Kenneth Nwuba V. Mr. Ignatus Ogbuchi & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The case of the Plaintiffs/Respondents is that the 2nd Defendant contracted them to scout for possible buyers of her landed property situate at Ifite-Awka in Awka South Local Government of Anambra State in which they agreed for a payment of 10% of the purchase price of the property as – their agency commission.
The Plaintiffs/Respondents said that they got in touch with one Raphael Obiorah Okeke who eventually purchased the said property at the purchase price of Six million, Seven hundred thousand Naira (N6,7000,000.00). They alleged that at the end of the transaction, the 2nd Defendant refused to pay to them their agency commission and when they confronted her, she told them that she had since paid over their money to the 1st Defendant/Appellant for onward payment to them. They also alleged that the 1st Defendant/Appellant and 3rd Defendant have convinced to with-hold their agency commission of N670,000.00 and have refused to hand same over to them despite repeated demands:
The case of the 1st Defendant/appellant is that the 2nd Defendant briefed him as her counsel and instructed him to do everything within the law to get Charles Ozoekwe and his Lawyer Yin Nwabueze out of the way so that she could sell her property to the higher bidder. Thereafter, the 1st Defendant/appellant informed the 2nd Defendant that his professional fee for offering his professional service is 10% of all the money realized from the sale of the property to the high bidder that passed through him.
The 2nd Defendant paid N570,000.00 to the 1st Defendant/Appellant as his professional fee because the 1st Defendant/appellant allowed her a reduction of N100,000.00 on compassionate ground.
On the 6th day of November, 2002, the plaintiffs/Respondent commenced the action at the Awka High court of Anambra State against the 1st Defendant/Appellant and 2nd and 3rd Defendants under the undefended list procedure claiming for the sum of N670,000.00 as agency commission. The 1st Defendant/Appellant and 3rd Defendant filed a joint notice of intention to defend with a supporting affidavit while the 2nd Defendant filed a separate Notice of Intention to Defend with supporting affidavit. On 22/1/2003 the trial court ruled and transferred the suit to the general Cause List for trial. On 7th May 2004, after close of address by the parties, the trial court adjourned to 28/5/04 for judgment. On 4/6/2004, the trial court delivered its judgment in favour of the Plaintiffs/Respondents.
The 1st Defendant/Appellant being dissatisfied with the said judgment, appealed to this Court, and the learned counsel for him filed a brief of argument and formulated two issues for determination as follows:
“(1) Whether the trial Chief Judge was right in holding that the 2nd Appellant’s evidence or oral testimony in court was contradictory to an earlier affidavit evidence made or given, earlier in court by the said 2nd Appellant.
(2) Whether the learned trial Chief Judge was right in holding that the 2nd Appellant instructed the 1st Appellant to pay 10% commission of N670,000.00 (Six hundred and Seventy thousand Naira) to the respondents when there was no privity of contract between the respondents and the 1st Appellant and when there was no agent/principal relationship between the said 1st and 2nd appellants, on the issue of payment of 10% commission to the appellants.( sic)”
The learned counsel for the respondents formulated three issues for determination as follow:
“(1) Whether the trial Chief Judge was right in holding that the 2nd Defendant’s evidence or oral testimony in court was contradictory to an earlier affidavit evidence made or given earlier in court in the same proceedings by the said 2nd defendant.
(2) Whether the learned trial Chief Judge was right in holding that the 2nd Defendant instructed the 1st defendant/Appellant to pay 10% commission of N670,000.00 (Six hundred and Seventy thousand Naira) to the Respondents.
(3) Whether the appellate court will overturn the findings of facts by the lower court”
Issues 1 and 2 formulated for determination by both counsel are the same but the crux of this appeal is Issue 2 formulated for determination by both counsel.
On Issue No.1 the learned counsel for the appellant submitted that the finding of the learned trial Chief Judge that the 2nd appellant’s evidence given in court which is inconsistent and contradictory to an earlier affidavit evidence made or given in the same proceedings is unsupportable by the evidence adduced by parties at trial as well as the law. He said the 2nd defendant’s evidence to the effect that she changed counsel who now prepared a document for her stating the correct position of her case was not considered.
He further stated that the piece of evidence on this issue was not challenged and ought to have been accepted by the trial court as such. He argued that the evidence of a witness can be regarded as being unreliable, when there is no cogent reason for the said inconsistency apparent in his case which reason has been explained, referred to ABEKE ONAFOWOKAN & ANOR V. THE STATE (1986) 2 NWLR (Pt.23) 496.
