CYRIL ROBERT HALM VS MULTICHOICE GHANA LTD & ANOR (H1/174/2022) [2022] GHACA 159 (15 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD 2022 CORAM: 1. DENNIS ADJEI J. A (PRESIDING) 2. MERLEY A. WOOD (MRS), J. A 3. ERIC BAAH J. A CIVIL APPEAL NO H1/174/2022 DATE: THURSDAY, 15TH DECEMBER, 2022 CYRIL ROBERT HALM === PLAINTIFF/RESPONDENT VRS 1. MULTICHOICE GHANA LTD 2. NANA BOADU AYEBOAFO === DEFENDANTS/APPELLANTS =================================================================== =================================================================== JUDGMENT M. WOOD (MRS), JA In this appeal against the judgment of the High Court, Accra, delivered on 16th June 2020, the 1st Defendant/Appellant seeks the setting aside of the aforesaid judgment in which he was ordered to pay One Hundred and Twenty Five Thousand US dollars ($125,000.00) together with an interest from 13th September 2012 till date of final payment to the Plaintiff/Respondent. The matters that have given rise to the instant appeal are as follows: By a writ of Summons together with an accompanying Statement of Claim filed on 18th June 2013 which was amended on 22nd June 2015 and on 10th February 2017, claiming jointly and severally against the Defendants for the following reliefs: 1. An order for the recovery of the sum of One Hundred and Twenty Thousand United States Dollars (US$125,000.00) being 5 percent commission owed to the Plaintiff. 2. Interest on the said sum at the prevailing bank interest rate from September 2012 to the date of final payment. 3. Costs on a full indemnity basis. 4. Further reliefs as the Court may deem fit. The Plaintiff/Respondent (hereinafter referred to alternately as Plaintiff or Respondent) is an estate agent who trades under the name and style of Robert Halm Consult while the 1st Defendant/Appellant (hereinafter referred to alternately as the 1st Defendant or Appellant) is a limited liability company which engages in the business of providing multi-channel pay television platforms to its subscribers. The 2nd Defendant is a traditional chief and a property developer. It is the Plaintiff’s case in pleading that sometime in July 2012, he was contacted by Andrew Prah, the architect of the 1st Defendant regarding the possibility of finding a property on the N1 Highway for the 1st Defendant to buy. After a diligent search, the Plaintiff found one and after making the necessary checks on the said property, he found out that it belonged to the 2nd Defendant. He therefore met the General Manager together with the architect Andrew Prah at the locus and after inspection it was agreed that the Plaintiff should find the owner and commence the negotiations. The Plaintiff’s agents made contact with the 2nd Defendant through one Mr. Osei and enquired whether he was interested in selling. Having received the affirmation of the owner being willing to sell, he together with Eddie Owusu then a board member and senior managerial officer of the Appellant and two others held a meeting with the 2nd Defendant at his residence. The 2nd Defendant at the meeting pegged the purchase price at US$3,000,000.00 and agreed to pay the Respondent a 5% commission and this information was communicated to the 1at Defendant through its Managing Director who also promised to pay him a commission of 5%. Subsequently, he avers that the 1st Defendant called asking for the 2nd Defendant’s number urgently because one Yaw Boakye claimed to know the 2nd Defendant very well could convince him to reduce the price and gave him the number. His friend who was with him advised him not to give the number of the 2nd Defendant out but he gave it to the 1st Defendant’s managing director in utmost good faith. The 1st Defendant/Appellant who denied all the material allegations claims that it was rather the Respondent who approached the Appellant about the sale of the land. He admits that it was the Respondent who provided it with the site plan of the land but that the Respondent only gave the name of the vendor as Nana. The 1st Defendant claims that with just the name Nana in hand, they contacted Yaw Boakye who provided him the contacts of the 2nd Defendant after which they dealt with the 2nd Defendant. He averred that the land belonged to West African Hardwoods Limited and that if the Plaintiff had brokered the deal, he would have known that the 2nd Defendant was not the owner. The Appellant contends that it was after the deal had been concluded that the Respondent started asking the Appellant’s General Manager for finder’s fees but he declined to pay because there was no agreement between the Appellant and the Respondent. The 2nd Defendant denied having any business dealings with the Respondent and claims that many agents came to him in respect of the sale of land, but he did not enter into any agreement with any of them. He claims not to have had any contract with the Respondent. The Reply to 2nd Defendant’s Statement of Defence among others is that the Plaintiff first made his first contact with Andrew Prah through his friend Eddie Owusu who had earlier been contacted by the said Andrew Prah and told that the Appellant was looking for a parcel of land to buy. It was Eddie Owusu who linked up the Plaintiff and Andrew Prah at a meeting at Legon where the Plaintiff together with Andrew Prah and Eddie Owusu met and discussed all modalities