SDV NIGERIA LIMITED v. PHILIP KAYODE OLUSEGUN OJO & ANOR
(2016)LCN/8515(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of April, 2016
CA/L/444/2014
RATIO
AGENCY: WAYS BY WHICH AGENCY CAN BE CREATED
The Court below quite rightly stated how agency can be created while relying on the case of UTC NIG LTD V WEMA BANK PLC & INTEGRATED TRUS & INVESTMENT LTD (2002) 12 NWLR (Pt. 781) 214 as follows:
i. Express appointment
ii. By doctrine of estoppel
iii. Subsequent ratification by the principal of a contract made on his behalf without any authorization from the principal.
iv. By implication of law in cases where it is urgently necessary that a person should act on behalf of another.
There is also the 5th way agency can be created, it is presumption of law which is by cohabitation. PER YARGATA BYENCHIT NIMPAR, J.C.A.
AGENCY: MEANING AND NATURE OF AGENCY
Agency is a relationship that exists between a principal and another called “agent” under which the agent has authority to act on behalf of the principal. Several authorities defined agency relationship, one of which is the case of OKWEJIMONOR v GBAKEJI (2008) 5 NWLR (Pt. 1079) 172 where the Apex Court held thus:
“The general law relating to agency, however, may be defined as the relationship which exists or arises where one person has the authority or capacity to create legal relations, i.e. the ‘agent’ who acts on behalf of another called the ‘principal’ whereby the latter undertakes to be answerable for the lawful acts of the former with a third party; provided it was done within the scope of his authority or ratified later by the later.
The fundamental element in agency relationship is authority of the agent to act on behalf of the principal. PER YARGATA BYENCHIT NIMPAR, J.C.A.
AGENCY: WHAT MUST AN AGENT PROVE TO BE ENTITLED TO COMMISSION
To be entitled to commission an agent needs to go beyond merely introducing a property, I rely on the old English case of MILLER, SON & CO V. RADFORD (1903) 19 TLR 575 where the Court held thus:
“It is important to point out that the right to commission not arise out of mere fact that the agent had introduced a tenant or purchaser. It is not sufficient that the introduction was causa sine qua a non. It is necessary to show that the introduction was the efficient cause in bringing about the letting and the sale.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: POSITION OF THE LAW ON ADMISSIBILITY OF ELECTRONIC EVIDENCE
The Evidence Act 2004 had a provision for the admissibility of electronic evidence. What the current Act did is to provide an elaborate protocol for the receipt of electronic evidence. Section 37 and 97 of the repealed Act are relevant here. See also the case of ESSO WEST AFRICA INC V V.T. OYEGBOLA (1969) NMLR 19 when the Apex Court pronounced on the said section and opined on the admissibility of electronic evidence as follows:
“The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer. In modern times reproduction and inscription on ledgers or other documents by mechanical process are common place and Section 37 cannot therefore only apply to books of accounts.”
Again in the case of FEDERAL REPUBLIC OF NIGERIA V. FEMI FANI-KAYODE (2010) 14 NWLR (Pt. 1214) 481, computer generated evidence was held admissible in evidence. PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SDV NIGERIA LIMITED Appellant(s)
AND
1. PHILIP KAYODE OLUSEGUN OJO
2. SCOA NIGERIA LIMITED Respondent(s)
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.
3. The Appellant, with the intent of misleading the Court below and this Honourable Court neither notified the Court of the change nor notified opposing counsel of same.
4. Since the certificate of incorporation bearing SDV Nigeria Limited has been withdrawn by the Corporate Affairs Commission and there is no company known as SDV Nigeria Limited in the register of Companies, at the Corporate Affairs Commission, before the filing of this Appeal, the Appellant, as described herein, is a juris non persona or a non juristic person which lacks the requisite competence to institute this appeal.
5. Furthermore, the appellant, as a non juristic person, lacks locus standi to be granted audience before this Honourable Court.
6. In the light of the foregoing, this Court is coram non judice in this Appeal.
?The Appellant observed that the 1st Respondent did not formulate any issue for
determination under its preliminary objection. Appellant contended that the preliminary objection be dismissed for that lapse.
However, the Appellant went on to formulate a sole issue for determination under the Preliminary Objection thus:
“Having regard to the clear and unambiguous provision of Section 31(6) of the Companies and Allied Matters Act, can the Appellant successfully institute and prosecute this appeal despite a change in its corporate name?”
This shall be the issue for determination under the preliminary objection.
?The preliminary objection is grounded on the change of name by the Appellant during the proceedings at the Court below from “SDV Nigeria Ltd” to “Bollore Africa Logistics Nigeria Ltd’ by the Corporate Affairs Commission. However, the Appellant did not change its name in the proceedings now on appeal. The 1st Respondent therefore argued that the Appellant is a non – existent personality and cannot prosecute the appeal.
