Mr. Venatius Ikem V. Waymaker Properties Ltd (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, JCA

The appellant as Plaintiff at the High Court 9 sitting at Abuja and presided over by Han. Justice Salisu Garba, brought an action against the Defendants therein through the undefended list by writ of summons filed on the 20th March 2003 seeking the determination of the following claims:-

(a) The sum of N600, 000. 00 (Six Hundred Thousand Naira) only being the outstanding debt due from the Defendant to the Plaintiff for the sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) only representing two years rent plus 10% agency fee for 1 unit 3 Bedroom Flat with Boys Quarters at Garki Abuja (vide pages 1- 5 & 11- 12 of the record).

The 1st Defendant/Respondent on the 25th February 2003 filed a Notice of Intention to Defend together with an Affidavit and an Annexure “A” (An affidavit of the 200 Defendant who was at all material times not being represented by the 1st Defendant’s counsel).

The said motion was taken and granted. The suit was transferred to the general cause list.

The Plaintiff/Appellant also brought a motion dated 5th March 2003 praying for leave to join the 2nd and 3rd Defendants in the suit.

The motion was taken and granted. The 1st Defendant/Respondent filed a memorandum of conditional appearance dated 6th March 2003; Motion on Notice for an order of striking out its name with affidavit dated 6th March 2003 and an Annexure “A” (Purported Affidavit of the 2nd Defendant).

After taking arguments on both sided, the Court refused the 1st Defendant’s Motion together with the supporting affidavit and annexure thereto. The court processes in the suit were served on the 1st Defendant and service of same was acknowledged by the 2nd Defendant on behalf of the 1st Defendant at its office.

The Plaintiff/Appellant’s counsel in an oral application urged the court to cause the 2nd Defendant to be remanded or handed over to the police for investigation and/or prosecution in view of the fact that the 200 Defendant’s purported affidavit of 25th February 2003 and 6th March 2003, disclosed criminal charges of forgery and false personation; for the purpose of securing the presence or attendance of the 2nd Defendant in court as and when required and for proper determination of the matter on merit. But the trial court did not act on the said oral submission.

At the trial, the Plaintiff as PW1 and Mr. Monday Abua as PW2 were led in evidence. The Defence also led Mr. Okechukwu Aleke as DW1. The trial court ordered that written addresses be filed and exchanged and same written addresses already filed were struck out on the 30th July, 2001 for want of procedure. After taking oral arguments/addresses on both sides, the court delivered its judgment while holding the 2nd and 3rd Defendants liable and exonerating the 1st Defendant for want of express agency relationship. Dissatisfied with the judgment, the Plaintiff/appellant filed a Notice of Appeal dated 1st January 2005 containing three grounds of appeal.

The Appellant filed an Amended Appellant’s Brief on 10/11/06 in which he formulated three issues which are:-

1. Whether a general traverse is sufficient denial of statement of facts and whether the trial court property evaluated the pleadings before it in arriving at its decision.
2. Whether a documentary evidence (in the absence of any seeming conflict) can be varied, or altered or modified by subsequent oral evidence and whether the trial court was right in relying on oral testimony of DW1 without placing reliance on the affidavit evidence of DW1 dated 2sn February 2003 and 6th March 2003 respectively in holding that Exhibit A is not the receipt of the 1st Defendant.
3. Whether agency relation can be created otherwise than by written appointment or by deeds; if answered in the affirmative, whether the trial court was correct when it held that the 2nd Defendant was not an agent of the Respondent, when intact the Respondent by its conduct had held out the Defendant as having its authority given the facts and surrounding circumstance of the cause of action.

The Respondent filed a Brief of argument on the 13/12/05 but did not frame separate issues. Respondent seemed to have the impression that Appellant framed 4 issues instead of 3, which are what this court would utilize while not discarding any questions or arguments proffered by the Respondent.

ISSUE NO. ONE:

Learned counsel for the Appellant stated that the enabling Rules of court laid down is clear terms the proper way of traversing or denying a Statement of facts in a pleading. He referred to Order 23 Rules 9, 13, 14 of the High Court FCT Rules.

