MR RAY AKANWA v. HON. SYLVESTER OGBAGA (2016)

MR RAY AKANWA v. HON. SYLVESTER OGBAGA

(2016)LCN/8885(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of July, 2016

CA/E/534/13

RATIO

AGENCY: POWER OF ATTORNEY; DOES A POWER OF ATTORNEY TRANSFER INTEREST FROM THE DONOR TO THE DONEE
the law is that a Power of Attorney transfers no interest from the donor to the donee. The donee always remains an agent of the donor. It is not an instrument which confers, transfers, limits, charges or alienates any title to the donee rather it would be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a 3rd party. See Gregory Obi Ude v. Clement Nwara (1993) 2 NWLR Pt. 278 Pg. 608; Olorunfemi v. Nigeria Educational Bank Ltd (2003) 5 NWLR Pt. 812 Pg. 1 at 22. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

BUSINESS LAW: NEMO DAT RULE; MEANING OF THE NEMO DAT RULE
it is a settled principle of law that you cannot give what you do not have; nemo dat quod non habet and you cannot put something on nothing. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WORDS AND PHRASES: MEANING AND NATURE OF AGENCY
Page 64 of Blacks law Dictionary, 7th edn defines an agent as one who is authorised to act for or in place of another, a representative. The word agent or agency denotes one who acts, a doer etc. that accomplishes a thing or things. The agent normally binds his principal and certainly not himself by the contract he makes. See Osigwe v. PSPLS Management Consortium (2009) 3 NWLR Pt. 1128 Pg. 378 at 404.
In Dr. Tunde Bamgboye v. University of Ilorin & Anor. (1999) 10 NWLR Pt. 622 Pg. 290 at 329; (1999) 6 SCNJ 295 Onu JSC had the following to say on the definition of an agent:
“A person authorised by another to act for him, one entrusted with anothers business. One authorised to transact all business of principal (sic), all of the principals business of some particular kind, or all businesses of particular place
Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR Pt. 107 Pg.68 also agrees with this definition of an agent.
In Vulcan Gases Ltd v. G. F. Industries A. G (2001) 9 NWLR Pt. 719 Pg. 610, the Supreme Court held on the relationship between principal and agent that the relationship may arise in anyone of five ways namely:
1) By express appointment whether orally or by letter of appointment, or, indeed, by a Power of Attorney. Under this heading, no formality such as writing is required for the valid appointment of an agent except for instance, where the authority of the agent is to execute a deed on behalf of a principal. In which case, the agency itself must be created by deed.
2) By notification of the agents acts by the principal.
3) By virtue of the doctrine of estoppel.
4) By implication of law in the case of agency of necessity and
5) By presumption of law in the case of cohabitation. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

 

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

MR RAY AKANWA Appellant(s)

AND

HON. SYLVESTER OGBAGA Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered by Hon. Justice P. O. Elechi on 23/07/13 wherein His Lordship upheld the plaintiff?s claim, declared the purported sale of land to the plaintiff by the defendants as illegal, null and void and of no effect and ordered the defendants to refund to the plaintiff the sum of N5, 000, 000.00 for the sale of land which failed. His Lordship also awarded the sum of N100, 000.00 as damages.

The undisputed facts that led to this appeal to wit:
The plaintiff by his Statement of Claim dated and filed on 21/03/13 claims against the defendant as follows:
1. An order of Court declaring the purported sale of land by the defendants to the plaintiff illegal.
2. An order of Court for a refund of the sum of N5,000, 000.00 by the defendants jointly and severally to the plaintiff being the money had and received by the defendants from the plaintiff for a failed consideration and or for sale of land that does not belong to them.
3. Specific damages in the sum of N800,000.00.
i. Particulars of

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Special Damage.
ii. Legal fee ( professional fee for writing irrevocable Power of Attorney) = N500,000.00
iii. Cost of perimeter fencing of the said land = N300,000.00
Total =N800, 000.00
4. General and exemplary damages in the sum of N2,000,000.00 only for the inconveniences and psychological trauma the distinguished Hon. Member of the House of Representatives was subjected to.