The 1st Respondent further contended that although the Appellant as an existing person may have the capacity to sue, it lacks the standing to sue in its old name, referred to BANK OF
BARODA V. IYALLABANI COMPANY LTD (2002) 13 NWLR (PT 785) 551, P.G.S.S IKACHI V. IGBUDU (2005) 12 NWLR (PT 940) 543, UMAR & ANOR V. WHITE GOLD GINNERY NIG LTD (2007) 7 NWLR (PT 1032) 117. Submitted that the Appellant could no longer file an appeal under the name of SDV Nigeria Ltd since the name no longer represents a corporate legal entity and that the Appellant cannot rely on the provisions of S. 31 (6) of the Companies and Allied Matters Act, referred to the following cases in support of its submissions, ADMIN/EXEC, ESTATE, ABACHA V EKE-SPIFF (2009) 7 NWLR (PT 1139) 97, REGISTERED TRUSTEES PENTECOSTAL ASSEMBLIES OF THE WORLD INC V THE REGD. TRUSTEES OF THE AFRICAN APOSTOLIC CHRIST CHURCH (2002) 15 NWLR (PT 790) 424. FAGBOLA V. TITILAYO PLASTIC INDUSTRIES LTD (2005) 2 NWLR (PT. 909) 1, ORAKUL RESOURCES LTD V NCC (2007) 16 NWLR (PT 1060) 270, BAMBE & ORS v. ADERINOLA & ORS (1977) NSCC 1.
?In response, the Appellant submitted that a change of name does not create a new legal entity or affect the company’s existing property, rights or obligations neither does such a change render defective any legal proceedings by or against the company, referred
to S. 31 (6) of CAMA and FCDA & ORS V. UNIQUE FUTURE LEADERS INTERNATIONAL LTD (2014) LPELR – 23170 (CA). It further contended that if the argument of the 1st Respondent is accepted, it would mean that the Court’s judgment was given without jurisdiction and liable to be set aside, cited AKUMOJU v. MASADOLORUN (1960) 9 NWLR (PT 236) 242, RTAON V NAMA (2014) 4 CLRN 43 – 85 (SC).
RESOLUTION:
Section 31(6) of the Companies and Allied Matters Act (CAMA) provides thus:
“The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced against it or by it in its former name may be continued or commenced against it in its new name.”
?The quotation above preserved the rights and obligations of a company that has changed its name. A change of name is not synonymous to dissolution or winding up of the company which in effect means the total disintegration or termination of the existence of the company. In a change of name, only the identifiable description of the company
changes while other basic elements of the company remain intact i.e. the life of the company is preserved. Rights and liabilities remain the same. CAMA acknowledged that for business purposes, a company may decide to change its name but in doing so it maintains everything about its existence except the way it is called or identified. If a change of name can have the effect of total annihilation of a company then it must have corresponding legal implications to that of a dead person. However, the law preserved the existence of a company when it changes its name. A man can change name and still remain the same person but for the description or how he is addressed or called. He remains largely who he is and in describing such a person, other features about him remain unchanged.
?I also agree with the Appellant that the argument or contention of the 1st Respondent is flawed because if his arguments are accepted, then, it will have serious impact on the judgment the Respondent is trying to defend in the appeal. If the change in name means the company is dead then the judgment cannot stand against a dead person and consequently, the Respondent is merely holding
onto the wind as he cannot realize anything from a dead person. That would have made the judgment fruitless.
On the issue of capacity to sue, I can authoritatively say that a company cannot be divested of its capacity to sue merely by the change in name. The capacity to sue is determined at the point of commencement of or institution of a suit and not midway in the course of trial or continuation of trial on appeal. An appeal is continuation of hearing. The Appellant had capacity at institution of the suit and this is a continuation of that hearing and not a fresh suit, see RTAON V NAMA (2014) 4 CLRN 43 85 (SC). Furthermore, it was the Respondent who instituted the suit and not the Appellant. The authorities of P.G.S.S IKACHI v. IGBUDU (SUPRA) and UMAR V. WHITE GOLD GINNERY NIG. LTD (SUPRA) are also distinguishable and not applicable in this case.
The 1st Respondent contended that in construing a statutory provision, the true intention of the legislature must be considered and therefore the Court sometimes construe “may” as “shall” or “must” and relied on some authorities. The argument was that Section 31(6) CAMA must be given the golden
rule interpretation as doing otherwise would be absurd. The guiding rule of interpretation of statutes is settled by a plethora of authorities and one of which is AMAECHI v. I.N.E.C (2008) 5 NWLR (Pt. 1080) 227 S.C.
“It is settled law that in the construction of a statute, the primary concern of the Judge is the attainment or ascertainment of the intention of the legislature by examination of the language used therein. Where the language used in the legislation or statute or Constitution is clear, explicit and unambigious, as found in the instant case, the Judge must give effect to it as the words used speak the intention of the legislature.”
