PETER O. OCHUBA v. JOHN ANTHONY ENEGIDO
(2018)LCN/10708(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of January, 2018
CA/L/899/2009
RATIO
COMMERCIAL LAW: MEANING AND NATURE OF AGENCY RELATIONSHIP
The main legal question that must be answered in order to arrive at a just determination of this issue is whether the relationship between the parties constituted that of agency, of a nature to bestow the right of account on the Appellant. Agency can be defined 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 of the former, carried out within the scope of his authority, as to affect the legal relations between the principal and a third party. The Apex Court gave a succinct definition of what agency is in the case of Samuel Osigwe v. PSPLS Mgt Consortium Ltd & Ors (2009) LPELR-2807 (SC), p.31, paras C-C, where per Ogbuogu, JSC, quoting the definition by Nnamani JSC in Niger Properties Ltd v. North East Line Corporation (1989) 3 NWLR (pt.107) 68 at 92, said: “It was stated that a relationship of Agency is generally said to exist whenever one person, called the ‘agent’ has authority to act on behalf of another called “the Principal” and consents to the act.” This Court in the case of U.T.C (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 140, puts it thus: “a fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relationship with third parties and the other of whom similarly consents so to act or so acts.” See: Dr. Useni Uwah and Anor v. Dr. Edmindson T. Akpabio and Anor (2014) LPELR-22311 (SC); B. B Apugo and Sons Limited v. Orthopaedic Hospital Mgt Board (2016) LPELR-40598 (SC); First Bank of Nigeria v. Alexander Ozokwere (2005) LPELR-5646(CA). The arguments of Appellant’s counsel to the effect that the Agency in this matter is a contractual one, backed by consideration cannot stand sustained legal scrutiny. The fact that a person has done something, or promised to do something or has forgone a benefit, does not automatically translate to consideration in law. The N5,000.00, the recovery of debt and the recovering of Respondent’s Nitel line was not done with the intention of constituting consideration for the act of the Respondent and cannot therefore be held to be such. See: Chabasaya v. Anwasi (2010) LPELR-839(SC). With regards to whether Agency exists in this matter, the learned trial Judge was of the opinion that it did not and gave the rationale behind his opinion in page 159 of the records and some is herein reproduced thus: “It is clear from the facts of this case that both parties were operating of different wavelengths. The Claimant assumed that the Defendant was acting as his agent and was bound to account for the agency whilst the Defendant assumed that he was doing the claimant a favour as an “Nna-ochie”- as an uncle. The parties were not ad idem” ?The above shows that the reason why the trial Court found that the legal relationship of agency did not arise in this case was because there was no “consensus od idem” that is, a meeting of the minds of both parties. He particularly was of the opinion that the parties were not on the same Page with regards to the nature of their relationship. What this means is that they didn’t agree as to the legally binding nature of their relationship. In sum, they never intended to enter into a legally binding relationship of agency. The implication being that there was no consent to the relationship of agency by both parties, which is a crucial requirement to the valid formation of an agency relationship. A calm look at the facts of this case makes me inclined to toe the line taken by the learned trial Judge, as the evidence reveals that the Respondent agreed to buy the beans, for the Appellant, as a form of voluntary act of kindness. It is settled beyond controversy that there are some agreements or promises which the law would not fulfill: mere social arrangements that are devoid of intention to be legally bound. See: Bilante International Ltd V. Deposit Insurance Corporation (2011) LPELR-781(SC); and Usman v. Ibe (2017) LPELR – 43303 (CA). Notwithstanding the above, it must be clearly stated that there are instances where the law can impose the relationship of agency on the parties, especially in the cases of agency by estoppel, ratification and necessity, but those principles do not apply to the facts of this appeal. See: Mr. Ray Akanwa v. Hon. Sylvester Ogbaga (2016) LPELR-41054 (CA); and Ezenwa Brothers Nigeria Limited v. Ona-Jones Nigeria Limited (2012) LPELR – 9789 (CA). ?In light of the foregoing, I find that the relationship between the Appellant and Respondent is not one of agency properly so called and resolve this issue in favour of the Respondent. PER JAMILU YAMMAMA TUKUR, J.C.A.
