MR. OLIVER ONWUBIKO V. MR.VICTOR A. MKPONG
(2011)LCN/4382(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of March, 2011
CA/C/139/2009
RATIO
CONTRACT: CONDITIONS THAT MUST BE SATISFIED FOR THERE TO BE A CONTRACT BETWEEN TWO PARTIES
For any contract to crystallize between the parties there must be offer and acceptance and the acceptance must be unconditional. A qualified acceptance of an offer cannot give rise to a binding agreement between the parties. See DALEK NIG. LTD. v OMPADEK (2007) 7 NWLR (Pt. 1033) 402. In other words there must be a consensus ad idem. PER KUMAI BAYANG AKAAHS, J.C.A.
PLEADINGS : WHETHER THE PARTIES AS WELL AS THE COURT ARE BOUND BY THE PLEADINGS SUPPORTED WITH EVIDENCE
Both the parties and the court are bound by the pleadings filed on which the evidence is given’ See ADETOUN OLADEJI (NIG) LTD. v N.B. PLC (2007) 5 NWLR (Pt. 1027) 415; AMANA SUITS HOTELS LTD v P.D.P (2007) 6 NWLR (Pt. 1031) 453; VINZ INT’L (NIG) LTD. v MOROHUNDIYA (2009) 11 NWLR (Pt. 1153) 562. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MR. OLIVER ONWUBIKO Appellant(s)
AND
MR.VICTOR A. MKPONG Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Plaintiff now Respondent sued the Defendant/Appellant and claimed the following reliefs in paragraph 14 of the Statement of Claim:
(a) The sum of $13, 000, 000.00 (Three Million Naira) only being the ten percent (10%) agency fee for the purchase price (N30,000.00) of the property at Plot D31, Ewet Housing Estate, Uyo.
(b) Damages of N550, 000.00
(c) Cost of this action.
The claim was denied in a 9 paragraph Statement of Defence. The Plaintiff filed a Reply to the Statement of Defence, thereafter the case was set down for hearing with the Plaintiff testifying as PW1 and tendering some Exhibits. He called Ubong Udofia who gave evidence as PW2 and Rose Akpan Friday as PW3. The Plaintiff closed his case after he and the other two witnesses had been cross-examined. The Defendant then testified but called no other witness before closing his case after being cross-examined. Parties addressed the court and the case was reserved for judgment on 9/3/2009.
In her judgment the learned trial Judge reviewed the evidence both oral and documentary and found that the Plaintiff made the offer to sell the property to the Defendant on behalf of the landlord and so the plaintiff was the agent of the landlord. Despite this finding the learned trial Judge entered judgment in favour of the Plaintiff for N3, 000, 000.00 being 10% agency fee for the purchase of the property situate at Plot D31, Ewet Housing Estate, Uyo and awarded costs of N5,000.00 against the Defendant.
Being dissatisfied with the judgment, the Defendant filed his Notice of Appeal on 27/3/2009 containing the omnibus ground of appeal which was later amended by filing two additional grounds. In the Appellant’s brief which was deemed filed on 12/1/2011, two issues were formulated as follows:
1. Whether the Respondent is entitled to the award of his claims having been adjudged not to be agent of the Appellant.
2. Whether the Appellant had by his conduct accepted to pay the agency fees.
The Respondent’s application to amend his claim was struck out on 12/1/2011. On 24/9/2009 he filed a Respondent’s Notice under Order 9 Rule 2 CAR 2007 to contend that the judgment should be affirmed on ground other than that relied on by the court below. In his brief of argument, the following two issues were also formulated:-
(i) Whether there was any contractual obligation of payment of Agency fee (of 10% of purchase price payable) between the Appellant and the Respondent in the sale of the property at Plot D31, Ewet Housing Estate, Uyo?
(ii) Whether the Respondent though adjudged to be an agent of the landlord (vendor) can enforce against the Appellant’ his right to the contract of payment of 10% (Agency fee) of purchase Price Payment on the Property?