The Learned trial judge after reviewing the evidence of the parties in this matter came to the conclusion that the plaintiff had proved his case and discharged the burden of proof placed on him by Section 138 of the Evidence Act. His Lordship upheld the plaintiff?s claim, declared that the purported sale of land to him as illegal, null and void and of no effect. His Lordship also found the defendants jointly and severally liable to the plaintiff for the damage and loss occasioned by the failed sale of land transaction. The Learned trial judge thereafter ordered the defendants to refund the sum of N5,000, 000.00 to the plaintiff for the sale of land which failed because the land did not belong to the defendants and awarded N100,000.00 as general damages

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against the defendants.

Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice of Appeal filed on 23/07/13 containing 4 grounds of appeal and records were deemed transmitted on 16/4/15. The appellant?s brief was filed on 25/10/13 and deemed filed on 16/4/15. A reply brief was filed on 16/12/13 and deemed filed on 16/4/15. Respondent?s brief was filed on 29/11/13 and deemed filed on 16/4/15.

In the appellant?s brief settled by Ray Akanwa Esq, the appellant, four issues were identified for determination as follows:
1. Whether the 1st defendant/ appellant can be held liable for a contract he is not a party to.
2. Whether the 1st defendant/ appellant can incur personal liability in a contract he acted for a known and disclosed principal.
3. Whether or not the failure of the trial Court to act on the evidence that the plaintiff was told to conduct his search with a surveyor did not occasion a miscarriage of justice to the 1st defendant/appellant.
4. Whether general damages not naturally resulting from a breach of contract can be awarded by a trial Court.

?In the

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respondent?s brief settled by Jerry Ezenyi Esq, the four issues identified for determination by the appellant were adopted by the respondent.

After perusal of the arguments of both counsel, I shall crystallise the issues for determination as follows:
1. Whether an agent can incur personal liability in a contract where he acted for a known and disclosed principal and the extent of the liability of the agent to a 3rd party purchaser of land (if any).
2. Whether general damages not naturally resulting from a breach of contract can be awarded by a trial Court.
ISSUE ONE
Whether an agent can incur personal liability in a contract where he acted for a known and disclosed principal and the extent of the liability of the agent to a 3rd party purchaser of land (if any).

?Learned appellant?s counsel submitted that the appellant is not a party to the failed contract between the respondent and the 2nd defendant and that there is nowhere in the contract of the purported sale of land marked ?Exhibit B? and the Power of Attorney marked ?Exhibit C? where the appellant signed as a party to the transaction.

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Counsel contended that only the parties to a contract can sue and be sued on the contract and that a contract cannot confer enforceable rights or impose obligations arising under it on any person except parties to the contract. He cited Makwe v. Nwukor (2001) FWLR Pt. 63 Pg. 1; Ikpeazu v. ACB (1965) NMLR 374; E.T & EC Nig. Ltd v. Nevic Ltd (2004) 3 NWLR Pt. 860 Pg. 327.

Counsel submitted also that the respondent cannot be allowed to add or vary the content of Exhibits B and C since a document speaks for itself and oral testimony is inadmissible to do same. He cited N.I.D.B v. Olalomi Industries Ltd (2002) 5 NWLR Pt. 761 Pg. 532; Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR Pt. 333 Pg. 385. He argued that Exhibit B is clear and unambiguous but was not considered by the learned trial judge.

?Counsel referred to pgs 176- 177 of the record of appeal that it is clear from the finding of the learned trial judge that the appellant acted as an agent of the 2nd defendant at trial who was a known and disclosed principal to the respondent. He submitted further that an agent of a known and disclosed principal does not incur personal liability with

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exceptions to where he exceeds the scope of his authority. He cited Akalonu v. Omokaro (2004) 8 NWLR Pt. 821 Pg. 190; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt. 622; Carlen (Nig) Ltd v. University of Jos (1994) 1 NWLR Pt. 323 Pg. 631; Okafor v. Ezenwa (2002) 13 NWLR Pt. 784 Pg. 319; Amadiume & Anor v. Ibok & Ors (2006) 6 NWLR Pt. 975 Pg. 158; Essang v. Anreol Plas Ltd (2003) 17 NWLR Pt. 795 Pg. 155; Osigwe v. PSPLS Mgt. Consortium Ltd (2009) 1 KLR 262; Khonam v. John (1939) 15 NLR 72; Niger Progress Ltd v. NEL Corp (1989) 3 NWLR Pt. 107 Pg.68.