PRACTICE: WHEN A PARTY CAN BE SAID TO WAIVE HIS RIGHT
The Appellant did not deny collecting the Judgment sum from the Respondent and by that Act the Appellant has in my view waived his right to pursue the appeal. It has been held by this Court in KUDO vs. ALIYU (1992) 3 NWLR (pt. 231) 615, 621 per Akanbi JCA (as he then was) thus: – “A person having full knowledge of his rights, interests or benefits conferred or accruing to him by the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights…” See: REUBEN ANGBEDO AJAYE & ANOR vs MRS COMFORT BOSEDE (2014) LPELR 23984 (CA), FASADE VS. BABALOLA (2003) LPELR – 1243 (SC) The Appellant herein was under no illusion as to what the Judgment sum represented. To allow the appeal after collecting the Judgment sum in full view of the amount involved would be allowing the Appellant to approbate and reprobate. See: ATTORNEY GENERAL OF NASARAWA STATE vs. ATTORNEY GENERAL OF PLATEAU STATE (2012) LPELR 9730 (SC). PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
PETER O. OCHUBA Appellant(s)
AND
JOHN ANTHONY ENEGIDO Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State in Suit No. LD/1089/2001 delivered on 8th June, 2009 by Honourable Justice Olateru Olagbegi against the Appellant.
The material facts of the case culminating in this appeal are herein rendered thus:
Appellant entered into an oral agreement with the Respondent, for the Respondent to purchase 200 big bags of brown beans for storage and sale on the behalf of the Appellant at the purchase price of N3,200.00 per bag in December, 2000. Appellant thereafter forwarded a bank draft of N650, 000.00 to the Respondent in furtherance of the agreement. Of the N650, 000.00, N640, 000.00 represented purchase price of the bags of beans while N5, 000.00 was for insecticide to be sprinkled on the beans for preservation and N5,000.00 was an extra amount.
?At the expiration of the period within which the Respondent was supposed to purchase the bags of beans, he claimed that he was unable to do so. The Appellant believing that the foregoing constituted agency relationship and that the Respondent had traded with
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his money in breach of the principles of agency, instituted a claim before the lower Court via a writ of summons dated 13th April, 2001, wherein he claimed the following:
1. A declaration that the defendant is in law and equity under a duty to render due/proper account to the plaintiff in respect of the “beans storing business” the defendant did on behalf of the plaintiff or any business whatsoever to which the defendant applied or invested the plaintiff’s funds (N650,000.00).
2. The payment of the sum of N5,000,000.00 as profit out of the said business transaction of 200 big bags of brown beans purchased by the defendant for and on behalf of the plaintiff in Maiduguri and special/general damages.
3. Payment of interest.
In response to the above, Respondent filed a statement of defence dated 4th April 2006, and trial commenced.
?At the end of trial, the lower Court dismissed Appellant’s claim for damages based on the projected profits the Appellant would have earned from the transaction, but awarded the Appellant interest on the sum of N650,000.00, at the rate of 20% per annum from 21st December, 2000 to
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8th February, 2001 and thereafter interest of the rate of 10% per annum until the date of final liquidation.
Dissatisfied with the judgment, the Appellant appealed to this Court via a Notice of Appeal dated 27th August, 2009 and filed on 28th August, 2009, with seven grounds of appeal.
The Appellant’s Brief settled by P.O. Ochuba of Ochuba & Co is dated and filed on 29th December, 2009. Appellant’s Counsel formulated four issues from the seven Grounds of appeal for determination to wit:
1. Whether it is agency or contract of money lending that exists between the parties; if agency exists, what is its nature and whether the Appellant is entitled to mere interest on the N650,000 or an account of the business/interest on the profit of the business as well as special claims, the trial Court having in its judgment held that the business done by the Respondent with the Appellant’s N650,000.00 was profitable and that the Appellant is entitled to the return and interest on the said N650,000.00. (Ground 1, 2, 3 and 6).
2. Whether the price of a big bag of beans at various times relevant in this case i.e. December, 2000, January-February, 2001 and April, 2001 are
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known or established in evidence for the purpose of rendering account and determining the profit of the business which was held by the trial Court to be profitable. (Grounds 4 and 5).
3. Whether the trial Court was right to have held that trading ended with the Appellant’s N650,000.00 (given to the Respondent via an open draft) on 18/2/2001 when the said sum was returned (via Bank cheque) to the Appellant by the Respondent.