On Issue 2 the learned counsel for the appellant submitted that it is not the case of the 2nd defendant in court that she was threatened by the appellant which made her to abandon her earlier position to the effect that she gave the appellant N670,000.00 to give to twhe respondents as commission.
He said further that there is no privity of contract between the appellant and the respondents. He submitted that trial court cannot substitute the evidence of the 2nd defendant for the evidence of the PW3. He argued that there was no connection or relationship that existed between the respondents and the appellant to warrant the respondents taking out action against the appellant at the trial court in the first place.
He said that where the finding of facts by trial court is perverse, the court of Appeal would interfere to provide justice, refers to the cases of: LENGBE V. IMALE (1959) WNLR 325; OKPIRI V. JONAH (1961) All NLR 101; AKINYEMI V. AKINYEMI (1963) 1 All NLR 346; AKINWUMI V. IDEWU (1969) 1 All NLR 319; MAJA V. STOCO (1968) 1 All NLR 142.
He also submitted that in view of the fact that there is no privity of contract between the appellant and the respondents, the respondents lacked the locus standi to bring the action against the appellant, refers to the case of UNITED BANK FOR AFRICA V. BTL IND. LTD (2004) 18 NWLR (Pt.904) 180 at 223 Para E-H; NIGERIA AIRWAYS V. GBEYUMO (1992) 5 NWLR (Pt.244) P.735; DAGAZAU V. BOKIR INT. LTD. (1999) 7 NWLR {Pt.610) 293; DARAMOLA V. A.G. ONDO STATE (2000) 7 NWLR {Pt.665) 440.
He submitted further that a contract affects the parties to it and cannot be enforced by or against a person who is not a party even if that contract is made for his benefit and purport to give him the right to sue or to make him liable upon it, refers to UNITED BANK FOR AFRICA LTD. V. BT. IND. LTD, (supra).
He said that the onus lies on the respondents to prove the existence of any privity of contract between them and the appellant, more so when the 2nd defendant had told the trial court in her evidence that she never gave any instruction to the appellant to pay any money to the respondents.
He argued that the implication of such evidence of the 2nd defendant is that the appellant has been absolved from any liability, refers to ONYENGE v. EBERE 18 NSAR (Pt.11) 789; UNIPETROL (NIG.) PLC. V. ADIREJE (2005) 14 NWLR (Pt.946) 563; Sections 135, 136 and 137 of EVIDENCE ACT.
On Issue I the learned counsel for respondents submitted that the learned trial Chief Judge was right when he held that the evidence of 2nd defendant at the trial was at variance with the contents of Exhibit “PI”. Says in such situation; the court will disregard both her testimony at the trial and the previous affidavit evidence on the material facts in issue and regard them as false, refers to NNAJIDE V. UKONU (1986) 4 NWLR (Pt.36) 305 at 521. Cites also AKANBI v. ALAJADE NIG. LTD. (2000) 1 NWLR (Pt.639) 125 at 143 where the Court of Appeal held thus:
“Where a witness has given a testimony in court which is inconsistent with a previous statement which he had made a trial court is entitled to treat both his testimony at the trial and the previous statement as of little or no probative value rather than choose to believe either of the two.”
He submitted that Exhibit “P1” is a document which is binding on the 2nd defendant because the contents of the document are binding on the party who being of full capacity, appends his signature to it. He submitted that, that party cannot thereafter resile from it or choose an alternative course, refers to the case of BANK OF THE NORTH V. ALIYU (19:97) 7 NWLR (Pt. 612) 622 at 633. He submitted further that the 2nd defendant agreed that she signed Exhibit “P1”, but claimed that she did not understand the content thereof, thereby feigning illiteracy. Her signature was regular and consistent and she could not rebut the presumption of literacy on her, refers to ANAEZE V. ANYASO (1993) 5 NWLR (Pt.291) 1 at 35.
On Issue 2 he said that an action for money had and received lies among other considerations for money got through imposition, extortion, or an undue advantage taken of the plaintiff s situation. He submitted that it is a debt constituted by the act of the land whether or not there is consent of the parties or privity of contract, refers to KOLA V. ADESINA (1993) 7 SCNJ 79 at 97 lines 22-37 (1993) 6 NWLR (Pt.298) 182 at 201. He said all the authorities cited by the appellant on the issue of privity of contract and agency do not apply as the issues here are not privity of contract or agency, refers to ADESINA V. KOLA (SUPRA).