Per ONNOGHEN, J.S.C,
See also KRAUS THOMPSON ORGANISATION V NIPSS (2004) 17 NWLR (Pt. 901) 44. The first choice in interpretation of statutes is the literal rule. It is established now that there are 3 rules of statutory interpretation which dominates our historical development. These are Mischief Rule (2) Literal Rule; and (3) The Golden Rule. Mischief Rule is used to explain what was said by Parliament, not to change it, the object of the statute is relevant at all times. Golden Rule can be
invoked when there is internal disharmony in the statute, not in cases in which a literal interpretation would result, which are absurd or inconvenient for other reasons. The golden rule is employed only when a literal interpretation will lead to absurdity. S. 36(1) CAMA in my opinion is clear and straightforward on the implications of a change of name. Contrary to the submissions of the 1st Respondent, it is not in any way inconsistent with other sections of CAMA.
Furthermore, the parties having remained the same are not misled. The 1st Respondent/applicant herein made an application for change of name in respect of the writ of FiFa issued by the Court below and that had no adverse effect on the judgment the 1st Respondent had obtained. As argued by the Appellant, if that cured the judgment, then, it also could cure any Judgment on appeal. In any case, the change of name cannot defeat nor do away with the judgment debtor/ appellant before this Court.
The 1st Respondent cannot be blowing hot and cold at the same time.
The preliminary objection is unmeritorious and is hereby dismissed. Now to the main appeal. The issues formulated by the
Appellant shall be adopted for resolution in this appeal.
ISSUE ONE
With respect to Issue 1, the Appellant was of the opinion that the learned trial judge correctly recognized the legal requirements of an agency contract, but misapplied it to the facts of the case. The Appellant referred to the cases of GARMAC GRAIN CO INC V HMF FAURE & FAIRCLOUGH (1967) 2 EAR 353, MIKANO V. EHUMADU (2013) 1 CLRN 83, BEST NIG. LTD V. BLACKWOOD HODGE NIGERIA (2011) 1 CLRN 33. It further submitted that because the Appellant never discussed, negotiated or accepted the 1st Respondent’s terms prior to the sale of the property, and the essential elements of a contract was missing, there was no consensus ad idem, cited BBC V. SKY INSPECTION NIG LTD (2002) 17 NWLR (Pf 795) 68. The Appellant further submitted that the fact that it did not respond to the 1st Respondent’s subsequent offer letter does not connote acceptance, as acceptance must be communicated, referred to ORIENT BANK V BILANTE INTERNATIONAL (1997) 8 NWLR (PT 515) 37. According to the Appellant, the letters written by the 1st Respondent alone does not establish an agency and in the absence of
a finalized commission agreement, the 1st Respondent cannot claim commission, relied on FARRANT V. UNISYS EUROPE – AFRICA LTD (1993) 2 EGLR 47, AKENZUA II, OBA OF BENIN V BENIN DIVISIONAL COUNCIL (1959) WRNLR 1. It therefore submitted that the trial judge’s conclusion had no evidential foundation and was contrary to law.
On the other hand, the 1st Respondent contended that consent in an agency relationship can arise either by agreement between the parties, by ratification and by estoppel, referred the Courts to REAN LTD V ASWANI ILES INDUSTRY (1991) 2 NWLR (PT 176) 639, IRONBAR V. CROSS RIVER BASIN AND RURAL DEVELOPMENT AUTHORITY (2004) 2 NWLR (PT 857) 411 PASCUTTO V. ADECENTRO NIG LTD (1997) 11 NWLR (PT 529) 467. The 1st Respondent further submits that agency relationship arises only in circumstances where it is considered in law to arise, referred to OSIGWE V PMCL (2009) 1 – 2 SC (PT 1) 79, FIRTH V STAINES (1897) 2 QB 70, ROSENJE V BAKARE (1973) 5 SC 131, GARMAC GRAIN CO INC V H.M.F FAURE & FAIRCLOUGH LTD (1968) AC 1130. According to it, the evidence before the Court showed that the Appellant had ratified Mr. Adejobi’s actions. Further submitted
that since the 1st Respondent was not cross – examined during trial, the Appellant tacitly accepted the evidence of the 1st Respondent as the truth, and that if some statements made by him during trial appeared to be contradictory, the alleged contradictions are immaterial since they are evidence led on facts not in issue, cited ADIKE V OBIARERI (2002) 4 NWLR (PT 758) 537 . That the cases relied on by the Appellant is distinguishable from this case and urged the Court to uphold the judgment of the lower Court.
RESOLUTION:
The fundamental question to resolve here is whether there was a contractual relationship between the Appellant and the 1st Respondent. The Court below quite rightly stated how agency can be created while relying on the case of UTC NIG LTD V WEMA BANK PLC & INTEGRATED TRUS & INVESTMENT LTD (2002) 12 NWLR (Pt. 781) 214 as follows:
i. Express appointment
ii. By doctrine of estoppel
iii. Subsequent ratification by the principal of a contract made on his behalf without any authorization from the principal.
iv. By implication of law in cases where it is urgently
necessary that a person should act on behalf of another.
