The facts of this case are rather simple. Unfortunately, however, the issues have been complicated not so much by the parties than by the two Courts below.

The 1st Appellant in this appeal (hereinafter is referred to as the Company) had three landed properties each situate in each of three major cities in the country, that is, Lagos, Ibadan and Port-Harcourt. The Company desired to dispose of the three properties and engaged some estate surveyors to look for buyers. Sumbo Onitiri & Co., Estate Surveyors and Valuers (hereinafter referred to as the Firm) was one of the firms of estate surveyors and valuers commissioned by the Company to look for buyers. In Exhibit H dated 12th March 1990 addressed to the Firm, the Company wrote:

This is to inform you that it is our intention to put the following properties on sale:

You are hereby given instruction to look for prospective buyers for the Properties and Communicate to us as soon as you get them.

Please note that similar instruction is given to other Estate Agents.

We shall advise you of the terms and conditions for the sale of the properties when necessary.”

In furtherance of the instruction given in the letter above, the Firm communicated to the Company the offers of a number of prospective buyers. It would appear the Company was not satisfied with these offers except one made by an unnamed buyer whose offer of N3.5m. for the Port-Harcourt property was acceptable to the Company. The Firm requested for a formal acceptance of this offer by a board resolution of the Company. Pursuant to this request the Company’s Board on 7th November 1990 resolved as in exhibit A. Exhibit A reads:

It was RESOLVED that the offer of N3.5 Million for the sale of

AT PLOT 121/122 TRANS AMADI INDUSTRIAL LAYOUT, Property at Plot 121/122 Trans Amadi Industrial Layout, PORT HARCOURT, RIVERS STATE, Port-Harcourt, from Sumbo Onitiri & Co., Estate Surveyor & Valuers, be accepted and that Management be authorised to endorse all Legal Transfer documents.”

According to the evidence of PW1, Adesumbo Adeniyi Onitiri (undoubtedly the principal partner of the Firm), the arrangement with this prospective buyer fell through. PW1 testified at the trial of the action thus:

“By the time I wrote Exhibit ‘N’ the highest offer I had was N3.5million. When I got the offer for N3.5million, I requested for the board’s resolution, from the defendant, In order to have a clear mandate. They gave the resolution which is tendered as Exh. ‘A’.

After Exhibit ‘A’ I asked the Company that made the offer to come and pay. They gave conditions that they are going to pay a deposit and after collecting the document from U.B.A. then they pay the balance. The Company that made the offer did not fulfil the condition.”

Following the failure of that transaction the Firm looked unsuccessfully for other buyers until Plaintiff (who is Respondent in this appeal) came on the scene.

Continuing his evidence above, PW1 testified further:

“We were receiving more offers. The Plaintiff came with an offer and I accepted their offer of N4,000,000.00; they paid.”

It would appear that the Plaintiff made an offer in writing to the Firm on 2nd January, 1991. There is no averment in the pleadings nor was there evidence that this offer was ever communicated to the Company as was the practice with previous offers. Nor was there evidence that the Company, by board resolution, accepted Plaintiff’s offer. What was pleaded, and proved, was that Plaintiff’s offer was reacted to by the Firm making its own offer as per Exhibit B dated 4th January 1991 which reads:

Warehouses – 278sm

Office – 321sm

Canteen – 96sm

Gate House – 15sm

A Certified Bank Cheque for N4m in favour of INCAR NIGERIA PLC.

Looking forward to your prompt response.”

The Plaintiff accepted the offer in Exhibit B on 28th January and sent to the Firm a cheque issued in the name of ‘UNITED BANK FOR AFRICA PLC.” The Firm acknowledge receipt of the cheque on the same date, that is, 28th January 1991 and on the same date wrote Exhibit C to the Company. Exhibit C reads:

Further to our various discussions in respect of the above, please find enclosed our cheque for N4m. (Four Million Naira) being the purchase price on the above property.

The buyers are Bolex Holdings Limited and will be grateful if an official receipt is issued in favour of Bolex Holdings.

We wish to reiterate that we have been able to obtain a higher figure of N4 million as opposed to the N3.5m the Board approved in its meeting of 7th November, 1990 due to the upward trend of the economy and our relentless effort in seeing to the logical conclusion of the sale to your best interest.

We hope you will settle our fees of N250,000 (Two Hundred and Fifty Thousand Naira) inclusive of travelling and advertisement expenses soonest.”

Representatives of the Firm and the Company met and it would appear the purchase price of N4m was unacceptable to the Company who requested for additional N200,000.00. The Firm conveyed this development to the Plaintiff who agreed to pay N4.2m as purchase price to the Company. In consequence, the Firm wrote Exhibit D to the Company. Exhibit D reads:

Further to the meeting of Friday 1st February, 1991 in respect of the above between the Managing Director of Incar and Mr. Onitiri A.A., and the insistence of the Managing Director that Bolex Enterprises Nigeria Limited should increase their offer by N200,000.00.

I wish to confirm that Bolex Enterprises Nigeria Limited has now accepted to pay the N200,000.00. Thus making sale price N4.2m.

Meanwhile, the Company had received other offers in respect of the Port-Harcourt property, one of which was from the 2nd Appellant. The Company eventually sold the property to the 2nd Appellant for N4.25m see Exhibit Z, and put the 2nd Appellant possession.

Being aggrieved by this development the Plaintiff on 14/2/91 instituted the action leading to this appeal claiming against the Company:

The writ was accompanied by a statement of claim and a motion for interlocutory injunction filed on the same date.

Pleadings having been filed and exchanged the action proceeded to trial. In the course of the trial, the 2nd Appellant was, on the application of the Plaintiff, joined as 2nd Defendant in the action. The Plaintiff, with leave of Court amended the reliefs sought by it to reads:

On these findings of fact, among others, the learned trial Judge found for the Plaintiff and entered judgment in his favour. He found that “the plaintiff has in fact established its case in relation to reliefs two and three of the claims before the court against the 1st defendant,” and adjudged that “the Plaintiff therefore will be entitled to judgment sought on those two reliefs……….” He also adjudged that the Plaintiff’s claim in respect of the first relief succeeded and decreed specific performance against the Company. The other reliefs claimed by Plaintiff were equally granted.

Quite naturally, the Company and the 2nd Appellant being dissatisfied with the judgment of the trial Court appealed to the Court of Appeal. In the lead judgment of Onalaja JCA with which Okezie and Rowland, JJCA expressed consent, the findings of the trial Court were affirmed, particularly the finding that there was a concluded sale of the property in dispute on 28th January 1991. The two Defendants each has now further appealed to this Court.