KEKE v. GORA & ANOR (2022)

KEKE v. GORA & ANOR

(2022)LCN/16993(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, February 18, 2022

CA/K/553/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

MUNKAILA AYUBA KEKE APPELANT(S)

And

1. REV. EMMA TABAT GORA, ESQ. 2. SHUAIBU ADAMU RESPONDENT(S)

RATIO

DEFINITION OF THE TERM “AGENCY”

A starting point will be to define agency. In the Oxford Companion in law, the term agency is defined as the relationship between one person, the agent, having authority to act on behalf of another, the principal in contractual relations with a third party. The term is also used more widely of one acting in the interest of another. Professor Achike in his book Commercial Law in Nigeria (1985) at page 16, defines it as; the consensual relationship which arises when a person called the agent acts on behalf of another called the Principal whereby the latter becomes answerable for the lawful acts the former does within the scope of his authority as they affect the legal relations between the principal and a third person.
Again Fridman G.H.L, Law of Agency 7th Edition (Butterworths, London) 1984 at page 8, he defines the term as; the relationship that exists between two persons when one called the agent is considered in law to represent the other, called the principal in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the deposition of property. However inJames v. Mid-Motors (Nig.) Ltd (1978) 11-12 SC 21 at PP 88-67 the Supreme Court in relation to the definition of agency observed as follows:
“We think it necessary in this connection to explain the term agency. That term has a popular use in a number of different meanings, but in law the word agency is used to connote the relation which exist when one person has authority or capacity to create legal relations between a person occupying the position of principal and third parties, and the relation also arises when one person called the agent has the authority to act on behalf of another called the principal and consents (expressly or by implication) so to act.” PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kaduna State High Court delivered on 26th September, 2017 in suit No. KDH/KAD/899/2012. By a writ of summons dated the 13th day of November, 2012 and a statement of claim dated the 30th August, 2013 the 1st Respondent as Plaintiff claimed against the Appellant and the 2nd Respondent as 2nd Defendant as follows:
1. A DECLARATION that the Plaintiff is the person entitled to Customary Ownership and possession in respect of the subject matter known or situate at Ungwan Keke, Chikun Local Government Area of Kaduna State measuring 100ft X 100ft shared into two 50ft X 100ft (all put together are 100ft X 100ft).
2. A PERPETUAL ORDER of injunction restraining the Defendants, their Servants, Agents, Workers, Privies, successors -in -title, Heirs, whatsoever and howsoever called from further entering/trespassing and or in anyway disturbing the Plaintiff’s peaceful enjoyment and or possession of the said subject matter before the Honourable Court.
3. AN ORDER compelling the 1st Defendant to pay the sum of Fifty Thousand naira (N50,000.00) only for the cost of beacons erected by the Plaintiff which he unlawfully destroyed, legal charges and expenses incurred by the Plaintiff.
4. The cost of this suit to be assessed by the Honourable Court and be paid to the Plaintiff by the Defendants.
5. ANY OTHER RELIEF to which this Honourable Court may find the Plaintiff is entitled to in law or Equity.

The 1st Defendant/Appellant filed a statement of defence wherein he denied each and every allegation of facts in the Plaintiff/1st Respondent’s statement of claim. The 2nd Defendant/2nd Respondent did not defend the suit. The 1st Respondent called one witness (PW2) in addition to his own testimony (as PW1). The Appellant called two witnesses DW1 and DW2, he also testified in his own defence as DW3. The 2nd Respondent testified as DW4. Exhibits were tendered from both sides and admitted in evidence. After close of evidence and adoption of final written addresses, the learned trial Judge entered judgment for the 1st Respondent and he granted reliefs 1, 2, and 4. Aggrieved by the decision, the Appellant filed this appeal vide a notice of appeal on the 14th of November, 2017. The notice of appeal contain one ground of appeal. At the hearing of the appeal on the 22nd of November, 2021, M. T. Mohammed Esq. adopted the Appellant’s brief of argument filed on the 29th of April, 2019 and the reply brief filed on the 25th June, 2019. Rev. Emma Tabat Gora Esq., the 1st Respondent appearing in person, adopted his brief of argument filed on the 13th of June 2019, and he abandoned the issue formulated therein. He adopted the issue formulated by the Appellant. The 2nd Respondent was represented by G. S. Attah Esq. holding the brief of B. E. Gwadah. No brief was filed for the 2nd Respondent. From the one ground of appeal, the Appellant submitted a sole issue for determination thus;
“Whether the learned trial Court was right to ignore the fact that the 1st Respondent held out to the Public as his agent and therefore bound by the transaction concluded on his behalf.”

