Principle of Joint Representation- Effect of non-concurrence of an/some Aministrator(s) in a Contract Relating to a Deceased’s Property
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 10th Day of December, 2021
Before Their Lordships
Mary Ukaego Peter-Odili
Kudirat Motonmori Olatokunbo Kekere-Ekun
Mohammed Lawal Garba
Ibrahim Muhammed Musa Saulawa
Emmanuel Akomaye Agim
Justices, Supreme Court
SC.98/2013
Between
HON. ESEME SUNDAY EYIBOH APPELLANT
And
- DAHIRU SHEIKH MUJADDADI
- AISHA SHEIKH MUJADDADI
- TAHIR IDRIS
(SUED AS ADMINISTRATORS OF THE
ESTATE OF SHEIKH MUJADDADI)
- ALHAJI HASSAN MUHAMMAD GUSAU RESPONDENTS
“…SINCE THE RIGHT AND INTEREST OF THE ADMINISTRATORS AND ADMINISTRATRIXES OF ANY ESTATE IS JOINT IN THE ESTATE, THEY MUST OPERATE TOGETHER AND THE GIVING OF SUCH RIGHT OR INTEREST BY SOME OF THEM TO ANY ONE DOES NOT BIND THE OTHERS WHO DO NOT GIVE THEIR CONSENT HERETO”
(Lead judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)
Facts
The 1st to 3rd Respondent, as Administrators of the Estate of the deceased Sheikh Mujaddadi, offered a property belonging to the deceased at Abuja for sale sometime in 2007. The property was offered for sale at a price of N100million with five percent agency fee in the sum of N5million. The Appellant indicated interest in purchasing the property, further to which he paid the purchase price to one Jamilu Mujaddadi, one of the children of the deceased who acted as the agent of the 1st to 3rd Respondent in getting buyers for the property. Further to this, a Contract of Sale and Deed of Assignment (Exhibits A and B) were prepared and signed by the 1st and 2nd Respondent, but not signed by the 3rd Respondent. Thereafter, the Appellant declined to pay the agency fee to the 1st to 3rd Respondent and the transaction was left inconclusive.
Subsequent to the above, the 4th Respondent, who had equally indicated interest in the property, accepted the 1st to 3rd Respondent’s offer and furnished consideration by paying the purchase price as well as the agency fee. In view of this, the 1st to 3rd Respondent executed a Contract of Sale, Deed of Assignment and Power of Attorney in respect of the property in favour of the 4th Respondent.
The Appellant, who had already taken possession of the property, albeit without concluding the transaction, became aware of the sale of the property to another person and immediately commenced proceedings at the High Court of the Federal Capital Territory, Abuja. He sought inter alia, a declaration that there was a valid and subsisting contract of sale of the subject property between him and the 1st to 3rd Respondent. He also sought an Order of specific performance of the contract of sale. The Respondents, in their joint defence, averred that the transaction with the Appellant was not concluded and that the agreement with him was void as only two out of the three Administrators signed Exhibits A and B.
At the conclusion of the trial, the court dismissed the Appellant’s suit on the basis that there was no valid contract between the Appellant and the 1st to 3rd Respondent as there was no evidence of concurrence by all the Administrators in the purported sale to the Appellant; hence, the Contract of Sale and Deed of Assignment which were signed by two out of the three Administrators were void. The trial court also found that there was no evidence to prove that the Appellant made payment to the 1st to 3rd Respondent. Aggrieved, the Appellant appealed to the Court of Appeal, which court agreed with the findings of the trial court and dismissed the appeal. The Appellant filed a further appeal to the Supreme Court.
Issue for Determination
The Supreme Court determined the appeal on the basis of the following sole issue:
Whether the learned Justices of the Court of Appeal were right when they held that there was no valid and enforceable contract between the Appellant and the 1stto 3rd Respondent for the sale of the property in dispute to the Appellant.
Arguments
Counsel for the Appellant argued that once all the Administrators had agreed to the sale, the property could be conveyed by one or more of them and the fact that the Exhibits A and B were not signed by the 3rd Defendant did not vitiate the contract. He submitted that the 1st and 2nd Respondents had the legal capacity to contract on behalf of the three Administrators and the receipt clause in the Deed of Assignment was sufficient proof that they received the purchase price of N100million he paid to Jamilu Mujaddadi who acted as their agent in the said sale. He contended that notwithstanding the non-execution of the documents by the 3rd Respondent, the terms in the documents are binding on all the Administrators, based on the doctrine of sanctity of contract. Counsel argued further that the decision of the lower court to treat the five percent agency fee as part of the condition for the sale of the property was erroneous because neither of the two documents (Exhibits A and B) which regulated the sale provided for payment of agency fee.
