BARRISTER ANIEKAN UKPANAH v. SURVEYOR ASUQUO AYAYA
(2010)LCN/3594(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of March, 2010
CA/C/48/2009
RATIO
LAND LAW: NATURE OF LAND TRESPASS
Trespass to land is an affront to possession or right to possession or an unjustified interference or intrusion with the possession of the land. See Ige vs. Fagbohun (2001) 10 NWLR (Pt. 721) 468 at 481; Ogunleye vs. Adewunmi (1988) 5 NWLR (Pt. 93) 315; Onagoruwa vs. Adeniyi (1993) 5 NWLR (Pt. 293) 350 and Yusuf vs. Akindipe (2000) 8 NWLR (Pt. 669) 376. Where there is no joint claim to the same parcel of land, title is not put in issue. PER JEAN OMOKRI, J.C.A
WORDS AND PHRASES: MEANING OF AGENCY
In Black’s Law Doctionary with pronunciations, Sixth Edition, page 62.
“Agency” is defined as;
“A relationship between two persons, by agreement or otherwise, where one (the agent) may act on behalf of the other (the Principal and bind the principal by words or actions”.
In Niger Progress Ltd. v. N.E.Z. Corp (1989) 3 NWLR (Pt.107) 68 at 92, the erudite jurist, Nnamani JSC (of blessed memory) stated clearly that:
“The relationship of Principal and agent may arise in three ways:
(a) by agreement, whether contractual or not between principal and agent which may be express or implied from the conduct or situation of the parties;
(b) retrospectively, by subsequent ratification by the principal of acts alone on his behalf;
(c) by operation of law under the doctrine of agency of necessity and in certain other cases. PER JEAN OMOKRI, J.C.A
AGENCY: NATURE OF AGENCY
An agency can arise impliedly from the nature and condition of the parties or from the circumstances of the relationship. A relationship of agency is generally said to exist wherever one person called the agent has authority to act on behalf of another called the principal and consents to act.
The question whether the relationship of principal and agency exist in any situation depends not on the precise terminology employed by the parties to describe their relationship, but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and agent” PER JEAN OMOKRI, J.C.A
AGENCY: WHO IS AN AGENT
Who then is an “agent”? In Amadiume vs. Ibok (2006) 6 NWLR (Pt. 975) 158, this Court held that:
“The term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any agent or trustee”.
See also Anvaorah vs. Anyaorah (2001) 7 NWLR (Pt. 711) 158; Godwin vs. Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162. In Blacks Law Dictionary with Pronunciations, Sixth Edition, page 63, the term “agent” is defined as:
“A person authorized by another (principal) to act for or in place of him; one intrusted with another’s business”. PER JEAN OMOKRI, J.C.A
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
N.S. NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
BARRISTER ANIEKAN UKPANAH – Appellant(s)
AND
SURVEYOR ASUQUO AYAYA – Respondent(s)
JEAN OMOKRI, J.C.A:(Delivering the Leading Judgment) This is an appeal against the judgment of Justice E.E. Ita, of the Cross River State High Court sitting in Calabar, in Suit No. HC/302/2005 delivered on 13/8/2008.
The appellant in this appeal acquired a piece and parcel of land in 1973 from late Ndidem Edim Imona, the Ntoe of Big Qua on behalf of Big Qua Town Calabar. The lease agreement, duly executed by the parties, was tendered and admitted in the trial court as Exhibit A. The land was fenced round and a gate was put there to ensure that intruders did not enter the land. Sometimes in 2003, a counsel acting for the Big Qua Town wrote a letter terminating the lease. The letter is exhibit E. Sometimes in March, 2005, the respondent was retained by the Big Qua Community to carry out a survey of the land, which he did. After surveying the land he was paid off by the Big Qua Community on 13/5/2005.