On Issue 3, he submitted that appellate courts do not, overturn the findings of facts of the lower court unless such findings are perverse refers to the case of: OMOCHI V. ANIMKWOL (2004) All FWLR (Pt.200) 1524 at 1540 Para B.; KATE ENT. LTD. V. DAEWOO NIG. LTD. (1985) 2 NWLR (Pt.116).
He cited the case of AROWOLO V. AKAPO (2004) All FWLR (pt.208) 807 at 859 paras E-H where Court of Appeal per Onalaja J C A stated thus:
“Evaluation of evidence is primarily the function of the trial court as in the instant appeal. It is only where and when it fails to evaluate such evidence properly or at all that an appellate court can interfere and itself re-evaluate such evidence, otherwise where the trial court has satisfactorily performed it’s primary function of evaluating evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its findings on such evidence, EBBA v. OGODO (2000) FWLR (Pt.27) 2094, (1984) 1 SCNLR 372; NWOKORO v. NWOSU (1994) 4 NWLR (Pt.337) 172.”
It is trite law that an action for money had and received is in principle one which rests on a promise to pay, either actual or imparted by law. It is one that accrues in circumstances where any notion of an actual contract is excluded; In such circumstances, the law treats the defendant as being in the same position as if he had incurred a debt. See ADESINA v. KOLA (SUPRA).
In the instant case, the appellant denied having any contractual relationship with the respondents nor receiving money on trust for them. He went further to state that the money paid to him was N570,000.00 for the professional serviCes rendered to the 2nd defendant. See P.80 lines 15-23 of record.
However, the respondents averred in paragraph 5 of their Amended Statement of Claim that they entered into an agreement with the 2nd defendant to scout for prospective buyer for her landed property. They also averred in paragraph 6 that they agreed with the 2nd defendant for the payment of 10% of the purchase price of the property which is (N670,000.00) when they succeed in introducing a buyer.
There is no where either in their pleadings or evidence in court linking the appellant to the making of the agreement/contract with the respondents. It is settled law that a contract affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit and purports to give him the right to sue or make him liable upon it. See UBA v. BTL. IND. LTD. (SUPRA).
The affidavit evidence – exhibit “P1” of the 2nd defendant had admitted instructing the appellant to hold the sum of N670,000.00 for onward transmission to the respondents as agency commission. However, this contradicts her oral evidence in court during trial where she denied ever instructing the appellant to give such money to the respondents. She also denied engaging the respondents as agents.
By virtue of Section 199 of the Evidence Act, a party who intends to impeach the credit of a witness by showing that what that witness has said in the present proceedings contradicts his evidence in a previous proceedings must draw the attention of the witness to those parts of his evidence which are to be used for the purpose of contradicting him.
The witness must be reminded of what he said on the previous occasion and he must also be given an opportunity to make an explanation. See AKANBI v. ALATEDE NIG. LTD. (SUPRA).In the instant case the 2nd defendant in her evidence in court said that she told Barr. N. N. Okeke what transpired over the transaction for the sale of the property to enable him file defence in court but later discovered when she came to court that what she told him was not what he wrote in the documents he filed (see P.89 lines 15-19 of the record). The 2nd defendant also testified that she signed the affidavit of intention to defend in the lawyer’s house and had to change counsel to file new papers for her. (P.89 lines 20-24 of the record).
It is my view that this piece of evidence of the 2nd defendant was wrongly not considered by the trial court as cogent reasons for the contradictory evidence.
It is settled law that an appellate court should not interfere with the findings of a trial court. On the other hand, an appellate court has a duty to examine the grounds on which the conclusions and inferences of the trial court are based and if the appellate court is convinced that they are erroneous, it will be justified in taking a different view. AKANBI v. ALATEDE NIG. LTD. (SUPRA) ratio 18; ATOLAYBE v. SHORUN (1985) 2 NWLR (Pt.2) 360.It is therefore my view that the reasons given by the 2nd defendant for giving contradictory evidence are cogent and ought to have been considered by the trial court.
The appellant had no connection whatsoever with the respondents and trial court was grossly in error in giving judgment against the appellant in favour of the respondents.
Accordingly, I allow the appeal and set aside the judgment of the trial court. In its place I dismiss the respondents’ claim before that court with costs of N3,000.00 in favour of the appellant.
The appellant is also awarded costs of N7,500 against the respondents for this appeal.
Other Citations: (2007)LCN/2432(CA)