Conversely, counsel for the Respondents argued that based on the principle of joint representation, Administrators of an Estate must act jointly and not severally; hence, in the absence of the 3rd Respondent’s signature and concurrence, the Contract of Sale and Deed of Assignment furnished by the Appellant cannot be said to constitute a valid contract. He cited YUSUF v DADA & ORS (1990) 2 NSCC 125 at 144. Counsel argued further that based on the established law that an agent cannot conclude a sale on behalf of his principal, the said Jamilu, who was designated as an agent for the purpose of finding a buyer, did not have the legal capacity or authority to sell the property or receive the purchase price. He submitted that there was no evidence of acceptance, payment of consideration to the 1st to 3rd Respondent or meeting of minds between the Appellant and the 1st to 3rd Respondent. Thus, they had no obligation to pass the property to the Appellant since he had not fulfilled the conditions agreed upon; they were at liberty to have treated the contract as extinguished and consequently sold the property to the 4th Respondent. Counsel posited further that the five percent agency fee had been expressed as a condition precedent and it need not be inserted as a clause in Exhibits A and B.
Court’s Judgement and Rationale
The court reiterated the settled principle of law that for there to be a valid contract, certain ingredients – offer, acceptance, consideration, intention to create legal relations and capacity to contract; must exist and be conjunctively present and the absence of any of these ingredients will vitiate the contract. For a contract to be enforceable, there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled – OMEGA BANK (NIG) PLC v O.B.C LTD (2005) 8 NWLR (Pt. 928) 547 at 583.
On the 1st and 2nd Respondent’s capacity to contract as Administrators of the deceased’s estate without the concurrence of the 3rd Respondent, the court relied on its decisions in YUSUF v DADA & 3 ORS. (1990) 3 N.S.C.C. 125 at 144, LINES 1-14 and IBRAHIM v OJOMO (2004) 4 NWLR (Pt. 862) 115 -116 & 117 -1 18, that where more than one executor or administrator are appointed to administer the estate of a deceased person, the joint office should be treated as that of an individual person and they have a joint and entire interest (real or personal) in the estate which is incapable of being divided. The representation of the estate is joint and indivisible and the executors or administrators must agree and act in concurrence in their representation and administration of the estate. Hence, since the rights and interest of the administrators or administratrixes of any estate is joint in the estate, they must operate together and giving out such right or interest by some of them to any one does not bind the others who do not give their consent thereto.
Regarding the Appellant’s argument that Exhibits A and B constituted a valid contract of sale and conveyance of the subject property in his favour regardless of the non-execution of same by the 3rd Respondent, the apex court called in aid the general principle of law as stated in WILLIAMS AND MORTIMERS: Executors, Administrators and Probate, 1970 Edition at page 463 and espoused in Section of 4(2) of the Administration of Estates Law, Cap 2, Laws of Lagos State 1973, that where there are two or more personal representatives, a conveyance of real estate shall not, except as otherwise provided in respect of trust estates, be made without the concurrence of all of them. The court held that the 1st and 2nd Respondents did not have the legal capacity to contract as Administrators of the estate without the concurrence of the 3rd Respondent. More so, as the 1st to 3rd Respondent pleaded and led evidence to the effect that the 1st and 2nd Respondents signed Exhibits A and B on the understanding that the Appellant was prepared to pay the purchase price with the agency fee and once he had furnished the said consideration, the documents would be delivered to the 3rd Respondent for his own signature, and this never happened.
Deciding on the issue of the authority and legal capacity of the said Jamilu to sell the property or receive the purchase price, the court held that where an agency is created for the expressed purpose of searching for and securing a prospective purchaser of a property, the agent cannot exceed the scope of his agency to sell the property. The fact that the agent is one of the heirs or beneficiaries of the property administered by Administrators appointed by Letters of Administration does not change his status as an agent for the sole purpose of securing a buyer for the property. He cannot negotiate the sale or collect the purchase price or prepare the conveyance without the legally recognised written authority of the Administrators to do so – INCAR NIG PLC v BOLEX ENG. NIG (2001) 12 NWLR (Pt. 728) 648 at 680, 681-682.
Their Lordships held that the evidence on record showed that members of the deceased’s family, including the said Jamilu whom the Appellant purportedly paid the purchase price to, were only instructed to look for possible buyers for the property and notify the 1st to 3rd Respondent once any had been found and Jamilu did not have the authority or legal capacity to conclude the sale. There was also no evidence that the money was paid to the 1st to 3rd Respondent. The only evidence available showed that payment was made to Jamilu who had no authority to conclude the sale of the property or receive the purchase price. Furthermore, apart from paying the purchase price to Jamilu who did not have the legal capacity to conclude the sale, the Appellant declined to pay the five percent agency fee which was an important term in the contract. It cannot therefore be said that consideration, which is a vital ingredient of the contract, was fulfilled.
In conclusion, the court held that the Appellant having failed to establish that there was acceptance, consideration, meeting of minds, capacity to contract with respect to the purported sale of the subject property to him; he cannot claim the existence of a valid or enforceable contract that could give birth to Exhibits A and B.
Appeal dismissed.
Representation
Paul Erokoro, SAN with O. Ituen Esq., G. Obeten Esq., and U. Onyewe Esq. for the Appellant.
- J. Usman Esq. with Eko Ejembi Eko, H.I. Hassan Esq., A.O.F. Phillip Esq., and J.A. Sambo Esq. for the Respondents.
Reported by Optimum Publishers Limited
Publishers of the Nigerian Monthly Law Reports (NMLR)
(An affiliate of Babalakin & Co.)