ALHAJI MOHAMMED IBRAHIM v. YAKUBU MUSA
(2019)LCN/13221(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of May, 2019
CA/J/140/2017
RATIO
ABSENCE OF A PROPER PARTY: ABSENCE OF A PROPER PARTY WOULD AMOUNT TO A LACK OF JURISDICITON
Consequence of absence of a proper party in a suit would amount to lack of jurisdiction by the Court to adjudicate over the matter see AMUDA V. AJOBO (1995) 7 NWLR (PT. 406) 170, THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF (2009) 37 NSCQR Page 364 at 409. Such matter instituted by improper party would be liable to an order of striking out. See MADUKOLU V. NKEMDILIM (1962) ALL NLR (PT.2) 581, BAGWAI & ANOR V. YUSU GODA & ORS (2011) 7 NWLE 28.
AGENCY: WHETHER AN AGENT WILL BE LIABLE FOR HIS ACTIONS DONE ON BEHALF OF A DISCLOSED PRINCIPAL
It is trite that an agent acting on behalf of a disclosed principal incures no liability because such acts of such agent are acts of the disclosed principal. In other works, it is the principal who has done or omitted to do what the agent is accused of doing or omitted to do. The Latin maxim in this regard is
qui facit per aluim facit per se, a sum facere indepur
Meaning he who does an act through another is deemed in law to do it himself. The consequence of the foregoing is that an action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent see the following cases NIGER PROGRESS LTD V. N. E. L. CORPORATION (1989) 3 NWLR (PT. 107) PG. 68, FAITH ENTERPRISES LTD V. B. A. S. F. (NIG) LTD (2001) 8 NWLR (PT. 714) PG. 242, ESSANG V. AUREOL PLASTIC Ltd. (2002) 17 NWLR (PT. 795) PG 155., UBA PLC V. OGUNDOKUN (2009) 6 NWLR (PT. 1138) 450 at 483 – 484, THE FEDERAL GOVERNMENTOF NIGERIA & ORS V. SHOBU NIGERIA LTD & ANOR (2013) LPELR 21457.
AGENCY: A CONTRACT ENTERED INTO BY AN AGENT ON BEHALF OF AN DISCLOSED PRINCIPAL IS THE CONTRACT OF THE PRINCIPAL
Further to this is that it is the general principle of law that a contract made by an agent, acting within the scope of his authority and for a disclosed principal is in law the contract of the disclosed principal. Therefore, it is the principal that is the proper party to sue and not the agent to sue or be sued for such contract. See CARLEN V. UNIJOS (2000) 19 W.R.N. PG. 167 at 189, UKPANAH V. AYAYA (2011) 1 NWLR (PT. 1227) PG. 61 AMADIUME V. IBOK (2006) 6 NWLR (PT. 975) PG 158, OSIGWE V. PSPLS MET CONSORTIUM LTD. (2009) 3 NWLR (PT. 1128) PG 378. In the overall circumstance
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of the fact of this case on Appeal, the Plaintiff unequivocally averred that he is an employee of a company and that as a manager of the company he contracted the hiring contract with the Defendant who is the managing director of the company he represented ATUMA INVESTMENT COMPANY LIMITED. Therefore, the Plaintiff was acting for all intends and purposes for and on behalf of his principal and employer. This therefore, suggest that both the Plaintiff and the Defendant before the trial Court are not the proper party to the action leading to this Appeal and I accordingly so hold. Where therefore proper parties are not before the Court, the Court is without jurisdiction to adjudicate in the matter. Put in another way, the absence of proper parties to a suits rubs the Court it jurisdiction to entertain the suit see PLATEAU STATE V. A. G. FEDERATION (2006) 1 SC (PT. 1) 64, POST MASTER GENERAL & ORS V. MR. MAC-CAJETAN AGBASI (2006) LPELR ? 11926. Therefore the suit by the Respondent before the trial Court is liable to be struck out for absence of proper party to sue and be sued. I therefore, resolve this issue against the Respondent.
Ordinarily by the
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determination of this issue it ought to bring to conclusion the determination of this Appeal. But in the event that I am wrong and coupled with the fact that this Court is not the final Court and in addition the directive of the Apex Court in situation of this nature, that this Court should proceed to consider the main Appeal, hence I will proceed to consider the rest issues in the main appeal. See P. N. UDOH TRADING CO. LTD VS ABERE (2001) 11 NWLR (PT. 723) 114, SULGRAVE HOLDINGS INC VS FEDERAL GOVERNMENT OF NIGERIA (2012) 17 NWLR (PT. 1329) 309; MUHAMMED V MILITARY ADMINISTRATION PLATEAU STATE (2001) 16 NWLR (PT. 740) 524. In doing this, I will take issues 2 & 3 together and issues 4 & 5 also together. But I will treat issues 4 & 5 first.
ISSUES 4 & 5
(4) Whether the Trial Court was right to have awarded special damages against the Appellant when same was not specifically pleaded and strictly proved by the Respondent (Ground V).