The crux of this appeal centers on the construction of Exh’ “B”. The respondent admitted writing Exh. “B” to the Appellant in which he described himself as agent of the landlord (vendor). Exhibit “B” dated 18th July, 2007 was written by the Respondent to the Appellant and it reads:
We refer to our joint inspection of the above mentioned property at our Premier Ewet Housing Estate Uyo to offer to sell to you on behalf of the Landlord, an estate of low density residential houses which details are as given below.
PROPERTY DESCRIPTION/LOCATION
Property situates at and is easily identified as, PLot D31 Ewet Housing Estate, Uyo capital city Territory and it has highest land value. The estate is serviced with good motorable roads and other desirable infrastructural facilities. It is therefore safe and convenient to live in.
The subject estate consists of 3no. large 4-Bedroom bungalows, 2no. 2- Bedroom houses and other appurtenances enclosed in a perimeter sandcrete-block fence-wall with a double – leaf gate in front.
SELLING PRICE: (Thirty million Naira) (N30, 000, 000.00) only.
AGENCY FEE: Ten percent (10%) of the purchase price payable.
LEGAL DOCUMENTATION: To be handled by the purchaser
OFFER PERIOD: This offer lapses after 30 days from the above indicated Date.
Property has a good title and it is highly marketable.
If the above terms and conditions are acceptable to you, please indicate/communicate your acceptance early to enable us conclude the transaction.
Yours faithfully,
For: VICAM & ASSOCIATES
Sgd: Victor A. Mkpong
(Principal Partner)’.
Having held himself out in Exh. “B” as offering to sell the property on behalf of the landlord the problem to be resolved is who pays the agency fee of 10%. The Respondent realized the problem after the property had been purchased by the Appellant; hence his letter to the Appellant on 21st July which was received in evidence as Exh. “C” which I reproduce as follows:
“VICAM & ASSOCIATES
21st July, 2007
Mr. Oliver Onwubiko
Oceanic Bank Int’l Plc
Uyo.
Sir,
RE: ACCEPTANCE TO BUY PROPERTY AT D31 EWET HOUSING ESTATE UYO. AKWA IBOM STATE
Congratulations on your recent and timeous decision to accept our offer of 18th July, 2007 to sell to you the above-mentioned property. By so doing, you were making a significant investment decision that will affect and benefit not only your future but also that of your family. Apart from the fact that the said property’s income earning potential is quite high, the ease of realizing your Capital (resale) is equally highly guaranteed.
Having accepted to buy and to discuss the final terms directly with the Land Lord in Calabar on 21st July, 2007, a deal has been struck. Kindly therefore, help us to tidy our Naira (N3, 000, 000.00) being our agency fee of 10% of the purchase price of the subject property before the final payment to the Land Lord. You are our direct client while the Land Lord’s the direct client of the other agents in the transaction.
I was so glad that you heard or confirmed from the Land Lord that nothing was added to the price disclosed to you. You are to discover that your eventual ownership of the said property will be the best of your investments so far.
Once again, congratulations,
Yours faithfully,
V. A. Mkpong
(MBA, B. SC (Est. Mgt) ANIVS, ARVA, RSV, FCAI)
Principal Partner”
The incongruity of the Respondent being the agent of the Land Lord in Exhibit “B” and describing himself as the agent of the Appellant barely three days later in Exh. “C” had to be resolved through oral evidence where PW2 claimed to be the agent of the Land Lord but surrendered the position to the respondent who stepped into his Shoes. In explaining why the respondent described himself as agent of the Land Lord in Exh. “B”, PW2 made a poor show by saying:
“The plaintiff wrote the letter to the defendant when he had stepped into my shoes. This was to further convince his client of the authenticity of the property”.
