ALHAJI FARUK MAITURARE v. MU’AWIYYA SA’ADU
(2018)LCN/12181(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/147/2017
RATIO
CONTRACT: CONTRACT MADE BY AN AGENT
“This Court is therefore in agreement with learned Respondent’s Counsel that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and the principal, not the agent, is the proper person to sue or be sued upon such contract. See the case of CARLEN (NIG.) LTD vs. UNIVERSITY OF JOS (Supra) cited by learned Counsel. See also the case of UWAH & ANOR vs. AKPABIO & ANOR (2014) LPELR-22311 (SC) where the apex Court per MUHAMMAD, JSC had this to say: ‘…As a general rule, a contract made by an agent acting within the scope of his authority for his disclosed principal, in Law, is the contract of the principal and the principal not the agent is the person to sue or be sued upon the contract. See Niger Progress Ltd vs. North East-Line Corporation (1989) 3 NWLR (PT. 107) 68, Dr. Tunde Bamgboye vs. University of Ilorin & Anor. (1999) 10 NWLR (PT. 622) 290 at 329 and Samuel Osigwe vs. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (PT. 1128) 378’.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI FARUK MAITURARE Appellant(s)
AND
MU’AWIYYA SA’ADU Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of the High Court of Sokoto State delivered by BELLO DUWALE, J. of High Court of Sokoto State, Sokoto Judicial Division on the 16th day of March, 2017 in Suit No SS/16/2016 wherein, the Court below entered judgment in favour of the Respondent who was Defendant against the Appellant who was Plaintiff.
By the writ of summons and the Statement of Claim dated and filed on the 29th day of March, 2016, the Appellant claimed against the Respondent the following reliefs:
a. An order of this Court directing or mandating the Defendant to pay to the Plaintiff the sum of Five Million Naira (?5,000,000) being the money owed to the Plaintiff by the Defendant.
b. The sum of Five Million Naira (?5,000,000.00) as special damages against the defendant for keeping the money of the Plaintiff for almost 3 years with no just cause.
c. The sum of One Million Naira (?1,000,000.00) as general damages.
d. The cost of this action.
e. Such further and other orders as the Court may deem fit to make in the circumstances.
The matter went to trial and the Plaintiff testified for himself and called three (3) witnesses. He also tendered some exhibits, while the Defendant testified for himself and called a witness. He also tendered a number of exhibits. At the close of evidence, parties filed, exchanged and adopted written addresses. On the 16th day of March, 2017, the learned trial Court delivered a well considered judgment refusing the grant of any of the reliefs of the Plaintiff, whilst dismissing the Defendant?s Counter-claims.
Dissatisfied with the judgment of the Court below, the Appellant has Appealed to this Court vide a Notice of Appeal filed on the 22nd day of March, 2017. There are three (3) Grounds of Appeal filed, which are reproduced here without their particulars as follows:
GROUNDS OF APPEAL:
1. The learned trial judge of the lower Court was in grave error when he dismissed the suit of the Appellant on the ground of a partnership agreement to which the Appellant was never a party.
2. The lower Court erred in law when it deliberately refused to grant the reliefs sought by the Appellant, when it initially held that there were enough cogent oral and documentary evidences establishing the claim of the Appellant.
3. The decision of the lower Court was unreasonable and cannot be justified in law.
ISSUES FOR DETERMINATION:
Two issues were nominated by the Appellant for the determination of this Appeal as follows:
1. Whether the Lower Court was right when it heavily relied on a partnership agreement marked as exhibit E in refusing the claims of the Appellant. (Grounds 1 & 3)
2. Whether the Lower Court was right when it refused to grant the reliefs claimed by the Appellant when it heavily relied on a partnership agreement marked as exhibit E in refusing the claims of the Appellant. (Ground 2)
On the part of the Respondent only an issue was nominated for the determination of the Appeal thus;
Whether having regards to the facts and circumstances of the case as presented before the Court below, the Court below was correct in Law when it dismissed the claims of the Appellant (Grounds 1, 2 & 3).