That from those provisions of the law, a party in his pleading must, as a matter of necessity state or deny material facts unequivocally and failure of which, such denial shall be treated as a general traverse and hence not a sufficient traverse allowed by law.

He cited Adimora v. Ajufo (1988) 1 NSCC 1012.

Learned counsel for the appellant said the Plaintiff/Appellant filed a 16 paragraph Statement of claim while the 1st Defendant filed a sketchy 7 paragraph Statement of Defence. That the 1st Defendant did not at all material times deny the genuineness of Exhibit “A”-

Receipt of payment in its Statement of Defence. He referred to paragraphs 6 & 7 of Affidavits dated 25th February 2003 and 6th March 2003 deposed to by DW1, wherein he specifically admitted the ownership and genuineness of the said receipt of payment ie Exhibit “A” as the property of the 1st Defendant. He cited Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 701.

Learned counsel for the appellant submitted that the trial court did not properly evaluate the evidence placed before it when it held Exhibit “A” is not the receipt of the 1st Defendant and that the said decision of the trial court should be set aside. Also that paragraphs 4,5,6 & 7 of the Statement of Defence are general traverse and therefore offend the rule of drafting as same did not properly traverse material allegations in the Statement of Claim.

Learned counsel for the Respondent, Mr. Ngwu stated that the case Adimora v. Ajufo (supra) is not relevant in this case at all since there were specific and unequivocal denials in the statement of Defence and the affidavit of 6th March 2003. That there is no inconsistency in the pleadings of the 1st Defendant. Also that in – paragraphs 6 & 7 of affidavits dated 25th February 2004 and 6th March 2003 the witness of the 1st Defendant, Uche Aleke did not say that Exhibit A belongs to the 1st Defendant rather he said Exhibit A is his personal old property. That the personal car of a Director of a company cannot automatically become that of a company just because he is the director of the company. That this appeal is spurious, inelegant and should be jettisoned.

In the 7 paragraph Statement of Defence of the 1st Defendant it was averred inter alia:-

1. The1st Defendant admits paragraph 1of the Statement of Claim.
2. The 1st Defendant admits paragraph 2 of the Statement of Claim only to the extent that its registered address is at suite A35 Mclewis Plaza IBB Way, Abuja and not suite A6 Abuja shopping Mall, Wuse Zone 3, Abuja.
3. The 1st Defendant admits paragraph 3 of the claim only to the extent that it is a cooperate estate valuer and property manager, and it puts the plaintiff on the strictest proof of the remaining allegation.
4. The-1st Defendant denies paragraph 4 of the claim and puts the plaintiff to the strictest proof.
5. The 1st Defendant denies paragraphs 5 & 6 of the claim and further states that there was no time that it appointed the 2nd Defendant as its agent.
6. The 1st Defendant denies paragraph 7 to paragraph 15 of the claim and puts the plaintiff to the strictest proof thereof.
7. Whereof the 1st Defendant avers that the plaintiff is not entitled to the claims in paragraph 16 and that the claim be dismissed with cost against the Plaintiff.

The Respondent had contended that it cannot be right to say that their Statement of Defence at the court below was a general traverse which cannot be used to controvert the claims of the Plaintiff/Appellant. That they so submit because of the detailed contents of the affidavits of 25/2/03 and 6th March 2003 in support of the Notice of Intention to Defend.

In the 12 paragraphs affidavit of 25/2/03 it was deposed among others:-

”I Mr. Valentine Orji, male, Christian, Adult; Nigeria of Karmo Abuka do hereby make oath and state as follows;-

1. That by January 2002 the plaintiff Mr. Venatius Ikem approached me to help him get a one (1) unit 3 bedroom flat with boys-quarters for him for rent.
2. That I succeeded in getting the property for the plaintiff which he paid for at the sum of N2,2000,000.00 of which1issued him a Way maker Properties Limited receipt acknowledging the

Receipt of the money on the 8th of February 2002.

