MR. EMMA BOSA v. ZUBAIRU ADAMU DAN YAKASAI (2013)

MR. EMMA BOSA v. ZUBAIRU ADAMU DAN YAKASAI

(2013)LCN/6238(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2013

CA/K/32/2006

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

MR. EMMA BOSA Appellant(s)

AND

ZUBAIRU ADAMU DAN YAKASAI Respondent(s)

RATIO

CONDITION TO BE FULFILLED FOR A DEFENDANT TO BE GIVEN LEAVE OR THE LIBERTY TO DEFEND A SUIT UNDER THE UNDEFENDED LIST

The position of the law is that for the defendant to be given leave or the liberty to defend the suit under the undefended list, his affidavit in support of his intention to defend must disclose a defence on the merit or a triable issue. At that stage, the trial Court should not concern itself with whether the defence raised is likely to succeed at the end of the trial or not or whether the defence has been proved at that stage. In Ataguba & Co. vs. Gura Nigeria Limited (2005) 8 NWLR Part 927 page 429, the Supreme Court referred to the cases of Grand Cereals and Oil Mills Ltd. vs. As-Ahel International Marketing Ltd. and Procurement Ltd. (2000) 4 NWLR Part 652 page 310; Alhaji Danfulani vs. Mrs. Shekari (1996) 2 NWLR Part 433 page 723; Alhaji Ahmed vs. Trade Bank of Nigeria Plc. (1997) 10 NWLR Part 524 page 290; Calvenply Limited vs. Pekab International Limited (2001) 9 NWLR Part 717 page 164; and Agro Millers Limited vs. Continental Merchant Bank (Nigeria) Plc. (1997) 10 NWLR Part 525 page 469; and held that a defence on the merit for the purposes of undefended list procedure may encompass a defence in law as well as on fact. The defendant must put forward some facts which cast doubt on the claim of the Plaintiff. A defence on the merit is not the same as success of defence in litigation.
All that is required is to lay foundation for the existence of a triable issue or issues. What will constitute a defence on the merit depends on the facts of the case. This is within the discretion of the Court of trial which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. PER ORJI-ABADUA, J.C.A.

WHETHER OR NOT AN AGENT WHO UNDERTAKES PERSONAL LIABILITY TO A THIRD PARTY IN THE COURSE OF MAKING A CONTRACT ON BEHALF OF HIS PRINCIPAL IS LIABLE TO THE TERMS OF THE CONTRACTUAL UNDERTAKING

It is an established principle that an agent who undertakes personal liability to the third party in the course of making a contract on behalf of his principal is liable in accordance with the terms of any contractual undertaking which he had entered. The rule is, the agent must not purport to make the agreement as principal himself, where he does, he will be held liable. I would now refer to the case of Ataguba & Co. vs. Gura (Nig.) Ltd (supra), where the Supreme Court held:“If an agent in his name enters into a transaction with another, he can sue and be sued in respect of that transaction. This is in accord with the views expressed in Chitty on Contracts, 28th Edition, Volume 2, p. 53 paragraphs 32 – 87 to the following effect:-A very important exception to the rule that an agent is neither entitled to sue nor liable to be sued on a contract made by him in a representative capacity is to be found where an authorised agent makes the contract in his own name without disclosing the fact that he was acting on behalf of another. On such contracts he can sue and be sued in his name because he is then to all appearances the real contracting party. See Allen vs. O’Hearn & Co. (1937) A.C. 213, 218.
In the case in hand, the appellant by selling the truck to the respondent and collecting purchase price and issuing a receipt thereto in his own name has become the real contracting party to the respondent. Consequently, the appellant is personally answerable for any breach of contract on his part.” (Underlined for emphasis). PER ORJI-ABADUA, J.C.A.

THERESA NGOLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment): The facts leading to this case stemmed from the offer made by the Respondent on 26/10/2005 to the defunct Bank of the North Nigeria Limited, now Unity Bank Plc for purchase of a property of the said Bank situated at Plot A Mohammed B. Haladu Road, Sharada, Phase III, Kano, which it marketed for sale. The Respondent offered to buy the said property at the sum of N13,500,000.00 which, he, proposed to be liquidated by three instalments. A Bank Draft dated 26/10/05 covering the sum of N3,500,000.00 was forwarded along with the said letter. The offer was accepted by the Bank through its letter dated the same 26/10/2005 which was signed on its behalf by the Appellant in this appeal, its then AGM (Property). However, on the 1st November, 2005, the said Bank addressed a letter to the Respondent’s Solicitors expressing certain difficulties it was experiencing regarding acceptance of his first payment of N3.5 million. By the said letter, the said Bank Draft for the sum of N3.5 million was returned to the Respondent. Following that, the Respondent wrote a letter dated 9/11/2005 and partly captioned “Attempted Breach of Contract” to the Bank via the Appellant as it Assistant General Manager.

