METUGE v. MARYBILL GLOBAL VENTURES LTD & ANOR
(2022)LCN/17089(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/C/128/2020
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
ESEMBE FRANKLIN METUGE APPELANT(S)
And
1. MARYBILL GLOBAL VENTURES LIMITED 2. MARYANN WILLIAMS ANAM RESPONDENT(S)
RATIO
WHETHER OR NOT THE FAILURE TO TIE ISSUES FOR DETERMINATION OF APPEAL TO TEH GROUNDS OF APPEAL WILL BE FATAL TO THE APPEAL
Therefore, having not filed the required notice as provided by the above rule, this preliminary objection is incompetent. I rely on the cases of ALI ALABA INT’L LTD VS. STERLING BANK PLC (supra) and OGUNPEHIN VS. NUCLEUS VENTURES (supra) to dismiss the preliminary objection.
But in the event that the objection to the competence of appeal is a jurisdictional issue, I hold that it is the law that the failure to tie or marry issues for determination of appeal to the grounds of appeal while desirable and it is the usual practice, failure to do so per se, will not be fatal to the appeal. So long as the issues raised arise from the grounds of appeal, and the Respondent has not shown that he was misled by the failure to tie such issues to the grounds of appeal, the grounds of appeal will not be treated as abandoned as contended. See MABA VS. STATE (2021) 1 NWLR (PT. 1757) 353 at 371, paras. B-C. (SC), and ALAMIEYESEIGHA VS. IGONIWARI (2) (supra) among several other decisions on this established principle of law. PER ALIYU, J.C.A.
THE DEFINITION OF AGENCY
In law, ‘agency’ is a comprehensive word that is used to describe the relationship that arises where one person called the agent is appointed or authorized either expressly or impliedly to act as the representative of another person, called the principal. Such authorized acts that an agent may do on behalf of the principal may include entering into a contract with a third party for and on behalf of the principal. In this regard, the agent creates a privity of contract between the principal and a third party that is enforceable against the principal (by the third party) so long as the contract was entered in the exercise of the authority of the agent.
An agency relationship can be created or formed mainly in five ways, namely, (1) by express appointment, (2) by virtue of doctrine of estoppel, (3) by the subsequent ratification by the principal of a contract made on his behalf without authorization from him, (4) by implication of law where it is urgently necessary that one man should act on behalf of another and (5) by presumption of law in the case of co-habitation. See MABEL AYANKOYA & ORS. VS. OLUKOYA & ANOR. (1996) 4 NWLR (PT. 440) 1 at 27 and IRONBAR VS. C. R. B. R. D. A (2004) 2 NWLR (PT. 857) 411 at 431-431. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, holden at Calabar (trial Court) delivered on the 19th March 2020 in suit No: HC/62/2019. The suit was commenced by the Appellant as the Claimant vide his writ of summons accompanied with a statement of claim wherein he claimed the following orders against the Respondents:
a. A declaration that there is a valid and subsisting contract between the claimant and the 1st defendant which has been breached by the 1st defendant.
b. A declaration that Mr. James Sunday Inyang and Mr. Freedom Emmanuel Udofia are agents of the 1st defendant.
c. An order for refund of N4,700,000.00 (Four Million, seven hundred thousand Naira) being the outstanding sum unpaid.
d. N100,000,000.00 (One hundred million Naira) general damages.
e. N50,000,000.00 (Fifty million Naira) special damages for loss of earnings, time lost and psychological trauma suffered by the Claimant as a result of the loss of his money and comatose in his business.
f. Cost of litigation in the sum of N1,000,000.00 (One million Naira) only.
The facts of the case as stated by the Appellant are that, sometimes in October 2016, he entered into a contract for the supply of 1,200 jumbo packs of baby diapers to the Appellant at the cost of N10,250,000, which the Appellant paid the Respondents in installments, through their warehouse officer Mr. James Sunday Inyang. He was not supplied with the goods he paid for and upon inquiry, the officers of the Respondents informed him that there was robbery incidence in their premises in which cash of the company was carted away including the part payment he made for the products. The Respondents informed him that since he did not make his payment directly into the 1st Respondent’s company bank account, but indirectly through its warehouse officer (Mr. James Sunday Inyang), the 1st Respondent was not liable to refund his money. However, he received the supply of the diapers for the sums of money that the Respondents said was not stolen in the robbery incident, leaving a balance of goods worth N4.7million, which the Respondents refused to supply to him. This led to his filing of this suit before the trial Court seeking the above stated reliefs.
