case of Bello v. Iweka (1981) 1 SC 101.
It is important also at this stage to note that the evidences of DW2 and DW3 were not pleaded by the defendant. The law is trite that parties are bound by their pleadings. A party cannot lead evidence in respect of matters not pleaded. See Hyun Sung Hydrolic Machinery Co. Ltd v. Jaffar (2005) All FWLR (part 259) page 39.
The evidence of DW2 and DW3 therefore which were not pleaded go to no issue and are hereby disregarded by the Court.
This leaves the Court with the evidence of DW1 side by side that of the plaintiff’s witnesses and also the volume of document tendered in evidence as Exhibits. I had earlier mentioned that the defendant had admitted paragraphs 1 – 12 and 25 of the statement of claim. The defendant had also not denied paragraphs 10, 13, 21 and 27 of the plaintiff’s statement of claim but however put the plaintiff to the strictest of proof hereof. This amounts to insufficient traverse. It was held in the case of Agiri v. Ogundele (2005) All FWLR (part 250) page 84.
“A traverse which is half admission or half denial is evasive and therefore fails to serve the desired purpose in a statement of defence…”
It is significant to stress the place or position of the general rule of burden of proof vis-a-vis the implication of admission by the defendants.

Admission has been defined by the Blacks Law Dictionary 5th Edition at page 44 as:
‘Confessions, Concessions and voluntary acknowledgment made by a party of the exercise of certain facts’.
Deducing from the definition in my view it follows that there are numerous legal consequences of admission by the defendant and which would serve in favour of the plaintiff. In other words:
1. it shifts the burden of proof off the plaintiff
2. it exonerates the plaintiff
3. it aids the plaintiff’s case
4. it makes light the burden expected or placed on the plaintiff.
See the case of Oguanishu v. Chiegboka (2003) 25 WRN 113.

Has the plaintiff discharged the burden placed on him as required by law to prove the existence of an agency relationship despite defendant’s admissions?
Exhibit A4 is the alleged offer made on behalf of the defendant (INEC) to decagon Investments Ltd. Exhibit ‘B’ is the reply written to the plaintiffs accepting the offer however with a condition that progress should be made within 2 weeks and that any failure to effect payment within the period renders the transaction invalid. The plaintiff has not led evidence to say that any payment was effected within the 2 weeks duration. The purported acceptance from Decagon Investment Ltd. Exhibit B dated 1st July, 2006 lapsed on the 15th July, 2006.
The content of Exhibit ‘B1’ written by the plaintiff to the defendant’s secretary is a notification of the acceptance of the offer by the owners. Note there is no disclosure of the owners, nor was the conditions attached to the acceptance disclosed to the defendants. Thus, on the 2nd October, 2006, when the defendants wrote saying that they are disposed to purchasing the property, Exhibit ‘B4’, the 2 weeks duration as I earlier noted had lapsed. In fact the letter, Exhibit ‘B4’ written by the defendant was also subject to further negotiation. All these have not been disputed by the plaintiff.
Further Exhibit ‘C2’ tendered in evidence by the plaintiff is a letter written by the defendant (INEC) asking the plaintiff to furnish the commission with information regarding the ‘Mercedes Place’. All that was to be done latest by the 19th October 2006. There is nowhere from the evidence where the said information was supplied to the defendant.
It is a fact before this Court which has not been disputed and which I believe that the defendant finally purchase the property through one Mohammed & Co. who was presented by the owners as their sole agent.
PW1 also stated under cross-examination that “That the property was open in the market and any other person could have acted on it”.
The above answer was predicated on an earlier question asking PW1 whether his mandate had not expired after the making of Exhibit ‘B2’. Exhibit ‘B2’ is the advert published in the newspaper by the defendant titled:
“INDEPENDENT NATIONAL ELECTORAL COMMISSION INVITATION FOR PRE-QUALIFICATION AS PROPERTY MANAGER FOR THE PURCHASE OF A WAREHOUSE IN ABUJA FCT…”
It was upon Exhibit ‘B2’ that plaintiff further made Exhibit ‘B3’ addressed to the Secretary INEC as follows:
“4th September, 2006
The Secretary,
Independent National Electoral Commission,
Plot 436, Zambezi Crescent,
Maitama District,
P.M.B. 0184,
Garki – Abuja.
Dear Sir,
PRE – QUALIFICATION FOR THE PURCHASE OF A WAREHOUSE IN ABUJA, FCT.
We attach hereto our proposal in respect of the above subject matter which we hope will merit your kind consideration and look forward to your reply as soon as possible.
Yours faithfully
Signed by M. C. Achoru
Principal partner.”

The defendants reply is also instructive on Exhibit ‘B4’ I hereby reproduce same;
“2nd October, 2006
The Branch Manager,
M/s Achoru associates,
Suit 23, Supreme Shopping Complex,
Samuel Ladoke Akintola Boulevard,
Garki II,
Abuja.
RE – OFFER OF PROPERTY AT CENTRAL BUSINESS DISTRICT ABUJA
We wish to acknowledge receipt of your offer of property for sale at Central Business District, Abuja.
2.0 The Commission is well disposed to its purchase and will communicate to you on a date for further negotiation, please.
Signed by Arc. Bara M. Edoghotu.
Director (Estate & Works)
For: Secretary to the Commission”
This Court has searched in vain to see the conclusion of the negotiation between the plaintiff and the defendant.

An offer is a definite undertaking made with the intention that it shall become binding on the person making it as soon as it is accepted by the person whom, it is addressed to.
See Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (pt.249) page 1969.

