Panar Limited V. Collins O. Wagbara (1999)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal by the defendant before the Rivers State High Court (M.U. Odili, J). The respondent’s case before that court was that the appellant commissioned him to effect repairs to some equipment and machinery at the jetty of the former. He was also required to find buyers for the equipment and machinery at the jetty itself. For each sale he brought about by introducing the buyer he was entitled to 10% of the net price. He introduced two companies, Aeromaritime Ltd. and Pelfac Nig. Ltd., that brought up every thing at a total of N19,134,000.00. He brought this action to recover 10% of this, which came to N1,913,400.00.
The appellant’s defence before the trial court was that the sale was effected by direct negotiations between it and the two buyer companies without the agency of the respondent.
The respondent called three witnesses while the appellant called two. After hearing addresses by counsel the learned judge in a reserved judgment allowed the respondent’s claim and awarded him the full amount claimed.
From the grounds of appeal contained in the amended Notice of Appeal the following 4 issues were formulated on behalf of the appellant.
“1. Whether it was proper for the learned trial judge to rely on a document evidenced as exhibit A to award 10% commission/brokerage fee when the said exhibit did not provide for such commission/brokerage fee.
ii. Whether it was proper for the trial court to award the respondent 10% commission/brokerage fee based on quantum meruit when the said 10% was not contemplated by the parties in this matter.
iii. Whether it was proper for the court to adjudge that the respondent was entitled to 10% commission/brokerage fee in spite of the fact that exhibit U clearly evidenced that the appellant equipment and jelly were sold through Deck Nigeria Limited and not the respondent.
iv. Whether it was proper in law for the learned trial judge to infer that the respondent is entitled to 10% commission in spite of the fact that the respondent’s witness admitted that he received the sum of N25,000 (Twenty Five Thousand Naira) from the appellant as brokerage fee for the appellant’s assets purchased by Aeromaritime Nigeria Limited.”
The respondents did not formulate any issues, being content to reply to the appeal on the basis of the ones formulated on behalf of the appellant.
Before us, counsel for the parties adopted their respective briefs of argument. On the first issue formulated in the appellant’s brief the main submission of learned Senior Advocate of Nigeria was that the trial Judge was wrong in holding that the parties had agreed that the rate of commission payable to the respondent should be 10% of whatever item was sold for. According to the Senior Advocate, as Exh. A i.e., the letter from the appellant to the respondent informing the latter that commission would be payable on each sale, did not contain the amount or rate of the commission, it was wrong of the court to have imported it on the basis of oral evidence. Exh. A, he pointed out was a complete document that embodied the terms of their contractual relationships. Therefore, he submitted, extrinsic evidence was not admissible to add to, vary, subtract from or contradict those terms.
In the respondent’s brief, Mr. E. Adele submitted that the trial court was perfectly justified in the way it treated Exh. A. He argued that the court acted properly in relying on the evidence on PW1, PW2 and PW3 in addition to Exh. A
to find out exactly what the agreement between the parties was.
Now, this was how the learned trial judge resolved the issue before her.
“The Plaintiff laid oral evidence to the effect that he had agreed with the managing director for 10% of the sales price of such equipments and machinery sold. The tone of the letter in the very beginning Exhibit A stated ‘I confirm’ showing that there had either been an earlier discussion of the matter in exhibit A or such earlier arrangement between the parties. It is not strange if the plaintiff says in evidence that a part of their arrangement had been omitted in exhibit A that is to say the percentage of the commission. This the defendant needed to challenge by the evidence of no other than the managing director, Mr. Dadlani or who ever was acting in that capacity. It is not enough to bring persons way alone the line to say there was no such arrangement and whose only source of information were the correspondences they saw. The court is fully aware that where evidence which could have been produced is not produced, the court may by virtue of Section 148(d) of the Evidence Act and so perceive that it is un favourable to the party who ought to have produce it. Per Achike JCA in Uzuegbu v. Progress Bank (Nig.) Limited (1988) 4 NWLR part 87 p. 236.