A brief summary of the facts is that the 1st Respondent being a Customary title holder of a piece of land which he bought on the 25th April, 1998, on the 9th February, 2020 demarcated the land into plots and gave them to the 2nd Respondent to dispose them to interested buyers, with the exception of 100 X 100ft shared into two 50ft X 100ft. The land is situate at Unguwan Keke, Chikun Local Government Area of Kaduna State. The 1st Respondent said the 2nd Respondent told him that he did not sell the plot he excluded for sale and that the Appellant was wrongfully occupying his land. When the matter was presented before the village head for settlement, the Appellant failed to produce the agreement between him and the 2nd Respondent being the person who sold the land to him. The Appellant said in early 2010 he was approached by the 2nd Respondent who is an agent of the 1st Respondent that he had two plots of land for sale. After inspecting the plots he indicated his interest to pay for the plots. He paid N500,000:00 for the two plots in the presence of witnesses the ward head and the village head. He erected beacons and he enjoyed peaceful and quite possession until sometime in 2012 when someone trespassed into the said plots and destroyed the structures erected by him. The 1st Respondent stated that the 2nd Respondent was his agent but he did not instruct him to sell the two plots. At the palace of the village head the 1st Respondent suggested that they should take one plot each but the Appellant refused hence he bought the two plots. The 2nd Respondent on his part said the 1st Respondent took him along with Alhaji Jafaru (Wakili), Shehu Alikeke Bawa, Babangida Ayuba and others to the plot of land where he demarcated the plots into several plots of 50ft x 100ft at the price of N170,000.00 for each plot. The 1st Respondent authorised him to sell the plots and to sign the agreement on his behalf as the seller/vendor of the plots. The Appellant was one of those he sold the plot of land, as the 1st Respondent’s agent. He sold the two plots at the sum of N500,000.00 and they signed the agreement for the sale at the house of the village head. The 2nd Respondent said he paid the 1st Respondent the sum of N340,000.00. he removed his commission and paid the commission to those who introduced him to the Appellant and that the 1st Respondent never instructed him not to sell the two plots and reserve them for him.

During trial, the 2nd Respondent denied that he signed the sale agreement. The 1st Respondent also denied being paid any amount of money by the 2nd Respondent for the two plots.

In his judgment, the learned trial judge made the following findings:
“PW1 was cross examined by the 2nd defendant’s counsel. She did not however cross examine PW1 on his evidence that he instructed the 2nd defendant not to sell the two plots in question. The plaintiff when cross examined on payment on the two plots he denied receiving payment in respect of the two plots from the 2nd defendant.
PW2 was also not cross examined on the instruction given to the 2nd defendant not to sell the plots in issue. The law is that “where the adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts as truth of that matter as led in evidence”. See Otoriete v. COP (2000) 7 SC (Part 1) 80 at 94. See also UBN v. Nwachukwu (2000) FWLR (Pt. 6) 986 995.”

The learned trial judge further found as follows:
“The 2nd defendant however, did not call any of these people mentioned to support his assertion that he was asked to sell the plots without restriction or without any instruction not to sell the two plots in issue. This further cast doubts on the case of the 2nd defendant. In addition, the 2nd defendant did not tender any document or evidence of payment in respect of the two plots to the plaintiff. When cross examined, the 2nd defendant denied taking the plaintiff and PW2 to the plots in issue. He denied signing Exhibit 4, the sale agreement between him and the 1st defendant.
With the evidence before me, I find as a fact that the 2nd defendant was made the agent of the plaintiff to sell the plots demarcated by the plaintiff for sale. He acted therefore as the agent of the plaintiff in respect of the sale. However, based on the evidence before me, it is proved in the balance of probability that the plaintiff had instructed the 2nd defendant not to sell the land in issue, but the 2nd defendant went ahead and sold the two plots.”