3. That at that time I was an estate agent fully on my own.
4. That I was not part or member of Way maker Properties limited.
5. That I had friends who were staff of Way maker Properties limited
6. That based on paragraph (4) above I had free Access into Way maker Properties.
7. That at the time I issued Way maker Properties limited receipt to the plaintiff I had not gotten an Office of my own and so did not have a receipt of my own.
8. That I used Way maker Property receipt out of Expediency and with no intention to defraud Anybody.
9. That the money I received from Mr. Venatius Ikem never went to Way maker Properties limited, to any of its members or their staff.
10. That Way maker Properties limited is not part in any form to any contract with the plaintiff Mr. Venatius Ikem.
11. That I regret the inconveniences I have caused the members and staff of Way maker Properties Limited.
12. That I am the proper defendant in this case and that Way maker Properties Limited was wrongly sued.

The Affidavit of the Respondent as defendant in the court below of 6/3/03 it was averred as follows:.

1. That I am the Managing Director/The Chief Executive of Way maker Properties limited.
2. That Way Maker Properties Limited is a duly Incorporated Limited Liability Company with its members duly registered.
3. That Mr. Valentine Orji and Adijat Adebayo are not and have never been members or staff of Way maker Properties Limited.
4. That Mr. Valentine Orji and Adijat Adebayo never acted on behalf of or in a representative capacity for or in conjunction with or without the consent or authority of Way maker Properties in the said transaction.
5. That the said transaction was done in my absence when I traveled for the burial of my father in Enugu State and was away between 19th January and only returned to Abuja in late March at which time the Plaintiff and Messrs Valentine Orji and Adijat Adebayo had already concluded the transaction.
6. That in my absence the transaction was executed and my old receipt book, which I was no longer using was used without my authority and consent
7. That I did not know my receipt book was used because as an old receipt book I was no longer in use of it I learnt about the transaction when the matter had been reported to the police.
8. That Mr. Valentine Orji does not deny that Way maker Property is not part of the said transaction since he has deposed to an affidavit stating on oath that Way maker Properties limited was not part of the transaction, the said affidavit is attached and marked as Exhibit “A”
9. That Mr. Valentine Orji does not deny personal indebtedness to the plaintiff and had since February 2002 liquidated his debt to the plaintiff to the tune of N1.6million (One Million, Six Hundred Thousand Naira) leaving a balance of N600,000.00(Six Hundred Thousand Naira) which is the subject of this suit.
10. That the said Messrs Valentine and Adijat Adebayo made the repayments in their personal capacities having admitted to the Plaintiff that the Defendant bore no liability to the Plaintiff on the subject matter.
11. That reference to paragraph 13 of the Plaintiffs Affidavit when the matter was taken to the police, Mr. Valentine Orji personally wrote an undertaking before the police that he will liquidate his remaining indebtedness to the Plaintiff; the N600,000.00(Six Hundred Thousand Naira), which is the subject of this Suit.
12. That Way maker Properties limited was never and is not a part of the said transaction and therefore was wrongly sued.
13. That the right defendant in this case is Mr. Valentine Orji and should be properly sued as the defendant, that the defendant herein is not a proper party to this suit.

That Way maker Properties Limited should be struck off as the defendant in this suit.

It seems to me a misconception of the principle of law on general or specific traverse in a Statement of Defence, which misconception is on the Appellant to say the pleadings by the defence cannot be accepted as the proper denials envisaged in the law on pleadings, This is because in the instant case which first emanated from an undefended procedure which brought about the Defendants notice of intention to defend with the supporting affidavits above stated, Those depositions were very detailed specific denials of the depositions of the Plaintiff/Appellant’s supporting affidavit on his undefended suit. The position of the Appellant is from a stand point that after the trial court set the matter into the general cause list for trial that those affidavits ceased to have any effect. That is not the law on pleadings and evidence vis-a-vis an undefended procedure moving into the normal cause of trials or hearing on the merit in a general cause list. It is all the more so since nothing stopped the Defendants in not filing any other pleadings but had the right to use their affidavits as their pleadings.

Therefore where the Statement of Defence had a lapse the supporting affidavit would cover.