Subsequently, the appellant’s solicitor wrote a letter with Reference No. GAU/MSC/2005/109 to the respondent complaining about the trespass and demanded the sum of N10 million as damages. That letter is exhibit G. The appellant also wrote to the Ndidem of the Big Qua Town Community since, the land is within their domain. The letter with Ref. No. CAU/MSC/2005/108 dated 13/5/2005, is exhibit H. Not having received any response from either the respondent or the Ndidem of the Big Qua Town Community, the appellant on 21/7/2005 instituted proceedings against the respondent at the trial Court. In both the Writ of Summons and Statement of claim, the appellant claimed as follows:
1. A declaration that the plaintiff is entitled to the statutory right of occupancy covering the land situate along Old Ikang Road, Big Qua Town and lying on the opposite side of the Road to Otop Otop Orphanage and bounded by Ediba Road, Calabar Municipality which is particularly delineated by Plan No. IN/2570, and registered in Lands Registry, Calabar as No. 6 at Page 6 in volume 47.
2. N10 million damages for trespass on the said land by the defendant.
3. A perpetual injunction restraining the defendant, by himself, his servants, agents or privies from further entering, encroaching, surveying and/or carrying out any other act(s) of trespass on the plaintiff’s land.
Before the court below, the appellant testified for himself in support of his claim but called no other witness. Similarly the respondent testified on his own behalf for defence without calling any other witness. At the conclusion of the hearing of the evidence adduced by the parties and after reviewing the addresses of learned counsel for the parties, the learned trial judge dismissed the claim of the appellant on the ground that the respondent being an agent of a disclosed principal, Big Qua community, incurs no liability for the alleged trespass.
Apparently dissatisfied with the judgment of the court below, the appellant appealed on 19/9/2008 to this court on five grounds. See the notice and grounds of appeal at pages 64-68 of the record.
In his brief dated 4/5/2009 and filed on 5/5/2009, the appellant identified 5 issues for determination from the 5 grounds of appeal filed and they are:
1. Whether the appellant proved his case before the court and whether he was not entitled to judgment.
2. Whether the Respondent had disclosed his suable principal who engaged him to survey the appellant’s land and whether the non-joinder of the alleged principal was fatal to the appellant’s case so as to be denied judgment in the case against the Respondent.
3. Whether a case of trespass was made out against the Respondent and was it proper for the court to refuse to give judgment to the appellant for the trespass on his land.
4. Whether it was correct for the trial court to hold that a court has no jurisdiction where there is no dispute between the parties before it and therefore declining to pronounce on reliefs No. 1 and 3 which is a claim for title and injunction when Respondent averred that the land had been “reposed” which means “reposed” or regained or “taken over” from the plaintiff now appellant thus establishing a dispute.
5. Whether it is only the principal of the Respondent who is liable for the trespass and not the Respondent, when the appellant had a choice on who to sue.
The respondent in his brief dated 2/6/2009 and filed on 4/6/2009 identified only one issue which is as follows:
Whether the appellant can maintain an action against the respondent who is an agent of a disclosed principal.
Upon being served with the respondent’s brief of argument, the appellant filed a reply brief dated 9/6/2009 and field on 11/6/2009.
On issue No. 1, learned counsel for the appellant, Chief Udousoro, submitted that the appellant by tendering exhibit A and having shown that he was in possession of the Land since 1973, has proved his case and was therefore entitled to judgment at the trial court.
Learned counsel argued issues Nos. 2 and 5 together and submitted that the respondent did not disclose his principal who engaged him to survey the land in question. He was of the view that though the respondent in his pleading stated that he was retained by Big Qua Community to survey the land, the said Big Qua Community is not suable, it being a non-juristic person. He pointed out that though the respondent in his evidence stated that it was Ntufam Inok Edim and the Ndidem who retained him those facts were unpleaded.
Relying on Green vs. Green (2001) FWLR (Pt. 76) 795 at 819; Iyere vs. Bendel Feed and Flour Mill, Ltd. (2009) ALL FWLR (Pt. 453) 117 at 1236; Ikine vs Edjerode (2002) FWLR (Pt. 92) 1725 at 1797 and Osondu & Co Ltd. vs. Soleh Boneh (2000) 76 LRCN 614 at 642 counsel concluded that the appellant was right to sue the respondent who committed the trespass on his land and that even if the respondent disclosed his principal, the appellant was at liberty to sue the respondent alone without joining the principal and the non-joinder of the principal cannot defeat appellant’s case.