The Appellant’s Brief of Argument filed on the 8-5-2018, was settled by M. A. SAMBO ESQ., while the Respondent’s Brief of Argument filed on the 8-10-2018 and deemed filed on the 10-10-2018 was settled by IBRAHIM ABDULLAHI ESQ. At the hearing of the Appeal on the 11-10-2018 learned Counsel adopted their Briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the Lower Court was right when it heavily relied on a partnership agreement marked as exhibit E in refusing the claims of the Appellant (Ground 1 & 3).
The submission of learned Counsel under this issue is that the learned trial Court, having found that the Defendant was indebted to the Plaintiff in the tune of N5,000,000.00, that it was wrong for the Court to do a turn around and refuse to grant the Plaintiff’s Claims against the Defendant on the ground of an existing partnership agreement to the which the Appellant was never a party. In this connection, Counsel referred to lower Court’s observation at page 160 of the Records of Appeal.
Counsel further submitted that at the Court below the question of whether the Plaintiff was a party to the said partnership agreement was well canvassed and that the Respondent as Defendant conceded to the fact that the Plaintiff was never a party to the said agreement and vigorously argued that the Plaintiff could not maintain an action based on the partnership in Exhibit E as the Plaintiff was not privy to the agreement.
Counsel further submitted that part of the argument of the Respondent at the Court below was that the sum of N5,000,000.00 which the Defendant owed belongs to Abubakar Dasuki who did not complain in even though a party to the partnership agreement.
The contention of learned Counsel is that from the observations of the learned trial Court at page 164 of the printed records, it was obvious that there was a serious misconception on the part of the learned trial Court as it relates to the evidence of the PW2 (the Plaintiff) on the issue of the partnership agreement. He contended that it had never been the evidence or pleadings of the said Plaintiff before the Court below that the Appellant claimed or wanted to claim through the existence of an exhibit E, to which he was never a partner. On account of this position, learned Appellant’s Counsel took his time to reproduce the Plaintiff’s Statement of Claim from paragraphs 3-14 for the avoidance of any doubt. In addition, Counsel submitted that from paragraph 5 of the Plaintiff’s reply at page 92 of the record, it is a complete denial of the said partnership agreement with the Defendant (Respondent) i.e. exhibit E.
In his further arguments, Counsel contended that it was the Respondent as Defendant who relied on the partnership agreement in exhibit E in contesting its case at the Court below on the ground that the Appellant was not a party to the partnership agreement and should therefore not be allowed to take benefit of the agreement. He emphasized that the argument of the Appellant throughout the case at the Court below was that his transaction with the Respondent was independent of any other party or partnership agreement; that the sum of N5,000,000.00 that the Appellant paid to the Respondent was based on an agreement he had with the Respondent and which had nothing to do with the partnership agreement.
The submission of Counsel thereafter is that there was no connection whatsoever between the partnership agreement in exhibit E with the sum of N5,000,000.00 paid by the Appellant and that the Appellant was neither a party to the agreement, nor witnessed it. He emphasized that there was even no attempt by the Respondent at the Court below to prove that the N5,000,000.00 (Five Million) Naira given to him by the Appellant was given pursuant to the purported partnership agreement with Alhaji Abubakar Dasuki. According to Counsel, under cross examination, the Respondent admitted that the Appellant was not a signatory or even a witness to the purported partnership agreement and that the Appellant was not even present when it was purportedly executed. Counsel cited a plethora of decided cases on the doctrine of Privity of Contract, some of which are: REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT.1461) 210 @ 213; SOUTH TRUST BANK & 2 OTHERS vs. PHERANZY GAS LIMITED & 3 OTHERS (2014) 10 NWLR (PT.1432) 1 @ 9; ADAMS O. IDUFUEKO vs. PFIZER PRODUCTS LTD & 1 ANOR (2014) 12 NWLR (PT.1420) 96 @ 101; TECHNIP vs. AIC LTD & 8 ORS (2016) 2 NWLR (PT.1497) 421 @ 426; GOLDEN CONSTRUCTION COMPANY LTD vs. STATECO NIG. LTD & 1 OR. (2014) 8 NWLR (PT. 1408) 171 @ 176.
