PRINCIPLES GOVERNING AN ESTATE AGENT AND HIS PRINCIPAL FOR SALE OR LEASE OF LAND

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CASE TITLE: OFAGBOR v. RIKI & ORS (2018) LPELR-46022(CA)

JUDGMENT DATE: 5TH DECEMBER, 2018

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: BOLOUKUROMO MOSES UGO, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on Civil Procedure.

FACTS:

This is an appeal against the judgment of the High Court of Plateau State of 27/04/2016 in Suit No. PLD/J186/2006.

The action was originally commenced in the year 2006 by 2nd respondent and one now deceased Engineer Amamra Riki who it was on common ground owned and held the Certificate of Occupancy No. BP 1787 over the land in dispute which was part of the land situate and known as Dawaki Close in Jos, Plateau State. The 1st respondent was the wife of the said Riki. She was substituted for her husband in October 2008 upon his demise. The second respondent was an estate agent that was employed by Late Riki to advertise for sale the disputed portion of the said land. The original writ they issued against the appellant was not in the records transmitted to the Court but the amended writ of summons and further amended statement of claim filed by the present 1st and 2nd respondents upon Late Riki’s demise and eventual substitution by his wife the 1st respondent shows that they claimed against appellant for some declaratory reliefs in land.
The case of Late Riki and 2nd respondents against appellant and as continued by his wife and 2nd respondent upon his demise, as shown in their amended statement of claim, was that Late Riki in 2004 sought to dispose off part of his parcel of land situate at Dawaki Close, Jos and covered by Certificate of Occupancy No. BP1787. In pursuit of that, he instructed 2nd respondent, an estate agent friend of his, to advertise the said property for sale and get back to him, whenever he found a serious buyer, to enable him negotiate with the buyer directly. Second respondent acted as instructed and appellant got to know of the proposed sale, approached 2nd respondent and indicated interest in the property. Second respondent informed appellant of the conditions for negotiation, consequent upon which appellant requested for Late Riki’s phone number. Appellant was however unable to reach Late Riki on phone so he sought to know from 2nd respondent if there was any other  way to reach him. Second respondent informed him that Riki had a relation in 3rd respondent, an elderly medical doctor and owner of Ande Hospital who could help. Together, appellant and 2nd respondent went to meet 3rd respondent in his hospital where 3rd respondent promised to see if he could reach Engineer Riki. On the 8th of March 2005, appellant called 2nd respondent and asked that they see 3rd respondent who, upon seeing them, asked them if they had been able to establish contact with Late Riki as he had not been able to reach him himself, but they answered that they had not been able to reach him too. Thereupon, appellant brought out an envelope containing 620,000.00 and pressured 3rd respondent to hold it as deposit to tie down the property pending when they could establish contact with Engineer Riki. Third respondent accepted and issued appellant a receipt which was tendered in the proceedings as Exhibit A. 

When there was still no news from Engineer Riki, appellant wrote 3rd respondent through his medical doctor son, one Dr. Daniel Andeyaba, for refund of his 620,000.00 deposit. Third respondent, it was said, made the refund but appellant refused to accept it and rather insisted that he had purchased the property. On 11th March, 2005, 2nd respondent was informed that some people were on the said land blasting rocks. On getting there, 2nd and 3rd respondents found that it was appellant who was responsible. Upon the intervention of several well-meaning people, coupled with the fact that appellant had already commenced building on the land, Late Riki, it was said, grudgingly agreed to sell the two plots of his said land to appellant but only for 3m and not the 620,000.00 appellant deposited. Unfortunately, when Late Riki and 2nd respondent went to the land on 1st May 2006 to carve out the said two plots to appellant, appellant rather caused them to be arrested and detained by the police, thus resulting in total breakdown of the negotiations for sale of the land. That prompted Late Riki and 2nd respondent to institute this action against appellant claiming as earlier shown. Upon being served with the summons, appellant, it was said, again caused Late Riki and 2nd respondent to be arrested and detained by the police and even ensured their arraignment in the Magistrate Court. 

Appellant, a lawyer, on his part claimed that 2nd respondent took him to the land, showed him the portion to be sold and he offered to pay the sum of 600,000.00 (Six Hundred Thousand Naira) and 2nd respondent promised to contact Late Riki its owner. The area of the land showed him by the 2nd respondent, he claims, was a portion with rocks which needed to be blasted before any development could take place. The negotiation and sale, he continued, was not on any basis of plots but on the portion shown to him by the 2nd respondent. Second respondent, he said, suggested that since it was becoming difficult to contact Late Riki, its owner, they should consult 3rd respondent who was the elder brother of Riki. They met 3rd respondent in the evening of 12th February 2005 in his office at Ande Hospital Jos where, after lengthy discussions, 3rd respondent assured them that although he would try to communicate appellant’s offer to Late Riki on phone so appellant could go ahead to source for payment as Late Riki had already given him power to sell the land. On the final day of the negotiation, he averred, 2nd and 3rd respondents, after conferring for sometime in 3rd respondent’s hospital, agreed that he should pay 620,000.00. 