The Respondents denied the claims of the Appellant by its statement of defence (page 23 to 25 of the record) wherein they stated that they have never known or done any business with the Appellant. The 2nd Respondent only met him for the first time at the Police Headquarters in Calabar when she was invited by the police for an interview. Before that, she had caused her lawyers to reply to a letter that the Appellant wrote to her. Therefore, they had not entered any contract for the supply of Molfix Baby Diapers or at all. They denied knowledge of any dealings the Appellant had with James Sunday Inyang and stated that any transaction the Respondents had that involved large sums of money is made through lodgments into the bank account of their company. They stated that they employed Mr. James Sunday Inyang as a warehouse officer and not as a sales agent and that neither he nor Mr. Freedom Emmanuel Udofia informed the Respondents of the existence of any transaction with the Appellant. The 2nd Respondent stated that she was always in the office of the 1st Respondent and at no time did the Appellant come to the office to meet her as all other customers always do within the first or second months of dealings with the company. That it was after their interview with the police that the police directed the Appellant to recover the money he paid to James Inyang and have same paid to the 1st Respondent, which he did and paid the sum of N5,671,008 and it was acknowledged and products worth the sums supplied to him.
The Appellant testified as CW1 and he called another witness CW2, and also tendered three documentary evidence marked exhibits 1, 2 and 3 in proof of his claims. The Respondents also called two witnesses and relied on exhibits 4, 5, 6 and 7 in defence of the Appellant’s claims. After the testimonies of the parties’ witnesses, the counsel on both sides filed written final addresses and adopted them. In its judgment, the trial Court found and held that:
“In the light of the above, the Claimant has failed to prove on the preponderance of evidence that Mr. James Sunday Inyang whom he paid the sum of N10,250,000 (Ten Million, Two Hundred and Fifty Thousand Naira) for the purchase of 1,200 (One Thousand Two Hundred) packs of jumbo Molfix Baby Diapers was acting as an agent of the Defendants and has also failed to establish that he had a contractual agreement with the Defendants for the supply of the said 1,200 (One Thousand Two Hundred) jumbo Molfix baby diapers which has been breached. The Claimant’s claims against the Defendants fails in its entirety and the suit is hereby dismissed.”
The Appellant was aggrieved with the judgment of the trial Court and he filed notice of appeal against it on the 17th April 2020 relying on six grounds to pray that this Court allow the appeal, set aside the judgment of the trial Court and in its place grant all the reliefs sought by the Appellant, and award him litigation cost of N1,000,000. 00 against the Respondents.
The appeal was duly entered on the 27th May 2020 when the record of proceedings was transmitted to this Court. The Appellant’s brief of argument settled by LEONARD ANYOGO ESQ. was filed on the 22nd June 2020 wherein the learned counsel proposed three issues from the grounds of appeal for our determination, thus:
1. Whether the Respondents can be held vicariously liable for the actions of their employees Mr. James Sunday Inyang and Mr. Freedom Emmanuel Udofia in the course of their regular business with the Appellant.
2. Whether the Respondents are allowed in law and in equity to approbate and reprobate on the same series of issues thereby deriving arbitrary benefits contrary to the doctrine of equity.
3. Whether the Appellant proved their case based on preponderance of evidence, and therefore entitled to the reliefs sought.
In opposing the appeal, the Respondents filed their brief of argument settled by their counsel NSIKAK IKPEME ESQ. on the 28th July 2020. The Respondents raised a preliminary objection and argued it in paragraphs 2.0 to 2.6 of their unpaginated brief of argument. On the main appeal, in the event that the Respondents’ preliminary objection fails, they proposed a sole issue for determination as:
Whether the Appellant was able to prove his claim at the trial Court as to have been entitled to his reliefs in the statement of claim being granted.
ARGUMENT ON THE PRELIMINARY OBJECTION
The Respondents’ preliminary objection is against the Appellant’s three issues, which are not linked or married to any of the grounds of appeal from where they are distilled.
