➥ CASE SUMMARY OF:
Alex O. Odudu v. Emmanuel O. Onyibe (CA/B/138/98, 15 Mar 2001)
by Branham Chima.
➥ SUBJECT MATTER
Qualified estate surveyor.
➥ CASE FACT/HISTORY
The plaintiff’s claim as per paragraph 70 of his amended statement of claim is as follows, inter alia: ‘A declaration that the sum of ₦300,000.00 agency fee/commission paid by the defendant to the plaintiff on the 12th January, 1993 covered by receipt No. 4003 of the same date is non-refundable and that it is fees paid for services rendered by the plaintiff on the sale of the property known as No. 55 Akpakpava Street, Benin City.’
Pleadings were ordered, filed and exchanged. Both parties later amended their pleadings. The case then proceeded to trial and the parties testified and called their respective witnesses. At the conclusion of the case and the address of counsel, the learned trial Judge in his reserved judgment dismissed the plaintiff’s claims in toto and sustained the counter-claim of the defendant.
Dissatisfied with the judgment of the trial court, the plaintiff, now appellant, has appealed to this court. The notice of appeal contains three grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the fact that the plaintiff was not a qualified estate surveyor affected the validity of the abortive sale of No. 55 Akpakpave Street, Benin City?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The non-qualification of the plaintiff affected the validity of the sale).
[‘It seems to me from the totality of the evidence adduced before the trial court that the appellant was not qualified to practise as an estate agent, or as an associate or partner in the firm of C. Odudu and Associates within the definition of membership of the Nigerian Institution of Estate Agents, Surveyors and Valuers. See Exhs. AO12 and AO13 – the Decree/Constitution and Regulations governing the control, management and practice of Estate Agents. If the appellant was qualified, that is a fact within his knowledge and he had the burden of proving that fact before the trial court. See section 142 of the Evidence Act, Cap 112 Laws of the Federation, 1990. See Olafunmise v. Falana (1989) 1 NWLR (Pt. 47) 64; Osuolale v. State (1991) 8 NWLR (Pt. 212) 770. At pages 69-71 of the records, DW1, Peter Ikem, the secretary to the Edo State Branch of the Nigerian Institution of Estate Surveyors and Valuers for the period of the transaction, that is, 1992/93, testified on the composition, qualifications, and services rendered by members of the Nigerian Institution of Estate Surveyors and Valuers. DW1, identified Exhs. AO12 and AO13 – the Decree/Constitution and Regulations governing the control, management and practice of Estate Agents. DW1 testified further that as at 1992/93, the appellant was not a registered member of their association. As at that time, the appellant was a probationer and therefore not qualified for registration. DW1 said further that as a probationer, the appellant could not be an associate of the firm of estate agents. He also said that the practice does not allow an agent to represent both the vendor and buyer of the same property. He referred to Article 21 of the Regulation. From the foregoing piece of evidence, it is clear that the appellant as a probationer, at the material time to this case was not qualified to be a member of the profession he claimed to be. He was therefore not qualified to be an associate of a registered firm of Estate Surveyors and Valuers of C. Odudu and Associates. It should be noted that in the course of the proceedings, the appellant tendered Exhs. AO12 and AO13 being the Decree and Rules of the Nigerian Institution of Estate Surveyors and Valuers and its Constitution respectively. The appellant agreed that a possession of an academic degree alone, does not entitle or confer a membership status of the institution on an individual. He further admitted that it is an offence to claim to be a member of Nigerian Institution of Estate Surveyors and Valuers without being one. Appellant agreed that he was not an associate member of NIESV when Exh. AOl dated 7th January, 1992 was addressed to him (See page 91 lines 10-20 of the records). Facts admitted need not be proved. See section 75 of the Evidence Act, Cap 112 of the Laws of the Federation, 1990. See also Maduabachukwu v. Umunakwa (1990) 2 N.W.L.R. (Pt. 134) 698; Utteh v. State (1992) 2 NWLR (Pt. 223) 257. Thus, from the appellant’s own admission, he was not a lawfully recognised member of the Institution of Estate Agents and Valuers in 1992/93. The