After that agreement, he continued, 2nd and 3rd respondents continued to pressure him to remit the payment for onward transfer to Late Riki. He averred that Late Riki agreed to the sale of two plots and there was never any issue of purchase price of 3m as the earlier purchase price was never re-negotiated. After he had sourced for the money, he averred, he contacted 2nd respondent who again took him to the office/residence of the 3rd respondent where he paid the purchase price of 620,000.00 in cash on 8th March, 2005 and was issued Receipt No. 002056. Second respondent also gave him the particulars of the piece of land and advised him to contact the Bureau for Lands and Survey, Plateau State with the copy of the said document to enable him obtain a site plan to accompany the application for Part Surrender of Right of Occupancy, which application they promised to collect from Late Riki, he averred. In addition to the principal sum, he continued, he also paid agency fee of 30,000.00 to 2nd respondent on the same 8th March, 2005. It was thereafter he started blasting the rocks on the land and commenced building when the Late Riki met him and complained. A meeting was thus held at the Ministry of Lands and Survey, Jos, on 23/11/2005 at the end of which Late Riki agreed to the sale of two plots for the 620,000.00 already received but felt that the land was more than two plots so the excess be excised. Late Riki, he said, sealed the transaction by instructing the Commissioner for Lands Survey and Town Planning Plateau State in a letter of 24th November 2005 to carve out two plots for him, the only outstanding issue being whether the area sold was to be two plots or bulk purchase of the rocky area shown to him by 2nd respondent and which he had built a four bedroom bungalow. 

After payment, he said he proceeded to blast the rocks on the land, removed them and built four-circumference fence wall and a four-bedroom bungalow and was already in possession of the property when, surprisingly, on 1st May 2006, Late Riki and 2nd respondent invaded his building with some thugs and resorted to breaking down the fence of his building. He said he immediately reported them to the Police who arrested Late Riki while the thugs fled the scene. Late Riki and 2nd respondent he said were being prosecuted at the Magistrates Court for attempt to commit bodily hurt and mischief but the charges were later withdrawn after they showed remorse and rebuilt the broken fence. At no time was he approached for refund of the payment of 620,000.00 or any amount either by the 2nd respondent or any other person, he averred. He ended up counterclaiming.

Appellant later successfully applied to join 3rd respondent to the suit as 2nd defendant, but he (3rd respondent) did not respond to the case at all.  Pleadings were exchanged between 1st and 2nd respondents as plaintiffs and appellant as 1st defendant along the lines explained above. First and 2nd respondents’ bid to respond to appellant’s statement of defence and counterclaim was refused by the High Court so the case went to trial without a reply or defence by them to appellant’s counterclaim. In proof of their claim, 1st and 2nd respondents testified for themselves, called one other witness and tendered two documents in evidence marked Exhibits “A’ and “B” and close their case. Appellant testified in defence of the claim and proof of his counterclaim and tendered two documents marked Exhibits “C1″ and “C2″ and closed his case. In its judgment of 17/10/2016, the High Court believed 1st and 2nd respondent’s version of the events and held in their favour. Dissatisfied with that judgment, appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on these issues couched as follows:

  1. Whether the trial Court was right in resolving the discrepancies and conflicting dates, time and year of death of the former 1st plaintiff which spans three affidavits from 2007-2015 without first calling oral evidence.
  2. Whether the 2nd respondent who received 5% commission and an agent of a disclosed principal is a proper party to the suit as 2nd plaintiff.
  3. Whether the trial Court fully and rightly understood the doctrine of agency by ratification when it held that the facts and acts of the 2nd respondent did not bind the former title holder because they were never agents of the former title holder.
  4. Whether the trial Court is not wrong in refusing to decline jurisdiction on grounds of improper parties and absence of cause of action and locus standi of the plaintiffs.
  5. Whether having regard to the entire facts and circumstances of this case including the nature of evidence adduced, the findings and judgment of the trial Court is not perverse and based on improper evaluation and appraisal of the evidence adduced at the trial.
  6. Whether having found that the 3rd and 2nd respondents acted beyond their terms of contract by collecting the purchase price and 5% agency commission respectively from the appellant, the trial Court was not wrong in failing to grant the appellant’s alternative prayers in the counterclaim against them particularly as there was no defence to the counterclaim.

DECISION/HELD:

On the whole, the Court found no merit in the appeal and accordingly dismissed same.

RATIOS:

  • ACTION- CAPACITY TO SUE AND BE SUED: Whether any member of a family has the capacity to sue to protect family property without consent of other family members
  • ACTION- COUNTER-CLAIM: Whether a counter-claim will succeed where a reply is not filed
  • ACTION- ALTERNATIVE RELIEF: Principles guiding the grant of an alternative relief
  • ACTION- CLAIM(S)/RELIEF(S): Whether a party is bound by his claim

lawpavilion • December 12, 2018


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