MIKE ACHORU v. DECAGON INVESTMENT LIMITED & ANOR (2014)

MIKE ACHORU v. DECAGON INVESTMENT LIMITED & ANOR

(2014)LCN/7629(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of December, 2014

CA/A/280/2013

RATIO

COURT: DUTY OF COURTS; THE FACT FINDING DUTY OF THE TRIAL COURT AND NOT THE APPELLATE COURT

Equally important to the determination of this issue is the settled position of the law that it is not the function of an appellate court to make findings of fact where this has been done by the trial court, and to reopen issues of fact finally determined by the trial court. This court is not permitted to do so, even if it would have come to a different finding if it were to do so, see OLANREWAJU V. GOV. OF OYO STATE (1992) NWLR Part 265 at 335. per. MOHAMMED MUSTAPHA, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; WHETHER IMPORTING THE WORD ‘EQUITY’ WILL CHANGE THE BURDEN AND STANDARD OF PROOF OF FRAUD ON THE PROSECUTION

If there was any kind of fraud, the appellant should call it so, and prove it as required by law, beyond reasonable doubt; learned counsel cannot hide behind the word “equity” to import an element of fraud into the case, by claiming “equitable fraud” just to avoid the consequences of the requirements of the law with regard to burden and standard of proof of same. Fraud is fraud; it is a crime, and the standard of proof required to establish it is beyond reasonable doubt, MR SEGUN BABATUNDE & ANOR V BANK OF NORTH LTD & ORS. (2011) LPELR-8249 (SC). The use of the word “equitable” to qualify it changes nothing as far as the law is concerned “incontestably, where fraud is made an issue in any proceedings, it must be pleaded with relevant particulars and evidence led thereon beyond reasonable doubt.” MOJOR S.G. IDAKWO (RTD) V MALL. ALIYU IBRAHIM & ANR (2011) LPELR-8936 (CA). per. MOHAMMED MUSTAPHA, J.C.A.

JUSTICES:

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

TANIYUSUF HASSAN Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

MIKE ACHORU (Trading under the name and style of Achoru Associate) – Appellant(s)

AND

1. DECAGON INVESTMENT LIMITED
2. ENGR. ADAMS IBRAHIM – Respondent(s)

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.

Learned counsel contended the respondents committed equitable fraud by not denying paragraphs 36, 37 and 38 of the PW’s statement on oath but feigned ignorance, thus making the respondent’s condition in Exhibit P8 suspect.

Learned counsel submitted that the two weeks, time limit was deliberately put in Exhibit P8 to mislead the appellant into believing that the contract would be void automatically at the expiration of two weeks; he referred this court to OKONKWO V. KPAJIE (1992) NWLR part 226 at 38 and further submitted that the respondents having identified INEC went ahead with the contract to the detriment of the appellant, using its powers in the circumstances; he referred to OKOLI V. MORECAB FINANCE NIG. LTD. (2007) 14 NWLR Part 1053 at 18.

Learned counsel argued that the fraud in Exhibit P3 is apparent because even though the document itself was made and dated 31st of October, 2006, it is executed by signatures on the 17th of October, 2006; and the respondents did not avert their mind to this fact nor explain it.

That also it is in the same document that the respondents purportedly appointed Mss Muhammad & Co as agent with the appointment commencing form 31st October, 2006 to 31st December, 2006.

Clearly by this learned counsel argued INEC showed interest before the appointment of Mss Muhammad & Co and before the making of the document on the 31st of October, 2006, amounted to fraud in the equitable sense, with the objective being the restriction of compliance by the appellant to two weeks.

Learned counsel submitted evidence has established the fact of an agency relationship between the parties yet the trial court ignored them all; he urged this court to resolve this issue in favour of the appellant.

Olusegun O. Jolaawo Esq., learned counsel for the respondents submitted in response that the respondents as defendants did not tender any exhibit at the trial court believing that the burden is on the appellant as plaintiff to prove his claim to agency.

That of the 13 Exhibits tendered and admitted by the appellant at the lower court only Exhibits P3, P7 and P8 relate to the appellant’s claim; and that the trial court was led to the conclusion, at page 532 of volume 2 of the records, that the pleadings and evidence establish that the appellant was instructed by INEC to get a warehouse for them to purchase.

That Exhibit P7 written by the appellant informed the 1st respondent that it has an offer to buy the property for N700,000,000 with an agency fee of 10% at the end of the transaction; P8, the 1st respondent’s reply accepted the offer, on the condition that payment is made within two weeks, and conceding to the payment only of 3% agency fee if the transaction is completed within the period stated.