It is also the findings of the learned judge trial judge that:
“In this case, the principal (the plaintiff) authorised the Agent (2nd defendant) to sell the plots on his behalf excluding the two plots in issue. It is my finding that the principal instructed the Agent to sell the plots in dispute. The Agent therefore went outside the scope of his authority to sell the two plots in dispute to the 1st defendant. The act of the Agent in selling the two plots in dispute was without authority of the principal (the plaintiff) and therefore the principal is not liable for the action of the agent (the 2nd defendant).
…
It has been found in this judgment that the 2nd defendant, sold the plots in issue in excess of his authority as the plaintiff’s agent. The plaintiff denied that he was paid for the plots sold to the 1st defendant by the 2nd defendant. The 2nd defendant has not tendered any evidence of such payments. He could not proffer evidence of such payments to the plaintiff.
There is no doubt from the available evidence of the 1st defendant and his witnesses, the 1st defendant had paid for the plots. It is clear to me that the 2nd defendant had no authority to sell the plots on behalf of the plaintiff as he did. In the circumstance, I uphold the submission of the plaintiff’s counsel in his address that the 2nd defendant could not transfer a valid title to the 1st defendant. The 2nd defendant had no title to transfer to the 1st defendant. The applicable principle is “nemo dat quad non habet”.

The Appellant’s counsel contended that the 1st Respondent appointed and held 2nd Respondent as his agent regarding the sale of the land subject matter of this case and it was from the said 2nd Respondent that the Appellant bought the land. Therefore the 1st Respondent cannot be allowed to make a U-turn and claim that he excluded two plots from the authority he gave to the 2nd Respondent. And even if he did which he must have done privately he would be bound by the impression he created to the public by holding the 2nd Respondent out as his agent. He is bound by the act or conduct of his agent. He relied on the case of Kazeem v. Mosaku (2007) ALL FWLR (Pt. 359) 1262 at 1271-1273 where the Supreme Court held that a sale of land by persons held out as family representatives cannot be revoked by the family. On the definition of an agent, the Appellants counsel cited the case of Osigwe v. PSPLS Management Consortium Ltd & Ors (2009) LPELR-2807 (SC), Bamgboye v. UNILORIN & Anor (1999) LPELR-737 (SC), Cotecna International Ltd v. Churchgate Nig Ltd & Anor (2010) LPELR-897 (SC). And in Makudawa v. Mallam & Ors (2015) LPELR-25964 (CA) the Court held that: “A contract for sale of land by an agent appointed by parole is enforceable and binding. See Ogwuegbu JSC in Chieke v. Olusoga (1997) 3 NWLR (Pt. 494) 390 at 403.”

The Appellant’s counsel submitted that the 1st Respondent appointed the 2nd Respondent as his agent in February, 2010. The Appellant bought the plots in April, 2010. The 1st Respondent did not approach the lower Court until November, 2012, more than two years. By 2012 the Appellant was already in possession and developing the plot. The 1st Respondent surrendered possession to the 2nd Respondent together with title and that made it easy for the 2nd Respondent to deliver same to the Appellant and it shows that the 1st Respondent did not give anyone any notice of his intention to retain the plots. The 1st Respondent did not act timeously. The Appellant’s counsel submitted that the 1st Respondent could be placed in the same position with agreement to sell family property and when it can be opened up. He cited the case of Okonkwo & Ors v. Okolo (1988) LPELR-2481 (SC) and Alao & Anor v. Ajani & Ors (1989) LPELR-406(SC). The Appellant’s counsel submitted that the 2nd Respondent never denied receiving payment of N500,000.00 and so there is no justification in law to take away the land from the Appellant and allow any of the Respondents to keep the purchase price. A consequential order, even in the absence of a counter-claim would have helped to restore the Appellant to the position he was before the sale.

In his response, the learned counsel for the 1st Respondent submitted that the lower Court was right to ignore the fact that the 1st Respondent held out to the public that the 2nd Respondent was his agent over the two excluded plots of land because the 2nd Respondent gave evidence on cross examination that he did not sign the only document of the sale transaction and he was not aware of the document as shown in page 230 lines 9 of the records of appeal and therefore for all intent and purpose the 2nd Respondent was not an Agent to the 1st Respondent in the sale transaction subject matter of this appeal. More so, the 1st Respondent contended that the 2nd Respondent acted beyond the scope of his authority/power given to him, having been instructed not to dispose the exceptional plots to anyone. And the 2nd Respondent did not remit the proceeds of the sale into the account of the 1st Respondent as he claimed. Therefore the sale of the excluded plots without the consent of the 1st Respondent is null and void. The 2nd Respondent cannot transfer any title to a third party because he acted beyond the scope of the authority given to him by the 1st Respondent. The learned counsel cited the cases of Iyere v. BF&FM Ltd (2008) 12 MJSC 102 and Ogboyaga Ltd v. Nnebe (2016) ALL FWLR (Pt. 820).

A reply brief is not a repair kit. In other words, it’s not meant to reargue the Appellants brief or rather the Appellant is not given a second bite at the cherry. I therefore discountenance the Appellants reply brief having crossed the line.