On issue No. 3, Chief Udousoro contended that the appellant made out a case of trespass against the respondent entitling him to judgment and that the appellant as a plaintiff who proved trespass respondent is entitled to recover damages even though he has sustained no actual lost. He relied on Egharevba vs. Oruonghae (2002) FWLR (Pt.121) 1945 at 1967; Walk vs. Hand (1893) 2 Ch 75; Kenner vs. Dabor 2 WACA 258, Amakor vs. Obiefuna (1974) 35 & 67; Kwada vs. Zira (2002) FWLR (Pt. 112) 113 at 130; Ogunleye vs. Adewunmi (1988) 5 NWLR (Pt. 93) 613 at 634; Olugbenro vs. Ajagungbade (1990) 3 NWLR (Pt. 130) 37; Adebayo vs. Brown (Pt.141) 66; Ezeokonkwo vs. Okeke (2002) FWLR (Pt.109) 602 and Yellow vs. Morley (1910) 27 TLR 20.
On issue No. 4 counsel contended that there was a challenge to appellant’s ownership/possession of the land when appellant found that he respondent has trespassed on his land. It was therefore necessary for the appellant to sue for the declaration as stated in Cain, No 1 in the writ of summons before the claim for damages and injunction. Counsel also contended that it is wrong for the Court to hold that a Court has a jurisdiction where there is no dispute between, the parties.
The Learned counsel for the respondent, Mr. Joe Agi (SAN) contended that the respondent who is a professional surveyor contracted by the Big Town Community to survey the land in question, was an agent acting on behalf of a known and disclosed principal and therefore he incurs no liability.
The act of the respondent (agent) is the act of the Principal and the nation in law is as if it was the principal that did what the agent did or omitted to do. He relied on the maxim, “Qui Facit Per a lium facit perse ipsam facere indetur.”
Relying on Essang vs. Aureol Plastic Ltd. (2002) 17 NWLR (Pt.795) 155, learned senior counsel posited that where the principal of an agent is known or disclosed, the proper party to sue or be sued for anything done or omitted to be done by the agent as in the instant case, is the principal. The respondent disclosed that it was Big Qua Town Community that employed him to survey their land, therefore the proper party to sue is the Big Qua Town Community. He relied on Akalonu vs. Omokaro (2003) FWLR (Pt.175) 504-505 and Bayero Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 423. On this point, he pointed out.
It was also contended that the respondent testified on oath that he is not laying any claim to the land in dispute. He only went to survey the land therefore the appellant’s claim against the respondent for title to the said land in dispute and a damage for trespass is unfounded and goes to no issue.
The learned senior advocate concluded that the respondent has given the appellant enough notice as to who engaged him to carry out the survey of the land and the appellant himself knew the community that sold or leased the land in dispute to him, therefore the appellant’s suit against the respondent is incompetent and should be dismissed.
In the reply brief counsel for the appellant Chief Udousoro submitted that the appellant was and is still in effective possession and exercising acts of ownership when the respondent trespassed on the land. He also contended that the appellant by Exhibit A has a deemed statutory right of occupancy which interest cannot be revoked by the solicitors letters, exhibit E following the decision in Adoje v. Gwer (2008) MJSC 38.
I have carefully perused the issues for determination identified or formulated by the parties in this appeal and I have chosen those of the appellant which I consider more comprehensive and derivable from the grounds of appeal filed.
However, I observed that the appellant’s issues Nos. 1, 3 and 4 can be conveniently taken together because they are inextricably interwoven. Similarly, issues Nos 2 and 5 relate to the same issue of whether the respondent disclosed his principal or not, so I shall consider them together.