In the prevailing circumstances of this case, the principles in Adimora v. Ajufo (1988) 1 NSCC 1012 cannot apply for the court to discountenance those traverses in the Statement of Defence. Also the provisions in Order 23 Rules 9, 13, 14, of the High Court of the Federal Capital Territory Civil Procedure Rules have not been infringed rather they have been complied with since the Statement of Defence would not be read in isolation of those supporting affidavits in the Notice of Intention to Defend.

Therefore I answer this Issue positively and in favour of the Respondent.

ISSUE NO. TWO:

Learned counsel for the appellant said a party is bound by his evidence given on oath which includes affidavit evidence. That where a party gives subsequent evidence (oral or documentary) that is Inconsistent with earlier evidence, such party thereby commits perjury and such later evidence will carry no evidential weight. That DW1 swore to two separate affidavits dated 25/02/03 and 6/03/03 respectively, which acknowledged the genuineness and ownership of Exhibit “A” which is the subject matter upon which issues are joined both at the trial court and on this Appeal.

Learned counsel further stated that the trial court went on a voyage of its own to shop for facts and evidence different from those before it by relying on sole thereof. That Exhibit “A” having been put in a business way by the Respondent to the detriment of the Appellant, the Respondent is liable under it.

In response, learned counsel for the Respondent said in the 1st Defendants pleadings that they stated that Exhibit “A”, a receipt which bears the name Way maker Properties is not its receipt since the 1st Defendant is Way maker Properties Limited. That 1st Defendant had stated that Way maker Properties cannot be the same as Way maker Properties limited. That sections 29 and 30 of the Companies and Allied Matters Act states that an incorporated company must end with the word Limited and Unlimited. He cited Habib Bank ltd. v. Benson Ochete (2001) 3 NWLR (pt. 699) 114 at 117.

Learned counsel for the Respondent said the court should disregard Appellant’s contention that the absence of Limited in the receipt was an omission. He said this is because in the High Court the appellant never pleaded this omission and cannot now plead same at this stage without leave. He cited the cases of Jiddun v. Abba Abuna & anor. (2000) FWLR (pt. 24) 1405 and Okeke v. The State (2000) FWLR 2453 at 2459.

The learned counsel for the Appellant cannot justifiably impugn the finding of the learned trial Judge on the issue of whether “Way maker Properties Ltd.” is the same as “Way maker Properties” simpliciter. I say so because the status of the two establishments are fundamentally exclusive. One is a Limited Liability Company to which the Companies and Allied Matters Act would apply to, while the latter “Way maker Properties” is not a company within the companies and Allied Matters Act (CAMA). He was equally right in depending on the decision in Habib Bank Ltd. v. Benson Ochete (2001) 3 NWLR (pt. 699) 114 at 177.

Clearly the Respondent was on strong footing to contend strenuously that the defendant referred to as Way makers Properties was not them since they were a Limited Liability Company and the establishment referred to in the suit and in the receipt was not them.

I further agree with the Respondent that the appellant cannot cite error or omission in leaving out the Limited in the Way makers Properties limited since being a new dimension in the appeal they ought to have sought for and obtained the leave of this appellate court to Introduce this fresh angle of an omission In the title of who their defendant is. See A.C.B. Plc. V. Emedo (2003) 10 NWLR (pt. 828) 244 at 255; Akpene v. Barclays Bank (1977) 1 SC 37; Adigun v. Attorney-General Oyo State (No.2) (1987) 2 NWLR (pt.56) 197.

Having considered this issue I answer it in favour of the Respondent.

ISSUE NO THREE:

Learned counsel for the appellant recast the part of the judgment of the trial court on the matter of agency and said that express creation of agency can either be oral or written. He stated that agency by ratification is an act of regularizing the earlier act of an agent and such if ratified will take a retro-active effect. That such ratification can be oral or written or by conduct and when that happens in any of those ways, the principal will be estopped from denying liability as a result That the 1st Defendant had created an agency in relation with 2nd Defendant by the doctrine of estoppel.

Learned counsel further said a proper understanding of the law of agency shows that, it is a one-way traffic between the principal and the agent. That the third party is not bound in law to go into a voyage of discovering the nature and extent of the relationship between the principal and his agent ie whether it was created orally or in writing. That the third party is only bound to reasonably rely on the ostensible representation accruing from the said relationship so created.