They argued that this appeal is founded on the six grounds of appeal contained in the notice of appeal. That, in order to avoid the grounds of appeal from being deemed abandoned especially as there are multitude of them, the Appellant was duty bound to marry each issue to a particular ground of appeal, which is not done by the Appellant in this case. He argued that not linking any of the issues to the grounds of appeal would subject this Court to a voyage of discovering which issue stems from which ground(s) of appeal and that the scarcity of the judicial time at the disposal of this Court does not make room for it to embark on any voyage of discovery.
The learned Respondents’ counsel conceded that simply formulating fewer issues for determination than the number of grounds of appeal is not offensive in itself, it is only the proliferation of issues that is not acceptable vide the case of NFA VS. INONGHA (2014) 57 (PT. 1) NSCQR 1. But he still submitted that the only reasonable deduction to be made for the Appellant’s failure to marry his three issues to the grounds of appeal is that the grounds are abandoned, which means that the notice of appeal is incompetent for being circumstanced on abandoned grounds of appeal. He relied on the cases of F.R.N. VS. IWEKA (2013) 3 NWLR (PT. 1347) 285 and NIGERIAN ARMY VS. SAMUEL (2013) 56 (PT. 2) NSCQR 844; to support this contention, and to urge us to strike out this appeal for being incompetent.
The Appellant responded to the preliminary objection in his reply brief filed on the 18th August 2020. He also raised his own objection to the competence of the Respondents’ brief, which he asserted was filed out of the 30 days prescribed by Order 19 Rule 4(1) of the Court of Appeal Rules 2016. He pointed out that the Respondents were served with the Appellant’s brief on or about the 23rd June 2020, while they filed their Respondents’ brief on the 28th June 2020, exceeding the 30 days window permitted by the rules. He argued that the consequence of filing the Respondents’ brief out of time is that the appeal is undefended since the Respondents did not seek extension of time to regularize it as provided by Order 6 Rule 9 of the said Rules.
But in the event that the Court deems the Respondents’ brief competent, he responded to the Respondents’ preliminary objection in pages 4-6, paragraphs 2.2 to 2.2.1 (I) to IV) and submitted that the objection of the Respondents is generic and a lazy attempt at judicial (litigation) fishing hoping for a catch. That it is unarguable that the Appellant’s three issues are gleaned from the grounds of this appeal and that the argument of the Appellant amounted to unhealthy technicality. That even assuming without conceding that the objection is properly raised, he submitted that this Court and the Apex Court have held that the mere fact that an issue was not specifically stated to have been distilled from a particular ground of appeal is not fatal to render such issue incompetent and the grounds of appeal abandoned. He pointed out that it is curious that the Respondents did not adhere to the gospel they preached as they failed to specifically tie their lone issue to any or all the grounds of appeal.
To support his submissions, the Appellant’s learned counsel relied on the cases of DIAMOND BANK VS. OPARA & ORS. (2018) LPELR-43907 (SC); OKUNLOLA & ANOR. VS. SHOYINKA & ANOR. (2019) LPELR-48362 (CA), SHANUSI & ORS. VS. ODUGBEMI & ANOR. (2017) LPELR-43377 (CA); ALAMIEYESEIGHA VS. IGONIWARI (NO. 2) (2007) 7 NWLR (PT. 1034) 524 at 570 (CA).
RESOLUTION OF THE PRELIMINARY OBJECTIONS
There are now before me two preliminary objections namely; the Respondents’ preliminary objection raised and argued in his brief of argument stated supra. Secondly is the objection of the Appellant against the competence of the Respondents’ brief of argument on the ground that same was filed out of the time prescribed by Order 19 Rule 4 (1) of the 2016 Rules, which is the same as Order 19 Rule 4(1) of the extant 2021 Rules of this Court. I will, of course, first of all determine the competence of the Respondents’ brief of argument, before deciding, if necessary, the merits or otherwise of their preliminary objection raised therein. As a reminder, Order 19 Rule 4(1) of this Court’s Rules 2021, same as Order 19 Rule 4(1) of the 2016 Rules, provides:
The Respondent shall also, within thirty (30) days of service of the brief of the Appellant on him, file the Respondent’s brief which shall be duly endorsed with an address or addresses for service.