4. Whether the trial Court was right to have rejected the Appellant’s and his cousin’s transport ticket ‘to and fro’ Lagos-Maiduguri on the ground that they were not pleaded. (Ground 7)
On the other hand, the Respondent’s Brief settled by Peter Irhemiren of E.O. Ezenwa & Co., is dated 1st August, 2010 and filed on 4th August, 2010. Respondent’s Counsel formulated two issues for determination to wit:
1. Whether the Appellant after enjoying the fruits of the judgment can challenge the same judgment. In other words whether the Appellant is allowed to approbate and reprobate.
2. Whether the Respondent is a gratuitous agent to the Appellant.
?A calm look of the issues herein raised reveals that all the
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issues of the Appellant and issue two of the Respondent are substantially the same. Hence issue one of the Appellant is hereby adopted as the first issue for determination in this appeal, while issue two of the Respondent is adopted as the second issue.
ISSUE ONE:
WHETHER IT IS AGENCY OR CONTRACT OF MONEY LENDING THAT EXISTS BETWEEN THE PARTIES; IF AGENCY EXISTS, WHAT IS ITS NATURE AND WHETHER THE APPELLANT IS ENTITLED TO MERE INTEREST ON THE N650,000 OR AN ACCOUNT OF THE BUSINESS/INTEREST ON THE PROFIT OF THE BUSINES5 AS WELL AS SPECIAL CLAIMS, THE TRIAL COURT HAVING IN ITS JUDGMENT HELD THAT THE BUSINESS DONE BY THE RESPONDENT WITH THE APPELLANT’S N650,000.00 WAS PROFITABLE AND THAT THE APPELLANT IS ENTITLED TO THE RETURN AND INTEREST ON THE SAID N650,000.00. (GROUND 1, 2, 3 AND 6).
?Learned counsel for the Appellant argued that a perusal of the pleadings and evidence in this appeal would lead to the conclusion that agency existed between the Appellant and the Respondent, as they show that the Respondent admitted that N650,000.00 was given to him, for the purpose of buying beans on behalf of the Appellant, and that the circumstances gave rise to agency by implication.
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He relied on the following:
Bamgboye v. University of Ilorin (1999) 6 SCNJ 295; A.C.B Ltd v. Gwagwada (1994) 5 NWLR (Pt.342) 25; Sabru Motors Nig. Ltd v. Rajab Enter. Nig. Ltd (2002) 4 SC Pt. II p.67: Vulcan Gases Ltd v. G.I.V (2001) 5 SC Pt.148 para 15-25; Niger Progress Ltd v. N.E.L Corp (1989) 1 C.L.R. Q page 7 ratio 3; and Garnal Grain Co. Inc. v. H.M.F. Faure and Fairclough Ltd (1967) 2 All Ep 358.
Learned counsel also argued that the decision of the lower Court to refuse the claim for rendering of account, on the grounds that there was no consensus ad idem between the parties was erroneous because agency was pleaded by the Appellant and tacitly admitted by the Respondent where he admitted that the money was given to him for the purpose of “beans storing business”, and by the holding of the same Court, where it held that the Respondent traded with the Appellant?s money, that the business was very profitable and that there was an agreement between the parties.
He relied on the case of Godwin v. CAC (1998) 14 NWLR (pt.584) 163.
He further argued that the case of Ogundalu v. Macjob
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(2006) 7 NWLR (Pt.978) 148, upon which the Court based its decision that there was no consensus ad idem, was based on a land matter which facts and circumstances are totally different from those of the case at hand.
Counsel then submitted that it was wrong of the Court to hold that there was an implied contract of money lending between the parties, as the evidence before the Court did not support such and the law is settled that a Court ought not to make a case for the parties, or grant a relief not claimed by the parties.
He relied on the following:
Osolu v. Osolu (2003) 6 S.C pt. 1 at g para 13-22; UBN v. Oredein (1992) 6 NWLR (Pt. 247) 355; African Petroleum Ltd v. Owoduni (1991) 8 NWLR (pt. 210) 351; AG Leventis Plc v. Akpu (2007) 9 MJSC 134: Coker v. Adetayo (1992) 6 NWLR (pt. 249) 612; Ekwunife v. Wayne (W/A) Ltd (1989) 5 NWLR (pt. 122) 422: and Henkel Chem. Ltd v. AG Ferrero and Co. (2003) 4 NWLR (pt. 810) 306.