In the instant case, Counsel contended that apart from the partnership agreement which clearly shows that the Appellant is not a party to it, there was no evidence from the Defendant/Respondent showing the Plaintiff/Appellant to have engaged in a partnership agreement with the Respondent. According to Counsel, by virtue of Section 128 (1) of the Evidence Act 2011, extrinsic oral evidence are in admissible to vary terms of a written contract between parties. He cited the case of GOLDEN CONSTRUCTION COMPANY LTD vs. STATECO NIG. LTD & 1 OR (Supra) in support.
However, in assuming but without conceding that the Appellant was a party to the partnership agreement, (which his pleadings and evidence does not admit) Counsel argued that the Court ordinarily will rely on extrinsic material to vary a written contract which aver issues to the contrary. Against the backdrop of this position, Counsel submitted that the Court below was in error to have dismissed the claims of the Appellant on the ground that it was pre-mature. He urged this Court to resolve this issue on behalf of the Appellant.
ISSUE TWO:
Whether the Lower Court was right when it refused to grant the reliefs claimed by the Appellant when it heavily relied on a partnership agreement marked as exhibit E in refusing the claims of the Appellant? (Ground 2)
The argument of Counsel under this issue is that the standard of proof in civil suits is on the preponderance of evidence and balance of probability and that what this means is that the Plaintiff has to persuade the Court into accepting that his version of facts is more probable than that of his opponent, such that when his case is put on an imaginary scale his evidence would outweigh the evidence of his opponent. Counsel referred Court to Section 134 of the Evidence Act and also to the cases of OKOYE vs. NWANKWO (2014) 15 NWLR (PT. 1429) 93 @ 110 SC; KHATOUN ENT. LTD vs. UNITED (NIG) ILES (2014) 18 NWLR (PT. 1438) 1 @ 4 SC; MOGAJI vs. UDOFIN (1978) 4 SC 91.
It was further contended by Counsel that an admission made in a pleading need no further proof and a party is estopped from denying the facts. He cited the cases of MTN NIGERIA COMMUNICATIONS LTD vs. W. I. GATAP TRADE AND INVESTMENT LTD (2013) 4 NWLR (PT. 1344) 276 @ 281. According to Counsel, the Respondent woefully failed to prove his assertion that the N5,000,000.00 he received from the Appellant was the money agreed to be paid in the partnership agreement, i.e. exhibit E. Counsel submitted that the position of the law on he who asserts is that he must prove his assertion. See Sections 135, 136 & 137 of the Evidence Act, 2011 and the case of ANIKWE & ORS vs. OFFOELO & ORS (2016) LPELR-41526 (CA) on the issue.
Learned Counsel also submitted that there was no evidence on the part of the Respondent showing that the N5,000,000.00 he received from the Appellant was money paid by Alhaji Abubakar Dasuki (a party in exhibit E). Counsel argued that the findings of the Court below, which had the opportunity of hearing and seeing the witnesses testify, was that the Appellant’s evidence before it was more cogent and reliable than that of the Respondent and that based on the evidence of the PW2 and DW2, together with exhibits A, B and D, it cannot be disputed that the Respondent was owing the Appellant the sum of N5,000,000.00.
Counsel cited the case of TSOKWA MOTORS (NIG) LTD vs. U.B.A PLC. (2008) 7 WRN 1 where the Supreme Court per ADEREMI, JSC had this to say:
“In appeals on findings of fact, the attitude of Appellate Court (which this Court is) is now well established; it is one of caution and of reluctance in interfering with the facts found by the trial Court. But where there is an obvious or patent error in appraisal of oral evidence ascription of probative value to such evidence or even where there is an improper or imperfect use by the trial judge of the opportunity he had in seeing and hearing the witness or where he has reached a wrong conclusion on proved or accepted facts the appellate Court in such circumstances, is duty bound in law to interfere and set aside such perverse finding.”