That also the appellant averred and led evidence that the agency relationship between him and the respondents is implied, and so the trial court’s findings cannot be faulted; especially as an appellate court will not interfere with the findings of fact of a trial court, respecting credibility of witnesses and evaluation of evidence, learned counsel referred this court to NARUMAL & SONS NIGERIA LTD. V. NIGER BENUE COMPANY LTD. (1989) 2 NWLR part 106 at 762.

Learned counsel submitted that the claim that the appellant was allowed to take photographs, sketches, and measurements does not mean that he was the respondents’ agent, as anyone interested in purchasing the property could have access to those documents.

It is clear to this court that the question for determination under this issue is whether the appellant was an agent to the respondents; that being so, it is important first to note that an agency is created by express or implied contract, or by law; the agent as a result of the relationship may act on behalf of the principal, and bind him by words or action, DPP ZAMFARA STATE V INEC & ORS (2008) LPELR-8597 (CA).

The appellant claims he is an agent of the respondents by implication, thus admitting that there is no express statement of agency between the parties; having said that the burden is now squarely on the appellant to establish the existence of such a relationship.

The trial court found at page 535 to 536 of the record of proceedings, volume 2, that the plaintiff acted as an agent for INEC, at all material times in the transaction, and observed …..I must confess the futility of my search for any shred of evidence that points compellingly to actions or steps the plaintiff specifically undertook on behalf of the defendants, separate and distinct from actions on behalf of INEC from which agency relationship between the plaintiff and the defendants could be inferred…”

The appellant relies on the interactions between him and the respondent as well as exhibits which he claimed were admitted but not controverted; essentially contending that he has discharged the burden of proof, in establishing an implied agency between him and the respondents.

It is important at this juncture to note as pointed out for the respondents that merely having access to photographs, sketches, measurements and copies of documents of title alone does not establish agency; because any person interested in the purchase of the property in question can easily avail himself of same. The respondents will see to that in their own interest, and that does not necessarily mean that such a person has now become an agent; the question “…whether that relationship exists in any situation depends, not on the precise terminology employed by the parties to describe their relationship, but on the nature of the agreement, on the exact circumstances of the relationship” SAMUEL OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) 3 NWLR part 1128 at 378 SC.

The trial court also found “it would seem therefore that the plaintiff merely sought to extract by Exhibit P7 an agreement on payment of agency fees from the defendants, but quite unfortunately did not make the most of it when the defendant made a counter offer…”
The appellant is required to do more than he has done in proof of the existence of an agency relationship, especially in view of the fact that the respondents from the onset denied the existence of such a relationship; otherwise the burden probandi cannot be said to have shifted to the respondents; AJIDE V KELANI (1985) NWLR part 12 at 248 and MIKE ACHORU V INDEPENDNT NATIONAL ELECTORAL COMMISSION (2010) LPELR 3588.

The existence of an agency is often constituted by agreement, even where it is claimed to have been implied, because essentially it is that agreement that is implied, and no such agreement was implied to exist between the appellant and the respondents to the satisfaction of the trial court in the circumstances of this case, and we cannot fault the findings of the trial court; according this issue is resolved in favour of the respondents.

ISSUE TWO:
Whether the appellant is entitled to the reliefs herein sought (Ground 2).
It is submitted for the appellant that the respondent accepted the agency and offered to pay 3% of the offer value, as per Exhibit p8; and that where a party does not reply a business letter, as in Exhibit P8, he is deemed to have accepted same; learned counsel referred to AKINOLA V OLOWU (1962) 1 All NLR at 224 and C.A.P PLC. V. VITAL INVESTMENT LTD (2006) 6 NWLR part 976 at 267.

That it was in evidence that the appellant and the respondents took definite steps which culminated in the sale of the property to INEC; yet INEC and the respondents undertook their equitable fraud on the appellant as per pages 380 to 381 of the record of appeal.

Learned counsel submitted that where a plaintiff fails to prove all his claims, that which is proven is awarded, notwithstanding the fact that the plaintiff claimed the maximum 10% agency fees; a decision informed by the belief that the court has the power to award less than the 10% if it chooses to; learned counsel referred the court to JOMU V. IKORODU LOCAL GOVERNMENT (2007) All FWLR Part 394 at 264 and A.G. CROSS RIVER STATE V. A.G. FED. (2005) 6 SC Part 11 at 102 and urged this court to hold that exhibit P8 represents the respondents’ admission of 3% as against 10% agency fee and award the lesser amount of N21,000,000 proved by the appellant.

It is submitted for the respondents that nowhere in the correspondence between the appellant and the respondent is there any disclosure of the identity of the proposed purchaser of the property, especially so in Exhibit 7, and so it cannot be assumed that INEC was identified to the respondents through the appellant; learned counsel particularly referred to the evidence of DW1 under cross examination at pages 491 to 492 of volume 2 of the records.