The said letter was followed up by the Respondent’s letters dated 23/11/2005 and two Bank Drafts dated 22/11/05 and 23/12/05 covering the sum of N5 million respectively. By the said letter dated 23/12/2005, three copies of Deed of Assignment were forwarded to the Bank for its perusal and execution. Apparently, there were discussions between the Respondent’s Solicitor and the Bank’s AGM, i.e., Engr. Emma Bosa, the Appellant, and following which the letter dated the 30th December, 2005 was written by the Bank to the Appellant returning the said two Bank Drafts.
However, and surprisingly, the said Assistant General Manager of the Bank, on that same 30/12/2005 he returned the two Bank Drafts, wrote an acknowledgment of his indebtedness to the Respondent and his undertaking to pay to the Respondent the said sum of N1.5 million representing the alleged sum paid by the Respondent to his Solicitors for preparation of the said Deed of Assignment which was also returned by the Bank.
It is interesting to note that the said Acknowledgment/Undertaking dated 30/12/05 forwarded to the Respondent by the Appellant was written in the name and personal capacity of the Appellant. The Respondent never mentioned therein that he was representing the Bank or acknowledging and undertaking to repay the same on behalf of the said Bank of the North. The Respondent acknowledged therein that he was personally indebted to the Respondent in the sum of N1, 500,000.00 and undertook to repay the said sum within a period of two weeks from the date therein. The two weeks certainly lapsed without the Respondent honouring his undertaking. He, then, wrote a letter dated 16/1/2006 to the Respondent suggesting if the Respondent wished to claim the money, he should bring to him, his formal request to the Bank to enable him press the matter. Then, on 23/1/2006 the Appellant wrote a letter to the Solicitor of the Respondent referring to the discussion he had with him on 13/1/2006 and then, advised that if his client was still desirous of purchasing the said property, he should present a fresh bid for consideration by the consolidated Unity Bank Plc. He mentioned therein that his client had informed him, he had already recovered the said sum of N1.5 million. The Respondent’s Solicitors replied him by a letter dated 16/1/2006 requesting for a formal letter from the Bank indicating its interest to conclude the contract, with a warning that if the Bank failed to write the formal letter, their client’s said sum of N1.5 million which he, the Appellant, had undertaken to refund, should be paid to them. Further, on 8/2/2006, the Respondent via his Solicitors wrote a final Demand letter to the Appellant in respect of the said sum of N1.5 million he had personally undertaken to pay. The Appellant, obviously, failed to pay, hence the action instituted by the Respondent at the lower Court against the Appellant in suit No. K/160/2006 under the undefended list special procedure by the Writ of Summons dated the 2nd March, 2006 claiming thus:

“1. The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) only being the amount the defendant undertook to pay the Plaintiff.

2. 10% Court interest rate from the date of judgment till the whole money is liquidated;

3. The cost of filing this action.”

The claim was supported by an affidavit of five paragraphs with several documentary evidence attached thereto as Exhibits “A” to “Q”. The said affidavit was deposed to by one Martha Ohaka, the Litigation Secretary in the chambers of Mamman Lawan & Co (Yusufari Chambers). The suit was placed on the Undefended List by the order of the lower Court made on the 20th April, 2006 and, was fixed for hearing on the 25th May, 2006. Then, on the 16th May, 2006, the Appellant filed his Notice of Intention to Defend dated 12/5/2006 together with an affidavit of four paragraphs sworn to by one Patrick Chineke, the Litigation Officer in the Law Firm of Nelson Uzuegbu & Co, Counsel for the Appellant.

The case was eventually heard on the 6th July, 2006 but the ruling was not delivered until the 2nd November, 2006, the date fixed by the Court for the same. The lower Court held that the Appellant did not raise any defence on the merit that could warrant transferring the case to the general cause list. It, then, entered judgment in favour of the Plaintiff, i.e., the Respondent, in the sum of N1.5 Million and the cost of the action. As a result, the Respondent, now the Appellant, filed the present appeal which he based on nine grounds of appeal. From the nine grounds of appeal, learned Counsel for the Appellant, Nelson Uzuegbu Esq; who settled the Appellant’s Brief of Argument framed seven issues for consideration by this Court which read:

“1. Whether the trial Judge erred in law when he held that the averment in the affidavit in support of the notice of intention to defend that the Contract is subject to Board approval, did not disclose a defence on the merit, as it was not in writing. This is distilled from ground 2 of the notice of appeal.

2. Whether the trial Court was right in holding that the Appellant’s liability arose solely from the letter of undertaking (Annexure N) without considering the contract that gave rise to the claim. This issue flows from ground 3 of the notice of appeal.

3. Whether the averment that the Appellant was coerced into signing Annexure N does not amount to a defence on the merit. This is distilled from ground 4.

4. Whether the learned trial Judge erred in law by holding that the presumption that the Appellant read Annexure N could be rebutted by evidence in course of trial. Distilled from ground 5.

5. Whether the allegation that Respondent had already received his money back through his solicitors was not a defence on the merit.
Distilled from ground 6 of the notice of appeal.

6. Whether in the circumstances of this case, the Respondent’s unreasonably high demand of 13% commission did not raise questions of validity of Exhibit ‘N’ as alleged by the Appellant. Distilled from ground 7 of the notice of appeal.

7. Whether the summary rejection of the Appellant’s defence of subsequent agreement which varied and overtook annexure N was wrongful in law. Distilled from grounds 1 & 8.”

The Respondent, equally, formulated seven issues for the determination of this Court and they are:

“1. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that contract was made subject to decision of the banks board disclosed a defence on the merit.

2. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that Appellant acted as an agent of the bank disclosed a defence on the merit.

3. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that Appellant was coerced by the Respondent to sign Annexure N disclosed a defence on the merit.

4. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that Appellant did not read Annexure N before he signed it disclosed a defence on the merit.

5. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that Appellant spoke with the Respondent and Respondent told him that he (Respondent) was no longer interested in the money as he (Respondent) had already recovered the same from his (Respondent’s) solicitors disclosed a defence on the merit.

6. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that the amount claimed by the Respondent is unreasonably high disclosed a defence on the merit.

7. Whether the averments in the affidavit in support of Appellant’s notice of intention to defend that Annexure N has been varied by Exhibits ‘A’ and ‘B’ attached to the affidavit in support of Appellant’s notice of the intention to defend disclosed a defence on the merit.”

The Appellant further filed a Reply Brief to the arguments of the Respondent.