In concluding, Counsel urged this Court to resolve all issues raised for determination in favour of the Appellant and to set aside the Judgment of the Court below and grant the reliefs sought by the Appellant against the Respondent.
RESPONDENT:
SOLE ISSUE:
Whether having regards to the facts and circumstances of the case as presented before the Court below, the Court below was correct in law when it dismissed the claims of the Appellant?
As a foundation for the argument of this lone issue, learned Respondent’s Counsel submitted that at the High Court, cases of parties are founded on the pleadings filed and that the object of pleadings as enunciated in the case of OSHODI vs. EYIFUNMI (2000) 7 SC (PT. 11) 145 is clearly intended to compel parties to define accurately and precisely the issues upon which their cases will be contested to avoid element of surprise by either side.
In addition, pleadings is intended to guide the parties so as not to give evidence outside the facts pleaded as evidence on facts not pleaded goes to no issue. Counsel cited the cases of MOBIL OIL (NIG) PLC vs. IAL 36 INC (2000) 4SC (PT. 1) 85; ONWUKA vs. OMOGUI (1992) 3 NWLR (PT. 23) 393 and UKAEGBU vs. UGOJI (1991) 6 NWLR (PT. I96) 127; ALAO vs. ACB LTD (1998) 3 NWLR (PT. 542) 339; ANYANWU vs. IWUCHUKWU (2001) 7 WRN 104.
Learned Counsel also submitted that in a civil action, the burden of proof rests squarely on the person who asserts. He referred Court to Section 132 (1) of the Evidence Act 2011 (as amended). According to Counsel the standard of proof is on the preponderance of evidence and the balance of probabilities.
See the cases of DAODU vs. NNPC (1998) 2 NWLR (PT 538) 335; KALA vs. POTISKUM (1998) 3 NWLR (PT. 540) 1; NBN LTD vs. SPDC CO. LTD (1998) 5 NWLR (PT 548) 144; IBRAHIM vs. ABASI (1998) 13 NWLR (PT. 581) 167; ALH. UMARU & SONS LTD vs. IDRIS (1999) 6 NWLR (PT. 60) 330 and ITAUMA vs. AKPE IME (2000) 7 S.C. (PT. 11) 24.
The argument of Counsel that thereafter followed is that under cross examination of the Appellant while testifying as the PW2, he admitted that the sums of ?5,000,000:00 (Five Million Naira) only purportedly owed by the Respondent stemmed from the operations of the NNPC Mega filing station, which agreement the PW1 & PW2 admitted were in writing. Counsel referred Court to page 106 lines 11 – 20 of the records on account of this issue.
Again at page 167 lines 21 – 22 of the records, Counsel drew attention of this Court to the Appellant, who while testifying under cross – examination admitted that he never gave any monies to the Respondent on loan and how the Appellant stated thus: “? There is no document to show I gave the Defendant N5,000,000:00 loan”. Not only these, Counsel said that the PW1 whom the Appellant represented as a witness who knew about the transaction resulting in the issuance of the sum of N5,000,000:00 stated under cross examination at page 102 lines 4 – 5 of the records that: “?the agreement for the Defendant to manage the filling station was in writing…” Instructively, at page 102 lines 18 – 19 of the records the same witness stated thus: “the sum of N5,000.000:00 is subject to the terms of the agreement”.
The contention of Counsel is that despite the mention of the existence of these agreements, the Appellant failed woefully to tender any of the said agreements to which the transaction relates. According to Counsel, there was a deliberate attempt on the part of Appellant not to produce this agreement. He submitted that the position of the law is that the Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in relation to the facts of a particular case and that the Court may presume under Section 167(d) of the Evidence Act, 2011 that evidence, which could be and is not produced would if produced, be unfavourable to the person who withholds it.
See the cases of UNION BANK OF NIGERIA LTD vs. MICHEAL NNOLI (1990) 4 NWLR (PT. 145) 530 AT 546; HABIB NIGERIA BANK PLC vs. FATHUNDEEN SYEED MI KOYA (1992) 7 NWLR) (PT. 251) 43 AT 58; MUHAMMADU BUHARI & OR vs. CHIEF OLUSEGUN OBASANJO (2005) 2 NWLR (PT. 910) 241 AT 405.