I shall consider issues Nos. 1, 3 and 4 first. 0 In the instant case on appeal, all the salient facts pleaded in paragraphs 12 to 17 of the statement of claim at pages 5 to 6 of the record of proceedings, were not traversed or controverted in the respondent’s statement of defence, particularly paragraphs 3, 4 and 5. For clarity and ease of reference I have chosen to reproduce the aforesaid paragraphs herein below:
“3. The Defendant in further answer avers that he was retained by the Big Qua Community to carry out a Survey of their land that was reposed (sic) from the plaintiff.
4. The Defendant avers that he was acting professionally and was taken to the land by his client to the knowledge of the plaintiff.
5. The defendants aver that he never damaged any crop or property on the land. All he did was to carryout his assignment which was completed a longtime before the institution of this Suit and his fees paid.”
It is crystal clear that the respondent laid no claim to the land in dispute. So on the state of the pleadings there was no issue of fact that arose for trial on declaration of title or trespass.
Trespass to land is an affront to possession or right to possession or an unjustified interference or intrusion with the possession of the land. See Ige vs. Fagbohun (2001) 10 NWLR (Pt. 721) 468 at 481; Ogunleye vs. Adewunmi (1988) 5 NWLR (Pt. 93) 315; Onagoruwa vs. Adeniyi (1993) 5 NWLR (Pt. 293) 350 and Yusuf vs. Akindipe (2000) 8 NWLR (Pt. 669) 376. Where there is no joint claim to the same parcel of land, title is not put in issue.
I am at one with the learned trial Judge that there is no dispute or adverse claims between the appellant and the respondent in respect of the appellant’s 1st and 3rd claims. This is clear from the evidence of the respondent before the trial Court at page 57 of the record of proceedings where he said:
“I surveyed land at Big Qua Town between Old Ikang Road and Ediba Road, opposite Otop Otop. I am not owner of the land. It belongs to Big Qua Town. I was contracted to do survey by Big Qua Community.”
From the testimony of the respondent reproduced above, it is clear that he never laid claim to the land. He did not claim the land as his own. He was only retained by Big Qua Community to survey the land and that is all he did. The respondent did not join issue with the appellant. There was therefore no basis for a declaration that the appellant is entitled to the statutory right of occupancy covering the said land, when no one is contending that the land does not belong to him. The respondent never challenged the appellant’s ownership of the land nor his possession of the land. There is therefore no cognizable dispute or adverse claim between the appellant and the respondent.
There is no right of action to recover land when the land is not taken in adverse possession by any one.
It is not the function or indeed the duty of the court to embark on abstract or academic exercise or speculation. The court has no jurisdiction to do that. The courts are established to determine live issues. It follows therefore that a plaintiff coming before a court must show the existence of a dispute between him and the defendant in every action filed in court. He must show that he is not merely seeking for an answer to hypothetical questions or an opinion on a matter in which there is yet no dispute. See Olaniyi vs. Aroyewun (1991) NWLR (Pt. 194) 652; Kosile vs. Folarin (1989) 3 NWLR (Pt. 107); Olale vs. Ekwelendu (1989) 4 NWLR (Pt. 115) 326 and -A.G Anambra State vs. A.G. Federation (2005) 9 NWLR (Pt. 931) 572 at 607, 610 and 654.
It is important and compelling that I consider the meaning of the word: “Dispute.” In Air Via Ltd. vs. Oriental Airline. (2004) 9 NWLR (Pt. 878) 298 at 326, it was held that:
The word “dispute” means conflict or controversy a conflict of claims or rights or demand on one side met by contrary claims or allegation on the other side. The word also means the subject of litigation or the matter for which a suit is brought and upon which issue is joined and in relation to which witnesses are examined.
In A.G- Anambra State vs. A.G. Fed. (supra) at page 625 of the report the Supreme Court while considering the meaning of “dispute” for the purpose of determining justiciability of action stated that:
“A dispute is a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”
A denial of an averment in a pleading amounts to a disputation of an allegation of fact or to joining of issue on the allegation of fact. In the instant appeal, there is no contrary allegation from the respondent to the claims of the appellant. The 3rd claim in the statement of claim which is the claim, for injunction, being adversary in nature cannot be awarded against a party who has no claim to the land in dispute adverse to that of the appellant.