Counsel submitted also that the complaints by the respondent against the appellant could only arise in the course of discharging the duties and responsibilities entrusted to him by the 2nd defendant and that the appellant did not exceed the scope of his authority by finding a buyer for a piece of land he believed belonged to the 2nd defendant.

Counsel stated that since the relationship between the appellant and the 2nd respondent is agency, it only follows that the rules of agency will apply. He cited Rule 15 (4) of the Rule of Professional Conduct for Legal Practitioners 2007.

?Learned

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respondent?s counsel on this issue submitted that the respondent at the trial Court did not claim for breach of contract since the defendants cannot have contracted a sale of a piece of land that does not belong to them. He argued that the appellant totally misconceived the subject of the suit. Counsel cited page 56 of the record and argued further that Exhibit B referred to by the appellant is not a contract of sale but an acknowledgment of receipt of the N5, 000, 000.00 for the sale of the said land and that the appellant in Paragraph 19 of his Statement of Defence on page 111 of the record confirmed that he jointly sold the land to the respondent with the 2nd defendant. Counsel submitted that the trial judge was right to have held that the appellant and the 2nd defendant are jointly and severally liable to the respondent. He cited Alade v. Alic (Nig.) Ltd (2011) ALL FWLR 1862.

Counsel argued that since the appellant was responsible for the payment and receipt of the amount claimed by the respondent, it follows that he should be liable for its refund. He cited FOB Financial Service Ltd v. Adesoza (2002) NWLR Pt. 668 Pg. 170; Alade v Alic (Nig.)

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Ltd (supra). Counsel argued that the appellant did not act as a witness simpliciter on the issue of Exhibit B because he was the one who approached the respondent as a friend and convinced him to purchase the said land belonging to the 2nd defendant. He personally negotiated the purchase price of the land, reached an agreement and when the agreed price was to be paid to the defendants he personally prepared the receipt. Counsel submitted that a party who performs all these functions in a transaction can only be described as a party to the transaction.

Counsel submitted that this is not a matter involving an agency relationship and that even if it is, where a principal gives his agent the express authority to carry out a wrong act in itself or which results in a wrongful act, the principal is responsible with the agent jointly and severally to the 3rd party for any loss or damage thereafter. He cited Halsbury Laws of England Vol. II (i) 4th Edn.; Ude v. Nwara & Anor (1993) 2 NWLR Pt. 278 Pg. 638; Joe Iga & Ors v. Ezekiel Amakiri & Ors (1978) 11 SC II; (1976) 11 SC, Odii?s Investment Ltd v. Talabi (1991) 1 NWLR Pt. 170 Pg. 761; Koiki v.

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Magnusson (1999) 8 NWLR Pt. 615 Pg. 492.

Counsel argued that the appellant as a legal practitioner has a duty to promptly call his client to rectify the wrong in line with Rule 15 (4) of the RPC 2007 and the appellant failed to discharge this duty. Counsel argued also, that it is not a defence for the appellant to contend that he acted under authority, instructions or orders of another to make an illegal sale.

On the issue of the failure of the trial Court to act on the evidence that the plaintiff was told to conduct his search with a surveyor which the appellant says occasioned a miscarriage of justice to him. Learned appellant?s counsel Mr Nnachi Ukpai submitted that the failure of the trial Court to act on the admission by the appellant that he advised the respondent to conduct his search before purporting to buy the land in question occasioned a miscarriage of justice to him. Counsel contended also that the respondent acting through his Personal Assistant went to see one surveyor Henry Ekereoku of the Lands Ministry Abakaliki who conducted a search and told the respondent?s P.A in the appellant?s presence that the 2nd

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defendant?s title to the land is genuine and that this piece of evidence was neither denied nor challenged by the respondent. He submitted that the law is that any piece of evidence that is neither denied nor challenged is deemed admitted and the Court is bound to act on it. He cited Cappa & D’alberto Ltd v. Akintilo Tilo (2003) 9 NWLR Pt. 824 Pg. 49; David v. Sasegbon (1956) SCNLR 281 and Legal Drafting, Conveyancing Law, Wills and Practice, 2012, The Light house Publishing Co. Lagos by C. O Adubi, Esq Pg. 189.

