JOHN EGYIR AGGREY (PLAINTIFF) vs. GIFTY BROWN—AYAH (DEFENDANT) [2019]DLHC7044

Date	2019-03-13
Suit No.	SUIT N0. E3/16/18
Citation No.	[2019]DLHC7044

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

J.E.K. ABEKAH ESQ. FOR THE PLAINTIFF.

KOFI DIABA ESQ. FOR THE DEFENDANT.

[2019]DLHC7044
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													<main id="main" class="content" style="min-height: 60rem" >JOHN EGYIR AGGREY<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GIFTY BROWN—AYAH<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, SEKONDI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
N0. E3/16/18&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 13TH
MARCH, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.E.K.
ABEKAH ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KOFI DIABA ESQ. FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The key legal issue I am to
determine in this matter is whether or not an estate agent appointed by an
owner to sell a house could also act as agent to the buyer and receive
commission from both as principals. The rest of the matters in question are
mainly factual and turned to admit of little controversy at the close of the
trial. <o:p></o:p>Some time in June 2017, one Madam
Hannah Ehun Amu contracted the plaintiff an estate agent to find a buyer for
her 3- bedroom property situate at Anaji- Morning Glory School area. The
plaintiff acting on this engagement posted his contact on the property. Through
a witness in this case, the defendant, a prospective buyer came into contact
with the plaintiff who arranged for the property to be inspected. Upon
expressing interest in buying the property the parties met at the plaintiff’s
offices where the defendant was made to execute a document committing her to
pay 10% of the purchase price to the plaintiff as her agent. This document
tendered at the trial as Exhibit G forms the basis of the plaintiff’s claim
against the defendant.<o:p></o:p>Eventually, the sale of the property
took place and the negotiated price of 300,000 GHC was paid by the defendant to
the owner. Contrary to the terms of exhibit G however, the defendant offered to
pay to the plaintiff 1000 GHC as according to her the plaintiff had agreed to
take something as “a gift” the terms of exhibit G having been agreed to be
treated as a mere formality.<o:p></o:p>The plaintiff rejects this position
and by his writ, seeks to recover the sum of 30,000 GHC in terms of exhibit G.<o:p></o:p>It ought to be understood from the
onset that agency is always based on contract whose terms within the context of
general principles of law govern the rights of the parties. The Learned Authors
of Halsbury’s Laws of England 4th edition Volume 1 paragraph 115 put
it this way:<o:p></o:p>“Contractual
basis of right:<o:p></o:p>An
agent has no right to receive remuneration from his principal unless there is a
contract express or implied to that effect. When the parties have made an
express contract for remuneration, the amount of remuneration and the
conditions under which it will become payable must be established by reference
to the terms of the contract..”<o:p></o:p>The plaintiff relies on exhibit G as
the contractual basis of the claim. In his evidence, he testifies:<o:p></o:p>“That
later on, Nana and the defendant came to my office that is the Progressive Real
Estate Agency. I explained to them about my conditions (terms) associated with
purchasing a house from me. So I gave the defendant my forms which contained
the terms associated with the purchase or rental of property from me to read.
She read same accordingly and signed, and I also signed..”<o:p></o:p>Exhibit G is not designated as a
contract document. It is titled “Registration Form”. On the face of it, an
applicant is supposed to provide his or her personal details such as name,
address, occupation, telephone number, tribe and nationality. There is however
a space to indicate the particular area an applicant wants a property to rent
or purchase, the type of property wanted, whether it is to be purchased, leased
or rented and the amount an applicant can afford. In addition, there are terms
on the commission payable depending on the kind of transaction being
negotiated.<o:p></o:p>From what I read, though the
document is titled Registration Form, it contains terms material to constitute
a contract document between the parties. I therefore find that exhibit G is a
contract document.<o:p></o:p>I also observe that portions of the
forms relative to the property in question was not completed. This I consider
not fatal. At the time of completing the form, the property had been inspected
and parties knew the type of property being transacted for, where it was
located and the fact that the defendant intended purchasing it.<o:p></o:p>The question is about the
enforceability of the agreement particularly the obligation to pay the 10%
commission given that there was a prior existing contract of agency between the
same plaintiff and the owner of the property (DW1).<o:p></o:p>There has also been some controversy
about what was said concerning the 10% commission at the signing of the
document. There is no doubt the defendant signed exhibit G. She however says
that the obligation to pay the 10% was agreed not to be binding. Her evidence
on this is as follows:<o:p></o:p>“When
I met the plaintiff to receive the offer letter, the plaintiff gave me a form
to fill and sign before releasing the offer letter to me. I saw the portion on
the form indicating “10% commission” and decided not to sign but the plaintiff
told me it was just a formality as he was not charging me that commission but
he would take whatever “gift</main>