From the foregoing the conclusion I reach is that there is no merit in issues Nos. 1, 3, and 4 and they fail. Consequently I resolve them against the appellant.
On issues Nos. 2 and 5, the question is, whether the respondent disclosed his principal. First and foremost, there must be an agency relationship in existence for there to be an agent and a principal. The question presently is whether there is an agency relationship disclosed by the respondent. ‘Agency’ has been described as a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the Principal) and binds that other party by words or action. See Bayero vs. Mainasara & Sons Ltd, (2006) 8 NWLR (Pt. 982) 391.
In Black’s Law Doctionary with pronunciations, Sixth Edition, page 62.
“Agency” is defined as;
“A relationship between two persons, by agreement or otherwise, where one (the agent) may act on behalf of the other (the Principal and bind the principal by words or actions”.
In Niger Progress Ltd. v. N.E.Z. Corp (1989) 3 NWLR (Pt.107) 68 at 92, the erudite jurist, Nnamani JSC (of blessed memory) stated clearly that:
“The relationship of Principal and agent may arise in three ways:
(a) by agreement, whether contractual or not between principal and agent which may be express or implied from the conduct or situation of the parties;
(b) retrospectively, by subsequent ratification by the principal of acts alone on his behalf;
(c) by operation of law under the doctrine of agency of necessity and in certain other cases.
An agency can arise impliedly from the nature and condition of the parties or from the circumstances of the relationship. A relationship of agency is generally said to exist wherever one person called the agent has authority to act on behalf of another called the principal and consents to act.
The question whether the relationship of principal and agency exist in any situation depends not on the precise terminology employed by the parties to describe their relationship, but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and agent”
Who then is an “agent”? In Amadiume vs. Ibok (2006) 6 NWLR (Pt. 975) 158, this Court held that:
“The term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any agent or trustee”.
See also Anvaorah vs. Anyaorah (2001) 7 NWLR (Pt. 711) 158; Godwin vs. Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162. In Blacks Law Dictionary with Pronunciations, Sixth Edition, page 63, the term “agent” is defined as:
“A person authorized by another (principal) to act for or in place of him; one intrusted with another’s business”.
In the instant appeal, the respondent averred in paragraph 3 of his statement of defence at page 25 of the record, reproduced earlier in this judgment, that he was retained by the Big Qua Community to carry out a survey on the land. The respondent also stated unequivocally in his evidence in chief, at page 57 of the record of proceedings, which was also reproduced earlier in this judgment, that he was retained to do the survey on the land by Big Qua Community. The appellant did not controvert this fact. Rather, he contended that Big Qua Town Community is not suable because it is not a juristic person or a body known to law.
From the averment of the respondent in paragraph 3 of his statement of defenec and his evidence before the trial court at page 57 of the record, which is uncontroverted and uncontradicted, it is clear that there was an agency relationship between the respondent and the Big Qua Community. I do not agree with Chief Udousoro that Big Qua Community is not suable and as such the appellant had a choice to sue the respondent. It is clear that Big Qua Community can be sued through its representative or representatives. This is a fact which the appellant knows very well. The appellant himself stated both in his pleadings and in his evidence in chief, that he got the land in question from the same Big Qua Community. This is clearly stated in exhibit A, the lease agreement.
The appellant under cross examination on 8/6/2006, at page 44 line 44 of the record stated that:
“I acquired the land from Big Qua.”
At line 19 of the same page, the appellant also stated that:
“I have been paying rents to Big Qua and I have the receipts.”
Furthermore, the appellant at page 43 testified that when he became aware of the respondent’s acts, his lawyer’s Chief Udousoro, wrote to the respondent and also to the Ndidem of the Big Qua since the land is within his domain. See exhibits G and H. in the circumstances the appellant cannot complain that the respondent did not disclose a sueable principal.
Chief Udousoro, also submitted in his brief that the respondents in his statement of defenec at page 25 of the record, never disclosed the names of Ntufam Inok Edim and the Ndidem of the Big Qua Town Community as the people who sent him to survey the land. It was only in his evidence that he mentioned the names. Learned counsel posited that the names where not pleaded by the respondent therefore that piece of evidence goes to no issue. That is a correct statement of law.