Counsel argued that on pages 176- 177, the trial judge in his judgment found as a fact that the appellant acted for the 2nd defendant as his agent in the transaction even though the Court avoided the direct use of the word ?agent?. He cited Leventis Tech Ltd v. Petrojessica Ent. Ltd (1992) 2 NWLR Pt 224 Pg. 459; Osigwe v. PSPLS (supra); Bamgboye v. University of Ilorin (supra). Counsel argued also that the fact that the appellant showed the respondent the land belonging to the 2nd defendant, negotiated the purchase price and led the 2nd defendant to receive the money only shows the agency relationship between the

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appellant and the 2nd defendant. He argued further that the money claimed was for the 2nd defendant and was also received by him which the respondent has knowledge of. The appellant?s counsel argued therefore that he cannot be personally sued in the circumstance.

Counsel argued further that he represented the fact that the land was on sale and that he believed that the vendor had good title but advised the respondent to employ the services of a lawyer to conduct his search. He submitted that the respondent employed the services of a surveyor instead of a lawyer and satisfied himself based on the search conducted by the surveyor before paying for the land. He also submitted that for a person to be held liable for misrepresentation, the plaintiff must show that he relied on the statement of the defendant or in this case the appellant to alter his position. He cited Attwood v. Small (1838) 7 E.R 684; Kodilinye & Aluko, Nigerian Law of Tort, Spectrum Law Publishing, Ibadan, 1999, Pg 218. Counsel contended that it was the result of the respondent?s independent search that he relied upon to pay for the land. He cited Mullens v. Miller (1882) 22

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Ch. 194; Lai Oshitokumbo Oshisanya: An Almanac of Contemporary Judicial Restatements with Commentaries; Vol II, 2008, Spectrum Books Ltd, Ibadan, Pg. 126.

Learned respondent?s counsel on this issue, submitted that the trial Court properly evaluated the evidence before it. He argued that part of the evidence before the trial Court was that the appellant had reliably informed the respondent when asked about the validity of the title of the land owner that the 2nd defendant had good title and that the land was free from any encumbrances. The appellant assured the respondent that the title of the owner was in the Ministry of Lands for registration promising that the respondent would only apply for change of name after the transaction. Counsel referred the Court to pages 53 and 54, paragraphs 6 and 7, 58 and 59, Paragraphs 6 and 7 of the record of proceedings. Counsel cited Asafa Foods Ltd v. Alraine Nig Ltd. (2002) 52 WRN 1; Mogaji v. Odofin (1999) 4 SC 91. Counsel argued that pages 58, 59 and 60 of the record of proceedings which contain the Statement on Oath of the respondent is clear and that this evidence was not in any way controverted hence the

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Court is bound to act on it. He cited Chabasaya v. Anwasi (2010) 305 SC 208.

RESOLUTION
The respondent by his statement of claim dated and filed on 21/03/13 sought and claimed certain reliefs from the appellant (who was the 1st defendant at trial) and the 2nd defendant on pg. 56 of the record already set out at the beginning of this judgment.