He further submitted that the order of the trial Court that the Respondent pay 20% interest on the principal sum of N650,000.00 was wrong in law, as the order is a secondary order and the main order upon which it leans on is wrong
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as shown above. He also stated reasons for the overturn of the said award of interest to specifically include:
i. The trial Court, acted or proceeded on wrong principle of law;
ii. The amount awarded by the trial Court is manifestly and extremely law; and
iii. The amount awarded was on an entirely erroneous estimate which no reasonable tribunal will make, thus amounting to miscarriage of justice.
He relied on the following:
Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt. 247) 266; Fed Govt of Nig. V. Zebra Energy Ltd (2002) 12 SC (pt. 2) 136 at 154-155: Eboni Finance & Sec. v. Wole-Ojo Tech. Serv. (1996) 7 NWLR (Pt.461) 464: Messrs. Misr (Nog.) Ltd v. Ibrahim (1974) NSCC 294 at 295; Etajata v. Ologbo (2007) 11 11 MJSC 176: Edebiri v. Edebiri (1997) 4 SCNJ 177, p.196; Soetan & Anor v. Ogunwo (1975) NSCC 360; Ogunyade v. Oshunkeye (2007) 12 MJSC 152; and Olaleye v. Adejumo (2005) 10 NWLR (pt.933) 419.
Learned counsel asserted that although the trial Court held that there was no agency as there was no ‘ad idem’, a careful reading of the judgment would show that the trial Court was approbating and reprobating, as the judgment
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shows that the trial Court agrees that there is agency between the parties, though in the opinion of the trial Court, the agency is a gratuitous one.
Counsel also submitted that the agency in this appeal is contractual, because the consideration was furnished. He went on to submit that the N5,000.00 collected by the Respondent, the detriment (consisting of the vat and charges on the bank draft, refusal to be supervised by Chinedu), suffered by the Appellant, recovery of debt of N30,000.00, and reactivation of Respondent’s Nitel line.
Counsel further argued that consideration was properly pleaded and established by evidence which the Respondent failed to properly contradict and which the lower Court accepted, thus removing the transaction from the realm of gratuitous agency.
He relied on the following:
Sagay: “Nigerian Law of Contract, 2nd Edition at p.72-74: Famudo v. Aboro (1991) 9 NWLR (pt.214) 211; Agbahomovo v. Eduyegbe (1999) 2 S.C 79: ACB Ltd. V. Gwagwada (supra); Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 551: Banbridge v. Firmstone (1838) 8 A & E. 743; Younis v. Chidiak (1970) All NLR 188; Balfe v. West and Anor (1853) 13 CB 466: Awasi v. Chabasaya
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(2000) 6 NWLR (Pt.661) 408; Ezemba v. Ibeneme (2004) 10 MJSC 64; Korobtei v. Obubo (1999) 9 NWLR (pt.620) 655; U.N.K. v. UCI Ltd (1999) 3 NWLR (pt.593) 17 at 29 par D-E; Usiobaifo v. Usiobaifo (2005) I SC (pt. II) 72; Momah v. Vab. Petroleum (2002) 2 SC 142 at 149: Olawuyi v. Adeyemi (1990) 4 NWLR (pt.147) 79 at 758.
Counsel also submitted that both contractual agents and gratuitous agents are accountable to the principal as the doctrine of agency automatically imports the doctrine of trust and fiduciary responsibility, and the Respondent in this appeal ought to render account to the Appellant and give up possession of the profit of the profitable business (as held by the trial Court), especially in light of the fact that the Respondent admitted his position as an agent via his shifty defence.
He relied on the following:
Halsbury’s laws of England vol. 1: Agency, pg. 66 at para 92, par 96; Fridman: “The Law of Agency” p.153-154; Ndukauba v. Kolomo & Anor (2001) 12 NWLR (pt.726) 117; Balfe v. West (supra); Gray v. Haig (1855) 20 Bear 219; Development Consiltants Ltd. V. Cooley (supra); Uredi v. Dada (1988) 1 NWLR (pt. 69) 237:
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ACB Ltd v. Apugo (1995) 6 NWLR (pt. 399) 65: and Kurobotei v. Obubo (supra).