There is also the 5th way agency can be created, it is presumption of law which is by cohabitation.
Agency is a relationship that exists between a principal and another called “agent” under which the agent has authority to act on behalf of the principal. Several authorities defined agency relationship, one of which is the case of OKWEJIMONOR v GBAKEJI (2008) 5 NWLR (Pt. 1079) 172 where the Apex Court held thus:
“The general law relating to agency, however, may be defined as the relationship which exists or arises where one person has the authority or capacity to create legal relations, i.e. the ‘agent’ who acts on behalf of another called the ‘principal’ whereby the latter undertakes to be answerable for the lawful acts of the former with a third party; provided it was done within the scope of his authority or ratified later by the later.
The fundamental element in agency relationship is authority of the agent to act on behalf of the principal.
?Now do the facts herein establish an agency relationship between the Appellant and the 1st Respondent, the supposed
“small man”? The trial Court and all parties agree that there was no direct authorization from the Appellant to the 1st Respondent. The 1st Respondent contended that though agency is derived from consent, such consent may be a state of facts upon which the law imposes the consequences resulting into agency, implying that the agency was not as a result of a direct relationship. This means the agency will be implied from conduct, ratification or circumstances. Answers to the issue must therefore come from the facts of the case at the trial Court. The 1st Respondent by his own showing stated that he introduced the property in question to one Mr. Adebola Adejobi. He assumed that Mr. Adejobi was a representative of the Appellant because the said Adejobi told him the Appellant was searching for a property to buy. This assertion was however refuted by the Appellant in its letter Exhibit ‘I’ which clearly stated that Mr. Adejobi was Managing Director of a different company named Intertrans Nigeria Ltd. The sole witness of the Appellant – Mrs. Adebanke Akinboboye also denied Mr. Adejobi in her testimony.
It is obvious therefore that apart from the assertion
by the 1st Respondent that Mr. Adejobi was an agent of the Appellant, the 1st Respondent did not present any further evidence of the agency of Mr. Adejobi despite the refutal by the Appellant. Civil matters are decided on the preponderance of evidence which is the standard of proof a claimant must establish and burden of proof oscillates until it rest on he who will lose if no further evidence is proferred. There is no such evidence at the trial Court and the requirements of a contract of agency is lacking when it held as follows:
“The claimant obviously was not introduced directly to the 1st defendant but he claims after the introduction by Mr. Adejobi, the 1st defendant Managing Director was brought to the res and later the transaction was concluded between 1st and 2nd defendant, the claimant stating he had been side – lined and therefore resorted to sending Exhibit ‘A’ to the 1st defendant, making demands for his fees.
One thing comes across quite clear here, the claimant never received express instruction in writing to seek out a suitable property for the purchase of the 1st defendant – which should have been the norm, nonetheless an
agency of course can arise even where there is no written instruction but the consent of the parties must be proved – see GARMAC GRAIN CO INC v. HMF FAURE & FAIRCLOUGH LTD (1967) 2 EAR 353 @ 358.
There has to be a clear or unequivocal conduct of a principal for the inference of agency: see FARQUHASON BROS V KING & CO (1902) AC 325.”
Above is a clear finding of the trial Court. Indeed there was no direct contact between the Appellant and the 1st Respondent and there is no evidence that the Appellant put forward the said Mr. Adejobi as its agent. Besides, I wonder how Mr. Adejobi could be the agent of the Appellant and the 1st Respondent also agent of the Appellant on the same transaction. It would logically mean that it was Mr. Adejobi who appointed the 1st Respondent as agent and not the Appellant. Agency cannot be created through a third party in between agent and principal.
The trial Court arrived at the conclusion of finding the Appellant liable based on proximity between Intertans Ltd and the Appellant. The fact remains that they are two separate legal entities. Furthermore, apart from the proximity, there is no evidence
that the 1st Respondent had the authority of the Appellant to act as its agent. The 1st Respondent claimed to have related with Mr. Adejobi all through without any contact with the Appellant. The 1st Respondent also admitted that the Appellant disowned Mr. Adejobi via a letter dated 17th May, 2007 and denied knowledge of Sam Orji Nwogu & Co. The burden squarely rested on the 1st Respondent to establish the link between him and the Appellant which he failed to do.
From cross examination, it was revealed that the letter of 9th June did not have any acknowledgement from the appellant because he did not deliver the letter directly to the appellant but a representative. It was hearsay for the 1st Respondent to tell the Court he was told that the letter was delivered to the appellant. 1st Respondent also admitted that he was not invited to serve as agent and he amongst other agents showed the property to the Appellant. That the 1st Respondent was told by someone that Mr. Adejobi was a staff of the appellant and he also got information about the property from other agents, so he was the agent to those other agents. He told the Court:
“Because Mr. Nwogu
was working for the owner, we worked together.”