?Let us consider the facts which led to this appeal. The appellant?s case is that he was approached by one land agent Uche Obiegbulam who told him that the 2nd defendant was sourcing for a buyer for his five plots of land. Based on this information, the appellant approached the respondent and told him about the land and gave him the Power of Attorney brought by Uche Obiegbulam. The appellant then advised the respondent to conduct search on the land maybe using a lawyer. The respondent sent his Personal Assistant, Francis Ohoke with the Power of Attorney that was given to him to go to one Mr. Henry Ekereoku, a surveyor in the Ministry of Lands, Abakaliki to conduct search on the land. After the search by the respondent?s P.A, the respondent entered into negotiation with the appellant and the vendor

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and purchased the land at N5, 000, 000.00

On pgs 177- 179 of the record, the learned trial judge after considering the fact set before the Court particularly the stand of the defendant on the refund of the N5, 000, 000.00 (five million naira) being the sum of the failed contract of sale of land considered the effect of the failed contract of sale of this nature as follows:
?This stand of the defendants on the issue at stake leaves much to be desired in view of Exhibit A (Certificate of Occupancy in favour of Chukwuemeka Nwofe). This piece of document was not challenged by the defendants nor cross examined during trial. It is a public document well certified and it came from proper custody. Therefore the said document has the effect claimed by Chukwuemeka Nwofe. With regards to Exhibit C on pg. 96- 97, the law is that a Power of Attorney transfers no interest from the donor to the donee. The donee always remains an agent of the donor. It is not an instrument which confers, transfers, limits, charges or alienates any title to the donee rather it would be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a

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3rd party.? See Gregory Obi Ude v. Clement Nwara (1993) 2 NWLR Pt. 278 Pg. 608; Olorunfemi v. Nigeria Educational Bank Ltd (2003) 5 NWLR Pt. 812 Pg. 1 at 22. “It is evident that Exh C the undated power of attorney has not conveyed any valid title to the 1st and 2nd defendants as the 2nd defendant is not the bonafide owner of the piece of land purported to be conveyed to the plaintiff so the purported power of attorney has not achieved the purpose it was meant for.?

I have looked at Exhibit C on pg. 96- 99 of the record and Exhibit A on pg. 77 of the record and I agree with the learned trial judge that in so far as the purported power of attorney could not convey title to the appellant because it did not belong to the 2nd defendant, the appellant cannot then convey such title to the respondent because it is a settled principle of law that you cannot give what you do not have; nemo dat quod non habet and you cannot put something on nothing.

?Page 64 of Black?s law Dictionary, 7th edn defines an agent as ?one who is authorised to act for or in place of another, a representative?. The word ?agent? or

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?agency? denotes one who acts, a doer etc. that accomplishes a thing or things. The agent normally binds his principal and certainly not himself by the contract he makes. See Osigwe v. PSPLS Management Consortium (2009) 3 NWLR Pt. 1128 Pg. 378 at 404.
In Dr. Tunde Bamgboye v. University of Ilorin & Anor. (1999) 10 NWLR Pt. 622 Pg. 290 at 329; (1999) 6 SCNJ 295 Onu JSC had the following to say on the definition of an agent:
?A person authorised by another to act for him, one entrusted with another?s business. One authorised to transact all business of principal (sic), all of the principal?s business of some particular kind, or all businesses of particular place?
Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR Pt. 107 Pg.68 also agrees with this definition of an agent.

In Vulcan Gases Ltd v. G. F. Industries A. G (2001) 9 NWLR Pt. 719 Pg. 610, the Supreme Court held on the relationship between principal and agent that the relationship may arise in anyone of five ways namely:
1) By express appointment whether orally or by letter of appointment, or, indeed, by a Power of Attorney. Under

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this heading, no formality such as writing is required for the valid appointment of an agent except for instance, where the authority of the agent is to execute a deed on behalf of a principal. In which case, the agency itself must be created by deed.
2) By notification of the agents acts by the principal.
3) By virtue of the doctrine of estoppel.
4) By implication of law in the case of agency of necessity and
5) By presumption of law in the case of cohabitation.

In the circumstances of this case, we may consider whether an agency relationship exists between the appellant and Clifford Onyemaelu. It is settled that whether the agent/principal relationship exists in any situation depends not on the precise terminology employed by the parties to describe the relationship, but on the nature of the agreement, or the exact circumstances of the relationship between the alleged principal and agent. This is why it is now firmly established that an agent acting on behalf of a known and disclosed principal incurs no liability even where the disclosed principal is a foreigner. See Osigwe v. PSPLS Management Consortium Ltd (supra); Khonam v. John

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(1939) 15 NLR 72.