regarding the sourcing for the property by the Plaintiff. At the end of the full trial, the judge rendered his judgment in which he stated thus at page 354 of the Record of Appeal: “On the totality of the evidence on record, I find that there is no record of any agreement between the Plaintiff and the 2nd Defendant. On the other hand, there is abundance of evidence on record that the 1st Defendant needed a suitable land and contracted the Plaintiff who together with others found the property belonging to the 2nd Defendant. Per the evidence on record, it was the Plaintiff whose effort led to the finding of the property. At the time the Plaintiff was doing the search for the property he was acting as an estate agent known to the 1st Defendant. The 1st Defendant expected some remuneration to be given to the Plaintiff as per exhibit ID1 except that he 1st Defendant wanted some contribution from the 2nd Defendant. Having ruled otherwise it stands to reason that any commission that the Plaintiff is entitled should be visited on the 1st Defendant. In this regard, the other issues raised does (sic) not become necessary. Per the totality of the evidence on records an agent like the Plaintiff was entitled between 5-10% of the cost of the property. To that extent I find that the Plaintiff is entitled to 5% commission of the cost of the property from the 1st Defendant. That would be $125,000.00 in its cedis equivalent. That would be $125,000.00 in its cedis equivalent Accordingly I would order the 1st Defendant to pay the said amount to the Plaintiff together with interest at the prevailing bank rate from 13th September 2012 till final date of payment..” Dissatisfied with and aggrieved by the judgment of the court, the 1st Defendant/Appellant has appealed to this Court as per the Notice of Appeal filed on 7th September, 2018 and an Amended Notice of Appeal filed on 9th October 2018. The grounds of appeal are as follows: GROUNDS OF APPEAL (I) (II) The judgment is against the weight of evidence. The trial judge erred in law by holding that the Plaintiff/Respondent is entitled to payment of 5% of the purchase of the 2nd Defendant’s property in the sum of $125,000.00 as commission as there was no binding written contract or oral agreement between the Appellant and the Plaintiff/Respondent to that effect. (III) The trial judge gravely misdirected himself by suo moto deciding to foist a commission to be paid to the Plaintiff/Respondent since the Plaintiff/Respondent neither claimed on a quantum meruit basis nor led any evidence to establish the value of the service rendered by him. (IV) The trial judge gravely misdirected himself by holding that on the totality of evidence an agent like the Plaintiff/Respondent was entitled to payment of 5- 10% of the cost of the purchase price of the 2nd Defendant’s property where this cannot be supported by evidence on record. (V) The trial judge grossly misdirected himself in law by holding that even though the Plaintiff/Respondent did not broker the sale of the 2nd Defendant’s property to the Appellant the Plaintiff/Respondent was still entitled to payment of $125,000 as commission. (VI) The trial judge erred in law by imposing liability on the Appellant to pay to the Plaintiff 5% commission of the value of the property when he held that even though the Plaintiff had located the property as belonging to the 2nd Defendant, it was Yaw Boakye who contacted the 2nd Defendant and negotiated the reduction of the purchase price. (VII) The trial judge having found that the 2nd Defendant agreed to pay agency fees whiles the Appellant pays withholding tax erred when he held that any commission that the Plaintiff is entitled should be visited on the 1st Defendant. RELIEF SOUGHT FROM THE COURT OF APPEAL To set aside the judgment of the High Court (General Jurisdiction) complained of in paragraph 2 and all orders made pursuant to the judgment. Counsel for the Appellant argued the first five grounds of appeal together. He contended that the facts which are not in dispute are that it was the Respondent who informed the Appellant that the land was for sale; the Respondent did not broker the transaction; it was Yaw Boakye who helped the Appellant trace and contact the 2nd Defendant and negotiate a reduction of the purchase price and there was no agreement requiring the Appellant to pay the Respondent 5% of the purchase price of the property for his services. It is the submission of Counsel that every appeal is by way or rehearing and an appellate court must be slow in interfering with findings of fact made by a trial court and that when an Appellant contends that the judgment is against the weight of evidence then the appellate court has to consider the totality of the evidence on record including all documents tendered in evidence or rejected and to find out whether or not the trial court came to the right conclusion by properly applying the law to the facts on record. He referred to the cases of Ackah vrs Pergah Transport Ltd [2010] SCGLR 728 and Koglex Ltd (No2) vrs Field [2000] SCGLR 175. He argued that the Learned Trial Judge even though the parties were still negotiating the remuneration payable as evidenced by the Respondent’s email to the Appellant General Manager Exhibit B and the response of the Respondent dated 14th September 2012, ignored this piece of