Counsel argued that the proper remedy ought to be the payment of the return on investment (that is the N650,000.00) and the interest on the return. Counsel also drew the attention of this Court to the alleged fact that the standard to be applied in determining the interest on the return, is the difference between the purchase price (N3,200,00) and the selling price (N7,000.00) which would amount to N760,000.00 for the 200 bags, which would give effect to first relief sought at the trial Court.
He relied on the following:
Prof. Musa Yukubu: “The Standard Duty of Care of Trustee” Chap 3, p.26: Veepee Ind. Ltd v. Coacoa Ind. Ltd (2008) 7 MJSC 125; Sabru Motors v. Rajab Enter. Nig. Ltd (2002) 4 S.C. (pt.II) 67; Dantata v. Mohammed (2000) 5 S.C. 1 at 19-20; Ita v. Dadzie (2000) 4 NWLR (pt.652) 169; Bakare v. NRC (2007) 12 MJSC 76; Phoenix Motors Ltd v. Ojewumi (1992) 6 NWLR (pt. 248): Bunyan v. Akingboye (2001) FWLR (pt. 41) 1977; Jallco Ltd v. Owoniboys Services Ltd (1995) 4 NWLR (pt. 391) 534; Henkel Chem. Ltd. v. AG Ferro & CO. (2003) 4 NWLR (pt.
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810) 306; Eboni Finance & Sec v. Wole-Ojo Tech. Services (Supra); and Powell and Thomas v. Evan Jones & Co. (1905) I K.B II C.A.
Learned counsel for the Appellant argued that the purchase and selling prices of the relevant time periods in this appeal, that is N3,200 November/December 2000, N5,600.00 in January and N7,000 from April 2001, were established by evidence and by the “shifty defence” and contradictory evidence of the Respondent.
He further argued that it was the above that led to the trial Court holding that the Defendant traded with the Claimant’s money of N650, 000.00 from 21st December, 2000 to 8th February, 2001 when the repayment was made by cheque in par 3 of page 157 of the records.
He relied on the following:
Chief Solomon A. Awomolo, SAN “Presumptions in Law and Practice of Evidence in Nigeria” chapter 5, p.374; Ejimadu v. Delta Freeze Ltd. (2007) 13 NWLR (pt. 1080) 96: Ibeanu v. Ogbeide (1998) 12 NWLR (Pt. 576) 1: Imana v. Robinson (1979) 3-4 S.C I; Egesimba v. Onuzuruike (2002) 9-10 S.C; and Jallco v. Owoniboys Technical Services Ltd (supra).
Learned counsel for the Appellant argued that despite the receipt of the N650,000.00 returned by the
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Respondent to the Appellant in February, 2001, before the profit was to be taken, the Appellant is still entitled to the April 2001 profit, as the money was imposed on the Appellant and taken as “money had and received” and not as Appellant’s money; Appellant in the circumstances cannot be said to have waived his rights to the profits; the law of agency frowns at secret profit; the transaction is subject to the doctrine of equitable tracing of Appellant’s money and constructive trust.
He relied on the following:
Oduwobi and ors v. Barclay’s Bank D.C.O (1962) NSCC 98; Ante v. University of Calabar (2001) FWLPR (Pt. 41) 1909: Boardman v. Phipps (1965) 1 All E 849 at 856; Turnbull v. Garden (1869) 20 LT 218; Udensi v. Mogbo (1976) 7 SC at PP 22-23; and Eaton v. Budianan (1911) AC 253 HL.
Counsel also argued that the special claims or damages sought by the Appellant ought to be granted as the Appellant sought to settle the matter out of Court, but the refusal of the Respondent led to the incurring of special damages by the Appellant, which this Court ought to order the Respondent. Appellant went on to list out the
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particulars of the special damages, with the total amount involved amounting to N1,231,000.00
He relied on Section 54 of the Sales of Goods Act 1893; and AG Fed v. AG Abia State and 35 Ors.