In presenting arguments on behalf of the Appellant, his learned Counsel contended under issue No. 1 that the trial Court was wrong in holding that the Appellant’s disclosure while acting as an agent of the Bank that the final decision rested with the Bank’s Board of Directors, though, initially oral but later reduced to writing, and which was not challenged, did not constitute defence on the merit. He submitted that the Court failed to consider the exceptions to the general rule in section 132 of the Evidence Act. He cited the cases of Saliba vs. Yassin (2001) FWLR Part 94 page 168 at 84 paragraphs A-B and Osu vs. Igiri (1988) 1 NWLR Part 69 page 221 and argued that had the trial Court considered the exceptions to section 132 of the Evidence Act, it could have decided otherwise.
In respect of issue No. 2, learned Counsel argued that a claim for compensation must arise from a particular action, and for it to succeed, it is necessary to examine the transaction that gave rise to the claim. It must rest on a finding of a legal right and where the legal right is absent it will not succeed. He further argued that it was necessary to inquire and ascertain whether the said liability existed and whether or not the Appellant was personally fixed with such liability. Learned Counsel submitted that the said N1.5 million was paid to Bashiru & Co by the Respondent as agency fees, that there was no indication in Exhibit ‘O’ attached to the affidavit in support of the Respondent’s claim that the Appellant was a partner to the said Estate Agent Company or that he collected the sum on their behalf.

He explained that the Appellant denied the existence of the liability said to have been acknowledged in Exhibit ‘N’ and, too, the said claim for N1.5 million by the Respondent was not linked to the transaction giving rise to it. He relied on Summit Finance Co. Ltd vs. Iron Baba & Sons Ltd (2004) All FWLR Part 156 page 996 at 1021 paragraphs D-E; and Total Nig, Plc vs. Ajayi (2004) All FWLR Part 218 page 887 at 904 paragraph E, and, argued that the trial Court refused to look beyond Exhibit ‘N’ and this occasioned a miscarriage of justice, and then urged that issue No. 2 be resolved in favour of the Appellant.
With regard to issue No. 3, learned Counsel referred to paragraph 3 (o) of the Appellant’s affidavit in support of his Notice of Intention to Defend where he asserted that the Respondent and his Solicitors coerced him into promising to obtain N1.5 million from the Bank to compensate them or they would tell his superior that he personally received N1.5 million as commission, which the Respondent never challenged. He submitted that the issue of coercion is a question of fact which can only be determined after evidence had been led to prove such allegation. Learned Counsel cited the cases of Haido vs. Usman (2004) ALL FWLR Part 201 page 1765 at 1777 paragraph A; and NAB Ltd vs. Felly Keme Nig Ltd (1995) 4 NWLR Part 387 page 100 where it was held that a defendant raises triable issues or a defence on the merit where his affidavit is such that the Plaintiff will be expected to explain certain matters with regard to his claim, or where the affidavit throws doubt on the Plaintiff’s claim. He then argued that the trial Court should not have dismissed the Appellant’s allegation of coercion with a wave of hand.

On issue No. 4, learned Counsel relied on the decision in Shitta-Bay vs. Federal Republic Service Commission (1981) 1 SC 40 and submitted that the presumption that the Appellant read Annexure ‘N’ before signing it is not a presumption of law but one of fact which can be rebutted by hearing oral evidence, after the matter is transferred to the general cause list. As long as the presumption is not one of law, the trial Court ought not to have treated the same as being irrebuttable. It had the duty to hear evidence from the Appellant and other witnesses before reaching conclusion. He therefore, persuaded this Court to resolve issue No. 4 in favour of the Appellant.

Regarding issue No. 5, learned Counsel argued that since there is an assertion in the Appellant’s affidavit that the Respondent had collected his money back from his Solicitors, there ought to be an enquiry into the validity of the action and the propriety of awarding the same claim to him as that would amount to double compensation. He submitted that the issue of double compensation is a substantial issue of law which had been held to be a triable issue. He said that the said allegation was not denied by the Respondent’s Counsel. Counsel anchored his argument on the decisions in NAD Ltd vs. Felly Keme Nig. Ltd (supra) and A. G. Ferrero & Co. Ltd v. Nnamani (2006) ALL FWLR Part 339 page 990.

On issue No. 6, he stated that by Annexure ‘A’, the percentage of the commission made available for the estate agent is 5, but in the action filed by the Respondent he claimed the sum of N1.5 million which is over 13% of the consideration of N13.5 million. He submitted that this averment at paragraph 3 sub-paragraphs (v) and (w) of the affidavit filed along with the Appellant’s Notice of Intention to Defend requires further enquiry into the facts of the case which can only be achieved by the transfer of the suit to the general cause list. He further submitted that it is not the duty of the trial Court to speculate or base its decision on mere conjecture. He referred this Court to the cases of Ataguba & Co. vs. Gura Nig. Ltd (2005) ALL FWLR Part 256 page 1219 at 1230-1231 paragraphs G-B; and F.B.M.C. Ltd vs. M.B.A.S. Ltd (2005) All FWLR Part 261 page 216 at 234 in support.

Turning to issue No. 7, Counsel contended that the contents of Exhibits ‘A’ and ‘B’ clearly showed that Exhibit ‘N’ had been overtaken by the events stated therein. He argued that had the trial Court properly scrutinized the evidence placed before it, the matter would have been transferred to the general cause list. He stated that the trial Court failed to consider Exhibits ‘A’ and ‘B’ attached to the Appellant’s affidavit filed along with his Notice of Intention to Defend. He urged this Court to resolve issue No. 7 in favour of the Appellant, allow the appeal, set aside the Ruling/Judgment of the trial Court, and transfer the matter to the General Cause List for hearing.