evidence and imposed a contract as well as a remuneration to be paid to the Appellant who had not led any evidence to establish the value of the services rendered which was informing the Appellant that the land was for sale, showing the location to the Appellant and informing him that the owner of the land was a chief in the Ashanti region. He referred to the case of Hammond vrs Ainooson [1974] 1 GLR 176; Caraconsult vrs James Butler-Aggrey dated 4th November 2010 Appeal No H1/13/10 CA (Unreported); Skanka Jensen International vrs Klimatechnik Engineering Ltd [2003-2004] 2 SCGLR 698. The principle from the above authorities, he argued, is that where a party does work for another with the expectation of executing a contract or the assumption that a contract exists but no contract is concluded, that party would be entitled to reasonable compensation for work done to be assessed by the court and not to an assessment of compensation based on the contract rate. Further, a court on its own cannot decide to agree on a commission or fee to be paid on quantum meruit basis without taking evidence to establish the value of the services. He argued that since the contract was not concluded, the trial judge was duty bound to receive evidence on the value of the services actually rendered by the Respondent for the benefit of the Appellant before making any award and this he failed to do. He contended that the Respondent failed to discharge the burden of producing sufficient evidence, to establish that he was entitled on a quantum meruit basis to the award of the sum of US$125,000.00 as the value of services rendered to him. It is his further argument that the trial judge’s reasoning is flawed because he assumed that it is true or right that estate agents are entitled to 5% of the purchase price. Counsel also contended that the trial judge misdirected himself by suo moto deciding to foist a commission to be paid to the Respondent on the Appellant since the Respondent neither claimed on a quantum meruit basis for reasonable compensation nor led any evidence to establish the value of the service rendered by him and that the trial judge misdirected himself by holding that on the totality of the evidence the Respondent was entitled to 5%-10%. Also, he erred by holding that the Respondent was entitled to be paid. He also contended that the trial judge substituted the Respondent’s case proprio motu and accepted a case contrary to what the Respondent himself put forward. Responding to the arguments of his opposite number, Counsel for the Respondent begins by arguing Ground 2 first. His response to the argument that because there was no written contract the Respondent did not have anything to do with the transaction, is that it is trite that a contract cannot be invalidated on the basis that the contract is not in writing and he refers to section 11 of the Contracts Act, 1960 (Act 25) and the case of Sowah vrs Bank for Housing and Construction and Another [1982-83] GLR 1324. It is his case that the Respondent in support of his case testified in person and called three other witnesses namely PW1, PW2 and PW3 and the tendering of Exhibit B, exhibit C being the search report from the Registrar General’s Department. He further contended that from the cross examination of the Appellant himself by Counsel for the 2nd Defendant found at page 186 of the record of appeal, the Appellant admitted that it was the Respondent who led him onto the land. He further argues that the existence of a contract is further affirmed by Exhibit B which is the email exchange between the Respondent and the Appellant through its Managing Director in which the Respondent recounted how the contract came into being and how apprehensive he was that the Appellant and 2nd Defendant will not pay the agency fees so they were waiting to see how much 2nd Defendant would give. It is Counsel’s submission while responding to Grounds 3 and 4 together that the issue of the commission was pleaded in paragraphs 15 and 21 of the Amended Statement of Claim filed on 10th February 2017 as well as relief (1) on the writ of summons and statement of claim. He further contends that the Plaintiff testified on this issue at pages 67 and 84 of the record of appeal and that this was categorically stated in Exhibit B and corroborated by the Appellant’s representative and Andrew Prah DW1 at pages 207-208 and 210 of the record of appeal. It is his argument that from the Appellant’s own admission, the Respondent had from the onset told them that his fees would be 5% of the purchase price and that the Appellant did not make any counteroffer but rather instructed the Respondent to proceed with the contract and therefore it lies foul in his mouth to say there was no agreement as to the fees for it is borne out of the record. Regarding Ground Five, it is his argument that the trial judge found as a fact that the Plaintiff was a broker in the transaction. He then defines who a broker is and cites cases in support thereof and contends that the Respondent and his witnesses have testified that when they met the 2nd Defendant, they told him that the Respondent was an agent of the Appellant and also asked the 2nd Defendant if he had an agent to which he responded in the negative. They further testified that the Respondent asked him if he wanted him to be his agent