I have looked at the statement of claim of the respondent, to the effect that on the 9th day of August, 2010, the appellant approached the respondent being his long time friend and a legal practitioner and informed the respondent that Chief Clifford Onyemaelu wanted to sell land and offered for sale five plots of land situate and lying at UNDP Avenue (presco) Abakaliki.

We must now determine whether or not the appellant was an agent of the 2nd defendant not liable as he claimed, for the acts of his principal, the absconded Clifford Onyemaelu. In the statement of defence of the appellant on pg. 109- 111 of the record he claimed to be the agent of the respondent and not the agent of the absconded 2nd defendant. In paragraphs 13 & 14 of the defence, it was averred by him as follows:
13) The 1st defendant admits Paragraph 10 but adds that the Power of Attorney did not have the name of Ray Akanwa as an agent to the donor rather he appeared as a witness to the transaction just like Francis Ohoke. All for the donee and not even for the donor. The defendant pleads the power of attorney already exhibited by the plaintiff.

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He stated that he was not an agent to the absconded Clifford Onyemaelu who was the donor of the spurious Power of Attorney and claimed to be rather the agent of the respondent who witnessed the sale on behalf of the respondent and the transfer of money to the absconded Clifford Onyemaelu. The most astounding thing is that the appellant insisted at trial that ?the defendants were not owing the plaintiff a dime having sold him good titled land.? His principal defence during trial is that the respondent should be willing to challenge the title of Chuwkwuemeka Nwofe as contained in Exhibit A or even challenge a purported revocation of the land by government. In his evidence on oath on pg. 166- 167 of the record, the appellant told the Court he was present at the bank to ensure that the N5million was paid by the respondent to the absconded Clifford Onyemaelu. He witnessed the transaction for the respondent. I do not appreciate the argument of the appellant that he is now the agent of a disclosed principal having not made that case ab-initio at the trial. That leg of the issue did not aid his appeal.

?The 2nd argument being made by the appellant is

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that having told the respondent to make independent enquiries regarding the title to the land, he was absolved of any liability in that regard. While the respondent claimed that he trusted the appellant both as a friend and as a lawyer and thus relied on his advice as to the genuiness of the title to the land, the appellant claimed that he advised the respondent to make independent enquiries on the land which the respondent did. Before a contract of sale of land is executed, the purchaser ought to conduct his search at the Lands? registry and other places necessary to establish that there are no encumberances on the land purported to be sold to him. It is common sense that this should be done by a legal practitioner. In Paragraph 6 of the respondent?s statement of claim on pg. 53 of the record, the respondent stated as follows:
6) That when the plaintiff asked the 1st defendant about the validity of the title of his principal he reliably represented to the plaintiff that his principal (2nd defendant) had a good title, free from any form of encumberances and that as a lawyer he doesn?t just act as an agent for a sale of land if he was not

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very sure of the title of the principal and assured the plaintiff that the title document of his principal was in the Ministry of Lands for registration promising that the plaintiff would only apply for change of name afterwards.

The appellant in Paragraph 6 of his Statement of Defence on pg. 109 of the record stated as follows:
6) The 1st defendant denies Paragraph 6 and states that he told the plaintiff that he believes that the land had a good title and that he will give him the documents to go and search at the Lands Registry, Abakaliki.

After considering both statement of claim and statement of defence and the arguments of both counsel, I have found that the appellant has remained consistent in his assertion that he told the respondent to go and do his personal search at the Lands Registry. The appellant alleged that the respondent acting through P.W.3, Francis Ohoke, his Personal Assistant went to one Henry Ekereoku, a surveyor at the Ministry of Lands, Abakalili who conducted the search and told the respondent?s P.A in the presence and to the hearing of the appellant that the title of the 2nd defendant was genuine. This evidence was

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not contradicted by the respondent.