I have indicated earlier that the Appellant’s brief of argument was filed on the 22nd June 2020. The Appellant asserted that the Respondents were served with the Appellant’s brief on the 23rd June 2020. Unfortunately, the learned counsel did not attach the proof of service he relied upon to show when the Respondents were served with his brief. The doubt must be resolved in favour of the Respondents since their brief was filed and responded to by the Appellant. The Respondents’ brief is hereby deemed appropriately filed and served on the Appellants in the circumstance. I dismiss the Appellant’s objection against it because same has not been proved.
I now proceed to consider the merit of the Respondents’ preliminary objection which they argued in their brief, but failed to give notice of their intention to rely on it as provided by Order 10 Rule 1 of the 2016 Rules of this Court which is materially the same with Order 10 Rule 1 of the extant 2021 Rules (with only a slight variation) and it provides that:
A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten hard/physical copies and an electronic copy thereof with the Registry within the same time. The preliminary objection shall be argued in the Respondent’s brief of argument.
Therefore, having not filed the required notice as provided by the above rule, this preliminary objection is incompetent. I rely on the cases of ALI ALABA INT’L LTD VS. STERLING BANK PLC (supra) and OGUNPEHIN VS. NUCLEUS VENTURES (supra) to dismiss the preliminary objection.
But in the event that the objection to the competence of appeal is a jurisdictional issue, I hold that it is the law that the failure to tie or marry issues for determination of appeal to the grounds of appeal while desirable and it is the usual practice, failure to do so per se, will not be fatal to the appeal. So long as the issues raised arise from the grounds of appeal, and the Respondent has not shown that he was misled by the failure to tie such issues to the grounds of appeal, the grounds of appeal will not be treated as abandoned as contended. See MABA VS. STATE (2021) 1 NWLR (PT. 1757) 353 at 371, paras. B-C. (SC), and ALAMIEYESEIGHA VS. IGONIWARI (2) (supra) among several other decisions on this established principle of law.
I have examined the grounds of appeal and the issues proposed by the Appellant and I am satisfied that the issues arise from the complaint of the Appellant in this appeal. The issues are therefore competent regardless of the failure to tie them to the grounds and I so hold. I now proceed to determine the merits of the appeal.
APPELLANT’S SUBMISSIONS
On issue one, the learned Appellant’s counsel submitted that Mr. James Sunday Inyang and Mr. Freedom Emmanuel Udofia are principal officers of the 1st Respondent (Company) and capable of, and actually acted on its behalf in their transactions resulting into this suit. He referred us to exhibit 7 (letters of employment) and the testimonies of DW1 and DW2 on record to the effect that this personnel of the Respondents could be presumed by customers to be in charge of receiving money for the supply of goods to the customers of the 1st Respondent. He argued that it was a misdirection and legally abnormal for the trial Court to rely on the oral testimonies of DW1 and DW2 to hold that the Respondents could not have authorized the said personnel to receive money on their behalf in their personal account. This is despite the fact of series of previous similar transactions not denied by the Respondents, as evidenced by Mr. JamesInyang’s transfer of the sum of N5, 671,008 from his personal account to the 2nd Respondent’s account (not the company’s account) and goods worth that sums supplied to the Appellant. He argued that the scope of the authority of Mr. Inyang and Mr. Udofia stated in their letters of employment was not in the public knowledge. The trial Court was therefore wrong to adopt what the learned counsel called “commonsensical/elementary wisdom” to ascertain the scope and authority of the said personnel of the Respondents. He relied on the provisions of Section 66(1) and (2) of the Companies And Allied Matters Act (CAMA) to support his argument.
Further, learned counsel referred to Sections 167 and 169 of the Evidence Act, 2011 to submit that even assuming that Mrs. Inyang and Mr. Udofia lacked the capacity to act on behalf of the 1st Respondent Company, the law presumes such capacity in favour of the Appellant. That as admitted by the Respondents during the trial, it was not just a single transaction between the Appellant and Mr. Inyang and Mr. Udofia on behalf of the Respondents but series of transactions with the Appellant and at no point did the Appellant query the inflow of cash and the goods supplied for the huge sums of cash paid through this personnel.