The Plaintiffs assertion of 10% commission which he said he had not allowed its commission in the document, Exhibit A deter him in view of his relationship with the managing director Mr. Dadlani which relationship is evident in the correspondences between him and the said Mr. Dadlani. The Defendant needed strong evidence in rebuttal. Again not rebutted with the necessary evidence of officers from the two major purchasers – Aeromaritime and Pelfaco Nigeria Limited and so the plaintiff had fulfiled the precedent in exhibit A which entitled to him the commission. Again the managing director should have come to testify or at least Mr. Goswani whose name surfaced in evidence of the plaintiff at every point, even from evidence of the defence witnesses as both parties were not in dispute that he was an officer of the defendant who cooperated with the plaintiff at the base throughout the repair work and the completion of sale of equipment and machinery and the jetty itself.
… From the totality of the evidence before me and the judicial authorities in place this is one of the circumstances in which documentary must be interpreted in the light of the surrounding circumstances and oral evidence is necessary.”
Before I express an opinion I must observe that indeed, as harped on by the appellant’s counsel, Exh. A does not state anywhere on its face what the rate of commission was to be. There was no doubt, however, that the appellant offered to pay and the respondent accepted to be paid a commission for any sale brought about by the latter. That much is clear on the face of the document. The plaintiff, as PW1, testified that he confronted the appellant’s managing director as to why he did not reflect the fact that the agreed rate of commission was 10% of each sale and the latter said it was a mistake by his typist. I observe that the appellant has challenged the reception of this piece of evidence not on the ground that the conversation did not take place but on the ground that it cannot be received to vary Exh. A. The finding by the learned trial Judge that the conversation took place therefore stands.
Considering all these factors, I have no difficulty in holding that the learned trial Judge was right in reading Exh. A in the light of the oral evidence of PW1. Exh. A in the light of the oral evidence of PW1. Exh. A clearly cannot be said to be a compete document embodying all the terms of the relationship between the parties. The document went only as far as stipulating that there was to be commission payable to the respondent. It did not state what the rate of the commission was to be. PW1 testified and the trial court believed him, that the parties go together after Exh. A had been written and brought the agreement to conclusion by agreeing orally on what the rate of commission was to be, I agree with the learned trial Judge that appellant should have challenged or produced contrary against which she could have considered PW1’s evidence. For these reasons I resolved this issue in favour of the respondent and against the appellant.
The complaint raised on the second issue is against the reference by the learned Judge to the question of quantum meruit. Relying on Olaopa v. OAU (1997) 7 NWLR (pt. 512) 204 at 221 the learned Senior Advocate submitted that the learned trial Judge was grossly in error in upholding the doctrine of quantum meruit.
The simple answer to this by learned counsel for the respondent was that the learned trial Judge was right in the award she made to the respondents having regard to the latter’s claim before the court.
Counsel pointed out that the respondent was entitled to the value of work he had done. The observation of the learned judge that is subject of this complaint is as follows:
“Indeed the issue of quantum merit raised by plaintiffs counsel is favourable as supported by Exhibit A which dealt with payment for work done and even from the overwhelming evidence of plaintiff showing the extensive work he had done, every dissipated and the period of time of involvement spanning about 8 months.”
I do not, in the circumstances, see why this should give rise to any controversy. All that the respondent’s counsel said and which the learned Judge agreed with was that the respondent ought to be paid to the extent of which he had worked. It is true that the doctrine of quantum meruit normally comes into play when for some reason the contract for service cannot be completed. In such case the value of the services rendered up to the point where the contract failed is ascertained and paid to the contractor. It is not normal to refer to the doctrine when the claim is for the full agreed contract price at the satisfactory conclusion of the job contracted. The claim of the respondent before the trial court was that he satisfactorily concluded the job contracted to him and was, therefore, entitled to the full contract sum. Quantum meruit did not arise at all. But I do not see how that should be ground for setting aside the judgment now on appeal, which was based on other more substantial grounds.