?From the facts of this case, I cannot really see how the imputation of fraudulent misinterpretation or inducement by the appellant can stand. The respondent at trial must have particularised the specific fraudulent misrepresentation and/ or inducement or given evidence of collusion. It was inferred in the evidence but was neither pleaded nor proved. That would have been the only situation in my view that the appellant would have been liable. What makes this case particularly worrisome for me is the fact that the appellant is a legal practitioner. If he had acted in his professional capacity as counsel to the respondent I would have had no hesitation at all in finding that he was negligent in his professional duties and would have happily awarded damages against him for such negligence. It is now trite law that where a person acting in professional or official capacity undertakes an act or omission in bad faith and/ or without due care, he will be liable for any injury arising from such act or omission. See Afribank Plc v. Akwara (2006) 5 NWLR Pt. 974 Pg. 619; I cannot find such professional negligence in these

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circumstances since the appellant did not hold himself out as a legal practitioner simpliciter in this instance.

The sentiments expressed in the respondent?s brief that this case showcases the dilemma of unsuspecting clients who fall prey to dishonesty when they repose their confidence in their friends who are legal practitioners cannot form the basis of any legal sanction against the appellant. The appellant may only have a moral obligation but not a professional responsibility under Rule 15 (4) of the Rules of Professional Conduct for Legal Practitioners 2007. The strong case also made by the respondent in answer to this complaint in this appeal is that the appellant was responsible for the payment and receipt of the sum claimed by the respondent and on him fell severally the responsibility of refunding the sum claimed by the respondent. The respondent urges us to hold that the appellant was a party to the transaction and not a mere witness. The bare facts presented by the evidence does not support this assertion and the findings of the trial Court. The receipt of land sale Exhibit B shows that the respondent and the 2nd defendant were buyer and

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seller respectively, while the appellant was a witness.

In Exhibit C- the Power of Attorney donated by Clifford Onyemaelu to the respondent, the appellant also signed as a witness to the transaction. A document speaks for itself. Oral testimony is inadmissible to vary, add to or take away from the content of a document under Section 128 of the Evidence Act; N.I.D.B v. Olalomi Industries Ltd (2002) 5 NWLR Pt. 761 Pg 532 ratio 7 cited with approval by Fred .F. Odibei Esq in Practice Notes for Trial Lawyers, Pearl Publishers, 2008, Port Harcourt, Page 202.

?I cannot in the circumstances find that there was a contractual relationship or that there was privity of contract between the appellant and the respondent. A contract cannot confer enforceable rights or impose obligations arising under it on any person, except parties to it. This is referred to as the doctrine of privity of contract which is to the effect that a contract is a private relationship between the parties who made it and no other person can acquire rights to incur liabilities under it. I am of the view that the appellant is not a party to the contract of sale of land between the

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respondent and the second defendant and as such does not incur liability under the contract. See Dunlop Pneumatic Tyre Co. Ltd v. Selfridge Ltd (1915) A.C 847 at page 853; Chuba Ikpeazu v. African Continental Bank (1965) NMLR 374 all cited with approval by I. E Sagay, Nigerian Law of Contract, 1993, Spectrum Law Publishing, Ibadan, pages 413 and 415.

At no time did the respondent claim that the contract sum for the sale of land passed through the hands of the appellant. There is no evidence that the appellant and Clifford Onyemaelu were business partners. In the circumstances I cannot see how the appellant can be held liable for the failure of the transaction, not being a party to it.

I have to say that this whole case leaves a bad taste in the mouth as regards the general conduct of the appellant particularly his stand at the trial Court that it was the duty of the respondent to litigate his title to the land he bought under the mistaken impression that it was free from encumbrances. Rule 1 of the Rules of Professional Conduct 2007 which is the cab rank rule mandates him as follows:
A lawyer shall uphold and observe the rule of law, promote

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and foster the course of justice, maintain a high standard of professional conduct and shall not engage in any conduct which is unbecoming of a legal practitioner.

This whole episode has not put the legal profession in a good light at all and must be deprecated strongly. Be that as it may this issue has to be resolved in favour of the appellant.

ISSUE TWO
Whether general damages not naturally resulting from a breach of contract can be awarded by a trial Court.