A material fact not pleaded goes to no issue. Indeed the law frowns at one of the parties trying to over reach the other by springing a surprise. The other party should be informed in time so as to make a response or state his reaction to the facts pleaded. See Adebayo vs. Shogo (2005) 7 NWLR (Pt.925) 467; Nwawuba vs. Enemuo (1988) 5 SCNJ 154 at 156; OCC Ltd. vs. Greek Enterprises Ltd. (1973) 4 SC 113; Abubakar vs. Yar’Adua (2000) All FWLR (Pt.457) 1 at 19.
‘It is glaringly clear that suits in the High Court are fought on pleadings and they must be conducted in accordance with the averments contained in the pleadings. Any evidence led in the course of any trial as to any fact which its not pleaded goes to no issue and must be ignored. A trial court should not allow such evidence to be given. If such evidence is wrongly admitted in the proceeding by the trial court, the appellant court will always ignore such evidence and will cause it to be expunged from the record. In the instant case on appeal, the respondent did not plead the names:
“Ntufam Inok Edim and the current Ndidem of the Qua. ”
Thus, issues were not joined on it by the parties. The trial court was wrong to have used the evidence. See further, Seidu vs. A.O. Lapps State (1986) 2 NWLR (Pt. 21) 165 and Emeeoke vs. Okadirhn (1973) 4 S.C. 113.
Furthermore, if the party in the course of cross-examination extracts evidence on a matter not pleaded but which if accepted could decide the issue between the parties then if he wishes to use it he should amend his pleadings. See Ojo vs. Kamain (2005) 10 NWLR (Pt. 958) 523. See Transport Ltd. vs. Oluwasegun (1973) 3 ECSHR (Pt. 11) 1176.
I agree with Chief Udousoro, counsel for the appellant, that the learned trial Judge erred in law when he held, inter alia, at page 62 lines 25-28 of the record that:
“Even if the plaintiff never knew of the defendants principal earlier, he knew Ntufam Inok Edim and the current Ndidem of the Qua’s on 12/6/08 when the defendant stated them as those who retained him to survey the land.”
It is undeniable that the respondent did not plead the names “Ntufam Inok Edim and the current Ndidem of the Quas.” Certainly evidence on unpleaded matters goes to no issue. See Adebayo vs. Shogo (supra); Mani vs. Shanono (2006) 4 NWLR (Pt.969) 132; Ogundalu vs. Magoh (2006) 7 NMLR (Pt.978) 148; Harkin Air Service Ltd. vs. Keazor (2006) 1 NWLR (Pt. 960) 160. Evidence led an unpleaded facts goes to no issue. Even where such evidence is inadvertently admitted it would be expunge. See Ukaegbu vs. Ugohi (1991) 6 NWLR (Pt.196) 127; Thompson vs. Arowolo (2003) 7 NWLR (Pt. 818) 163 and Abubakar vs. Yar’Adua (supra). The above portion of the judgment must be expunged and I do hereby expunge same. That notwithstanding the judgment of the trial court is unaffected by the above error. The reason for the above conclusion is not far fetched.
Firstly, there is enough evidence in the record that the respondent was retained by Big Qua Community. That evidence was not controverted, contradicted or even challenged.
Secondly, Big Qua Community is not a natural person, therefore it acts through human beings. For the purpose of executing its projects and other activities, it is for the Community to appoint their representative or representatives. It may be the Ndidem (Chief) himself or any of his Chiefs or anyone delegated to represent the Community.
Thirdly, it is not every error committed by a trial court that will lead to the reversal of the decision. See N.D.D.C. vs. Precision Ass. Ltd. (2007) 3 WRN 129 at 166.
In Adewunmi vs. A.G. Ekiti State (2002) 9 WRN the Supreme Court held thus:
“It is not every error of law that is committed by a trial or appellate court that justifies the reversal of the judgment. An appellant to secure the reversal of judgment must further establish that the error of law complained of did in fact occasion a miscarriage of justice and substantially affected the result of the decision.”