From the correspondences between the plaintiff and the defendant the Court is of the view that the various letters of proposal did not amount to a definite offer.
Further, the principal has a right to appoint his agent. The principal has a right to contract with whatever agent he wants to deal with or represent him in a transaction, but that cannot be done without the consent of the parties.
The negotiation to enter into agency relation has not been completed in this case”.
Above has been the findings and evaluation by the learned trial Judge and it seems clear to me that while the findings were supported by the pleadings, testimonies and documents proffered, the conclusions of the Court below were made outside what was before the trial court, since the connection or nexus was absent. Therefore, I answer the two questions with a capital NO. The pleadings and evidence did not support the weight given to the evidence of DW1 who did not show enough reliability nor did the materials available support the dismissal of the Plaintiff/Applicant’s case.
The principle in Miller Son & Co v. Radford (1903) 19 TLR 575; Erabor v. Incar (Nig) (1973) NCLR 273 to the effect that the introduction by Plaintiff to defendant of the property and its eventual purchase by the Defendant at the price proposed by the Plaintiff made the consummation of the transaction possible and the Plaintiff/Appellant could not be ignored, rather he should be recognized and compensated accordingly as the agent.

ISSUE NO. 4:
Whether the trial judge was not making a case for the defendant, different from what was placed before it by the parties.
Learned Counsel for the Appellant contended that the trial Lower Court embarked on his own voluntary voyage aimed at producing evidence for the parties particularly, the defendant. That the questions and issues raised by the trial Court were outside what was pleaded by the parties.
He referred to Onibudo & ors v. Akibu & ors (1982) 1 All NLR 207 at 219; Pages 304 – 305, 397 of the Record in which were the evaluation of the trial Judge and paragraphs 12 and 13 of the Statement of Claim and the Defence thereto at pages 70, 73 of the Record.
That the trial Court was wrong to declare a letter written to the Independent National Electoral Commission through any of its agents as a letter to nobody. He cited Carlen (Nig.) Ltd. v. UNIJOS (1994) 1 NWLR (pt. 323) 631.
That an appeal is an invitation to a Higher Court to review the decision of a Lower court in order to find out whether on proper consideration of the facts placed before it, and the applicable taw, the Lower Court arrived at a correct decision. He cited Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172; Alimi v. Ayinde (2004) 42 WRN 115.
Responding, learned Counsel, Mr. Umar stated that the learned trial Judge rightly dismissed the claim of the Appellant of 10% of the purchase price of Mercedes Place as agency fee. That the Appellant having failed to prove Agency relationship with the Respondent, the issue of paying him any commission does not arise. That the claim of entitlement in breach of contract are in the nature of special damages which must be specifically pleaded and proved. He referred to NITEL v. Oslo (supra) 542; Nigeria Railways v. Charles Okwudili Umera (2006) 17 NWLR (pt. 1008) 265 at 277.
Mr. Umar further submitted that on the claim of the Appellant that as a member of the Nigeria Institute of Estate surveyor and Valuers, he is by custom and the professional scale of charges entitled to 10% of the purchase price would not avail him as he did not plead or give evidence as to the said professional scale of fees, custom and the tendering of Exhibit ‘C3’, Nigeria Institute of Estate Surveyors and Valuers Scale of professional charges was not enough as the document was not related to the case in respect of which the document was tendered. He cited Lawan v. Terab (supra) at 590; Alao v. Akano (2005) 11 NWLR (pt. 935) 160; Hyun Sung Hydrolic Mechinary Co Ltd. v. Jaffer (2005) All FWLR (pt. 250) 39.
Indeed the earlier issues especially 3 and I have answered this question of whether the trial Judge made a case for the parties outside of what was before him. The copious pleadings of the Plaintiff have been quoted extensively, the statement of defence which showed some emptiness, coupled with the documents tendered in proof of plaintiff’s case make it difficult to appreciate the decision of the trial Court especially considering even his own findings. This is because I do not see what informed the learned trial Judge’s holding thus:
“An estate agent can only earn his fees, in the absence of any express agreement, when the business he facilitated is consummated and it is not enough to obtain an offer still subject to contract. Every offer sourced for his principal is still liable to being accepted or rejected at the option of the principal. No terms will be implied in the circumstances. See the case of Bello v. Manuwa (1974) NCLR 48.
Further more,

This Court has held already that no agency relationship has been established and that the purchase of the property by the defendant was done through one Mohammed & Co and not through the plaintiff”.
I answer this issue in favour of the Appellant and conclude that the appeal is meritorious and I allow it. I set aside the decision and judgment of the Court below dismissing the Plaintiff’s case. I hereby hold that the Appellant proved his case and claims in the Court below and I order as follows:-
1. The Respondent to pay the sum of N70 million naira being 10% of the purchase price of Plot 1301, Central Area Cadastral Zone AO, Abuja known as the Mercedes Place.
2. 10% interest on the judgment sum from this date of judgment till the sum is liquidated.
3. Costs of N150,000 to be paid by the Respondent to the Appellant.

JIMI OLUKAYODE BADA, J.C.A: I had a preview of the lead Judgment of my Learned brother MARY U. PETER-ODILI, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
Accordingly, I also allow the appeal and endorse the consequential orders made in the said lead Judgment.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I agree.

Appearances

Obi C. Nwakor, Chioma Nnanna (Miss)For Appellant

AND

Alhassan A. UmarFor Respondent