He also told the Court in his evidence in chief that he was surprised that Mr. Nwogu reached an agreement with SCOA without him which means he expected to partake from the payment made to Mr. Nwogu because they were on the same side. On the rate of commission to charge the 1st Respondent said the amount named in his letter was negotiable which means there was no agreement on his fees.
From the evidence before the Court, I am therefore at a loss as to how the trial Court could have arrived at the conclusion it did. In an agency contract there must be a positive, clear and unequivocal consent from the principal to the agent, see FARQUAHASON BROS V. KING & CO (1902) AC 325. None exist here. I also rely on the judgment of this Court in the case of MIKANO V. EHUMADU (2013) 1 CLRN 83 in which there was direct contact and offer in writing which was rejected. Yet, the Court held that agency did not exist. If there was no agency there then, the situation here is not any better. There was no contact, no authorization, no ratification and instruction. How then can the 1st Respondent impose himself as agent
when the principal does not know him and had not related with him in any way. Contract is entered into with clear terms mutually agreed upon by the parties; it is not wishful thinking. Parties must operate from an accepted premise and consensus of the mind.
On the withholding of evidence, the trial Court fell into error in its assessment and Section 167(d) of the Evidence Act 2011 cannot be called into play. The alleged evidence withheld is a human being, a competent witness. The failure of the Appellant to call the witness did not stop the 1st Respondent from calling him. He was at liberty to apply that the said Mr. Adejobi be summoned to testify for him. On the import of Exhibit ‘P’ and why it was meant to coax Mr. Nwogwu from testifying, the said witness testified and it clear from the exhibit that the Appellant did not sign it though mentioned therein. To hold that it was made for the Appellant’s benefit is not a correct judicial evaluation of evidence because it was not shown that it was instigated by the appellant. The fact that the 2nd Respondent is a party to the document does not automatically make the Appellant a party, moreso, the said Mr.
Nwogwu admitted it had nothing to do with the Appellant. If it was to the benefit of the appellant then, it was unsolicited.
The trial Court relied on estoppel by conduct to find the Appellant liable. Estoppel by conduct simply means where a party has by, his word or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation either by himself or his representative in interest.
He cannot now turn around to say or behave as if the state of things were not as he presented them. He is estopped from asserting the contrary, see OKONKWO & ORS v. KPAJIE & ORS (1992) LPELR – 2483 (SC). The trial Court worked on assumptions and not established facts. Flowing from the above analysis of the evidence led by the 1st Respondent, the elements of estoppel by conduct cannot be said to exist and the findings of the trial judge were therefore perverse. Issue one is resolved in favour of the Appellant.
ISSUE TWO
Here, the Appellant submitted that since there was no
agreement or consensus ad idem between the parties, there was no basis for the Court to award the sum it awarded to the 1st Respondent. That for an agent to succeed in a claim for commission, he must show that his action was the effective cause for the sale, relied on CHASEN RYDER & CO. V HEDGES (1993) 1 EGLR 47, MILLER, SON & CO. V RADFORD (1903) 19 TLR 575, ODUFUNDE V ROSSEK (1962) ANLR 99 but that this fact was lacking in this case. Appellant submitted that there was evidence before the Court to show that it had started negotiations with the 2nd Respondent prior to the 1st Respondent pointing out or introducing the property. Further stated that even if the 1st Respondent’s introduction was the effective cause of the purchase of the property, the information sent out was unsolicited and as such the 1st Respondent is not entitled to any commission, relied on LADY MANOR LTD V FAT CAT CAFE BARS LTD (2001) 2 ESTATES GAZETTE LAW REPORT 88. Appellant went ahead to submit that the claim of the 1st Respondent that 10% agency fee is a custom amongst estate valuers, was not established by evidence, neither was it incorporated into a contract and cannot be
relied upon.