It was also argued that by the repeated pattern and series of transactions, the common course of business transaction of the Respondents was to transact with their customers through any of its members of staff. That the law presumes the regularity of such transaction in favour of the Appellant and would remain so even with regards to the particular transaction that resulted in this appeal. The Respondents are therefore estopped from denying knowledge of the transaction as by their act or omission they made the Appellant to believe that he was transacting with the Respondents through the right channel. He relied on the case of UBA PLC VS. OFAGBE FARMS LTD (2003) FWLR (PT. 142) 39 where it was held that where a person by his words or conduct represents to a 3rd party that another has authority to act on his behalf, he may be bound by the acts (and consequences of same) of that other as if he had in fact authorized them. Also held that where an agent is not invested with the actual authority by his principal, but a third party is made to believe that he has, the act of the agent with the third party is binding on the principal. The Appellant urged us to resolve his issue one in his favour on the strength of his submissions.
On issue two, the Appellant argued that assuming that the law is of the effect that the 1st Respondent was not liable for the actions of Mr. Inyang and Mr. Udofia, the justice of the case since the Respondents are fully aware or at least came to know that the Appellant paid money was for them to supply the goods to the Appellant. This is because the funds the Appellant paid for the goods was purportedly robbed in the premises of the Respondents. He contended that allowing the Respondents to escape liability in this circumstance would occasion injustice and against the principle of equity against the Appellant. He urged the Court to so hold and resolve this issue in favour of the Appellant.
On the Appellant’s issue three, his learned counsel disagreed with the learned trial Judge’s holding that the absence of Mr. James Inyang left many questions unanswered because he is a necessary party in this case. He placed reliance on the locus classicus case of GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480 and BABAYEJU VS. ASHAMU (1998) 9 NWLR (PT. 567) 546 to the effect that the only reason which makes a person necessary party to an action is that there must be a question in the action which cannot be effectually and completely settled unless he is made a party to the suit. The Appellant further argued that the trial Court was wrong to hold that the absence of Mr. Inyang means the Appellant did not prove that the money stolen during the purported robbery incident at the premises of the Respondents was the money Appellant paid to Mr. Inyang. The Appellant argued that there is no burden on him to prove the incident of the purported robbery. That all he is required to prove is the fulfillment of his obligation of payments for the goods he intended to purchase from the Respondents and the circumstances through which he made the payment. He urged us to also resolve this issue in favour of the Appellant.
RESPONDENTS’ SUBMISSIONS.
In arguing the Respondents’ sole issue, their learned counsel submitted that it is the law that the burden of proof in civil ligation is on he who alleges vide Sections 131 and 132 of the Evidence Act 2011. A claimant in civil matters has the burden to satisfy the Court by leading concrete, cogent and valid evidence with a view to establishing his claims. He cannot leverage on the weakness of the defence. He relied on the case of OREDOLA OKEYA VS. B.C.C.I. (2014) (PT. 1) NSCQR 230 in support.
The learned counsel referred to the averments of the Appellant, particularly in paragraphs 7 to 10, 11 and 15 of his statement of claim, upon which he sought declaration that there was a subsisting and valid contract between him and the Respondents, which has been breached. In order to prove this assertion, the Appellant placed heavy reliance on the statement of account of Ocean Label International (exhibit 1), who was not a party to the proceedings. It was argued that even assuming Mr. Inyang and Mr. Udofia acted within the scope of their employment with the Respondents, it was only Ocean Label International that has right of action against the Respondents, not the Appellant. That the Appellant refused to apply to join this Ocean Label International even after being prompted by questions put to PW2 under cross-examination. It was submitted that it was the duty of the Appellant to bring to Court a party whose presence is crucial to the resolution of his case, and having failed to do so, he should not be heard complaining on the decision of the Court.
