➥ CASE SUMMARY OF:
Godwin Ukah & Ors. V. Christopher A. Onyia & Ors. (CA/E/295/2008, 21 Jan 2016)
by Branham Chima.
➥ SUBJECT MATTER
Legal practitioner as an estate agent,
Legal practitioner commission fee,
Bias on a judge.
➥ CASE FACT/HISTORY
The Appellants were the 1st and 2nd Defendants at the trial Court. The 1st Respondent was the 3rd Defendant while the 2nd Respondent was the Plaintiff at the trial Court. The 2nd Respondent is a lawyer who also engages in buying and selling landed property for commission. The 1st Appellant is the Managing Director of the 2nd Appellant.
In October 2000, one Mr Uchenna Anthony Onaga, a resident of the United States instructed the 2nd Respondent to search for a house for him to buy. The 2nd Respondent went in search of a house for sale and met the 1st Respondent in the course of his search. The 1st Respondent informed the 2nd Respondent that the Appellants had a building to sell at plot 4 otherwise known as No.5 Ogugua Street, Mainland Emene. The 1st Respondent then took the 2nd Respondent to a meeting with the 1st Appellant. The 1st Appellant informed the 1st Respondent that he wanted to sell the property for N3.5m and he was willing to pay 5% commission. On 16/10/2000, the 1st Respondent gave a photocopy of the deed of assignment belonging to the 2nd Appellant to the 2nd Respondent and told the 2nd Respondent that the 1st Appellant was allegedly prepared to give a 5% commission to whoever secured a buyer for the property. The 2nd Respondent called Mr Anthony Uchenna Onaga who was not interested in the property. The 2nd Respondent went to the property on 19/10/2000 and met one Mr Emmanuel Umahi who lived and operated a restaurant on the premises. The 2nd Respondent told him to find an alternative residence since the property was on the market. On 22/10/2000 Mr Emmanuel Umahi informed the 2nd Respondent that he had a prospective buyer who was his relative, one Mr. John Ibe. Thereafter, the 2nd Respondent told him the conditions of sale of the property and obtained N500 (five hundred Naira) to conduct a search at the Lands Registry. The 2nd Respondent thereafter conducted a search on the property at the Lands Registry and gave the result of the search to Mr John Ibe. On 23/10/2000, the 2nd Respondent told the 1st Respondent of the development, prepared a deed of assignment for the property and went to the office of the Appellants with the 1st Respondent to hand over the deed and receive payment. The 1st Respondent later informed the 2nd Respondent that the Appellants refused to collect the deed of assignment from him and had sold the property to Mr. John Ibe. The 2nd Respondent got to know that one month’s notice to quit had been issued to Emmanuel Umahi, a tenant on the property by Mr. John Ibe. The 2nd Respondent claimed he never got any remuneration for finding a buyer for the property even though he insisted that the sale was based on the search he had conducted at the Lands Registry. After writing severally to the Appellants for the 5% commission, to no avail, the 2nd Respondent instituted an action at the Enugu State High Court on 12/12/2000.
This is an appeal against the judgment of Hon. Justice B. C. Nosike of the High Court of Enugu State delivered on 24/12/2007 wherein His Lordship gave judgment in favour of the 2nd Respondent against the Appellants for 5% of N 3.5m with interest at the rate of 3% per annum from 24/12/2007 till liquidation of the judgment debt.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether from the totality of the evidence before the trial Court, the learned trial judge was right to hold that the 2nd Respondent was an agent of the Appellants and entitled to commission in the circumstances of this case?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The 2nd Respondent was entitled).