to which he responded in the affirmative. That being the case therefore, he concludes that at this point, the 2nd Defendant knew that the Respondent was already acting as the agent of the Appellant when he affirmed his appointment as his agent and also that the entirety of the Appellant’s testimony coupled with Exhibit B is clear that the Respondent was acting as a dual agent for the parties to the transaction. Counsel refers to the book entitled “Management of a Sales Force” 12th edition by Spiro, Rosann L; Stanton, William J; Rich, Gregory A. as follows: “A broker is an independent party, whose services are used extensively in some industries. A broker’s prime responsibility is to bring sellers and buyers together and thus a broker is the third person facilitator between a buyer and a seller. An example would be a real estate broker who facilitates the sale of a property.” He refers to the case of Brandt vrs Koepnick 2 WN. APP 671,674, 469 P.2D 189 (1970) where it was held that “a dual agency relationship while extremely delicate is permissible when both parties have full knowledge of facts and consent thereto.” In arguing Ground 6, Counsel for the Respondent submits that the Appellant led no evidence as to the alleged role played by Yaw Boakye since in his Statement of Defence found on page 137 to 139 of the record of appeal the Appellant claimed that the Plaintiff had given the name of the seller simply as Nana and with that information they spoke to a Yaw Boakye who helped them to locate the 2nd Defendant. However, during cross examination of the Appellant it came to light that just the name Nana could not have led the Appellant to find the seller as found on page 194 of the record of appeal. He further contended that there was a diverging point between the testimony of the Appellant’s representative and DW1. In the Appellant’s testimony on 28th May 2018, where the Appellant said it was the architect who went talking to the squatters on the land to find the owner but Mr Prah the architect categorically denied this in his testimony of 22nd January 2019. With regards to Ground 7, Counsel contends that this ground of appeal is an admission of the fact that they did have a contract with the Respondent and that it begs the question of how the Appellant could have agreed with the 2nd Defendant to pay withholding taxes for the 2nd Defendant to pay the Plaintiff commission if indeed there was no contract as admitted by the Appellant’s representative. See page 202 of the record of appeal. However during the trial, the Appellant pretended that it had no contract with the Respondent. She argues that since the 1st Defendant did not counterclaim against the 2nd Defendant for any indemnity, he has lost the right to raise this issue at this stage. Regarding the ground (1) which is that the judgment is against the weight of evidence, and referring to the cases of The Republic vrs Bank of Ghana & Others Ex parte: Benjamin Duffour Civil Appeal No J4/34/2018 delivered on 6th June 2018 and Bonney vrs Bonney [1992-1993] GBR 779 SC, Counsel submits that the Appellant has not been able to discharge the burden to prove that the trial judge erred in coming to its conclusions. Counsel finally submitted that the Appellant has deviated from its grounds of appeal raised and amended for their focal point of their submission seems to be on quantum meruit as against there being no contract and that the issue of quantum meruit was not raised at all as a ground of appeal and relies on the case of Assemblies of God Church Ghana vrs Obeng [2010] SCGLR 300. In dealing with the second Ground of Appeal which is that The trial judge erred in law by holding that the Plaintiff/Respondent is entitled to payment of 5% of the purchase price of the 2nd Defendant’s property in the sum of US$125,000.00 as commission as there was no binding written contract or oral contract between the Appellant and the Respondent to that effect, we agree with the Counsel for the Respondent that a contract cannot be invalidated because it is not in writing as spelt out in Section 11 of the Contract Act, 1960 (Act 25). It provides thus: “Subject to the provisions of any enactment, and to the provisions of this Act, no contact whether made before or after the commencement of theis Act, shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing.” See the case of Sowah vrs Bank for Housing and Construction and Another [1982-83] GLR 1324. The testimonies of the Respondent, his witnesses and the Appellant’s own witnesses indicate that there is a clear unwritten contract. The testimony of the Plaintiff found from page 60 to 70 of the Record of Appeal reveals the role he played in the acquisition of the property. He narrated how he met Edward Owusu who at the time worked for the 1st Defendant and Architect Andrew Prah who told him that they needed land along the Ni highway to buy. When he found the land which belonged to the 2nd Defendant he informed the General Manager of the 1st Defendant following which they all went to have a look. They gave him the green light to look for the owner. He tendered the site plan which he caused to be prepared as Exhibit A, the email exchange with the 1st Defendant’s Managing Director as Exhibit B and a search from the Registrar General’s as Exhibit C. Exhibit B found at page 3 through to page 5 of the