It was also submitted that the Appellant was seeking a declaration by the trial Court that the Respondents were vicariously liable for the acts of their employees, Mr. Inyang and Mr. Udofia. But he failed to prove that these personnels acted within the authorized limits of their employment. That the Appellant did not counter the assertion of the Respondents that Mr. James Sunday Inyang was not authorized to receive cash from customers by filing a reply to their statement of defence or through cross-examination. He relied on Section 66 of CAMA to submit that the learned trial Judge was right to hold that any step taken by the employees outside legitimate company duties that are not duly authorized become personal step and that an agent who acts outside his authority cannot transfer liability to the principal. We were referred to the case of MBA PROPERTIES LTD & ANOR. VS. ADEGOKE (2017) LPELR-43579 (CA) on the argument. Learned counsel finally submitted that the remedy available to the Appellant was to take personal action against James Sunday Inyang. He therefore urged this Court to dismiss this appeal and uphold the judgment of the trial Court.
APPELLANT’S REPLY BRIEF
In response to the argument of the Respondent that only Ocean Label International, the owner of the bank account through which the Appellant said he made payments to the Respondents; the Appellant submitted that the law is settled that qui facit per aliumfacit per se, that is he who acts through another acts himself. He argued that it was established in evidence that the Appellant lives in Cameroun as such he adopted the medium most suitable for him. That the relevant issue is not whether the name of the Appellant on the statement of account, but whether money was transferred for and on behalf of the Appellant to the Respondents which they accepted through their employees. That it is sufficient that the sum of money the Respondents and supplied goods to the Appellant was part of the sums sent through the same account of Ocean Label International. In this circumstance, joinder of the Ocean Label International was a non-issue being one and the same person with the Appellant.
The Appellant further argued that the same principle of law also applies with regards to the scope of authority of the Respondents’ employees to act on behalf of the Respondents. That the Appellant was not in a position to know the internal workings of the Respondents who fronted their employees to transact with him and to receive cash which it benefitted from. He therefore urged the Court to discountenance the submissions of the Respondents and hold that their employees acted for and on their behalf, and they are vicariously liable for the breach of contract with the Appellant.
RESOLUTION
In the determination of this appeal, I gave ample consideration to the grounds of appeal and the Appellant’s three issues raised therefrom. It is clear that the case of the Appellant was founded on contract based on agency relationship between Mr. James Sunday Inyang and the 1st Respondent, which he asserted was entered or created through Mr. Inyang, the employee of the 1st Respondent. Therefore, this appeal rests on two main or crucial issues, i.e. was there a contract between the Appellant and the 1st Respondent and secondly, was Mr. James Sunday Inyang acting as an agent of the 1st Respondent when he received payment from the Appellant for supply of Molfix baby diaper products from the Appellant. And so the sole issue for determination, which I believe will encompass and subsume the three issues raised by the Appellant is:
Whether the Appellant has proved the existence of a contract between him and the Respondents, which was breached, and therefore entitled him to the reliefs sought.
The case of the Appellant as alluded to earlier is mainly that he entered into a contract with Mr. James Sunday Inyang, an employee and warehouse officer of the Respondents, therefore their agent, for the supply of 1,200 jumbo packs of Molfix baby diapers and he made payment of N10,250,000 to the Respondents for the goods to Mr. Inyang. He posited that Mr. Inyang being an agent of the 1st Respondent entered into the contract for the supply of the said goods on behalf of the 1st Respondent, thus the Respondents are liable for the refund of the N4,700,000.00 he paid Mr. Inyang for the unsupplied 700 packs of the baby diapers.
The Respondents on the other hand maintained that the only payment they received from the Appellant through the 1st Respondent company’s account was for 500 jumbo packs of the goods and they have supplied them to him. That they did not authorize Mr. Inyang to receive payments for goods in his personal bank account. The Respondents asserted that it is not the recognized practice in their business and it is in the evidence of DW1 and DW2 that the Appellant had never visited their office and they did not know him at all until this case arose and they were invited by the police.
Thus, the entire gamut of the argument of the Appellant rests on the claim of agency relationship, which he claimed existed between Mr. Inyang and the 1st Respondent. In law, ‘agency’ is a comprehensive word that is used to describe the relationship that arises where one person called the agent is appointed or authorized either expressly or impliedly to act as the representative of another person, called the principal. Such authorized acts that an agent may do on behalf of the principal may include entering into a contract with a third party for and on behalf of the principal. In this regard, the agent creates a privity of contract between the principal and a third party that is enforceable against the principal (by the third party) so long as the contract was entered in the exercise of the authority of the agent.