[THE 2ND RESPONDENT WAS AN AGENT OF THE 1ST RESPONDENT
‘The finding of the learned trial judge is that the 2nd Respondent started acting for the vendor immediately the vendor gave him the sale price and the rate of commission. I have to agree with that finding. I have read the Record and the attempts to wriggle out of the oral instructions given to the 2nd Respondent cannot work. There is no doubt that the 1st Appellant informed several agents including the 2nd Respondent to look for a buyer for the property. There is also no doubt that the Mr. John Ibe who eventually bought the property was introduced to the seller- 1st Appellant by the 2nd Respondent. I have to agree with the finding of the learned trial judge on Pg. 121 of the Record that the 1st Appellant from his demeanour was not a witness of truth. As an appellate Court, I cannot depart from a finding based on the credibility of the witness. It was the 2nd Respondent who gave the property documents to Mr. Emmanuel Umahi who showed Mr. John Ibe (his cousin) who was a prospective buyer. Having said all that, I must iterate that it does not appear to me that the 2nd Respondent was a sub-agent to the 1st Respondent. It appears to me that they were assigned severally as agents to look for a buyer for the property. One not being a sub agent of the other, there was no exclusive contractual agreement, the property was open in the market and any of the agents could have found a buyer for it. Therefore, the argument that 2nd Respondent was an agent of the Appellant and not an agent of the 1st Respondent appears to me reasonable in the circumstances of this case. Not being a sub-agent therefore, the maxim “delegatus non potest delegare” is inapplicable in this case.’
EVEN IF THE 2ND RESPONDENT WAS IN THE ACTIVE PRACTICE OF LAW, IT CANNOT VITIATE THE AGREEMENT
‘It is my humble view therefore, that even though in this case, the 2nd Respondent while practicing as a legal practitioner had an agreement and became an agent of the Appellants to secure a vendee for their property, thus acting as an estate agent for commission on the said property, that “contravention” if you will, of the RPC cannot vitiate the agreement between the parties. I have to say that a party who has benefitted from a contract cannot evade his obligations under the contract by relying on an allegation of illegality.’
APPELLANT CANNOT RELY ON ILLEGALITY TO NOT PAY THE 2ND RESPONDENT HIS COMMISSION
‘There is no doubt that there is no ex facie illegality in the agency agreement between the 2nd Respondent and the Appellants. I cannot agree with the Appellants that they are entitled to resile from it on the basis of perceived illegality because the 2nd Respondent is a legal practitioner or is not an estate agent. There is nothing ex facie illegal in the agreement between the parties. In any event, as the learned trial judge rightly observed on Pg. 122 of the Record, the issue of illegality of the agreement between the Appellants and the 2nd Respondent was not pleaded. See also Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR Pt. 390 Pg.379 at 426 and Chidoka v. FCFC Ltd (2013) 5 NWLR Pt. 1346 Pg. 144 at 163.’]
‘In the circumstances, the appeal is wholly without merit and hereby dismissed. N50,000 costs to the Respondent against the Appellant. The judgment of Hon. Justice B. C. Nosike in suit No E/802/2000 is hereby affirmed.’
➥ FURTHER DICTA:
⦿ NATURE OF FIDUCIARY RELATIONSHIP AND AGENCY
An agency is a fiduciary relationship said to be created when a person (principal) gives authority to another (agent) to act on his behalf and the agent accepts to act on the authority. The authority may be express or implied. This relationship is usually not determined by the terminology used by the parties to describe their relationship but on the nature of their agreement and the circumstances of the relationship between parties. See Bayero v. Mainasara and Sons Ltd (2006) LPELR-7587 CA; (2006) 8 NWLR (Pt. 982) Pg. 391; Upkanah v. Ayaya (2010) LPELR-8590 (CA). An agency can be created by any of the following; 1. Agreement whether formal or not between the parties. 2. Ratification by the principal of the acts done on his behalf. 3. Operation of law under the doctrine of necessity. See Niger Progress Ltd v. N.E.L. Corp (1989) NWLR (Pt. 107) 68; (1989) LPELR-1996 (SC) 33; Edem v. Canon Balls Ltd and Anor (2005) 12 NWLR (Pt. 938) 27; (2005) LPELR-1007 (SC); (2005) 6 S.C (Pt. II) 16; Ukpanah v. Ayaya (Supra). — H.M. Ogunwumiju, JCA.
⦿ THE IDEA BEHIND AGENCY RELATIONSHIP
The idea behind agency is that the law acknowledges that a person does not always need to act in person to change his legal relations. He may either employ the services of another to change them or do something to change them. Ordinarily, the idea is that the agent can affect the principal’s legal position by certain acts which, though performed by the agent, are to be regarded as acts of the principal. See Idowu v. Olorunfemi and Ors (2013) LPELR-20728 (CA). — H.M. Ogunwumiju, JCA.