learned trial Judge was therefore not in error when he held that the appellant was not qualified to practise as estate surveyor or agent within the definition of membership of the Nigerian Institution of Estate Surveyors and Valuers. The evidence of DW1 and appellant’s own admission clearly support the finding of the lower court that the appellant was not qualified to practise as an estate agent. I would like to add that since the appellant lacked the capacity to act as an estate agent in the sale transaction, all his actions or dealings with the respondent were therefore void and of no effect. The sale agency of the house was between the vendor (Mr. J.O.Y. Evbuomwan) and C. Odudu and Associates (Estate Surveyors and Valuers). The appellant purported to act as an associate of C. Odudu and Associates throughout the sale transaction on behalf of the vendor, Mr. J.O.Y. Evbuomwan. From the totality of the evidence before the trial court, it is manifest that C. Odudu and Co. had no associate in the person of the appellant to give effect to its appointment as an estate agent of the vendor. Since the appellant has been rightly found not qualified by the lower court to act as an associate in the firm of C. Odudu and Co., the agency agreement between the vendor and C. Odudu became frustrated for non-performance by C. Odudu and Co. Thus, the termination of the agency agreement by the vendor was therefore in law, a mere formality. It was as if the vendor never appointed any estate agent and/or that no estate agent ever acted on his behalf in the abortive sale of No. 55 Akpakpava Street, Benin City. This situation obviously affected the validity of the abortive sale transaction by the appellant to the respondent as the appellant was not qualified to practise as an estate agent or associate partner of C. Odudu and Co. within the definition of membership of Estate Surveyors and Valuers. It must be mentioned that where there is a valid contract agreement, the parties must be held bound by the agreement and by all its terms and conditions. There should be no room for a departure from what is stated therein. In the case in hand, it goes without saying from the totality of the evidence adduced before the trial court that there is no valid contract of sale between the appellant and the respondent. See Jeric Nigeria Ltd. v. Union Bank of Nigeria Plc (2001) FWLR (Pt. 31) 2913, (2000) 15 NWLR (Pt. 691) 447. From the foregoing, it is doubtless clear that the fact that the appellant was not a qualified estate surveyor affected seriously the validity of the abortive sale of No. 55 Akpakpava Street, Benin City by him.’]
II. Whether the respondent is entitled to the refund of the sum of ₦300,000.00 being part of the total amount the appellant received from him for a consideration that has totally failed?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The Respondent is entitled to the refund)
[THE RESPONDENT NOT BEING AN APPOINTED ESTATE AGENT CANNOT RECEIVE AGENCY FEE
‘It must be pointed out again that C. Odudu and Associates was the accredited estate agent appointed by the vendor for sale of his building, No. 55 Akpakpava Street, Benin City by a letter dated 17th January, 1992 (Exh. AO1). By the said letter, the vendor offered five percent agency fee on the total sale price. In his letter of the termination of the agency Exh. AO6 the vendor re-affirmed at the heading that it is for the personal attention of the appellant, ostensibly as an official or staff of the firm of C. Odudu and Associates. From the content of (Exh AO6) the ₦300,000.00 received from the prospective buyer (the respondent) could not have been for another agency. It should be noted also that the unchallenged evidence of DW1 – the secretary of Nigerian Institution of Estate Surveyors and Valuers for Edo and Delta States for the period of 1992/93, which evidence the learned trial Judge accepted and believed to the effect that in the practice of the profession of Estate Agents, a member cannot represent the interest of the seller and buyer of the same property. In other words, C. Odudu and Associates having been appointed by the seller/vendor to sell his property at No. 55 Akpakpava Street, Benin City cannot again be appointed to represent the interest of prospective buyer (the respondent). It seems to me therefore that this is another reason why the ₦300,000.00 received by the appellant on behalf of C. Odudu and Co. cannot be an agency fee, but part-payment of the property for the abortive sale transaction.’