This Court was told that it was the Respondent who had to tender Exhibit E (Partnership Agreement), which both the PW1 & PW2 made references to under cross examination and under which, in clause 3 Alh. Abubakar Dasuki was to advance the sum of N5,000,000:00; and by clause 4, the Appellant was specifically mentioned as the person to operate the partnership agreement on behalf of Alh. Abubakar Dasuki.
According to learned Counsel, the evidence of the Respondent via paragraphs 5f – g of his Statement on Oath is to the effect that Alh. Abubakar Dasuki paid his initial contribution of N5,000,000:00 in the name of the Appellant vide a cheque and which monies were lodged in the Appellant’s account. He drew attention to Exhibit D (Statement of Account of the Appellant), which reveals that on the 9th of October, a Cheque of ?5,000,000:00 was deposited in the account of the Appellant and under cross examination, the PW3 stated that prior to the said deposit, the account of the Appellant was in red. Thus at page 111 lines 22 – 24 of the records, Counsel also told the Court that the PW3 (official of the bank subpoenaed to produce the Statement of Account) stated thus:
“…A Cheque of N5,000,000.00 was deposited in the Plaintiff’s Account on 9/10/2013. Prior to the deposit of N5,000,000:00 the Plaintiff account was in red?”
The submission of Counsel in this connection is that it was in relation to the Cheque issued to the Respondent in the Appellant’s name and pursuant to the partnership agreement for the operation of the NNPC Mega filling station known as “A. S. Maitaya” that was lodged in the Appellant’s account and from which the sums of N3,780,000.00 and N1,200,000.00 were paid to the Respondent and which brings the total sum to N5,000,000.00 only and which was the import of exhibits E, A & A1 and B & B1.
It was contended by Counsel that the said sum of N5,000,000.00 in contention was never the monies of the Appellant but that of Alh. Abubakar Dasuki. He further contended that the DW3 stated under cross examination at page 111 of the records that ‘IFO’ in banking transactions means “in favour of” and that this means that the Cheque of N5,000,000.00 was made in favour of the Appellant in pursuance of the partnership transaction to which the partnership agreement relates. He argued that in law, the Court is entitled to raise presumptions in relation to the course of business of a given transaction. He referred Court to Sections 145 and 167 (c) of the Evidence Act, 2011 in this regard.
Learned Counsel therefore contended that the Court below was correct when it held at page 160 of the records that the sum of N5,000,000.00 was rooted on the partnership agreement as these findings flow from the evidence of the Appellant and his witnesses and that of the respondent and his witnesses. For this reason, he further contended that the findings of the Court below at the said page 160 of the records cannot be faulted when the Court held thus:
“The next thing to consider is whether the Plaintiff can maintain the action to recover the said sum of N5,000,000:00 from the Defendant. This action is rooted from the partnership agreement in Exhibit E. The Plaintiff who testified as PW2 told the Court under cross examination that he entered into a partnership agreement between himself, one Abubakar Dasuki and the defendant for the operation of Farfaru NNPC Mega station in exhibit E. He said pursuant to the agreement in Exhibit E, Abubakar Dasuki paid the sum of N5, 000,000:00 to the Defendant through him for the take-off of the project. The Defendant conceded to the existence of the partnership agreement in exhibit E which was tendered in evidence by him. Mr. Ibrahim said the Plaintiff cannot maintain this action because he is not a privy to the partnership agreement in exhibit E. He also said the sum of N5,000,000:00 the Defendant is owing belongs to Abukakar Dasuki who did not complain in respect of the partnership agreement.”
Counsel further argued that the above findings is not in conflict with the findings of the same Court at page 160 lines 7 – 10 of the records where the Court held that the Respondent is owing the Appellant the sum of N5,000,000:00, he (the Respondent) received from him.