⦿ THE PRACTICE OF LAW AND BEING A COMMISSION AGENT; PRACTICE OF LAW IS A QUESTION OF FACT
Rule 7(2)(b) of the Rules of Professional Conduct for Legal Practitioners, 2007 RPC, therefore forbids a lawyer from practicing as a legal practitioner while personally engaged in the business of a commission agent. A proper dissection of this Rule shows that what is forbidden is practicing as a lawyer, while engaged in the business of a commission agent. In other words, the active part of the provision/prohibition is practice as a legal practitioner. The provision does not forbid a legal practitioner from engaging in the business of a commission agent. Rather, it forbids a legal practitioner engaged in the business of commissioned agent from practicing as a legal practitioner while so engaged. In construing this provision, it is pertinent to note that the qualification of a person as a legal practitioner is distinct from practice as a legal practitioner while the former borders on the mere appellation of one as a lawyer upon being called to the Nigerian Bar, the latter is a question of fact and evidence. — H.M. Ogunwumiju, JCA.
⦿ RAISING BIAS ON JUDGES BASED ON TRIBE OF LITIGANT
I must not conclude this judgment without addressing the unnecessary and unfair allegations against the learned trial judge by Appellants’ counsel. Judges are human beings, they do not fall from heaven nor are they manufactured from Mars or Neptune. As with all human beings they originate from somewhere, a race, a community, or tribe. Appellants’ counsel devoted a lot of energy on attacking the personality of the learned trial judge on pages 17-19 of the Appellants’ brief on the basis of an alleged kinship with the 2nd Respondent. The attack was unnecessary and mischievous in the circumstances of this case. This Court held in Abalaka v. Minister of Health (2006) 2 NWLR (Pt. 963) 105 at 134 per Muhammed JCA thus: “The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis- a-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with members of the bench, he cannot have a fair hearing. That in my humble view is the most invidious and incongruous approach to this very important legal principle. If the contention is correct, then most if not all trials in our judicial system, must be faulted because the composition of most Courts may not agree with the tribes of the litigants. Perhaps an example will make the point clearer. No Asian, American, German or any other foreigner would submit to the jurisdiction of a Nigerian Court because virtually all Courts in Nigeria are constituted by Nigerians. Was Section 3 of the 1979 Constitution, which is now Section 36 of the 1999 Constitution , designed to cure such a crude situation. No, not at all. Tribal Composition at the bench per se cannot be basis for the charge of bias or likelihood of bias, unless the aggrieved party shows by the conduct of the bench such bias, or likelihood of bias. The constitutional provision of fair hearing is already large and omnibus and I am not prepared to expand the frontiers beyond its onerous content or ambit.” — H.M. Ogunwumiju, JCA.
⦿ COUNSEL SHOULD NOT JOIN THE PUBLIC TO RAISE BIAS ON A JUDGE
The above quoted obiter of the learned trial judge did not form part of the ratio decidendi of the judgment and is a good example of the less said, the better by way of obiter in a judgment. In any event, the current penchant of counsel to allege bias against judicial officers under every imagined pretext must be highly deprecated, condemned and discouraged. It does not enhance the confidence of the public in the judicial process and only serves to erode the rule of law. Justice is rooted in confidence. If the parties felt strongly that there was a fiduciary relationship between the Bench and any lawyer or party, it was their duty to draw attention to it BEFORE the case was heard and determined by the judge. It is obviously the antics of a bad loser to cry foul after the case had been lost. — H.M. Ogunwumiju, JCA.
Chief Godwin Ukah & Ors.
Chief Christopher A. Onyia & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A.
⦿ FOR THE APPELLANT(S)
Esom M. Casmir Esq.
⦿ FOR THE RESPONDENT(S)
Chief Chris A. Onyia.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHERE RELYING ON ILLEGALITY, PARTICULARS OF ILLEGALITY MUST BE PLEADED
In W.C.C Ltd v. Batallia (2006) 9 NWLR (Pt. 986) Pg. 595 at 616, 620, the Supreme Court held as follows: “The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case”.
➥ REFERENCED (OTHERS)