The learned trial Judge did not believe the evidence of PW2 that he was the agent of the Land Lord and held as follows at page 49 lines 23 – 29 of the records:
“The foundation of the transaction is Exh. “B” I am more inclined to believe the content of Exh. “B” which was the offer letter. The minute on Exh, “C” even if at made by the defendant is best an offer of payment of 3% rather than 10% to the plaintiff.
In view of my finding that the plaintiff offered the property to the defendant in Exh, “B” on behalf of the landlord; the plaintiff is bound by his own admission. I hold that the plaintiff was the agent of the landlord.”
Despite the finding by the learned trial Judge that the plaintiff was an agent of the landlord and by negotiating the purchase price of the property from N35, 000, 000.00 down to N30, 000, 000.00 the Defendant did not accept the terms contained in Exh. “B” but made a counter-offer coupled with her observation that the minute in Exh. “C” even if made by the Defendant was an offer to pay 3% rather than 10% to the Plaintiff, somersaulted when she held that there was a presumption of admission by conduct or representation on the part of the Defendant by his silence to react to Exh. “B” and on that basis entered judgment in favour of the plaintiff.
Learned counsel for the Appellant argued that since the basis of the respondent’s claim failed, there was no leg upon which his claim could further stand or be awarded and submitted that having held that the respondent’s case of agency to the Appellant failed the learned trial Judge went outside of the pleadings to still found for him in awarding him his claims. It is the contention of learned counsel that the Appellant could not have agreed to pay agency fee when no agency relationship existed between him and the respondent. Since the appellant made a counter-offer of 3% as contained in the endorsement in Exh. “C” and it was not accepted, there was no agreement between the parties even by conduct.
I am in full agreement with the submissions made by learned counsel for the Appellant. For any contract to crystallize between the parties there must be offer and acceptance and the acceptance must be unconditional. A qualified acceptance of an offer cannot give rise to a binding agreement between the parties. See DALEK NIG. LTD. v OMPADEK (2007) 7 NWLR (Pt. 1033) 402. In other words there must be a consensus ad idem.
The learned trial Judge made findings of fact on the following:
(1) The plaintiff made the offer in Exh. “B” to sell the property to the defendant on behalf of the landlord.
(2) The plaintiff was the agent of the landlord
(3) The offer of N30 million amounted to a counter offer
Having made these findings, it is rather absurd and untenable for the learned trial Judge to make a complete u-turn and hold the appellant liable on the terms contained in Exh. “B”. The learned Judge was carried away by sentiment when she said:
‘The said gesture of sending the plaintiff a cheque of N900, 000.00 with Exh. “C” was an attempt by the defendant to outsmart the plaintiffs coming after the defendant had already paid for the property it should not be condoned by any court of law. The defendant had the opportunity to have told the plaintiff that he will not pay the agency fee but he never did.”
The learned trial Judge did not make any definite findings that the hand written note on Exh. “C” was the handwriting of the Appellant. What the learned trial Judge said was that “the minute on Exh. “C” even if made by the defendant is at best an offer of payment of 3% rather than 10% to the plaintiff”.
For the learned trial Judge to believe the oral evidence of the respondent that the Appellant sent a cheque of N900, 000.00 which he returned, the court was duty bound, to confirm that the minute on Exh. “C” actually belonged to the Appellant.
I am at a loss when the learned trial Judge said that the Defendant did not address the point of substance stated in paragraph 8 of the Statement of Claim. In paragraph 4 of the Statement of Defence, the Defendant denied that the Plaintiff was his agent and that is the material pleading on which the Plaintiffs action was predicated. In paragraph 8 the Plaintiff pleaded as follows:
“8. On 21/7/07 the Plaintiff wrote to the Defendant demanding his agreed agency fee of 10% of the agreed purchase price of the property. The letter is pleaded. The defendant is put on Notice to produce original at the trial.”
This was denied in paragraph 4 of the Statement of Defence wherein the defendant averred thus:
“4. The defendant stoutly denies paragraphs 3, 4, 5, 6, 7 and 8 of the Statement of Claim and states further that the defendant never engaged the services of the plaintiff as an agent, rather the plaintiff was commissioned as an agent of the Vendor of the property of one Dr. Gordan Idang and that the defendant never agreed to any agency fee as alleged by the Plaintiff. The plaintiff shall be put to strict proof of the averment therein at the trial.”