According to Counsel, this is because the position of the Respondent has been that the Appellant was the representative of Alhaji Abubakar Dasuki in the said partnership agreement, which the Appellant himself professes knowledge of. Hence, Counsel also argued that the findings of the Court below at page 160 lines 7 – 10 of the records is that the Respondent collected the sum of ?5,000,000:00 from the Appellant and went ahead to elaborate that the sums of monies collected from the Appellant relates to or was in pursuance of the partnership agreement vide Exhibit E and for which the Appellant not being privy to cannot seek to enforce same.
The issue of the partnership agreement, not having been determined was also addressed upon by Counsel. He submitted that the Appellant having not shown that the agreement had been determined in accordance with clause 5 of Exhibit E, therefore, that it still subsists. Counsel argued that vide clause 5 (a) of Exhibit E, the Appellant cannot unilaterally terminate the partnership agreement without following the prescribed procedure. He said that by the said clause, it is either Alhaji Abubakar Dasuki or the Respondent that can terminate Exhibit E by giving the requisite notices. For this reason, he said that the findings of the Court below at page 164 of the records remain unassailable and valid and sound position of the law.
Counsel further submitted that the evidence of DW1 and DW2 was never contradicted under cross examination and he stated that by law, the Court is enjoined to believe same and act upon it. See the cases of P.H.M.B. vs. EDOSA (2001) 12 WRN 183, and OLOHUNDE vs. ADEYOJU (2000) 7 SC (PT. 111) 118.
Counsel also contended that the arguments of the Appellant at pages 6 – 12 fly into oblivion in view of the clear cut admissions made by PW1 & PW2 under cross examination to the effect that they were aware of the partnership agreement and that the sums of N5,000,000:00 was paid pursuant to and in execution of exhibit E and which monies were later paid to the Respondent by the Appellant as reflected in the statement of account. Similarly, Counsel said that the evidence elicited under cross examination of the PW1 & PW2 supports the contention of the Respondent at the Court below and thence was properly utilized by the Court below. He referred to the case of ABIOYE vs. LAWAL (2007) ALL FWLR (PT. 350) 1376 AT 1385 PARAS D – E RATIO 5, the Court held thus:
“Evidence of an adversary supporting his opponent is an admission against interest. In the instant case, the Plaintiff/Appellant as all adversary supported the stand of the Respondent that they are members of the Oluwo family of Erin-Ibe…”
See equally the case of KIMDEY vs. GOV. GONGOLA STATE (1988) 5 SCNJ 281.
On the issue of the Court’s pronouncement that the Appellant’s action was premature, Counsel submitted for the Respondent that even if the Appellant gave monies to the Respondent, same was made pursuant to the partnership agreement and which the Court found as a matter of fact to be made by Alhaji Abubakar Dasuki but with the Appellant acting as his agent or representative as shown in the partnership agreement vide Exhibit E and thence, the proper party to claim and sue upon same is Alhaji Abubakar Dasuki and not the instant Appellant.
Against the backdrop of this position, Counsel further submitted for the Respondent that the general law is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and the principal, not the agent, is the proper person to sue or be sued upon such contract. Counsel referred Court to the case of CARLEN (NIG.) LTD vs. UNIVERSITY OF JOS (1994) 1 NWLR (PT. 323) 631. See also the case of UWAH & ANOR vs. AKPABIO & ANOR (2014) LPELR-22311(SC).
Counsel finally urged this Court to resolve this sole issue in favour of the Defendant and against the Plaintiff.
RESOLUTION OF APPEAL
The thrust of the submissions of learned Appellant’s Counsel in arguing this Appeal is that the learned trial judge, having found that the Respondent is indebted to the Plaintiff in the tune of N5,000,000.00, wrongly refused to grant the Plaintiff’s Claims due to the existence of a partnership agreement to which the Appellant as Plaintiff was never a party. The further argument of Counsel, is that despite the fact that the issue of whether the Plaintiff was a party to the partnership agreement or not was well canvassed and trashed out at the Court below, and that the Respondent as Defendant conceded that the Plaintiff was never a party to the said agreement, the Court below nevertheless still went ahead to deliver a judgment in which the claims of the Appellant were denied based on the said partnership agreement to which the Appellant was not privy.