On the other hand, the 1st Respondent submitted that he was the effective cause of the purchase and he is entitled to his agency fees or commission. That it is of no consequence that the 1st Respondent did not take part in the negotiations, or drafting of the document since the introduction was the foundation on which the negotiation for the purchase of the property started. The 1st Respondent went ahead to state that having fulfilled his obligation under the implied agency, the Appellant cannot deprive the 1st Respondent of his commission, ERHABOR V INCAR (NIG) LTD (1973) NCLR 273. 1st Respondent also submitted that the contention of the Appellant that it was earlier introduced to the property before the introduction of same by the 1st Respondent is flawed. That the company that was referred to in the email relied on by the Appellant is totally different from the Appellant Company and the properties are also different from the one the 1st Respondent introduced to the Appellant. Further asserted that the Appellant did not discharge the burden of proof placed on it as it failed to produce correspondences showing that it dealt directly with the
2nd Respondent in the purchase of the property, UBA PLC V BTL IND LTD (2006) 19 NWLR (PT 1013) 61. On the issue of payment, the 1st Respondent submitted that since the agreement was oral and there was no express agreement on the amount to be paid as commission, the custom or usage of the Estate Agency trade (being the scale of charges) should be the bench mark for reasonable remuneration, referred to MCCALLUM V HICKS (1950) 2 KB 271. The 1st Respondent also referred to the following cases; AYENI & ORS V SOWEMIMO (1982) 5 SC (REPRINT) 29, UKEJIANYA V. UCHENDU 13 WACA 45, ANN PLC V USENI (2015) 3 NWLR (Pt 1447) 464, DENNIS REED V GOODY (1950) 2 KB 277, ALPHA TRADING LTD V DUNNSHAW-PATTEN (1981) QB 290, OMOYINMI V. OGUNSIJI (2008) 3 NWLR (PT 1075) 471,
RESOLUTION:
Flowing from the resolution of issue one, the question is whether the 1st Respondent can reap where he did not plant. There is no evidence that he introduced the Appellant to the property. His own evidence before the trial Court was that he introduced one Mr. Adejobi to the property. Adejobi was not shown to be a staff of the Appellant. The fact that the 1st Respondent
witnessed the Managing Director of the Appellant visit the property in the company of Mr. Adejobi and several other agents does not create an agency with the 1st Respondent. He failed to show how he can single himself out from the many other agents to be the agent of the Appellant.
Besides, the issue of unholy alliance between the 2nd Respondent and the Appellant can only be of concern if the 1st Respondent had proved his own side of the agency. The introduction to Mr. Adejobi was not shown to be the basis of the purchase. To be entitled to commission an agent needs to go beyond merely introducing a property, I rely on the old English case of MILLER, SON & CO V. RADFORD (1903) 19 TLR 575 where the Court held thus:
“It is important to point out that the right to commission not arise out of mere fact that the agent had introduced a tenant or purchaser. It is not sufficient that the introduction was causa sine qua a non. It is necessary to show that the introduction was the efficient cause in bringing about the letting and the sale.”
?It is on record that the Appellant had knowledge that the property was in the market earlier than the alleged
introduction, see the evidence of DW1 page 659 volume 2 of the record and supported by Exhibits V1 – V3 (copies of email messages predating the introduction). The 1st Respondent cannot therefore claim to be the first to introduce the property to the Appellant. Reliance on the House of Lord’s decision in ACKROYD & SONS V HASAN (1960) 2 ALL ER 254 AT 257 by the 1st Respondent is flawed because there is no contract from where the event can be determined to have occurred.
The 1st Respondent’s contention that the said Exhibits V1 – V3 should be expunged from the record because they were inadmissible under the 2004 Evidence Act is not correct. The Evidence Act 2004 had a provision for the admissibility of electronic evidence. What the current Act did is to provide an elaborate protocol for the receipt of electronic evidence. Section 37 and 97 of the repealed Act are relevant here. See also the case of ESSO WEST AFRICA INC V V.T. OYEGBOLA (1969) NMLR 19 when the Apex Court pronounced on the said section and opined on the admissibility of electronic evidence as follows:
“The law cannot be and is not ignorant of the modern business methods and must not
shut its eyes to the mysteries of computer. In modern times reproduction and inscription on ledgers or other documents by mechanical process are common place and Section 37 cannot therefore only apply to books of accounts.”
Again in the case of FEDERAL REPUBLIC OF NIGERIA V. FEMI FANI-KAYODE (2010) 14 NWLR (Pt. 1214) 481, computer generated evidence was held admissible in evidence.
?The exhibits are therefore admissible in evidence and since they were admitted without any objection, the 1st respondent cannot challenge it at this stage, see OGHOYONE V OGHOYONE (2010) LPELR – 4689(CA). Continuing on the defect of the 1st Respondent’s case, the issue of fees was undecided throughout the period he claimed to have acted for the Appellant. The issue of fees is one important element which must be settled in agency relationship. In estate agency the important element is the commission to be paid. That cannot remain fluid or uncertain. Also the argument of the 1st Respondent that his agency was limited to introduction is contrary to the evidence of the 1st Respondent in the record. There was no contract where such a term was agreed upon and 1st Respondent did not
establish how it came about.
Having resolved above that the 1st Respondent did not establish agency relationship with the Appellant, the question of finding the Appellant liable cannot arise and therefore the finding of the trial Court that the 1st Respondent be awarded his claim of $1, 250,000.00 (One Million Two Hundred and Fifty Thousand Dollar) or its naira equivalent is therefore baseless and unfounded. The argument that where no commission is mentioned or proved then reasonable and appropriate remuneration should be paid is untenable as that was not the claim before the trial Court upon which the award was based. Furthermore, the Appellant must be aware of the duty to make some payment to the agent if there was any agency. There was no legal basis for the award made by the trial Court. The award being one that is not proved is hereby set aside.