record of appeal is the email correspondence between the Respondent and the Appellant’s Managing Director. The subject of the email dated 14th September 2012 is “Finder’s Fee for Property on N1 and Abelemkpe Interchange” “Good afternoon Cecil, This is just a recap of our conversations regarding an initial interest on the above property owned by Nana Boadu and my subsequent research and location of the property owner as well as the preliminary due diligence in making sure that Nana Boadu was indeed interested in selling his property and at what price … We have not signed any documents regarding payment of our percentage with Multichoice and could not be working for nothing since all that you told me and I accepted was verbal but I assisted you as a gentleman and even more, a fellow Rotarian………I therefore need you to confirm to me what Multichoice has decided to pay me in terms of the Finder’s Fee just so that, at this would have everything on record. After my conversation with you this morning regarding my fees, I honestly say that I am comfortable, going forward, without any kind of documentation regarding payment for all the work I did to get Multichoice this property and it is only fair that all players who made this happen are actually compensated…” The reply of the Appellant’s Managing Director is that “I mentioned we will meet sometime after next Tuesday and negotiate a suitable rate as I did mention some constraints for your services. I also have to consider what Nana gives since he had assured me he would handle all the agents finder but please let’s know what happens next week.” From the above email exchange in Exhibit B, it is clear that the Appellant and the 2nd Defendant had agreed that the 2nd Defendant would be the one to pay the finder’s fees. Furthermore the testimony of PW3 Edward Owusu found from page 125 to 126, continues on page 159 to 163 and ends at page 166 to 171 shows that he was the one who arranged a meeting between the Respondent and the Appellant to discuss the land which had to be found. This is corroborated by DW1 Andrew Prah as shown under cross examination found on page 216 of the record of appeal: Q: Did you ever meet the Plaintiff and Mr Eddy Owusu at East Legon to discuss the prospects of the land? A: We met at East Legon for the location of the land be indicated. Q: And after that meeting at East Legon you together with the Plaintiff and Mr. Cecil Sunkwa Mills visited this exact piece of land is that so? A: We did. Again, this is what transpired during the cross examination of the Appellant’s Managing Director by Counsel of the 2nd Defendant found at page 186 of the record of appeal: Q: What specific role did the Plaintiff play on your behalf relating to the acquisition of the land? A: The Plaintiff identified the land and informed our architect consultant Mr Andrew Prah of the available (sic) of the sale of the land. Q: Is that all the Plaintiff did relating to the acquisition of the land? A: Plaintiff also later provided the name of Nana Boadu as the purported owner. We find from the above that there is credible evidence to indicate that the Appellant and the Respondent had a contract and therefore the learned High Court judge did not err in so holding. Regarding issues (III) and (IV) found below as follows: (III) The trial judge gravely misdirected himself by suo moto deciding to foist a commission to be paid to the Plaintiff/Respondent since the Plaintiff/Respondent neither claimed on a quantum meruit basis nor led any evidence to establish the value of the service rendered by him. (IV)The trial judge gravely misdirected himself by holding that on the totality of evidence an agent like the Plaintiff/Respondent was entitled to payment of 5-10% of the cost of the purchase price of the 2nd Defendant’s property where this cannot be supported by evidence on record. We will refer to the Respondent’s pleadings in paragraphs 15, 20 and 21 of his Amended Statement of Claim in discussing these grounds of appeal. 15. The Plaintiff avers that the 1st Defendant in or around September 2012, acting through its General Manager also agreed to pay Plaintiff a percentage of the purchase price if 1st Defendant bought the property. 20. The Plaintiff avers further that he is entitled to 5% of the Two Million Five Hundred Thousand United States Dollars (US$2,5000,000.00) being the purchase price of the property from the Defendants jointly and severally. 21. The Plaintiff contends that the Defendants have refused/failed/neglected to pay the Plaintiff his commission upon several demands from the Plaintiff. It is clear to us that the issue of the commission was not only pleaded but the Respondent testified on it at pages 67 and 84 of the record of appeal and also evidenced by Exhibit B. The Appellant himself admitted same in cross examination as per the following which ensued at page 202 of the record of appeal: Q: So you will agree with me that the 1st and 2nd Defendants recognized that the Plaintiff has done some work for which you had to compensate him am I correct? A: Yes Q: And after you had signed and executed the purchase and sale agreement for the land that you decide to be unsure of what rate to use to pay the Plaintiff isn’t it? A: No, there had never been any agreed rate and there had never been any clear terms to the Plaintiff for the job to be