See Nnaji vs. Agbo (2006) 8 NWLR (Pt.981) 199.
In the instant case on appeal, the issue raised by Chief Udousoro, though correct, did not occasion a miscarriage of justice and it did not substantially affect the result of the decision. In the circumstances I decline to nullify the judgment of the trial court or set it aside.
However, it is important to state clearly that the mention of the names of Ntufam Inok Edim and the current Ndidem was made when the respondent was being cross examined by Chief Udousoro, at page 57 lines 24 – 26 of the record. This is not a case of the respondent wanting to rely on evidence elicited during cross-examination on unpleaded matters. The respondent’s defence was simply that the Big Qua Town Community retained him to survey the land in question. It is important to state that in an agency relationship, the agent is only obliged to disclose his principal. There is no obligation on him to say how the principal should be sued. That, I believe, is for the plaintiff to find out if he is desirous of suing the disclosed principal.
It is very well settled principle of law that an agent acting on behalf of a disclosed and known principal, as in the instant appeal, is not liable for his acts of agency. Only the principal should be liable. The act of an agent, for a particular purpose, is the act of the principal. The situation is, in law, as if it was the principal that did what the agent did or omitted to do. The common law rule is expressed in the maxim.
‘Qui per alium facit per selpsum facave videture; which means:
‘He who does an act through another is deemed in aw to do it himself.”
Where the principal of an “agent is known or disclosed, the correct and proper person to sue for anything done or omitted to be done by the agent is the principal. See: Vassile vs. Pass Industries Ltd. (2000) 12 NWLR (Pt.681) 347 at 357; Leventis Tech. Ltd. vs. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 224) 459; Qua Steel Products Ltd. vs. Bassey (1992) 5 NWLR (Pt. 230) 67; Amadiume vs. Ibok (supra).
When an agent is acting for a disclosed principal, the contract is the contract of the principal not that of the agent and at common law the only person who can sue and be sued is the principal. See: University of Calabar vs. Ephraim (1993) 1 NWLR (Pt.271) 551; Oyenuga vs. I.C.L. Ltd. (1991) 1 N.W.L.R. (Pt.168) 415 and Olufosoye vs. Fakorede (1993) 1 NWLR (Pt.272).
Chief Udousoro, submitted that the non-joinder of a party to a suit is not fatal to the proceedings. This submission is misconceived. This is not a case of mis-joinder or non-joinder. The issue in this appeal is whether an agent of a disclosed principal can be sued. It is trite law that the agent of a disclosed principal incurs no liability. In Niger progress Ltd. vs. NEL Corp. (1989) 3 NWLR (Pt. 107) 68 at 84, the Supreme Court per Obaseki JSC held that:
“A defendant acting on behalf of a known and disclosed principal incurs no liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. Khonam vs. John (1939) 15 NLR 12.”
See also Bayero vs. Mairaassava * Sons Ltd. (2006) 8 NWLR (Pt.982) 391, Amadiume vs. Ibok (supra) and Iyere vs. Bendel Feed and Flour Mills Ltd. (supra), though very good law, they are distinguishable and inapplicable to the facts of the instant case on appeal.
Chief Udousoro contended at page 11 of the appellant’s brief that even if the respondent disclosed his principal, the appellant is at liberty to sue the respondent alone without joining the principal and the non-joinder of the principal cannot defeat the appellant’s case. With due respect to Chief Udousoro, that submission is misleading and misconceived. At the risk of being repetitive, I will state firmly and clearly here that an agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. Thus it was the principal who did or omitted to do what the agent did or omitted to do. In UBA Plc. vs. Ogundekun (2009) 6 NWLR (Pt.1138) 450 at 483-484; Adekeye, JCA (as he then was) held that:
“An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent.