ISSUE THREE
The Appellant submitted that the trial judge erred in holding Mr. Adejobi as the personal agent of the Appellant by virtue of the doctrine of estoppel. That the 1st Respondent did present any evidence to prove that the said Mr. Adejobi was an agent of the Appellant but
instead, it was the Appellant that sent a letter to the 1st Respondent disassociating itself from Mr. Adejobi. That for an agency to arise, there must be positively clear and unequivocal consent from principal to agent and that the party alleging estoppel must prove affirmative conduct by the principal amounting to “holding out”, relied on OLUFOSOYE V FAKOREDE (1993) 1 NWLR (PT. 272) 747. With respect to the Appellant’s failure to call the said Mr. Adejobi to testify, Appellant stated that the trial judge wrongly interpreted S. 167 (d) of the Evidence Act 2011 as the Section deals with failure to call “particular evidence” and not “particular witness” also relied on M.S.C EZEMBA V SO TBENEME (2004) 14 NWLR (PT 894) 617, OKONKWO V. OKECHUKWU (2012) LPELR 15354 (CA). The Appellant therefore urged the Court to resolve this issue in its favour as the 1st Respondent did not discharge the onus of proof on him.
Based on his arguments under issue 1, the 1st Respondent submitted that the said ratification of Mr. Adejobi would operate retrospectively to create a binding contract of introduction between both parties and the Appellant cannot legally withdraw from the
contract and/is estopped from denying Mr. Adejobi as its representative, relied on VULCAN GASES LTD v. GIV (2001) 5 SC (PT 1) 1, BOLTON PARTNERS V LAMBERT (1889) 41 CH.D 295, UTC (NIG) PLC V PHILLIPS (2012) 6 NWLR (PT 1295) 136.
RESOLUTION:
I had defined estoppel by conduct earlier in this judgement. In such situations the principal would have acted in a way that undoubtedly makes the other person to believe that the said agent has the authority of the principal with regards to the said transaction. I agree with the Appellant’s counsel on the doctrine of holding out. This must be done by the principal and not by he who claims to be so put forward. I resolved earlier too that the Appellant did not in any way hold out the said Mr. Adejobi as its agent. If that was so, the 1st Respondent would then be the agent of the said Mr. Adejobi and therefore cannot claim directly from the Appellant but from Mr. Adejobi since he had no direct relationship with the Appellant. The Appellant having established that Mr. Adejobi was Managing Director of a different company, the 1st Respondent failed in its duty to prove that he was a staff of the
Appellant. I do not see the need to repeat findings made earlier. This issue is resolved in favour of the Appellant.
ISSUE FOUR:
Under this issue, the Appellant was of the opinion that the learned trial judge failed to properly evaluate various aspects of the evidence before it. It therefore urged the Court to interfere with the trial Court’s finding as it is perverse and unreasonable. Furthermore, the Appellant contended that judgment was delivered about twenty – two (22) months of the conclusion of evidence and final addresses contrary to S. 294 (1) of the 1999 Constitution which provides for ninety (90) days. That the long interval of adjournment from the close of evidence to the delivery of the judgment had affected the judge’s proper appraisal of the evidence, referred to the case of ARIORI & ORS V ELEMO & ORS (1983) NSCC vol 14 1, CHIEF OSIGWE EGBO V CHIEF TITUS AGBARA (1997) 1 NWLR (PT 481) 293 and that the procedure of re – adoption of final addresses after the ninety days period had lapsed is unknown to our laws, OKON v ITA (2010) LPELR – 9010 (CA), AIGORO V COMM. L. H. KWARA STATE (2012) 11 NWLR (PT 1131) 111.
Appellant therefore urged this Court to set aside the judgment as it has occasioned a miscarriage of justice.
The 1st Respondent however submitted that the findings and conclusions of the trial judge was borne out of pleadings and evidence and duly supported by law, cited ANYANKOYA V OLUKOYA (1996) 4 NWLR (PT 440) 1, IKEDIFE v OBIENU (1975) 4 SC (REPRINT) 27 in support.
RESOLUTION:
Having resolved the first leg of the issue four earlier in this judgment, this issue shall be determined only on the second leg. Generally, a Court is expected to deliver its judgment within 3months from the date it is reserved. The 1999 Constitution (as amended) clearly set down the time within which a Court must deliver judgment, it says thus:
“294(1) every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and the final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days.?
The same Section has a proviso in Subsection 5 which states as follows:
“(5) the
decision of a Court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice.”