Learned appellant?s counsel in his reply brief argued that the Court held that the respondent did not prove any of the special damages claimed by him but proceeded to award N100, 000. 00 general damages to the respondent. Counsel argued further that the position of the law is that only damages that flow naturally from a breach of contract that is presumed to have been in contemplation of both parties at the time of the contract can be awarded. He cited Umoetuk v. Union Bank Plc (2001) FWLR Pt. 113 Pg. 286; Adesina v. Kola (1993) 6 NWLR Pt. 298 Pg. 182.

?Counsel submitted that Exhibit B is a contract of sale and that is the reason the judgment of the Lower Court was based on

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a failed contract. He referred to page 177 of the record.

Counsel argued that the Power of Attorney marked Exhibit C and the receipt of sale which showed that the respondent paid to the 2nd defendant and he acknowledged same in the presence of the appellant are clear markers that the appellant was never a party to the contract. He cited Plateau Investment and Property Development Co. Ltd v. Ebhota (2001) FWLR Pt. 64 Pg. 374.

Counsel submitted that there is a difference between general damages and exemplary/ aggravated damages. Separate principles guide the award of exemplary/ aggravated damages and general damages. He cited Marine Management Association Inc & Anor v. National Maritime Authority (2013) MRSCJ Vol. XIII 21.

Learned respondent?s counsel on the other hand submitted that the Court is enjoined to take into account the appellant?s motives, conduct and manner and where they have aggravated the respondent, damages will be awarded. He submitted further that aggravated or general damages are designed to compensate the respondent for his wounded feelings. He cited Marine Management Association Inc & Anor v. National

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Maritime Authority (2013) MRSCJ Vol. XIII 30; Elahor v. Idahosa (1992) 2 NWLR Pt. 223 Pg. 324. Counsel submitted that the appellant acted in bad faith to make illegal sale of land to the respondent and benefitted from his own wrong and so the Court was right in finding him liable jointly and severally with the 2nd defendant to refund the money and compensate the respondent in damages.

RESOLUTION
At pg. 180- 181 of the record, the learned trial judge dismissed the claim for special and exemplary damages but granted N100, 000.00 as general damages to the respondent.

There are a plethora of cases that are in agreement as to the fact that where exemplary damages has been pleaded and proved, they are recoverable where the plaintiff is a victim of the punishable behaviour of the defendant but the exemplary damages should be moderate. See Joseph Odogu v. Attorney General of the Federation & Ors (1996) 6 NWLR Pt. 456 Pg. 508; Williams v. Daily Times (1990) 1 NWLR Pt. 124 Pg. 1 at 32; Onagoruwa v. I.G.P (1991) 5 NWLR Pt. 193 Pg. 650, Compare Stitch v. A.G Federation (1986) 5 NWLR Pt. 46 Pg. 1007.

?Now is perhaps the time for me to distinguish

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between special damages and general damages in relation to whether the learned trial judge was right to award general damages to the respondent.

In the English case of Stroms Bruks Aktie Bolag v. Hutchinson (1905) A.C 515 (H.L), Lord Macnaghten commented as follows:
?General damages, as I understand the term, are such as the law will presume to be the direct, natural or probable consequence of the act complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly.? See also Obasuyi v. Business Ventures Ltd (2000) 5 NWLR Pt. 658 Pg. 668.

Having found on issue one that the appellant cannot be held legally responsible for the failure of the land sale agreement between the parties, not being privity to the contract and not being under any professional duty of care to the respondent, I am of the view that he cannot be held liable to pay any amount as damages. This issue is resolved in favour of the appellant.

?In sum, this appeal succeeds.

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The judgment of Hon. Justice P.O. Elechi in Suit No. HAB/7/2013 delivered on 23/7/13 is hereby set aside. Appeal Allowed.

RITA NOSAKHARE PEMU, J.C.A.: I have read the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU J.C.A. I agree with the reasoning and conclusion therein that the appeal has merit has merit and should be allowed. Appeal allowed.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning, conclusions and orders therein.

 

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Appearances:

Nnachi UkpaiFor Appellant(s)

Jerry EzenyiFor Respondent(s)

 

Appearances

Nnachi UkpaiFor Appellant

 

AND

Jerry EzenyiFor Respondent