‘It was payment made as part-payment of the purchase price of the property. C. Odudu and Associates was not an agent of the respondent in the abortive sale transaction. It must be mentioned also that the appellant had relied on the receipt which he issued for the collection of the ₦300,000.00 and alleged that both himself and the respondent signed the receipt as evidence of non-refundable agency fee paid to him by the respondent. The respondent denied signing the said receipt (Exh. A03) which he said was brought to his attention at the State C.I.D. (Edo State) when the respondent reported the appellant for defrauding him. It is in evidence that up till now, no copy of the said receipt meant to be issued to the respondent was in fact given to him. It is also in evidence that when the respondent insisted on police investigation of the signature on the receipt, the appellant rushed to the lower court to file this action and at the same time obtained an injunction against the respondent and the police on further investigation of the receipt pending the determination of this case. I hold the strong view that the respondent having denied his signature on Exh. AO3, the onus of proof lies on the appellant who seeks to rely on it, to prove the genuineness of the receipt and the respondent’s signature thereon. This he failed to do. The receipt is therefore of no probative value as evidence to establish a contract of agency fee between the parties. Thus, the ₦300,000.00 covered by Exh. A03 cannot be meant for agency fee for alleged or non-existent service which the appellant said he rendered to the respondent. It can also be inferred from the conduct of the appellant in paying the sum of ₦100,000.00 out of ₦300,000.00 that he knew at all times material to this case that the ₦300,000.00 was intended and indeed meant to be part-payment of the sale price of the property. There could be no other consideration for the receipt of the ₦300,000.00 from the respondent other than towards the purchase of the property in question. It seems to me that the appellant’s claim that the ₦300,000.00 he received from the respondent was intended to be an agency fee is not only misconceived, but unethical and by extension, such a claim is unenforceable in court as I have said above. Besides, the idea that the payment was for a non-refundable agency fee for the purchase of the house is, to say the least, fraudulent. It seems to me that agency fee is for services rendered to a prospective vendor in searching for a buyer at a fairly high price or for services rendered a purchaser in negotiating for a lower price. It is in accord with common sense that the actual amount payable cannot be ascertained until the end of the transaction. The percentage fee is based on the total amount of sale. In the case in hand, the sum of ₦300,000.00 being claimed by the appellant was not calculated or based on any agreed sale price. This to my mind makes this claim incredible to believe. The money was not received as an agency fee. It must be mentioned that there cannot be an advance non-refundable agency fee for a consideration that was yet to pass. The consideration for the payment for the house, is the eventual sale and delivery of the property to the purchaser. In the present case, the sale transaction was frustrated by the vendor’s decision to terminate the agency agreement with C. Odudu and Associates. From the nature of the transaction, it was impossible for the property to have been eventually transferred or delivered to the respondent. Only the vendor, Mr. J.O.Y. Evbuomwan, has the capacity to transfer and deliver the property to any buyer. As shown above, the appellant who was not even a legitimate agent of the vendor was not in a position, nor had he the necessary capacity to complete the sale transaction in favour of the respondent. Having said that, it is only fair and just that his payment made to the appellant towards the purchase of the building be refunded to him in full. See Simeon O. Kuforiji and Anor v. V.Y.B. (Nigeria) Ltd. (1981) 6-7 S.C. 40 at pp 45-46 and 47-48.’]
‘In the light of all the above, I have no difficulty in holding that this appeal fails and it is therefore dismissed. I uphold the judgment of the lower court delivered on 24th July, 1996. For the avoidance of doubt, I also affirm the decision of the lower court on the counter-claim. I award ₦3,000.00 costs to the respondent against the appellant.’
➥ FURTHER DICTA:
⦿ INELEGANT BRIEF WILL BE CONSIDERED
I must point out at the onset that the appellant’s brief is sketchy, clumsy and inelegant. It cannot be said to be strictly in compliance with the provisions of Order 6 of the Rules of this court, 1984, as amended. But be that as it may, it is a brief that should be considered in the interest of justice. See Akpan v. State (1992) 6 NWLR (Pt. 248) 439; Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 300. — Rowland, JCA.
⦿ AN AGENT CANNOT ACT FOR THE SELLER & BUYER AT THE SAME TIME
It must be mentioned that at common law, an agent must not allow his own interest to conflict with his obligation to the principal. Where such a situation occurs to the knowledge of the third party, the contract is voidable at the option of the principal See Armstrong v. Jackson 2 KB 822; Allied Trading Co. Ltd. v. G.B.N. Line (1985) 2 NWLR (Pt. 75) 74. This common law position is supported by Article 21 of the Rules and Regulation (Exh. AO13) – the Constitution of the Nigerian Institution of Estate Surveyors and Valuers. The interest of the appellant to represent both buyer and seller and claim agency fees from both sides has conflicted with his obligation to the vendor who rightly took the option in my view to terminate the agency appointment. That puts to an end whatever transaction that seemed to be going on between the appellant and the respondent in respect of the property. It would appear that the appellant breached both the Common Law of Agency and the Rules and Regulations of the body he professed to belong to. — Rowland, JCA.
Alex O. Odudu
Emmanuel O. Onyibe
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ AN ILLEGAL CONTRACT WILL NOT BE ENFORCED
Brett, M. R., in Herman v. Jeuchner (1885) 15 QBD 561 at page 563 said as follows:- “When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced.
In Halsbury’s Laws of England , 3rd Edition, Volume 8, page 126 paragraph 218, the law on the point is also succinctly stated as follows:- “A contract is illegal where the subject matter of the promise is illegal or where the consideration or any part of it is illegal.”
And in William Hill (Park Lane) Ltd. v. Hofman (1950) 1 ALL ER 1013, it was held that a deed of charge executed in respect of gaming debt must by virtue of the Gaming Act 1835, be deemed to have been executed for an illegal consideration, and was therefore void.”
➥ REFERENCED (OTHERS)