A starting point will be to define agency. In the Oxford Companion in law, the term agency is defined as the relationship between one person, the agent, having authority to act on behalf of another, the principal in contractual relations with a third party. The term is also used more widely of one acting in the interest of another. Professor Achike in his book Commercial Law in Nigeria (1985) at page 16, defines it as; the consensual relationship which arises when a person called the agent acts on behalf of another called the Principal whereby the latter becomes answerable for the lawful acts the former does within the scope of his authority as they affect the legal relations between the principal and a third person.
Again Fridman G.H.L, Law of Agency 7th Edition (Butterworths, London) 1984 at page 8, he defines the term as; the relationship that exists between two persons when one called the agent is considered in law to represent the other, called the principal in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the deposition of property. However inJames v. Mid-Motors (Nig.) Ltd (1978) 11-12 SC 21 at PP 88-67 the Supreme Court in relation to the definition of agency observed as follows:
“We think it necessary in this connection to explain the term agency. That term has a popular use in a number of different meanings, but in law the word agency is used to connote the relation which exist when one person has authority or capacity to create legal relations between a person occupying the position of principal and third parties, and the relation also arises when one person called the agent has the authority to act on behalf of another called the principal and consents (expressly or by implication) so to act.”

Contracts by agents raise a fundamental question of who can sue and who can be sued i.e whether the principal or the agent. The right and liabilities of the principal and the agent depend on certain factors. First, it depends on whether the agent acted within the scope of his authority express or implied. Secondly, whether the principal is disclosed or undisclosed and thirdly whether the principal is a national as opposed to a foreign principal. In this instant case, we are concerned with whether or not the agent i.e the 2nd Respondent acted within the scope of his authority. In the case of Watteau v. Fenwick (1893) 1 QBD 346, Wiles J stated thus;
“… Once it is established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies that the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of the character.”

In this instant case, the learned trial judge found that the 2nd Respondent acted outside the scope of his authority. The evidence led to establish this fact was neither challenged nor contradicted during cross examination. Incar Nig. Plc v. Bolex Eng. Nig. (2001) 12 NWLR (Pt. 728) 648.
Ejuwumi JSC held thus: “I think also that it is necessary to add that generally, an agent cannot act beyond the powers given to him by his principal.”

Therefore, the 2nd Respondent had no title to transfer to the Appellant in respect of the two plots sold to him by the 2nd Respondent. The submission of the Appellant’s counsel that the 1st Respondent did not act timeously cannot hold water because the evidence led by PW1 and PW2 to the effect that when they discovered that someone was cultivating the plots of land, the 2nd Respondent told them that it was him that cultivated the plots. This piece of evidence was equally never challenged nor contradicted. The 2nd Respondent merely denied that he took PW1 and PW2 to the plots of land.

The contention of the Appellant’s counsel that the Appellant cannot and should not be left dry as the learned trial judge did, the payment of N500,000.00 was never denied by the 2nd Respondent. There is therefore no justification in law to take away the land from the Appellant and allow any of the Respondents to keep the purchase price. Consequential Order even in the absence of a counter-claim would have helped in restoring parties (Particularly the Appellant) to the position he was before the sale. That cannot hold water. The learned trial judge having found that the 2nd Respondent had no authority to sell the plots, it follows that the 2nd Respondent had no title to transfer to the Appellant. The Maxim nemo dat quad non habet, meaning a person cannot transfer a title which he does not have applies and it was rightly applied by the learned trial judge.

The trial Court not being a father Christmas the learned trial judge could not have made an order in respect of the sum of N500,000.00 paid by the Appellant to the 2nd Respondent, especially when the 1st Respondent denied receiving any such payment from the 2nd Respondent. And the 2nd Respondent could not adduce any evidence to prove that he made the payment to the 1st Respondent. The Appellant has to take legal steps to recover his money from the 2nd Respondent. The findings of the learned trial judge and the consequential order(s) made thereto are unassailable. The appellate Court has no reason to disturb the findings of the trial Court. The appeal therefore lacks merit and same is dismissed. No order as to cost.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother Abubakar Mahmud Talba, JCA.
He has dealt in depth with the issues canvassed by the parties. I agree with his reasoning and conclusions thereat. I adopt the judgment as mine. I have nothing else to add.

PETER OYINKENIMIEMI AFFEN, J.C.A.: My learned brother, ABUBAKAR MAHMUD TALBA, JCA obliged me with the draft of the leading judgment just delivered. I affirm my agreement that this appeal is bereft of merit and ought to be dismissed without further assurance. I equally abide by the consequential orders.