An agency relationship can be created or formed mainly in five ways, namely, (1) by express appointment, (2) by virtue of doctrine of estoppel, (3) by the subsequent ratification by the principal of a contract made on his behalf without authorization from him, (4) by implication of law where it is urgently necessary that one man should act on behalf of another and (5) by presumption of law in the case of co-habitation. See MABEL AYANKOYA & ORS. VS. OLUKOYA & ANOR. (1996) 4 NWLR (PT. 440) 1 at 27 and IRONBAR VS. C. R. B. R. D. A (2004) 2 NWLR (PT. 857) 411 at 431-431.
The Appellant in this case asserted before trial Court that Mr. James Sunday Inyang was the agent of the Respondents by virtue of his employment and by conduct of the Respondents implying that payments for goods can be made to them through Mr. Inyang’s personal bank account which the Respondents denied. He therefore has the burden to prove that the payment for goods he made to Mr. Inyang was the Respondent’s usual practice of receiving payments for goods; or that Mr. Inyang had the authority of the Respondents to receive such payments on their behalf. This is because generally speaking, an agent authorized to sell goods is not usually authorized to receive payments, unless it is so proved. See the English case of BUTWICK VS. GRANT (1924) 2 K.B. 483.
The learned trial Judge after reviewing the facts and evidence led by the Appellant to prove his assertion made a finding of fact in page 106 of the record of appeal that:
“From the facts and circumstances of this case, the Claimant who made all payments in respect of the supply of 1,200… jumbo packs of Molfix Baby Diapers in October 2016 made the payments to the bank account of Mr. James Sunday Inyang, who at the time was Warehouse Manager of the 1st Defendant. The Claimant in paragraph 8 of his statement of Claim averred that he was given the bank account details in furtherance of the business transaction since he most times stays in Cameroun but he did not state who specifically gave him the account details…. Following from the narratives or averments in the statement of claim, the only person who could have given the Claimant the Account Number was the account holder himself Mr. James Sunday Inyang…. While the schedule of duty of Mr. James Sunday Inyang was not spelt out in Exhibit 1, the defendants have in their statement of Defence and Written depositions of DW1 and DW2 stated that any transaction with their company involving large amount of money is usually preceded by lodgments of such amount into the company account. After the lodgment, the customer comes to the Company to pick the goods worth of the value on the teller if the Company is alerted of such lodgment. This position was not countered by the Claimant.”
I have carefully read the pleadings of the Appellant and his written statement on oath (page 7-9 of the record) that he adopted as his evidence in chief, and his testimony under cross-examination at pages 75 to 78 of the record of appeal. I note particularly that in page 76 the Appellant states under cross-examination thus:
XX: How was the Account Number given to you?
CW1: Initially, I used to come with my money from Cameroun and pay to the defendant and they supply me goods.
XX: Are you aware that the defendant is a limited liability company?
CW1: Yes I know.
XX: When you were given the Account Number, did you bother to ask why it was not the company’s name that was there?
CW1: I did not because I know the Director can put whichever name he chooses.
Then again he stated that: “I only know Mr. Sunday James as the Warehouse Manager. I have always paid money to Mr. Sunday James.”
Therefore, in view of the evidence of the Appellant, it is clear that he has not been to the offices of the Respondents but somehow for whatever reasons best known to him, chose to make payments to Mr. James Inyang whom he knew as warehouse officer even though, he was aware that the 1st Respondent is a limited liability. He has also not testified as to how he came to know that Mr. James, the warehouse officer was authorized to receive payment of money from customers such as himself. It is not the duty of the Court to fill in the gap in the evidence of the Appellant. Where such gaps exist in the evidence of a party who has the burden of proof, it simply means that the burden has not been discharged. In this case, the Appellant failed to prove that it was the usual practice of the Respondents to receive payments for goods through Mr. Inyang or any other officer. The learned trial Judge was therefore justified in his findings supra and he cannot be faulted and I so hold.
The Appellant had argued that the Respondents are vicariously liable for the acts of their employees Mr. Inyang and Mr. Udofia. I hasten to state that the doctrine or principle of vicarious liability is only applicable to actions in torts and not applicable to contracts, especially relating to agency as this action is. The principle of vicarious liability entails the liability of an employer for the tort committed by his employee against a third party and not on contracts that are primarily based on agreements expressed or implied as alluded to supra. See MABEL AYANKOYA VS. OLUKOYA (supra). One cannot agree or appoint someone to go and commit tortious act against another.