There is no merit in the complaint here and the issue is resolved against the appellant.
The third issue concerns Exh. U. This was a letter alleged to be from one the companies that bought some of the items on sale. It purported to inform the appellant, among other things, that the transaction between them had been affected through the agency of another company. The trial court did not place much store on it for two main reasons. Firstly, it conflicted with paragraph 3 of the appellant’s statement of defence in which it was pleaded that the appellant had dealt directly with the buyer companies and not through any intermediary. The appellant seems to be labouring under a serious misapprehension of facts. It seems to think that it amended its statement of defence before the trial court. Although a motion for such amendment was filed there is nothing on the record to show that the motion was ever argued or granted. The learned judge did not consider herself as hearing the case on any amended statement of defence. Hence her reference in the judgment to the paragraph of the statement of defence where it was pleaded that the defendant had dealt directly with the buyer companies.
The second ground on which the court did not place much store on Exh. U was the existence of Exh. D. This was an acknowledgment by PW2 as having received commission on the net of some of the equipment to Aeromaritime, one of the two buyer companies; PW2 was an associate of the respondent. The learned judge held that the existence of Exh. D which was tendered through PW2 by appellant’s counsel made Exh. U doubtful.
Having myself seen Exhs. D and U and the circumstances in which the former came before the court, and paragraph 4 (not 3 as the Judge said) of the statement of defence, I cannot say that the learned judge was not justified in believing that it was the plaintiff and his associate that brought about the sale to Aeromaritime.
I resolve this issue also against the appellant.
The fourth and final issue raises the complaint about the learned trial Judge’s award of the full amount claimed when the respondent’s associate, admitted by Exh. D that be bad already been paid part of the commission due on the transactions.
I think the appellant has a point here. Respondent’s counsel undertook an uphill task when this rests brief he argued that the N25,000.00 be admitted receiving from the defendants represented bills for out of pocket expenses. Unfortunately for the respondent, counsel on his behalf tendered Exb. D. The typewritten portion that PW2 admitted typing and signing is clear in its message. It was addressed to the defendant. The porting PW2 admitted making reads:
“Re: Manitowec Games Aeromaritime
I, Mr. Rutberford S. Ejiyerakpo received a cheque No. 017691.
This amount represent (sic) the commission on the net sale value of the above cranes to Aeromaritime.
I am grateful for the transaction and I believe this is a sign of a more fruitful relationship in the future.
Yours faithfully,
Rurherford s. Ejirakpo.”
In the face of this italised words, how can PW2 expect anybody to believe him that the money he collected was for his out of pocket expenses. He clearly stated at a time when litigation was not contemplated that the amount represented commission. His testimony in court singing a different tune must he recognised for what it is – an afterthought.
I cannot however, go along with the appellant on the submission by the learned Senior Advocate that the amount paid to PW2 represented commission on the entire transaction Exh. 0 speaks for itself. It is commission only on the net sale of the manitowec cranes. Having said this, I must agree with the appellant that credit ought to have been given to the appellant for the N25,000.00 paid to the plaintiff through his associate, PW2. To this extent only, I resolve this issue in favour of the appellant.
The end result is that the appeal as it relates to the learned trial judge’s conclusion that the agreed rate of commission or brokerage was 10% and that the plaintiff was instrumental to the sales to the two companies is dismissed. The conclusions are affirmed. The appeal as it relates to the award of the full N1.913.000.00 is allowed. The order making that award is set aside. In its place, I make the order awarding to the respondent N1,913,000.00 less N25,000.00 already paid. That comes to N1,888,400.00. The appellant shall pay costs of this appeal assessed at N 1.000.00 to the respondent.
Other Citations: (1999)LCN/0493(CA)