(5) Whether the trial Court was right to have awarded an alternative relief that was not claimed or proved by the Respondent and whether he could award it after granting the main claim (Ground VI).
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The Appellant contended that the trial Court was in error when he made an order mandating the Defendant to pay the sum of One Million Three Hundred Naira only (N1,300,000.00) to the Plaintiff as special damages for the Plaintiff?s missing parts of the machines as a result of the Defendant?s negligence which was neither pleaded nor proved. He submitted that the law is trite that special damages must not only be specifically pleaded with relevant particulars but must be strictly proved. He relied on the following cases ? SHELL BP V. COLE (1978) 3 SC 183, DUMEZ (NIG) LTD V. PATRICK WAKA OGBOLI (1977) 2 SC 45, AGUNWA V. ONUKWUE (1965) 1 ALL N. L. R. 537, W. A. E. C. V. KOROYE (1978) 2 SC 45, RONALDS V. ROKONOH (2005) 10 M. J. S. C. 159. He argued that the Respondent only pleaded the missing parts and the total monetary value without leading evidence to proof the claim and the particulars of the missing part, the account of each and how they arrived at the total figure. He cited the case of UAC NIG. PLC V. EUNICE AKINYELE (2012) LPELR ? 8015. He argued that apart from the total figure of the alleged missing parts doled out by the
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Respondent there was nothing upon which the figure could be verified. No witness was called on this claim nor any receipt tendered to back up the claim. The only thing PW 1 Rabiu Shehu said while under cross examination is that the receipt of the missing parts is with the owner of the machine Al-Ansar Technical company. He relied on DANIEL HOLDINGS LTD V. UBA (2005) 13 (PT. 943) at 533, OSUJI V. ISIOCHA (1989) 3 NWLR (PT. 111) 623, KOSILE V. FOLARIN (1989) 3 NWLR (PT. 107) 1 and A. G. OYO STATE V. FAIRLAKES HOTELS LTD (1989) 5 NWLR (PT.121) 255.
In respect of issue 5 he argued that the trial Court was in error to consider and grant the Respondent an alternative remedy after granting all the reliefs he claimed in the main claim. He contended that the alternative claim was not asked for by the Respondent but granted as a mere charity. He referred the Court to the main claim of the Respondent on page 6 of the record. But the Court granted same. He referred to page 106 of the record. He submitted that even if it was claimed by the Respondent, the trial Court cannot grant it in addition to the main claim. He relied on the case of N.E.P.A V. ANGO. SUIT NO
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CA/K/88/99 (2002) 15 NWLR (PT.737) at 661 – 661., (2001) 17 W. R. N. 142 at 167. He submitted that a Court cannot grant a relief not sought. He cited the case of OSAZUWA V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 597) 155 at 164. Where this Court per salami JCA (as he then was) held:
“There is no power in Court to grant a relief not sought or claimed excepts it is within orders that can property be made as consequential order, which the order in issues or question in the instant appeal is not, and any order made outside. Such prayers must be refused.”
On this note, he urged the Court to resolve the issue in favour of the Appellant.
The reaction of the Respondent to issue No. 4 is that special damages was pleaded in paragraph 14 of the Respondent?s statement of defence. The said statement of defence can be found on page 6 of the record of Appeal where the sum of N1,300,000.00 was pleaded as being the estimated value of the machines parts missing. He referred to paragraph 14 of the Respondent?s written witness statement on Oath (page 11 of the Record).
?He submitted that Torts of Negligence is a
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peculiar case in which once a Plaintiff succeeds in establishing, he is authomatically entitled to the award of damages more so in this case where special damages is the main claim of the Respondent. He relied on the case of HAMZA V. KURE (2010) 10 N.W.L.R. (PT. 1203) PAGE 630 at 635. Ratio 5 where it was held thus:
?The general principle of the law of liability, especially in the tort of negligence that award of damages entirely depends on whether a party has established his case or not.”
He submitted that the Respondent has successfully proved negligence against the appellant. He referred to the case of BOUYGUES (NIG) LTD. V. O. MARINE SERVICES LTD (2013) 3 N. W. L. R. (PT. 1342) PAGE 429 at 432. Ratio 1. He added that where negligence is proved by the Plaintiff against the defendant, it is for the defendant to disprove it. He relied on the case of N. P. A. V. RAHMAN BROS LTD (2010) 7 N. W. L. R. (PT.1221) Page 100 at PAGE 104 Ratio 4. For the essence of award of damages in negligence action he referred to the case of A. M. CO. (NIG.) LTD V. VOLKSWAGEN (NIG) LTD (2010) 7 NWLR (PT.1192) PAGE 97 at 104 Ratio 12. He added that the
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foregoing position of the law is logical and that since the Respondent has proved his case of negligence against the Appellant, he is invariably, entitled to a right by virtue of causing him undue injury resulting from the negligence action of the Appellant and that ?where ever there is right, there must be a corresponding remedy. He urge the Court to so hold and resolve issue 4 in favour of the Respondent.
On issue No. 5 which is whether the trial Court was right to have awarded an alternative relief that was not claimed or proved by the Respondent and whether the Court can award