Submitting on behalf of the Respondent, in respect of the issues distilled in the Respondent’s Brief of Argument, his learned Counsel, Nasir Umar Esq., of Mamman Lawal & Co, referred to the contents of Annexure ‘C’ and argued that the contract entered into by the parties was not subject to any decision or approval of any board, and that the allegation that the same was communicated orally to the Respondent’s Solicitors cannot be allowed in view of the provisions of section 132 of the Evidence Act that no oral evidence or agreement can be admitted to contradict alter, add to or vary the contents of Exhibit ‘C’. He referred to sections 241 and 242 of the Companies and Allied Matters Act 1990, and the cases of Shell Petroleum Development of Nigeria Limited vs. Arho-Joe Nigeria Limited (2006) All FWLR Part 331 page 1330 at page 1348, paragraphs A-D; Maisaje Nigeria Limited vs. Bank of the North Limited (2006) ALL FWLR Part 331 page 1256 at 1274, paragraphs A-C, per Jega, J.C.A; and Haido vs. Usman (supra) in support. He contended that the averments of the Appellant in his said affidavit neither raised any triable issues nor constituted any defence on the merit. He further contended that the contract was not made subject to any board decision or approval and that section 132 (1) (b) & (c) of the Evidence Acts do not apply to Annexure C. He also submitted that Annexure D makes the existence of such oral agreement improbable as it conveyed the same message without any reference to any such existing oral agreement.
Arguing on issue No. 2, learned Counsel pointed out that in Annexure ‘N’, such designation as ‘Assistant General Manager’ or even the name of the said Bank was conspicuously absent and one is left with no option than to conclude that the Appellant was at that point on a voyage of his own. He referred to Okafor vs. Ezenwa (2002) FWLR Part 121 page 1837 where it was held that where a person signs a document in his personal capacity, he, and no other person, is bound by its contents. He, also, cited Nigerian Educational Research and Development Council vs. Gonze Nigeria Limited (2000) FWLR Part 21 page 842, per Olagunju J.C.A., at 866 paragraphs D-E and submitted that Exhibit ‘N’ and the presentation the Appellant made therein to the Respondent made him liable. The Appellant must, therefore, be estopped from denying his presentation or declaration. He then urged that issue No. 2 be resolved in favour of the Respondent.

With regard to issue No. 3, learned Counsel pointedly argued that the Appellant has a duty not only to allege that he was coerced but to state the particulars of how he was so coerced. He cited Shell Petroleum Development of Nigeria Limited vs. Arho-Joe Nigeria Limited (supra). Counsel further referred to the Respondent’s assertions at paragraph 3 sub-paragraphs (h), (i), (j), (k), (l), (m) and (n) and the case of Abdu Manya vs. Alhaji Iliyasu Idris (2000) FWLR Part 23 page 1237 at 1250 paragraphs E-G, per Salami, J.C.A., (as he then was) where it was held that an innocent party to a contract faced with a fundamental breach of the contract by the other party has two options. He may accept the breach and treat the contract as repudiated and sue for damages for the breach or elect to affirm the contract is still existing and enforceable by seeking for specific performance. He stressed that the Respondent only elected the second option. He submitted that the Appellant was not coerced. It was a self-induced and selfish pressure. He submitted that for coercion or undue influence or pressure to vitiate a contract same must be unlawful. He then urged that this issue be resolved in favour of the Respondent.

On issue No. 4, he relied on the case of Olayinka vs. Okey (2003) FWLR Part 185 page 440 ratio 1 at page 441 ratio 1, and submitted that he who appends his signature on a document is bound by its content and he cannot thereafter be allowed to deny the contents as by so signing, he represent to the entire world that he is the author. He further submitted that the Appellant is deemed to have not only read but understood what he signed and the trial Judge was right to have so held as the said presumption is irrebuttable. Counsel, therefore, persuaded that this issue be resolved in favour of the Respondent.

Dealing with issue No. 5, learned Counsel made reference to the averments at paragraph 3 sub-paragraphs (b) and (i) of the Appellant’s affidavit in support of the Notice of Intention to Defend which he stated contradicted his claim that he spoke with the Respondent. He stressed that all the meetings and correspondences beginning with the offer were between the Appellant and the Respondent’s Counsel particularly, the said Mr. Umar. He referred to the cases of Consolidated Breweries Plc vs. Joshua A. Aisowieren (2002) FWLR Part 116 page 959 at 988 paragraphs A-B, per Tobi J.C.A; and Neka B. B. B. Manufacturing Company Limited v. African Continental Bank Limited (2004) All FWLR Part 198 page 1175 at 1197 paragraphs E-G, where it was held that when an evidence is hollow, empty or bereft of any substance, willfully or corruptly false or incredible or weak in content, it will be safe to ignore it, as challenging it will amount to chasing a shadow. He stressed that the Appellant did not show any negligence on the part of the Respondent’s Solicitors. He then urged this Court to resolve this issue in favour of the Respondent.

Turning to issue No. 6, learned Counsel contended that by signing annexure N, the Appellant is deemed to have accepted the said sum and to have waived his right, if , any, to argue as to whether the said sum was unreasonably high. He referred to section 151 of the Evidence Act and submitted that the said allegation did not constitute a defence on the merit, therefore, issue No. 6 should be resolved in favour of the Respondent.

Arguing in respect of issue No. 7, learned Counsel submitted that Exhibits ‘A’ and ‘B’ unilateral as they stand, bind only their maker, i.e., the Appellant and varied nothing let alone annexure N. He urged this Court to consider the essence and purpose of Undefended List procedure which is to avoid unnecessary delay and argument or technicality, etc., and, therefore, urged that this appeal be dismissed.
In the Appellant’s Reply Brief, his Counsel made reference to the cases of Shell Petroleum Development of Nigeria Limited vs. Arho-Joe Nigeria Limited (supra) page 1335 at 1345-1346, paragraphs H-A; Okafor vs. Ezenwa (2002) FWLR Part 121 page 1845 at 1854, paragraph C; Dahiru vs. Kamacu (2006) All FWLR Part 295 page 616 at 649, paragraphs B-D; Bua vs. Dauda (2003) FWLR Part 172 page 1189 at 190 paragraphs A-B; Mat Holdings Limited v. United Bank for Africa Plc (2003) FWLR Part 183 page 150 at 160 paragraphs B-C; and United Parcel Service Ltd vs. Prince Obot Ufot (2006) All FWLR Part 314 page 345 at 301 paragraphs C-E; under the respective issues Nos. 1-7 and reiterated his arguments marshalled in the Appellant’s Brief of Argument, and, still urged that this appeal be allowed.