Learned counsel for the Appellant argued that the trial Court was wrong to reject the transport tickets of the Appellant and his cousin on the ground that same was not pleaded, as the documents were properly pleaded at para 30 and 40 of the Amended statement of claim and stated in evidence of page 9 of “Exhibit D”.
On the other hand, learned counsel for the Respondent argued that an agency relationship is essentially contractual, therefore all the elements of the law of contract must be present, though an agency relationship may also be imputed by equity.
?Learned counsel also argued that in contract, the Respondent is not an agent of the Agent of the Appellant for total failure of consideration, as the Appellant never proved consideration of trial and what the Appellant is relying on and wants this Count to accept as evidence are his pleadings in the lower Court, in contravention of the settled principle of law to the effect that pleadings no matter how well articulated, goes to no issue
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when not supported by evidence. Counsel also urged this Court to disregard Appellant’s arguments on detriment as consideration as same was raised for the first time on appeal.
He relied on the cases of Omulima v. Goniram (2004) All FWLR (Pt. 288) 751 CA; Ezukwu v. Ukachukwu (2004) All FWLR (pt.224) 2137; and Jolayemi v. Olaoye (2004) All FWLR (pt.217) 584.
Counsel further argued that apart from the fact that there was no consideration, there was also no ‘consensus od idem’ between the parties as rightly found by the trial Judge. Counsel based the foregoing on the fact that from the uncontroverted testimony of the Respondent, it can be gleaned that the Respondent merely wanted to do the Appellant a favour arising from a “filial” relationship.
Learned counsel then conceded that under equity, an agency relationship may have arisen in the circumstances of the case, but contended that a gratuitous agent, which is the best the Respondent could be termed as, cannot be liable to his principal for failing to carry out what he has undertaken to do, he can only be liable if in the Process of carrying out the work, he has undertaken to do, he fails to
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exercise the required degree of skill and care. He went on to state that the parties are in agreement that the Respondent did not do what the Appellant asked him to do, which is to trade on behalf of the Appellant.
He relied on Bowstead on Agency 13th Edition at page 123.
Counsel then submitted that the Respondent did not owe the Appellant any fiduciary duty as he didn’t carry out their agreement of all. He further submitted that the heavy reliance on Exhibits H and J by the Appellant is of no moment as the inconsistencies and contradictions therein are not material enough to affect the statement or evidence itself, which is to the effect that the Respondent did not buy beans for the Appellant.
Counsel then argued that the Appellant’s argument that the Respondent used his money to trade cannot hold water, as the Respondent was an accomplished trader before the meeting of the parties.
It was also the argument of Respondent’s counsel that the Respondent had already rendered account to the Appellant by stating that he did not buy any beans for him and in fact returned the whole amount of N650,000.00 within a period of six weeks.<br< p=””
</br<
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RESOLUTION:
The main legal question that must be answered in order to arrive at a just determination of this issue is whether the relationship between the parties constituted that of agency, of a nature to bestow the right of account on the Appellant.
Agency can be defined 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 of the former, carried out within the scope of his authority, as to affect the legal relations between the principal and a third party.
The Apex Court gave a succinct definition of what agency is in the case of Samuel Osigwe v. PSPLS Mgt Consortium Ltd & Ors (2009) LPELR-2807 (SC), p.31, paras C-C, where per Ogbuogu, JSC, quoting the definition by Nnamani JSC in Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (pt.107) 68 at 92, said:
“It was stated that a relationship of Agency is generally said to exist whenever one person, called the ‘agent’ has authority to act on behalf of another called “the Principal” and consents to the act.”
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This Court in the case of U.T.C (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 140, puts it thus:
“a fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relationship with third parties and the other of whom similarly consents so to act or so acts.”
See: Dr. Useni Uwah and Anor v. Dr. Edmindson T. Akpabio and Anor (2014) LPELR-22311 (SC); B. B Apugo and Sons Limited v. Orthopaedic Hospital Mgt Board (2016) LPELR-40598 (SC); First Bank of Nigeria v. Alexander Ozokwere (2005) LPELR-5646(CA).
The arguments of Appellant’s counsel to the effect that the Agency in this matter is a contractual one, backed by consideration cannot stand sustained legal scrutiny. The fact that a person has done something, or promised to do something or has forgone a benefit, does not automatically translate to consideration in law. The N5,000.00, the recovery of debt and the recovering of Respondent’s Nitel line was not done with the intention of constituting consideration for the act of the Respondent and cannot therefore be held to be such.