Learned counsel further submitted that Exhibit 8 in response to Exhibit 7 made a counter offer which stipulated the payment had to be made within two weeks or in became invalid, and reduced the commission to 3%; that payment was not made within the said two weeks nor was there any response to the reduction of commission to 3%, and so non acceptance of the counter offer cannot create an agency between the parties by extension.

That the appellant in his claim went ahead to make a case for 10% as his fees, a fact which negated the argument that he should be deemed to have accepted 3% by his silence. Learned counsel urged the court to resolve this issue too in favour of the respondents.

The question for determination here is whether the appellant is entitled to the 3% commission, notwithstanding the fact that the appellant failed to respond to Exhibit 8 the counter offer.

Exhibit 8 for the avoidance of doubt is the document dated 21st of June, 2006, accepting the offer N700,000,000 as payment for the property, provided such payment is made within two weeks, and the appellants are prepared to accept 3% commission, in place of the 10% suggested in Exhibit P7.

This court holds the view that if the appellant indeed intended to accept the 3% as suggested by Exhibit P8 he should have unequivocally said so; that would not have left anyone in doubt as to the appellant’s entitlement to the said percentage of payment. But the appellant cannot be heard to say now that his silence should be deemed to have accepted the contents of Exhibit P8.
The appellant had all the opportunity in the world to stake out his claim but refused; no evidence was led or established to show acceptance of the terms of the counter offer by the appellant; Indeed a court may award in proper cases less than is claimed, SCOA (MOTORS) ONITSHA & ANOR V CHINWUBA ABUMCHUKWU (1973) ANLR 290, but the circumstances of this case do not call for that; this court and indeed the trial court are courts of law as well as justice; the appellant cannot be heard to claim and make an unyielding case for 10% and after having failed in that claim, to have this court sort of bargain terms of 3% for him; that is akin to eating his cake and having it right back.

Learned counsel for the appellant made a passionate submission for the appellant’s entitlement to the lesser commission of 3%, unfortunately submissions of learned counsel brilliant as it is cannot take the place of evidence which is lacking in this regard.

Exhibit P8 is clear and unambiguous as a counter offer to the appellant’s offer in Exhibit P7; and the refusal to respond to it cannot by any stretch of imagination be assumed to amount to acceptance.

The trial court cannot be faulted in its finding that “….the conclusion is inescapable that no agency relationship (whether oral or otherwise) between the plaintiff and the defendants has been made out from which payment of 10% agency fee could arise in the peculiar facts and circumstances of this case…” and this court cannot help but hold also that in the same vein no case for 3% agency fee could arise in this case, as it is; Exhibits P7 and P8 are documents whose intentions are very clear and unambiguous, this court cannot import any unintended meaning to either, nor allow extrinsic evidence to vary same, see ONONUJU V A.G. ANAMBRA STATE (2009) 10 NWLR part 1148 at 182 SC; furthermore, this court holds the firm view that a document tendered in court is the best proof of the contents of such document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except in cases where fraud is pleaded, and established; see A.G.BENDEL V U.B.A LTD (1986) NWLR part 37 at 547; the so called equitable fraud contended by learned counsel is not only not enough but does not justify contradicting the contents of Exhibit P8.

The contention by learned counsel to the appellant that since the respondents did not controvert any of the exhibits admitted at the trial they are deemed to have admitted them, and so the appellant is under no obligation to prove anything further begs the question; as such evidence must as of necessity first credibly support in proving the case of the appellant, and that cannot be said to be so in this case.

The appellants we are satisfied did not prove any of the claims to be entitled to the reliefs sought; the conclusion arrived at by the trial court is impeccable, as the records show; we accordingly resolve this issue too in favour of the respondents.

Having resolved the two issues for determination in this case for the respondent and against the appellant, I now consequently dismiss this appeal for lack of merit.

N20,000.00 cost is awarded against the appellant.

MOORE A. A. ADUMEIN, J.C.A.: I had a privilege of reading before now the judgment just delivered by my learned brother – MOHAMMED MUSTAPHA, JCA. I adopt the reasoning and conclusions of my learned brother in dismissing this appeal, as it lacks merit.
I abide by the order for costs made in favour of the respondents.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading in draft the Judgment of my learned brother Mohammed Mustapha, JCA just delivered, I agree with the reasoning and conclusion therein.
I abide by the N20,000.00k cost awarded against the appellant.

Appearances

G.N. Eneye Esq., For Appellant

AND

Francis Chukwudi Ani Esq., with C.U. Azubuike Esq. and Edugie Igbinidion (Miss) For Respondent