I must observe that this matter having been commenced under the Undefended List special procedure and with the judgment therein being entered in favour of the Plaintiff pursuant to Order 23 Rule 4 of the Kano State High Court (Civil Procedure) Rules, 1988, the only relevant issue this Court should really consider at this stage is ‘whether from the totality of the facts averred in the Appellant’s affidavit filed together with his Notice of Intention to Defend, the Appellant disclosed any defence on the merit that ought to have warranted the suit being transferred to the general cause list for oral evidence to be adduced. In this regard, it would be fruitless considering the seven issues propositioned by the Appellant disjunctively. It is more prudent that they be considered together since at the end of the day, it is only one major resolve this Court would make.

I have in great depth, scrutinized the averments of the parties in their respective affidavits before the lower Court.
As could be gleaned from the Respondent’s claim, under the undefended list, he sued for the sum of N1.5 million the Appellant acknowledged as a debt being personally owed by the Appellant to him, the Respondent, which he, the Appellant, undertook to pay to the Respondent. Then at paragraph 3 sub-paragraphs (n) and (o) of the Respondent’s affidavit in support of his claim, it was averred thus:

“3n) That on receiving the information that the Applicant was ready to conclude the transaction by his submission of the final installment and request for the delivery of the title documents, the respondent approached the Applicant and, his solicitors with a request to abort the contract of sale so as to save the respondent’s seat/job as according to him, he acted mistakenly.

o) That the respondent further pleaded with the, applicant to collect back his 1st and 2nd drafts in the sum of N3, 500,000.00 Three Million Five Hundred Thousand) and N5,000,000.00 (Five Million Naira) respectively earlier or already with the bank and further undertook to refund the sum, of N1,500,000.00 (One Million Five Hundred Thousand Naira) only to the Applicant being the money the Applicant gave to one Bashari & Co. (Bashir Mohammed) of No. 2 Yolawa Link, Sardauna Crescent Nassarawa G.R.A Kano, the Estate Agents in respect of the sale which plea the Applicant accepted.’ The covering letter returning the 2 (two) drafts dated 30/12/05, the 2 (two) drafts i.e. an Oceanic Bank Plc bank draft No. 00519952, dated 22/11/05 in the sum of N5, 000,000.00 (Five Million Naira) and the Bank of the North Nigeria Limited Bank draft No. 02603909 dated 30/12/05 in the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira), the defendant’s/respondent’s undertaking to pay the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) to the plaintiff/applicant dated 30/12/05 and the acknowledgement of receipt of the sum of N1, 500,000.00 (One Million Five Hundred Thousand Naira) by the said Bashir Mohammed of Bashari & Co. (Estate Agents) dated 26/10/05: are hereby attached and marked annexures “K” “L” “M” “N” and “O” respectively.”

In the entire assertions of the Respondent in his affidavit stating his grounds for the claim under the undefended list procedure, except for the acknowledgment and undertaking given by the Appellant, it is clear that all the transactions the Respondent had with respect to the said property described as Plot A, Mohammed B. Haladu Road, Sharada, Phase III, Kano including the offer made to him and the acceptance of the same made by the defunct Bank of the North (Nig) Ltd were with the said former Bank of the North, now forming part of Unity Bank Plc. All the correspondences he exchanged were with the defunct Bank of the North Nigeria Ltd. The said Bank Drafts he issued were made in favour of the said defunct Bank of the North. There was no indication of any personal dealings with the Appellant except as shown in Exhibit “N” which the Respondent also, mentioned at paragraph 3(o) of the affidavit in support of his claim. Paragraph 3(n) of the Respondent’s affidavit evidenced the quagmire the Appellant found himself. The Appellant told the Respondent that he acted mistakenly. The Appellant was then, the Assistant General Manager and Head of Premises of the former Bank of the North Nigeria Limited. The Appellant through and through, had no personal or private connection with the said transaction except that he was merely the Assistant General Manager of the said defunct Bank of the North and he was acting in a representative capacity. It is clear in Annexure ‘O’ that the said sum of N1, 500,000.00 the Respondent paid to one Bashir Mohammed was the said Bashir Mohammed’s agency fee in respect of the said Plot A Mohammed B Haladu Road, Sharada, Phase III, Kano which the said defunct Bank allegedly agreed to sell to the Respondent. It was the expenses incurred by the Respondent as a result of the said transaction. It is abundantly, clear that it was the said defunct Bank of the North that aborted the sale of the said property. This was manifested in the assertions at paragraph 3(h) of the Respondent’s affidavit. It was averred therein, that after the Respondent’s first instalmental payment of N3,500,000.00 to the Bank, the said defunct Bank informed his Solicitors by a letter dated 7th November, 2005, that the defunct Bank could for some reasons not be able to conclude the transaction. The said letter written on the letterhead of the said Bank was attached as Annexure ‘D’ to the Respondent’s affidavit. It is clear in the affidavit of the Respondent that he had no personal transaction with the Appellant that led to any indebtedness on the part of the Appellant to him. The Respondent as Assistant General Manager of the defunct Bank of the North, from every indication acted as an agent of a disclosed principal until Annexure ‘N’ was made. All the Bank Drafts raised by the Respondent in connection with the said property were made in favour of the said Bank of the North.
The Appellant at paragraph 3 sub-paragraphs (a) to (y) of his affidavit filed together with his Notice of Intention to Defend stated his defence thus:

“(a) That Bank of the North Ltd (“The Bank”) did consider selling a property at Sharada III, Kano.

(b) That a person described as “Alhaji Ado” showed interest although he never appeared.