See: Chabasaya v. Anwasi (2010) LPELR-839(SC).
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With regards to whether Agency exists in this matter, the learned trial Judge was of the opinion that it did not and gave the rationale behind his opinion in page 159 of the records and some is herein reproduced thus:
“It is clear from the facts of this case that both parties were operating of different wavelengths. The Claimant assumed that the Defendant was acting as his agent and was bound to account for the agency whilst the Defendant assumed that he was doing the claimant a favour as an “Nna-ochie”- as an uncle.
The parties were not ad idem”
?The above shows that the reason why the trial Court found that the legal relationship of agency did not arise in this case was because there was no “consensus od idem” that is, a meeting of the minds of both parties. He particularly was of the opinion that the parties were not on the same Page with regards to the nature of their relationship. What this means is that they didn’t agree as to the legally binding nature of their relationship. In sum, they never intended to enter into a legally binding relationship of agency. The implication being that there was no consent to
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the relationship of agency by both parties, which is a crucial requirement to the valid formation of an agency relationship.
A calm look at the facts of this case makes me inclined to toe the line taken by the learned trial Judge, as the evidence reveals that the Respondent agreed to buy the beans, for the Appellant, as a form of voluntary act of kindness. It is settled beyond controversy that there are some agreements or promises which the law would not fulfill: mere social arrangements that are devoid of intention to be legally bound. See: Bilante International Ltd V. Nigeria Deposit Insurance Corporation (2011) LPELR-781(SC); and Usman v. Ibe (2017) LPELR – 43303 (CA).
Notwithstanding the above, it must be clearly stated that there are instances where the law can impose the relationship of agency on the parties, especially in the cases of agency by estoppel, ratification and necessity, but those principles do not apply to the facts of this appeal.
See: Mr. Ray Akanwa v. Hon. Sylvester Ogbaga (2016) LPELR-41054 (CA); and Ezenwa Brothers Nigeria Limited v. Ona-Jones Nigeria Limited (2012) LPELR – 9789 (CA).
?In light of the foregoing, I find that the relationship
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between the Appellant and Respondent is not one of agency properly so called and resolve this issue in favour of the Respondent.
ISSUE TWO:
WHETHER THE APPELLANT AFTER ENJOYING THE FRUITS OF THE JUDGMENT CAN CHALLENGE THE SAME JUDGMENT. IN OTHER WORDS, WHETHER THE APPELLANT IS ALLOWED TO APPROBATE AND REPROBATE.
Learned counsel for the Respondent argued that the constitutionally guaranteed right of appeal of the Appellant can be abandoned either by conduct or by express action and that the Appellant by his action of accepting the judgment of the lower Court, that is accepting payment of the 20% interest (N31,000.00) had abandoned his right to appeal and allowing him to appeal would constitute his having a second bite at the apple.
Counsel further argued that the Appellant is estopped from appealing the decision, as the Respondent had acted against his own detriment by the payment of the judgment sum.
Learned counsel also argued that the Appellant cannot approbate and reprobate, and that there is no longer any dispute between the parties, especially in light of the undisputed fact that the Appellant collected the judgment debt from the Respondent without any
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notice of dissatisfaction with the said judgment.
He cited Section 151 of the Evidence Act and the case of LONGE v. FIRST BANK OF NIGERIA PLC ALL FWLR (PT. 313) P.46 AT 71.
RESOLUTION
The Appellant did not deny collecting the Judgment sum from the Respondent and by that Act the Appellant has in my view waived his right to pursue the appeal. It has been held by this Court in KUDO vs. ALIYU (1992) 3 NWLR (pt. 231) 615, 621 per Akanbi JCA (as he then was) thus: –
“A person having full knowledge of his rights, interests or benefits conferred or accruing to him by the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights…”
See: REUBEN ANGBEDO AJAYI & ANOR vs MRS COMFORT BOSEDE (2014) LPELR 23984 (CA), FASADE VS. BABALOLA (2003) LPELR – 1243 (SC)
?The Appellant herein was under no illusion as to what the Judgment sum represented. To allow the appeal after collecting the Judgment sum in full view of the amount involved would be allowing the Appellant to approbate and reprobate.