This paragraph cannot be said to be a general traverse. As I stated earlier there is a hiatus in the position the Plaintiff occupied in Exh. “B” and the one he was claiming in Exh. “C”. This problem was compounded by PW2 who claimed to be the agent of the vendor but surrendered it to the plaintiff who stepped into his shoes and all this was done to convince the Defendant of the authenticity of the property. The Respondent would be entitled to the agency fee of 10% of the purchase price from the Appellant if he acted as agent for both sides and this should have been clearly stated in Exh. “B”. Since this was not the case put up by the Plaintiff, the case of SMITH v MANSI (1962) 3 All ER 857 which was referred to by the learned trial Judge cannot be of any assistance to his case. Both the parties and the court are bound by the pleadings filed on which the evidence is given’ See ADETOUN OLADEJI (NIG) LTD. v N.B. PLC (2007) 5 NWLR (Pt. 1027) 415; AMANA SUITS HOTELS LTD v P.D.P (2007) 6 NWLR (Pt. 1031) 453; VINZ INT’L (NIG) LTD. v MOROHUNDIYA (2009) 11 NWLR (Pt. 1153) 562.
The Respondent filed Notice of intention to contend that the judgment should be affirmed on ground other than that relied on by the court below pursuant to Order 9 Rule 2 Court of Appeal Rules 2007. Based on this Notice, it is the contention of learned counsel for the respondent that courts are to do justice between the parties and not deliberately rely on technicalities which would lead to absurdity. It is argued that the law enjoins the court to grant a relief (if merited) on a different condition than the one prayed for. Consequently even if the Respondent had predicated his claim on agency relationship, on the merit of the case there exists a contractual relationship, even if the agency relationship fails, the claim can be granted on the basis of contractual relationship, even as an agent of the landlord. Learned counsel submitted that the real question in controversy in this case is not the agency relationship between the parties but the contractual relationship between the payment or non-payment of the 10% agency fee amounting to N3, 000, 000.00.
Both the agency and contractual relationship between the parties in this case are like Siamese twins, inseparable. If the learned trial Judge had made a definite finding that it was the appellant who wrote the following on Exh., “C”: “P1 not (sic) that Brockerage is at 3% of value,” it would be taken that he was ready to pay the respondent 3% of the amount he purchased the property. In such a case he would be bound to pay N900, 000.00 to the respondent as Brockerage fees.
In dealing with each other, parties are expected to be open and transparent and the court will always come to the assistance of anyone who approaches it with clean hands. In this particular transaction the respondent did not disclose to the appellant that he was acting for both the vendor and the purchaser. Since the appellant was led to believe that the Respondent was the agent of the vendor, he was perfectly right in refusing to pay any agency fee demanded by the respondent.
I find that there is merit in the appeal and it is allowed. The judgment of the lower court entered in favour of the Respondent with costs is hereby set aside. I make an order dismissing the Plaintiffs claim with costs assessed at N20, 000.00 in favour of the Appellant.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading before now the lead judgment by my learned brother, Kumai Bayang Akaahs, JCA. I entirely agree with the judgment and have nothing to add. Indeed, I adopt the judgment and accordingly allow the appeal, based on the fuller reasons advanced and conclusion reached in the said judgment. I further abide by the orders contained therein inclusive of the one regarding costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Kumai Biyang Akaahs, JCA gave me the privilege of reading the draft of the judgment just delivered.
I am in agreement with the conclusion that the appeal be allowed based on the reasons advanced in the judgment. I allow the appeal and abide by the consequential orders including the award of costs of N20, 000.00 in favour of the Appellant.
Appearances
Absent and not representedFor Appellant
AND
I. F. UmohFor Respondent