done. Q: I am putting it to you that from the very beginning of your working relationship with the Plaintiff he made it clear that his fees would be 5 to 10% of the purchase price. A: Yes, he did mention the fee. Also, DW1 testified that he suggested a commission of 5% to 10% of the sale value of the property from the perspective of an architect when the Appellant and the Defendant called him to confirm a suitable commission for the Plaintiff (pages 207, 208 and 210 of the record of appeal. This is further buttressed at page 199 of the record of appeal where the Appellant’s representative when asked whether the Plaintiff proposed a fee of 5% he replied in the affirmative and when asked whether he gave a counter proposal his response was that he did not mention a figure because he wanted the whole transaction concluded since they did not have a formal arrangement and they also had to look at the cost of the transactions. From the above there is no merit in these grounds of appeal and we accordingly dismiss them. In analyzing the fifth issue which is that “The trial judge grossly misdirected himself in law by holding that even though the Plaintiff/Respondent did not broker the sale of the 2nd Defendant’s property to the Appellant the Plaintiff/Respondent was still entitled to payment of $125,000 as commission.” The question we ask ourselves is who is a broker? In the book “Business Law in Ghana” by Kwadwo Owusu referred to by Respondent’s Counsel a broker is defined at page 158 is as follows: “A broker is like a mercantile (factors) agent, but unlike the mercantile agent brokers are not given possession of the goods or documents of title.” Thus like the mercantile agent, brokers negotiate sales, but they deal with goods which are elsewhere. Counsel for the Respondent refers to another definition of the word broker in a book entitled “Management of a Sales Force 12th edition by Spiro, Rosann L; Stanton, William J; Rich, Gregory A. as follows: “A broker is an independent party, whose services are used extensively in some industries. A broker’s prime responsibility is to bring sellers and buyers together and thus a broker is the third person facilitator between a buyer and a seller. An example would be a real estate broker who facilitates the sale of a property.” He refers to the case of Brandt vrs Koepnick 2 WN. APP 671,674, 469 P.2D 189 (1970) where it was held that “a dual agency relationship while extremely delicate is permissible when both parties have full knowledge of facts and consent thereto.” Agency is defined by FMB Reynolds; Bowstead and Reynolds on agency; as the fiduciary relationship which exists between two persons one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations to third parties and the other on who similarly consents so to act or acts. Therefore, by this definition, an agency relationship can be created expressly or impliedly. If the relationship that creates the agency is express, it is created by deed or verbally without writing or in writing. However, if the agency is implied, it can be inferred from the relation between the parties and the nature of the employment, whether with or without proof of express appointment. The principal would be estopped after the act by the agent, where the principal’s conduct can be inferred after the agent has exercised authority he did not have. The principal's conduct could bind him by the actions of the agent as held in the case of Spiro v Lintern (1973) 3 All ER 391, the first Defendant was the beneficial owner of the house which he was anxious to sell. He asked his wife to put it into the hands of estate agents. The asking price was £25,000. The Plaintiff made an offer for the house and the wife instructed the estate agents to accept it. The first Defendant did not give his authority to the second Defendant to enter into a binding contract. The Plaintiff instructed an architect to undertake certain functions on his behalf in connection with the house. The Plaintiff also visited the house and was introduced to the first Defendant the new owner. The first Defendant went abroad but before he appointed an attorney, empowering her to complete the sale of the house. However the house was never handed over to the Plaintiff, it was sold to the third Defendant. It was held that the first Defendant was under the duty to inform the Plaintiff that the second Defendant acted without his authority and that his failure to do so amounted to a representation by conduct that she had authority. In the instant case, the Appellant at all material times represented to the vendor and by extension to the Plaintiff that the Plaintiff had the power to act on its behalf. The Appellant’s General Manager, arranging with the vendor to pay the Respondent herein finder’s fee is an acceptance of the work done by the Respondent, which required a commission of a sort. In Kofi Obu v Strauss, Re: Richmond Gate Properties [1951] A. C. 243, it was stated that where an agent is employed to bring out a certain outcome, the agent will only be entitled to his pay where he has discharged his obligation effectively unless the contract says otherwise. But the real question is, is it the Respondent or Yaw Boakye, who really brokered the sale and purchase agreement between the Appellant and the vendor? In Alpha Trading Ltd v Dunnshaw Patten [1981] 