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See: ATTORNEY GENERAL OF NASARAWA STATE vs. ATTORNEY GENERAL OF PLATEAU STATE (2012) LPELR 9730 (SC). This issue is resolved in favour of the Respondent.
In the final analysis I find the appeal as lacking in merit and same is dismissed. The decision of the lower Court delivered on 8th June, 2009 is hereby affirmed.
N100,000.00 costs in favour of the Respondent against the Appellant.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the decision which has just been rendered by my learned brother, Jamilu Yammama Tukur, JCA. I am in entire agreement with and do not desire to add to the reasoning and conclusion therein contained.
I am allegiant to the conclusion that the appeal is devoid of merit. I also dismiss the appeal and abide by the consequential orders in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity of reading in draft the detailed reasons for the judgment just read by my learned brother, JAMILU YAMMAMA TUKUR, JCA and I agree with the decision reached therein.
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There are plethora of cases that makes it absolutely clear as to what constitutes an agency relationship and after a careful examination of the facts in this instant appeal it is abundantly clear that the relationship in this case is not one that can be considered as constituting an agency relationship whether expressly or by the conduct of the parties. See B.B APUGO & SONS LTD v. OHMB (2016) LPELR – 40598 SC.
The apex Court per IGUH, JSC in the case of PASCUTTO v. ADECENTRO NIG LTD 1997 11 (NWLR) (PT 529) 467 as to how agency relationship is created held thus:
“Agency is not created or established simply because a third party writes a private letter to one of the parties to a suit referring to the other party in that suit as his agent. Apart from the constitution of agency by operation of law under the doctrine of agency of necessity and agency by estoppel, the relationship of principal and agent may and is often constituted by agreement.”
Also in the case of MIKANO INT’L LTD v. EHUMADU (2013) LPELR – 20282 CA, this Court per AUGIE, JCA at pages 39 – 40, paras D – E held thus:
“The relationship of principal and agent may be
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constituted – (a) by agreement, whether contractual or not between principal and agent, which may be express, or implied from the conduct or situation of the parties; (b) by operation of law under the doctrine of agency of necessity and certain other cases; (c) retrospectively, by subsequent ratification by the principal of acts done on his behalf. See NIGER PROGRESS LTD v. NEZ CORP (supra), ROYAL EXCHANGE ASS. NIG LTD v. ASWANI ILES IND LTD (supra), and VULCAN GASES LTD v. G.F. INDUSTRIES GESELLSCHAFTFUR A.G. (2001) 5 SC (PT 1) 1, where the Supreme Court held that – “Usually the relationship of principal and agent may arise in 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 ratification of the agent’s acts by the principal – 3. By virtue of the doctrine of estoppel. 4. By implication of law in the case of agency by necessity, and 5. By presumption of law in the case of cohabitation.”
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Consequently, the relationship between the Appellant and the Respondent is at best a friendly one to carry out a favour without the intention of been legally bound as there was no agreement to create an agency relationship. See IDOWU v. OLORUNFEMI & ORS (2013) LPELR 20724 CA; OSIGWE v. PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) 3 NWLR (PT 1128) 378. This issue is therefore resolved in favour of the Respondent.
On the second issue, it will be totally unfair to allow the Appellant to reap the benefit of a judgment and at the same time kick against the judgement. It will amount to allowing the Appellant to approbate and reprobate. See FRN v. IWEKA (2011) LPELR; 9350 SC. The Appellant having therefore collected the judgment sum is deemed to have waived his right to appeal. See the case of AUTO IMPORT EXPORT v. ADEBAYO & ORS (2005) LPELR – 642 SC where OGUNTADE, JSC at pages 26 – 28, paras G – A, held that:
“…The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of
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his right to the benefit, or where he has a choice of two, he decides to take one but not both…”
?For the foregoing and the more detailed reasoning and the precise conclusion contained in the leading judgment, I agree that the appeal ought to be dismissed. It is hereby dismissed and the judgment of the lower court is hereby affirmed. I abide by the order as to costs made therein.
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Appearances:
Appellant appearing in personFor Appellant(s)
For Respondent(s)
Appearances
Appellant appearing in personFor Appellant
AND
For Respondent