(d) That it was confirmed that the Bank would welcome offers.

(e) That Mr. Umar made an offer of N13.5 million for “Alhaji Ado” now described as Alh. Zubairu Adamu Dan Yakasai.

(f) That Alh. Ado sent a draft for N3.5 million and an offer.

(g) That the offer was received in the defendant’s office.

(h) That Mr. Umar was told that the offer could only be ultimately accepted by the Bank’s board of directors; but the board decided to suspend the sale and Mr. Umar was immediately notified.

(i) That Messrs. Lawan’s unknown client was said to be angry at the action/inaction of the Bank’s board.

(j) That Mr. Umar ignored the said board’s decision and delivered a further draft of N5 million to the defendant’s office whilst the defendant was out.

(k) That Mr. Lawan’s office further delivered another draft of N5 million in similar circumstances even though at this time he had become quite familiar with the defendant.

(l) That Mr. Umar just carried on as though he was oblivious of the decision of the Bank’s board; Hence

(m) That Mr. Umar asked for an executed deed of assignment and the title documents.

(n) That the defendant approached Mr. Umar who had now become what appeared to be a friend and, in that spirit, urged him to desist from the steps he was taking because he had at that time a hostile superior in the office who was about to capitalize on same to threaten the defendant’s job.

(o) That, rather than sympathize with the defendant Lawan & Co and their client became all the more aggressive and coerced the defendant into promising to obtain N1.5 million from the Bank to compensate them or they would tell his superior that he personally received N1.5 million commission, subsequently, they brought a document to the defendant to sign to that effect and he signed without reading it or taking a copy; it was agreed that the matter would be resolved if the new board of the consolidated Unity Bank Plc could revive the transaction.

(p) That the defendant did not personally receive any money and is not liable to repay any.

(q) That the defendant does not owe the plaintiff the sum of N1.5 million or any sum at all.

(r) That, later, the plaintiff would not wait for Unity Bank to take a decision; Lawan & Co kept pressing for money; hence the defendant wrote and advised them to make a format claim on Unity Bank; a photocopy of the letter is Exhibit ‘A’ hereto.

(s) That Mr. Umar of Lawan & Co later met with the defendant and indicated their client’s preference for the transaction to go through successfully.

(t) That the defendant also spoke with the plaintiff and the plaintiff assured him that the N1.5 million was no longer an issue as he had received his money back from his solicitors.

(u) That the defendant asked Lawan & Co. and their client to formally make another offer for the property; a photocopy of the defendant’s letter to them is Exhibit ‘B’ hereto.

(v) That the defendant has been involved in buying and selling landed properties for about 30 years and he knows that commissions for such transactions are payable at between 2% and 5% only and same are due and payable only after the transactions are concluded and title documents are handed over to the buyer.

(w) That he is not aware of any payment of commission and at an outrageous rate of over 13% to a certain Bashari & Co: in fact –

(x) That the same Lawan & Co. are now making a claim against Unity Bank tor 5% commission on the same transaction; a photocopy of their letter to said effect is Exhibit ‘C’ hereto.

(y) That the defendant is not owing the plaintiff or Lawan & Co. or anybody else and he has a good defence to this action.”

The case of the Appellant was copiously x-rayed in his affidavit filed along with his Notice of intention to defend. The question now is, ‘What was the trial Court’s finding on Annexure ‘N’? Did the trial Court examine the affidavit of the Appellant to ascertain if he disclosed any defence on the merit?

The lower Court said at pages 125-126 and 127-128 of the record thus:

“It is true that throughout the transaction as evidenced by Annextures A-G with exception of Annexture N, the defendant was acting on behalf of a disclosed principal therefore not liable for the breach of the contract entered between the defendants bank i.e. Bank of the North and the Plaintiff. However his liability arises from the undertaking he made on Annexture N. In annexture N, the defendant undertook to pay the Plaintiff the sum of N1.5 million. Annexture N was signed by the defendant. It is this signature that need to be determined whether he signed as an agent or personally. It is a well established principle of law that where an agent sign a document in his personal capacity and not in descriptive or representative capacity, he will be personally liable. If his signature is qualified by some words which show the representative character of the person signing, then he will not be personally liable.”

“From the above paragraphs it clearly show that the defendant was not acting on behalf of the bank when he signed Exhibit ‘N’. It clearly shows that the defendant has something to hide otherwise why should he sign the document without reading it? What was (sic) the steps the Lawan & Co and their client taking which the defendant was urging them to stop? From the affidavit evidence it was the enforcement of the contract which was aborted by the defendant through annexture D.”

I shall now consider the legal implications of Exhibit ‘N’ forwarded to the Respondent by the Appellant. The basic principle of a contractual agency is that if an agent has actual or apparent authority, the agent will not be liable for acts performed within the scope of such authority, so long as the relationship of the agency and the identity of the principal have been disclosed. When the agency is undisclosed or partially disclosed, both the agent and the principal are liable. An agent of a disclosed principal cannot be joined as 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.

As stated by Bowstead on Agency, a disclosed principal may sue or be sued on any contract made on his behalf, and in respect of any money paid or received on his behalf by his agent, acting within the scope of his actual authority, therefore, an agent acting within the scope of his actual authority, express or implied, binds and entitles his principal. Further, where an act is done in the name or purportedly on behalf of a person by another person purporting to act as his agent, the person in whose name or on whose behalf the act is done may, by ratifying the act, make it as valid and effectual as if it had been originally done by his authority, whether the person doing the act was an agent exceeding his authority or was a person having no authority to act for him at all.