On the part of the Respondent, he justified the decision of the trial Court, who on the basis of the said partnership agreement denied the Appellant his claims when this Court was referred to the evidence of the Appellant as Plaintiff at page 106 lines 11-20 of the printed records where under cross examination he admitted that the sums of N5,000,000:00 (Five Million Naira) only purportedly owed by the Respondent stemmed from the operations of the NNPC Mega filing station, covered by the partnership agreement, which is in writing, thus:
“There is a partnership agreement between the 3 of us for the operation of the NNPC Mega station. The agreement was reduced into writing by Barrister Suleiman Usman. Abubakar Dasuki was the 1st partner; Defendant (was the) 2nd partner, and myself as 3rd Partner. Dasuki was to pay N5,000,000:00 for the take off…N5,000,000:00 was meant for the operation of NNPC Mega Station…”
Apart from this at page 167 of the printed records, the Appellant was once again at it, when he stated under cross examination that he never gave any monies to the Respondent on loan and that in essence: “? There is no document to show I gave the Defendant N5,000,000:00 loan”. In addition to this, there is yet another. The Appellant presented the PW1, a witness whom he said knew every details about the transaction resulting in the issuance of the sum of N5,000,000:00. However, under cross examination at page 102 lines 4 – 5 of the records, the PW1 stated thus: “?the agreement for the Defendant to manage the filling station was in writing…” While at page 102 lines 18 – 19 of the records the same witness stated thus: “the sum of N5,000.000:00 is subject to the terms of the agreement”.
In the said partnership agreement, which was tendered as Exhibit E, what seemed to stand out clearly is the fact that in clause 3 Alhaji Abubakar Dasuki was to advance the said sum of N5,000,000:00; and that by clause 4, the Appellant herein was specifically mentioned as the person to operate the partnership agreement on behalf of Alhaji Abubakar Dasuki.
Apart from the fact that the Appellant could not show any documentation to establish the fact that he gave the Respondent the sum of N5,000,000.00 on loan, evidence in this case is overwhelming as to the fact that said sum of N5,000,000.00 paid at all was in furtherance of the partnership transaction between the said Alhaji Abubakar Dasuki and the Respondent and that indeed the said sum was paid by Alhaji Abubakar Dasuki as his initial contribution in the name of the Appellant vide a cheque and through, which monies were lodged in the Appellant’s account. See the testimony of the Respondent at paragraphs 5f – g of his Statement on Oath. It is instructive to note that at page 111 lines 22 – 24 of the records, the evidence of the PW3 (official of the bank subpoenaed to produce the Statement of Account of the Appellant) threw light on the state of the Accounts of the Appellant, which was said to be in red prior to the deposit of the said sum of N5,000,000.00 by Alhaji Abubakar Dasuki.
What seemed to be so easy for the Appellant to say in pursuit of this Appeal is that the Court below made a finding that the Respondent was indebted to him, and in the process sought to give the impression that there is a conflict in the Court’s decision which in the end dismissed his claims; but did not give the reasons why the Court had to make such a finding and ended up dismissing his claims.
The Court below at page 160 lines 7 – 10 of the printed records demonstrated that its finding was after all not in conflict with its decision in which it dismissed the claims of the Appellant. The Court’s decision was to the effect that the Respondent owed the Appellant the sum of N5,000,000:00, he (the Respondent) received from him. The understanding of the Court, which is clearly not lost to this Court, is that the Appellant was the representative of Alhaji Abubakar Dasuki in the said partnership agreement, and that the Respondent collected the said sum of N5,000,000:00 from the Appellant in pursuance of the partnership agreement vide Exhibit E and for which the Appellant not being privy to cannot seek to enforce same.