1 Lloyd's Rep. 122, an agent negotiated a contract for the sale of cement between the seller and the third party. The contract was made but the seller breached the contract in that he failed to deliver. The price of the sale was consequently not paid and as such the agent received no commission for his service. It was held that it was right to imply a term into a contract of agency to the effect that the Defendants could not fail to perform their contract with the buyer so as to deprive the agent of his commission. This is because the agent had done his end of the bargain by effecting the contract and as such the act of the Defendant breaching the contract cannot affect the commission of the Plaintiff. Here it can be deduced that where a person is appointed as an agent, he is entitled to be paid his commission if a sale is effected by another agent. It is immaterial that the agent did not affect the outcome. Though the Appellant claimed Yaw Boakye brokered the sale and purchase agreement, he admits the role played by Respondent. He perfectly knows that the Respondent is an estate agent who works for commission. The law gives recognition to an agent as having the power to bind the principal in four ways. These four ways are; (1) Where the principal gives power to the action of the agents, to depict that the agent has actual authority to act on his behalf. (2) Where the agent acts without the principal’s authority however, the principal gives retroactive authority or ratifies the acts of the agent. (3) Where the agent acts without the principal’s consent but the law deems the principal to have consented to the acts of the agent, as in agency of necessity. (4) Where the agent acts without the principal’s consent but the principal is estopped from denying the agent’s authority. In this situation the agent is said to have apparent authority. It is our opinion that in this instance, the actions of the agent have been ratified by the principal. Here are excerpts of cross examination by Counsel for 2nd Defendant found at page 191of the record of appeal91: Q: So by your estimation the role played By the Plaintiff was so important that he had to be paid a commission-is that so? A: The Plaintiff played a role of identifying the location which was his main contribution though he did not have the name and contact of the owner and so during the negotiations and the agreement we had during that period, when the 2nd Defendant called me about many agents heckling him for a commission and he asked me as per our agreement who l will recommend he deals with I mentioned the Plaintiff’s name as the suitable person. Q: if your company were to pay commission, how were you going to calculate the commission? A: It will be based on the negotiations as a result of work done. Q: The Plaintiff worked for you? A: We had not engaged the Plaintiff. Q: So the person that you have engaged to work for you, you want the 2nd Defendant to pay commission on your behalf, is that what you are telling the court? A: The Plaintiff was recommended because of the role he played for both parties in the transaction. Q: Who recommended the Plaintiff? A: The 1st Defendant recommended Plaintiff to the 2nd Defendant. The Appellant's action coupled by the e-mail correspondence as found in Exhibit “B” may ratify the Respondent act. An act by an agent may be ratified by either of the following: (1) The principal may expressly ratify the actions of the agent (2) The principal may impliedly ratify the actions of the agent through his conduct. (3) The principal's inaction can also be interpreted to mean ratification. It is our opinion that by the Appellant recommending the Respondent to the vendor is a way of telling the vendor that “yes all the acts of the Respondent were authorised by me”, he cannot therefore turn round to deny the Respondent from claiming commission. From the testimony of the Respondent and his witnesses, the question I ask myself is to whom did the 2nd Defendant disclose that the cost of the land was $3,000.000.00? They testified that when they met him the Respondent told him that he was an agent of the Appellant and asked him if he had an agent. When he said that he had no agent, the Respondent asked him if he wanted him to be his agent to which he answered in the affirmative. It can therefore be deduced that he knew that the Respondent was acting for as the agent of the Appellant when he affirmed his appointment as his agent. We find that he brokered the transaction. GROUND 1 (I) The trial judge erred in law by imposing liability on the Appellant to pay to the Plaintiff 5% commission of the value of the property when he held that even the Plaintiff had located the property as belonging to the 2nd Defendant, it was Yaw Boakye who contacted the 2nd Defendant and negotiated the reduction of the purchase price. The Appellant testified that the Plaintiff gave the name of the seller as Nana and with that information they spoke to a Yaw Boakye This is what transpired in cross examination. Q: How long have you lived in Ghana? A: About 51 years Q: And in your 51 years in this country can you count how many Nana, either male or female you have encountered. A: Uncountable Q: So you will agree with me that your testimony that when the Plaintiff simply mentioned Nana as the owner of the land you were able to connect