However, it is instructive to note that an agent may be held to have undertaken personal liability on the contract instead of or in addition to his principal. It is an established principle that an agent who undertakes personal liability to the third party in the course of making a contract on behalf of his principal is liable in accordance with the terms of any contractual undertaking which he had entered. The rule is, the agent must not purport to make the agreement as principal himself, where he does, he will be held liable. I would now refer to the case of Ataguba & Co. vs. Gura (Nig.) Ltd (supra), where the Supreme Court held:

“If an agent in his name enters into a transaction with another, he can sue and be sued in respect of that transaction. This is in accord with the views expressed in Chitty on Contracts, 28th Edition, Volume 2, p. 53 paragraphs 32 – 87 to the following effect:-

A very important exception to the rule that an agent is neither entitled to sue nor liable to be sued on a contract made by him in a representative capacity is to be found where an authorised agent makes the contract in his own name without disclosing the fact that he was acting on behalf of another. On such contracts he can sue and be sued in his name because he is then to all appearances the real contracting party. See Allen vs. O’Hearn & Co. (1937) A.C. 213, 218.
In the case in hand, the appellant by selling the truck to the respondent and collecting purchase price and issuing a receipt thereto in his own name has become the real contracting party to the respondent. Consequently, the appellant is personally answerable for any breach of contract on his part.” (Underlined for emphasis)

I must reiterate that, although the general rule is that an agent is not liable on the contracts he makes for his principal, there are nevertheless many cases where he is in fact liable. One of the illustrations made by Bowstead in his book (supra) at page 266 under chapter 7 dealing with relations between principal and third parties, is that where an agent entered into a contract of deed in his own name, the principal not being named in it, was not held liable to be sued on the contract. Further, the agent may be solely liable where he has not created any contract binding his principal at all but has made the contract in his own name. Also where he undertakes a separate liability on a collateral or separate contract, he is to be personally liable.

It was further illustrated by Bowstead in his said book at page 360 that where an agent signed in his own name, without mentioning his principal, in an undertaking to accept shares in a company, and the shares were allocated to him, and subsequently, the principal took a larger number of shares, in satisfaction, as the agent said, of his undertaking, it was held, that the agent having personally accepted the shares, was liable as contributory. See In Re Southampton, Birds case (1864) 4 De G. J. & S. 200.

It had also been held that where a naval commander, when employing a cook, undertook to pay him a certain sum per annum in addition to the government pay, the commander was personally liable to pay such additional sum, he has contracted personally, and not as an agent for the government. See Chutterbuck vs. Coffin (1842) 3 M & G. 842; Cunningham vs. Collier (1785) 4 Doug.233; Unwin vs. Wolseley (1787) 1 T.R 674.
In the instant case it was to the full knowledge of the Respondent that the Appellant was acting on behalf of the said Bank of the North Nigeria Limited. It is, also, clear in the documentary evidence exhibited by the parties in their respective affidavits that all the while the Appellant acted on behalf of the said Bank, he used the letterhead of the Bank to write to the Respondent. There was no doubt that he was acting in such a capacity which the Respondent did abide by, and, respected, until Exhibit ‘N’ reared its head, then making the Appellant personally liable for the said sum of N1.5 million being direct expenses the Respondent incurred as a result of the botched contract of sale of property. As I earlier opined, an agent may be solely liable where he undertakes a separate liability on a collateral or separate contract.
At this juncture, it would be appropriate to reproduce the contents of Exhibit ‘N’ thus:

“30/12/05

UNDERTAKING/ACKNOWLEDGEMENT

This document is to the effect that I, Mr. Emma Bossa (Age Premises) Bank of the North Limited.
No. 1 Zaria Road Kano hereby acknowledge being indebted to Zubairu Adamu Dai Yakasai of c/o Mamman Lawan & Co. to the tune or in the sum of N1,500.000 (One Million Five Thousand Naira) only which I hereby undertake to pay within a period of 2 (two) weeks from the date herein.

sgd.

Mr. Emma Bossa.

Witness to the above:-

Name: Martha Ohaa.

Address: No. 22 Court Road, G/gyadi, Kano.

Occupation: Secretary.

Signature: Marth.”

It is clear in Exhibit ‘N’ that the Appellant did not only veer off and jettisoned the agency relationship with the said Bank of the North but acknowledged the supposed indebtedness of the said Bank to the Respondent as his own, i.e., owed by him to the Respondent and undertook to pay the said debt within a period of two weeks from the date therein i.e. 30/12/05. It is clear in the said Exhibit ‘N’ that the Appellant completely blew off and did not act on behalf of the Bank. He acted in his own name and personally undertook to repay. Why he did that is unfathomable, and, he could not even get the Bank to write an official letter to the Respondent regarding the contents of the said Exhibit ‘N’.

What is clear in Exhibit ‘N’ is that the undertaking given by the Appellant to pay as he declared did not arise by any implication but from expressed words in the document which indicated how the Appellant proposed to deal with the matter. This is a clear undertaking to pay which is binding on the Appellant.

The record of this appeal shows how detailed the trial Court were in considering the defence raised by the Appellant vis-a-vis the law on acknowledgment of debt and undertaking to pay. The Court believed seriously that the Appellant has shown no defence on the merit. The Appellant also did not give the particulars of the coercion or intimidation he alleged he suffered at the hands of the Respondent and his Solicitors.

From every indication, particularly, the Appellant’s averment at paragraph 3(n) of his affidavit in support of his Notice of Intention to Defend, it seemed as if the Bank did not originally authorize the sale of the said property at the time the Appellant intimated Mr. Umar of the sale. He behaved like one who acted without authorization, that was why he seemed panicky and was afraid of losing his job. He even admitted to the Respondent’s Solicitor that he acted mistakenly and that his hostile superior in the office was trying to capitalize on that to threaten his, Appellant’s job. Why was he so frightful if he acted accordingly? Again if the Bank authorized the sale, why did he not use the Bank’s letterhead to write Exhibits ‘N’, the undertaking, and ‘A’ and ‘B’ attached to his own affidavit? Everything about the Bank was not mentioned or stated in those Exhibits. It was the entire scenario played out from the moment of issuance of Exhibit ‘N’ that portrayed him as simply wanting to bear full responsibility for his own mistakes and reimburse the Respondent personally.