See also Faith Enterprise Ltd. vs. B.A.S.F. (Nig.) (2001) 8 NWLR (Pt.714) 242; Essang vs. Aureal Plastic Ltd. (supra). From the above, it is clear that the appellant is not at liberty to pick and chose who to sue where the agent has disclosed his principal. The cases of Ikine vs. Edjerode (2002) (supra) and Osondu Co. Lt.d vs. Soleh Boneh (supra) though very illuminating and instructive, are not in pare material with the facts of the instant case on appeal.
I see no merit in issues Nos. 2 and 5 and they fail. I resolve them against the appellant. All the issues having failed the appeal deserves to be dismissed.
Accordingly, this appeal be and is hereby dismissed. The judgment of justice E.E. Ita in Suit No: HC/302/2005 delivered on 13/8/08 is hereby affirmed. Cost of N20,000 is awarded in favour of the respondent.
Appeal dismissed.
K.B. AKAAHS, J.C.A: I had a preview of the judgment of my learned brother, Omokri, JCA. I agree entirely with his reasoning and conclusion that the appeal is devoid of any merit.
The respondent was clear and unequivocal in both his pleadings and evidence that he was invited to survey the land in dispute by the Big Qua Community. He never laid claim to the land. The appellant claimed he acquired the parcel of land in 1973 from late Ndidem Edim Imona, the Ntoe of Big Qua on behalf of Big Qua Town Calabar. The lease agreement was terminated in 2003 when the Solicitor retained by Big Qua Community wrote Exh. ‘E’ to him. I therefore find it difficult to comprehend the argument by learned counsel for the Appellant that the Respondent did not disclose his principal who engaged him to survey the land in question. Did the demise of Ndidem Edim Imona, the Ntoe of Big Qua turn the community on whose behalf he acted during the lease transaction into an amorphous entity who could not be sued for the trespass committed by the respondent who was acting on the instructions of a disclosed principal? Them is no suggestion that the respondent participated in the negotiation leading to the lease agreement neither was he instrumental to the termination of the lease agreement. And if the lease was terminated before the appellant instituted the action, the cause of action cannot lie in trespass since the respondent entered the land in dispute with the consent of the original owners of the land. The appellant failed to sue or join a necessary party in the suit. See GREEN V. GREEN (2001) FWLR (Pt.76) 795. The non-joinder of the principal who was disclosed has rendered the suit incompetent.
The respondent by disclosing the principal incurred no liability. See NIGER PROGRESS LTD. v. NEL CORPORATION (1989) 3 NWLR (Pt.107) 68 at 84 per Obaseki, JSC.
The appeal is totally devoid of merit and it is accordingly dismissed. I also award costs of N20,000 in favour of the Respondent against the Appellant.
UWAIS SYLVESTER NGWUTA: I read in advance the lead judgment delivered by my learned brother Omokri JCA, and I agree with the reasoning and conclusion therein contained.
An agent includes any person who acts for another in the capacity of deputy, steward, rent collector etc. see Anyaorah v. Anyaorah (2001) 7 NWLR (Pt.711) 158 at 182 Amadiume v. Ibok (2006) 6 NWLR (Pt.975) 158 at 126. Godwin v. Christ Apostolic Church (1998) 14 NWLR (Pt.584) 162 SC.
The Respondent is this appeal comes within the meaning of agent. He is an agent of a disclosed and named principal. Agent of a disclosed principal cannot be joined s a party with his principal in a claim arising from the agency and if joined the Court in its judgment will strike out the case against the agent. See Qua Steel Arochect Ltd. & Ors. v. Bassey (1992) 5 NWLR (Pt.239) 67.
It follows that an agent of a disclosed principal (the Respondent herein) cannot be heed liable for an act or omission arising for the agency.
The Appellant shied away from the substance in pursuit of a shadow, and his action is bound to fail.
For the above and the fuller reasons in the lead judgment I also dismiss the appeal as devoid of merit.
I abide by the consequential including order for costs.
Appearances
Chief G.A. UdousoroFor Appellant
AND
Joe Agi (SAN);
C. Onugba, Esq.,
A. Onung (Mrs.)
W. Agbor, Esq
M. Shaibu, EsqFor Respondent