The concept of Privity of Contract recognizes that only parties to an agreement may enforce the agreement or maintain an action there under. See ALADE vs. ALIC NIG LTD. (2010) LPELR 399 SC; MAKWE vs. NWUKOR (2001) 14 NWLR (PT. 733). The application of the concept to the instant case is clear on the fact that even if the Appellant gave monies to the Respondent, same was made pursuant to the partnership agreement made between Alhaji Abubakar Dasuki, on the one hand, with the Appellant acting as his agent or representative as shown in the partnership agreement vide Exhibit E and the Respondent on the other hand. Thence, for this reason, it is Alhaji Abubakar Dasuki and not the Appellant who should be the proper party to claim and sue upon same.
This Court is therefore in agreement with learned Respondent?s Counsel that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and the principal, not the agent, is the proper person to sue or be sued upon such contract. See the case of CARLEN (NIG.) LTD vs. UNIVERSITY OF JOS (Supra) cited by learned Counsel. See also the case of UWAH & ANOR vs. AKPABIO & ANOR (2014) LPELR-22311 (SC) where the apex Court per MUHAMMAD, JSC had this to say:
“…As a general rule, a contract made by an agent acting within the scope of his authority for his disclosed principal, in Law, is the contract of the principal and the principal not the agent is the person to sue or be sued upon the contract. See Niger Progress Ltd vs. North East-Line Corporation (1989) 3 NWLR (PT. 107) 68, Dr. Tunde Bamgboye vs. University of Ilorin & Anor. (1999) 10 NWLR (PT. 622) 290 at 329 and Samuel Osigwe vs. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (PT. 1128) 378”.
What seemed to have fully characterized the Appellant’s case from the Court below and up to this point on Appeal is the problem of not being consistent in the presentation of his case. The question that deserves to be addressed at this point is whether the Appellant was a party to the partnership agreement in Exhibit E or not? While in his opening arguments Appellant maintains that he was not a partner under the partnership agreement under whose auspices sums of money were deposited, in his evidence at page 106 lines 11-20 of the printed records where under cross examination that; “there is a partnership agreement between the three (3) of us for the operation of the NNPC Mega station. The agreement was reduced into writing by Barrister Suleiman Usman. Abubakar Dasuki was the 1st partner; Defendant (was the) 2nd partner, and myself as 3rd Partner. Dasuki was to pay N5,000,000:00 for the takeoff…N5,000,000:00 was meant for the operation of NNPC Mega Station…”.
The impression therefore created in the minds of this Court, is the situation of one who is desperately prepared to change the narrative of what actually transpired between the parties, if that is the only way to get an opportunity to receive the benefits of the sum of N5,000,000.00 which actually belonged to a partnership arrangement to which the Appellant is clearly an alien. In the case of DANIEL vs. INEC & ORS. (2015) LPELR- 24566 SC, the apex Court per, FABIYI, JSC had this to say on the subject of consistency in the presentation of cases:
“A party should not be inconsistent in the presentation of his case in Court. No reasonable Court can do anything to assist such a slippery Claimant. Refer to AJIDE vs. KELANI (1985) 3 NWLR (PT.12) 248”.
This Appeal is therefore moribund as it is lacking in merit and it is accordingly dismissed. Cost of N50,000.00 is awarded against the Appellant in favour of the Respondent.
AMINA AUDI WAMBAI, J.C.A.: My learned brother, FREDERICK O. OHO JCA, obliged me a draft copy of the judgement. Having had a preview of same, I cannot but agree that the appeal is devoid of any merit and deserves to be and is accordingly dismissed by me.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I had a preview of the Judgment just delivered by my learned brother Justice Frederick O. Oho. I agree that the problem with the Appellant’s case from the Court below up to this Court on Appeal is the inconsistency in the presentation of his case. A party should be consistent in the presentation of his case, as no reasonable Court or tribunal will come to the aid of a party who is inconsistent in the presentation of his case before it.
This Appeal therefore lacks merit, and is accordingly dismissed. I abide by the order as to cost of N50,000 against the Appellant and in favour of the Respondent.
Appearances:
M.A. Sambo, Esq.For Appellant(s)
Ibrahim Abdullahi, Esq.For Respondent(s)