I must observe that the issue of considering the exceptions to the provisions of section 132 of the Evidence Act does not arise because it was never in doubt that the contract of sale of the said property was between the Respondent and the defunct Bank of the North, now Unity Bank Plc. Exhibit ‘C’ was a complete acceptance of the offer without any qualification.

The point is that the Appellant should have allowed the Respondent sort out his problems with the Bank in question without involving himself personally. The moment he decided to issue Exhibit ‘N’ in his personal name by acknowledging his principal’s indebtedness as his own, and, then undertook to pay the same within two weeks therefrom, he had crossed the line drawn by his principal and gone beyond the scope of his authority” He acknowledged his principal’s indebtedness as his own and then undertook to pay the same. As I stated earlier, an agent who undertakes personal liability to the third party in the course of making a contract on behalf of his principal is liable in accordance with the terms of any contractual undertaking which he had entered. The agent must not purport to make the agreement as the principal himself, where he does, he will be held liable.
I am afraid, the trial Court is right that the issue whether the Appellant was liable to the Respondent in respect of the said sum of N1.5 million, arose out of Exhibit ‘N’. All along, the Appellant did portray himself or put himself forward as acting on behalf of ‘his disclosed principal, i.e. the defunct Bank of the North Nig. Ltd, in terms of who he was representing, then, suddenly he made a volte face and placed himself in a very vulnerable position. As rightly observed by the trial Court, if he had indeed remembered to state in Exhibit “N” that he was representing the Bank, it would have given a different connotation. He simply entered Exhibit ‘N’ in his personal name. The law is that if fraud or any breach of the law is alleged, the particulars of the same must be given in the affidavit.Already, the Appellant had explained to the Respondent that the whole issue of sale of the said property arose out of his mistake, i.e., he acted mistakenly. Then he personally gave an undertaking to repay the Respondent the said sum of N1.5 million he paid to his agent.

The appellant acknowledged being indebted to the Respondent and he then undertook to pay. After Exhibit ‘N’, the Appellant, again, in his personal capacity wrote, Exhibits ‘A’ and ‘B’ attached to his Notice of Intention to Defend. Exhibits ‘A’ and ‘B’ as produced by the Appellant were not written on the letter-head of the Bank. It was in consequence thereto that the Respondent, via Exhibit ‘P’ shown at page 67 of the record wrote a letter to the Appellant stating thus:

“26th January 2006

Mr. Emma Bossa,

AGM Premises,

Bank of the North Ltd.,

Zaria Road,

Kano.

Dear Sir,

RE: CONTRACT IN RESPECT OF PLOT COVERED BY CERTIFICATE OF OCCUPANCY NO. LKN/COM/282/9

We refer to your verbal discussion with our Nasir Umar Esq in respect of the above title subject and request for the following:

1. A formal letter from the Bank indicating interest to conclude the contract.

2. Where if feel No. 1 above is unpracticable, we request for the refund of the sum of N1.5m (One Million Five Hundred Thousand Naira) already undertaken to be paid to us and which undertaking was not honoured.

We give you one week from the date of this letter to respond positively to our request otherwise, we will not hesitate to institute a legal action for the enforcement of the contract.

Faithfully yours,

sgd.

Muhammad Shehu Esq,

Mamman Lawan & Co.”

The Respondent’s Exhibit ‘P’ was requesting for a formal letter from the Bank ratifying the content of the Appellant’s Exhibit ‘B’ to him.

Unfortunately, the ratification letter was not given by the Bank. It is rather surprising that all the while the Appellant and the Respondent were exchanging correspondences regarding the sale of the said property, the Appellant wrote on the Bank’s Letterhead, but when he wrote Exhibits ‘A’ and ‘B’, they were not so headed.
In this connection, I must observe that it was not shown in the Appellant’s affidavit that his principal, the said defunct Bank or the present Unity Bank Plc, authorized him to give such an undertaking to pay his principal’s debt and where such authority was not given, he obviously exceeded the scope given to him by the Bank. It is the law that an agent who has exceeded the limit or bounds of his authority will be liable. If after writing Exhibit ‘N’ the Bank wrote to the Respondent explaining the circumstances or acknowledging his actions that would have validated his argument. Surprisingly, Exhibits ‘A’ and ‘B’ were still written by the Appellant in his personal capacity. The lower Court, to my mind, exhaustively considered the issues raised by the Appellant in his affidavit and found same as having not raised any defence on the merit. I must note that the Appellant had seriously learned through the hard way. When next he is faced with a situation such as that, he should immediately consult with his Solicitors for proper legal advice. I tend to agree with the lower Court’s findings since there is nothing in the record before this Court that succeeded in persuading us to hold otherwise. Accordingly, issues 1, 2, 3, 4, 5, 6 and 7 distilled for determination by the Appellant are hereby resolved against the Appellant. I find no merit in this appeal and accordingly this appeal is hereby dismissed. The judgment of the lower Court in suit No. K/160/06 is hereby affirmed by me. I make no order as to costs.

DALHATU ADAMU, J.C.A: I have had the privilege of going through the lead judgment of my learned brother Orji-Abadua JCA just delivered in this appeal. I agree with the resolution of the issues against the appellant. I also find no merit in the appeal which is hereby dismissed by me. I abide by the consequential orders made in the lead judgment including the order on costs.

ITA G. MBABA, J.C.A: I have had the privilege of reading a copy of the lead judgment, delivered by my learned brother, ORJI – ABADUA, JCA and I agree with the reasoning and conclusions of his Lordship.
Accordingly, I too affirm the judgment of the lower Court and abide by the consequential Orders in the lead judgment.

Appearances

Nelson Uzuegbu Esq.For Appellant

AND

A. B. Mustapher Esq.For Respondent