Also, the Appellant contended that the Respondents’ conduct in receiving money from Mr. Inyang to supply him goods on one hand while denying part of the payment he made to Mr. Inyang, thus they approbated and reprobated. He argued relying on equity that it is unjust for the Respondents who have received the payments he made to Mr. Inyang, part of which was stolen in the robbery incident in their offices; to refuse to supply him with the goods he paid for even if in law, they are not liable for the unauthorized actions of Mr. Inyang.
The learned trial Judge in dealing with this complaint of the Appellant found and held in page 107 of the record of appeal that:
“The Claimant has in the course of this case not proven that it was part of his money paid into the account of Mr. James Sunday Inyang that was stolen on the date of the robbery and DW1 also does not know the source of the money said to be allegedly stolen from the Company by the armed robbers as all she thought was in the office was money paid by the representatives who go out to sell. The accounts of the day of the robbery as presented in Court by the Claimant were told to him by Mr. James Sunday Inyang as he (claimant) was not there when the robbery took place. I hold that Mr. James Sunday Inyang is a necessary party in this case and ought to have been joined. His absence led many questions unanswered.”
The learned trial Judge was absolutely correct to hold that Mr. Inyang is a necessary party or at least a witness for the Claimant to confirm the claim of the Appellant that the money the Appellant paid into his (Mr. Inyang’s) bank account was part of the money stolen in the robbery incident. As I stated earlier, the trial Court cannot fill in the very wide gap in the case of the Appellant. See UNANOWO VS. UNION BANK (2018) LPELR-47307 to the effect that a Court does not base its decision on mere conjectures but on facts established by evidence.
The consequence of the unanswered questions raised in the case of the Appellant is that he has not proved his assertion and therefore not entitled to invoke equity to come to his aid. This contention has no basis on the evidence on record and therefore hereby discountenanced.
In the final analysis, I agree with the holding of the learned trial Judge to the effect that the Appellant failed to prove that Mr. James Sunday to whom he paid the sum of N10,250,000.00 for the purchase of the goods from the Respondents was acting as the authorized agent of the Respondent and has also failed to prove that he had any enforceable contract with the Respondents. I therefore must answer the lone issue in the negative and it is so answered and resolved against the Appellant.
Consequently, this appeal is devoid of any iota of merit and it is dismissed. The judgment of the High Court of Cross River State, sitting at Calabar delivered on the 19th March 2020 by Hon. Justice F. NnangIsoni in suit No: HC/62/2019 is hereby affirmed by me. Parties shall bear their costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I was opportuned to read in draft, the judgment of my learned brother Aliyu, JCA and I agree with her that there is want of merit in this appeal. I also dismiss the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Balkisu B. Aliyu, JCA. I am in agreement with the reasoning therein and conclusion thereat, that the appeal lacks merit and should be dismissed.
The fulcrum of this appeal is whether there exists an agency relationship between the two respondents and one Mr. James Sunday to bind them with the contract purportedly entered between the Appellant and the said Mr. James Sunday. Agency relationship exists where one has the authority or capacity to create a legal relationship between a person occupying the position of a principal and the third parties. Thus, an agency can arise implicitly from the nature and condition of the parties or from the circumstances of the case. Whether that relationship exists in any given situation depends not on the precise terminology used by the parties to describe their relationship but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and the alleged agent: BAMGBOYE V UNIVERSITY OF ILORIN (1991)8 NWLR (prt.207) and YUSUF V OLUMEYAN & ANOR (2016) LPELR-40197 (CA).
In the instant case, the Appellant has failed woefully to prove that Mr. James Sunday whom he paid the money for the purchase of the goods from the Respondents was acting as agent of the Respondents herein. The appeal is destined to fail and I also dismiss the appeal and abide by the consequential orders.
Appearances:
LEONARD ANYOGO, ESQ. WITH HIM, P. F. ASUQUO, ESQ. For Appellant(s)
NSIKAK IKPEME, ESQ. For Respondent(s)