He referred to the cases of Vulcan Gases (2001) 6 NSCCQR 481 a Supreme Court case. Freedman & Loikyer v. Buct Hurst Park Properties (Mandal) Ltd. (1964) 2 QB 480 at 502.

Learned counsel for the Appellant said that the trial court incorrectly interpreted Exhibits Band C, letters of undertaking written by the 2nd Defendant as that court did not take into consideration the fraud related deals that induced those documents.

That Exhibit A – cash receipt is an electronic form with undisputed ownership which can be regarded or considered as a pre-action document. That it is a document made when no legal proceedings is anticipated and without any effort to manipulate or correct representation to one’s advantage. That on the other hand Exhibits B and C can be regarded as documents accredited to be brain-work document which were possibly made during the legal proceeding ie arrest and detention or interrogation by the police. He further said that Exhibits B and C were erroneously relied upon by the court without the corresponding contrast and evaluation alongside Exhibit A which forms the substratum of the cause of action.

The Respondent through counsel said the learned trial Judge did not base his decision on the affidavit alone, that the learned trial Judge gave four other reasons for reaching at his judgment. That the affidavit in question has exactly the same import and meaning with Exhibit VI B and C letters of undertaking by the 2nd Defendant to the Plaintiff that he, 2nd Defendant will pay the Plaintiff the money in question (the balance of the money which is the subject matter of this suit). That these are Exhibits which the Plaintiff/Appellant, himself tendered in the court in support of his claim.

Learned counsel for the Respondent went on to say that the appellant as Plaintiff tendered these Exhibits where Defendant agreed in writing to pay the remaining N600,000.00. That same Appellant is complaining on appeal that the trial court has asked the second Defendant to pay that which he agreed with Plaintiff/Appellant to pay to Plaintiff/Appellant. Whether it can be regarded as injustice that the trial court asked the 2nd Defendant to pay a balance of money which he agreed to pay in writing and with the consent and agreement of the Plaintiff as settlement of the cause of this suit. He cited Qulanda v. Ekpechi (2003) FWLR (pt.181) 1572.

The question here is whether the 2nd Defendant is not agent of the 1st Defendant and I would like to go into the contents of some of the Exhibits. Exhibit VI ‘B’ it stated in the first part:-

“LETTER OF UNDERTAKING

I Valentine Orji of Way makers Properties has undertaken to give (balance) Mr. Vena Ikem the sum eight hundred thousand being balance for the rent he paid at total sum of N2.2m (two million, two hundred thousand) I’ve given him the sum of N1.4m (one million, four hundred thousand) by tomorrow being 13th March 2002.

Valentine Orji

(Signature) 12-03-02”.

The second part of Exhibit VI ‘B’

“Contrary to what is above, N1.3 hence the balance to be paid is N900, 000. 00.

Valentine Orji

(Signature)

Exhibit VI ‘C’

“Further to the undertaking earlier made on the 13th of March 2002 I hereby further undertake to pay the trial balance of N300,000.00 (three hundred thousand naira) on or before Friday the 22/03/02″

Valentine

(Signature)

18/03/02”

It is noted that Exhibit ‘A’ issued by the 1st Defendant bore the name “Way makers Properties” and to which the learned trial Judge made the finding based on the evidence that it was his, 1st defendants personal property not related to the 2nd Defendant and now Respondent.

I agree with the learned trial Judge that the evidence proffered did not show that an agency had been created between 1st defendant and the 2nd defendant, in any way or form 1st Defendant acted on his own and the Way makers Properties referred to in the transaction has nothing to do with the Respondent. see Vulcan Gases (2001) 6 NSCQR 481; Friedman Loikyer & Bucklurst Park Properties (Mandal Ltd. (1964) 2 QB 480 at 502.

This issue I resolve in favour of the Respondent. From all stated above I see no reason to disturb the evaluation, findings and decision of the court below. I affirm the judgment of the court below.

I order N10,000.00 to be paid to the Respondent to be paid by the Appellant.

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Other Citations: (2007)LCN/2386(CA)