It is therefore clear that the mere fact that judgment was not delivered within 3 months from the date of adoption of addresses does not ipso facto mean the judgement is a nullity. It is accepted that the delay can raise a strong presumption that the trial Court could not have made use of the advantage of seeing and observing the witnesses who testified before it. This, however, is a presumption of law and is refutable. The Appellant who is relying on such a ground must establish the miscarriage of justice occasioned to it by the inordinate delay. Unless so established, the delay can be regarded as inconsequential. In the case of JAMES OGUNDELE v DARE JULIUS FASU (1999) LPELR – 2329 (SC) held as follows:
“It is clear that by the introduction of Sub-section (4) to the Section 258 of the Constitution, the non – delivery by all Courts
established under the Constitution of their decision in writing within a period of three months after the conclusion of evidence and the final addresses in a cause or matter does not per se now render such a decision or judgment invalid and null and void. It shall only be treated as a nullity where an Appellate Court in the exercise of its jurisdiction over such a decision is satisfied that the party complaining of such non – compliance has suffered a miscarriage of justice by reason thereof.”
The decision above was based on the 1979 Constitution but is in pari materia to Section 294 (5) of the 1999 Constitution.
The argument here was that the time lapse did not allow the trial Court to recollect the evidence before the Court thereby leading it to error in judgment. It is however a fact that error in judgment could occur even when the judgment is delivered within the constitutionally set time. In that case, there would still be a miscarriage of justice. The trial Court in this case evaluated the evidence but failed to make the findings as expected because it had set itself on wrong principles. Once the foundation of a finding is faulty, the end
result will be perverse. Reading through the judgment, it comes up clear that the evidence was basically the witness statements on oath except for the evidence in cross examination hence, the trial Court still had the evidence before it for proper evaluation but failed to apply correct principles of law. It is obvious that the failure to do a proper evaluation did not arise from the time lapse. The trial judge failed to apply settled principles in agency law.
The case of ARIORI & ORS V ELEMO & ORS (1983) NSCC VOL. 14 1 is no longer good law in view of Subsection 5 of Section 294 of the 1999 Constitution. I also agree that there is no provision in the rules of Court for re adoption of written addresses and the case of OKON V ITA (2010) LPELR – 9010 (CA) is applicable here. The purpose of the 90 days requirement is to allow the Court make use of the freshness of issues in determining the matter. A judgment delivered outside the constitutional period is covered by Subsection 5 and the Appellant has to show the miscarriage of justice occasioned as a result of the delay in delivering the judgment, see COTECNA INT’L LTD V CHURCHGATE (NIG) LTD (2010)
18 NWLR (Pt. 1225) 346. The trial judge in the judgment said thus:
“Trial was concluded on the 24th of January 2011. Parties directed to file their written addresses. On account of the Court having gone on National Assignment to Edo State for the election petition tribunal, addresses not adopted till 28th of February 2012 re-adopted this 24th of December 2013.?
To my mind, the trial judge has given reasons for the delay. I therefore find that no miscarriage of justice was occasioned as a result of the delay in delivering judgement beyond the 90 days allowed by the Constitution. The issue is resolved against the appellant.
In sum, the appeal is allowed. Accordingly, I set aside the judgment of HON. JUSTICE OLAYINKA GBAJABIAMILA delivered on the 24th December, 2013.
The award made by the trial Judge has no legal basis. Consequently, it is set aside. The claim before the trial Court is dismissed.
Cost is assessed at N50, 000 in favour of the appellant.
AMINA ADAMU AUGIE, J.C.A.: I have read in draft the leading Judgment just delivered by my learned brother, Nimpar, JCA, and I agree with his reasoning
and conclusion.
?
Sections 31(5) & (6) of CAMA – relevant to the Objection, provides that –
5. Where a company changes its name, the Commission shall enter the new name on the register in place of the former name, and issue a certificate of incorporation altered to meet the circumstances of the case.
6. The change in name shall not affect any rights or obligations of the Company, or render defective any legal proceedings by or against the company and any legal proceedings that could have been continued or commenced against or by it in its former name may be continued or commenced against or by it in its new name”.
Section 31(5) of CAMA envisages that a company may change its name, and makes allowance for its Certificate to be altered to reflect its new name. Sub-section (6) further says that the change in name SHALL not render defective any legal proceedings by or against the company, and proceedings that could have been continued or commenced in its new name may be continued or commenced against or by it in its new name.
Obviously, the aim of Section 31(6) of CAMA is to avoid rendering legal proceedings commenced or continued by or
against companies with new names, defective. The 1st Respondent’s Preliminary Objection, therefore, lacks merit, and it is overruled by me. As to the main appeal, my learned brother has said it all, and I have nothing really useful to add. I adopt his reasoning as mine, and also allow the Appeal in part. I also abide by the consequential Orders in the leading Judgment including costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the leading judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR JCA. I agree with the reasoning and conclusion in the judgment.
I adopt the judgment as mine and abide by the consequential orders made therein.
Appearances
CANDIDE JOHNSON (SAN) with him,
J. A. ONYEBUCHI and
O. OLUWAKEMI OKEFor Appellant
AND
A. A. ARIBISALA (SAN) with him,
S. JEGEDE
S. ADURA
V. I. MABOJI for 1st RESPONDENT
S. ADEYEYE (MISS) for 2nd RESPONDENTFor Respondent