the 2nd Defendant to the land is implausible? A: The Plaintiff when we met also had a site plan…. that when:” Again when Counsel for the Plaintiff cross examined the Appellant on 4th June 2018 found at page 201 of the record of appeal, the following transpired: Q: “You can confirm that your response to the Plaintiff’s email was a day after you executed the sale and purchase agreement? A: Yes. Q: So at this point when you were responding to the Plaintiff’s email the entire transaction had been concluded and all you had to do was pay the Plaintiff his due, am I correct? A: Yes ideally, if it not being the absence of clear terms of payment and the job to be done. Q: From your email you state “I would also have to consider what Nana gives since he has assured me that he would handle all agents fees” what were you expecting Nana to give at this point? A: No rate had been finalized with Nana. In previous conversation I think it was the day we signed the agreement with the Plaintiff I reconfirmed to him the agreement between the 1st and 2nd Defendant on agents fees if there was an agent. I further told him that irrespective of the fact that he did not have any agency agreement with both parties we are recommended him to Nana Boadu for his role in locating the property to Mr Prah and Nana had agreed to compensate him, no amount of percentage was decided on. Q: So in all you will agree with me that the 1st and 2nd Defendants recognized that the Plaintiff had done some work for which you had to compensate him for. Am I correct? A: Yes. Q: And it was after you had signed and executed the purchase and sale agreement for the land that you decided to be unsure of what rate to use to pay the Plaintiff. Isn’t it? A: No there had never been any agreed rate and there had never been any clear terms to the Plaintiff for the job to be done. A: I am putting it to you that the very beginning of your working relationship with the Plaintiff he made it clear that his fees would be 5 to 10% of the purchase price. A: Yes, he did mention the fee. Even though the 1st Defendant testified that it was DW1 who spoke to the squatters, the 2nd Defendant testified that he was not involved in that and that he did not go finding out the name of the land owner from the squatters. See page 221 of the record of appeal. GROUND VII The trial judge having found that the 2nd Defendant agreed to pay agency fees whiles the Appellant pay withholding tax erred when he held that any commission the Plaintiff is entitled to should be visited on the 1st Defendant. It is clear from the evidence led by the Respondent, PW1, PW2 and PW3 as well as the Defendant’s representative and DW1 that the Plaintiff/Respondent acted as an agent for the successful sale and purchase of the property. GROUND I It is trite that every appeal is by way of rehearing and our jurisdiction is invoked by Rule 8(1) of the Court of Appeal Rules CI 19. This involves going through the entire record to satisfy ourselves that a party’s case is more probable than not, and that the finding of the court below is supportable from the evidence led. See the cases of Ansu- Agyei vrs Fimah [1993-94] 1 GLR 299 at 305 and Tuakwa vrs Bosom [2001-2002] SCGLR 61. The Appellant who complains that a judgment is against the weight of evidence bears the burden of demonstrating that certain pieces of evidence on the record which having not been properly evaluated led to a different conclusion from what ought to have been. See the case of Djin vrs Musa Baako [2007-2008] SCGLR 686. It is also trite law that it is the trial court that has the right to make primary findings of fact and where they are supported by the record, the appellate court is not permitted to interfere with same. The findings will however be interfered with upon certain conditions. See the case of Amoah vrs Lokko & Alfred Quartey (Substituted by) Gloria Quartey &Others [2011] 1 SCGLR 505. In Koglex Ltd (NO2) vrs Field [2000] SCGLR 175 at 184-185 the Supreme Court stated thus: “Where findings of the trial court are based solely on the demeanour and credibility of the witness, then the trial court, which had the opportunity of seeing and hearing the witnesses, is in a decidedly better position than an appellate court. And therefore the appellate court should be extremely slow in interfering with such findings… On the other hand, where the findings are based on established facts, then the appellate court is in the same position as the trial court and can draw its own inferences from those established facts.” We have gone through the entire record and it is our opinion that there is no merit in this ground of appeal. Regarding the issue of quantum meruit, we find that it did not arise during the trial and was not also raised as a ground of appeal to invoke our jurisdiction to determine same. We are of the firm belief that the learned trial judge came to the correct conclusion. The appeal fails and is accordingly dismissed. Cost of Ten Thousand Ghana cedis (GHȼ10,000.00) in favour of the Plaintiff/Respondent against the Defendant/Appellant. MERLEY A. WOOD (MRS.) (JUSTICE OF APPEAL) I AGREE DENNIS ADJEI (JUSTICE OF APPEAL) I ALSO AGREE COUNSEL: ERIC BAAH (JUSTICE OF APPEAL) ➢ KWESI COLEMAN LED BY ANTHONY FORSON FOR 1ST DEFENDANT/APPELLANT ➢ AKOSUA GYANFI DUAMRAH WITH MAC-BEN ADU-ASAMOAH FOR PLAINTIFF/RESPONDENT 27