UBONG v. UDO (2022)

UBONG v. UDO

(2022)LCN/16541(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/C/24/2016

Before Our Lordships:

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

MRS. BELLA UBONG APPELANT(S)

And

MR. LAWRENCE ASUQUO UDO RESPONDENT(S)

RATIO

WHETHER OR NOT ARGUMENTS IN AN APPEAL MUST ARISE FROM THE ISSUES FOR DETERMINATION IN THE GROUNDS OF APPEAL

It is imperative to note that arguments in an appeal must be derived from the issues for determination relating to the grounds of appeal. Put differently, argument proffered in support of any issue for determination must of necessity be consistent with the issue under which it is being canvassed. Thus, any argument that is not founded or related to any ground of appeal is incompetent and will be disregarded. See UNITY BANK PLC V AKPEJI (2018) LPELR–44995, FINNIH V IMADE (1992)1 NWLR (prt.219) 511 and MOZIE V MBAMALU (2006)15 NWLR (prt.1003) 466. In UDUSEGBE V TUGBA (2010) LPELR–8634, this Court has held that a respondent who has not cross-appealed or filed a respondent’s notice cannot formulate issue different from that formulated by the appellant. What that means is that a respondent cannot formulate issues outside the grounds of appeal. Thus, any issue not derived from or linked from the ground of appeal filed shall be discountenanced as being unrelated to the issue under consideration. See EIGBE V N.U.T. (2008) 5 NWLR (prt. 1081) 604, AKINLAGUN & ORS V OSHOBOJA & ANOR (2006) LPELR–348 (SC) and ALL STATES TRUST BANK PLC V REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL & ORS (2018) LPELR–44349 (CA). PER SHUAIBU, J.C.A.

THE POSITION OF LAW ON THE LIABILITY OF AN AGENT OF A DISCLOSED PRINCIPAL

The first issue deals with the liability of an agent of a disclosed principal, wherein counsel argued that it was inappropriate to sue the appellant when her principal is disclosed. The general rule is that an agent of a disclosed principal incurs no liability. Thus, when an agent is acting for a disclosed principal, the contract is the contract of the principal not that of the agent and at common law the only person who can sue or be sued is the principal. See UNIVERSITY OF CALABAR V EPHRAIM (1993) 1 NWLR (prt.271) 551, OYENUGA V I.C.L LTD (1991) 1 NWLR (prt.168) 415 and OLUFOSOYE V FAKOREDE (1993)1 NWLR (prt.222). Also in NIGER PROGRESS LTD V NEL CORP. (1989) 3 NWLR (prt.107) 68 at 84, the Supreme Court has held that a defendant acting on behalf of a known and disclosed principal incurs no liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. Also in UBA PLC V OGUNDOKUN (2009) 6 NWLR (prt.1138) 450 at 483–484, Adekaye, JCA (as he then was) held that “An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent.” PER SHUAIBU, J.C.A.

WHETHER OR NOT IT IS IN ALL SITUATIONS THAT AN AGENT WILL BE LIABLE FOR THE ACTS OF A PRINCIPAL

However, it is not in all situations that an agent will not be liable for the acts of a principal. Thus, an agent who has exceeded the limit or bounds of its authority such agent will be personally liable. See COTECNA INTERNATIONAL LTD V CHURCH GATE NIG. LTD & ANOR (2010) LPELR–897 (SC). Similarly, every agent who contracts personally though also on behalf of his principal is personally liable and may be sued in his own name on the contract, whether the principal be named therein, or be known to the other contracting party or not and either the principal or agent may be sued, unless the other contracting party elect to give exclusive credit to the principal.
The question whether an agent who has made a contract on behalf of his principal is to be deemed to have contracted personally depends on the intention of the parties to be deducted from the nature and terms of the particular contract and the surrounding circumstances including any binding custom. See BALOGUN V ACB LTD & ORS (1972) LPELR–718 (SC). PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Cross River State sitting in Calabar delivered by Hon. Justice Michael Edem on 11th December, 2015 refusing the defendant’s application to strike out the suit.

The appellant as claimant before the lower Court commenced a civil suit claiming against the defendant as follows:-
i. A mandatory order compelling the defendant to refund the sum of N1,650,000.00 (One Million, Six Hundred and Fifty Thousand Naira) only to the claimant, same being the total amount of contributions the claimant made to the defendant.
ii. The sum of N1,000,000.00 (One Million Naira) only for breach of contract.
iii. General damages of N5,000,000.00 (Five Million Naira) only.
iv. 10% post-judgment sum until final liquidation.
v. Cost of litigation assessed at N500,000 (Five Hundred Thousand Naira) only.

On being served with the originating process, the defendant filed a conditional appearance and thereafter a motion on notice on 20/8/2014 praying for –
An order striking out this suit for lack of jurisdiction, as there is no statement of claim and that the defendant in this suit is not a proper party as the defendant in this suit.

Parties joined issues on the said application and after considering the respective affidavit evidence, learned trial judge in a considered ruling delivered on 10/12/2015 dismissed the application on page 85 of the record of appeal as follows:-
“I therefore hold the view and a very potent one that an individual capacity is firmly established in the transaction. I further hold that she is rightly sued in that capacity. This second ground also fails. The application is grossly unmeritorious.”

Miffed by that decision, appellant approached this Court through a notice of appeal filed on 10/12/2015. The notice of appeal contains three (3) grounds of appeal at pages 87–89 of the record of appeal. Briefs were filed and exchanged by counsel. Learned counsel for the appellant, Chief Onyebueke F. O. relied on the appellant’s brief of argument filed on 10/2/2016 and appellant’s reply brief filed on 9/3/2016 in urging this Court to allow the appeal. In it, two issues are formulated for consideration as follows:-
1. Whether the appellant, an agent of the MEGA ASSETS MANAGEMENT LTD a disclosed principal could be sued in her private capacity.
2. Whether failure to consider the third party’s affidavit and consider the receipts issued in the name of the MEGA ASSETS MANAGERS LTD but relied on the affidavit of the respondent in considering the agency relationship has not violated the right of fair hearing of the appellant.

Learned counsel for the respondent, Aniekan Essiet, Esq. also formulated two issues for the determination of this appeal thus:-
1. Whether a person can be an agent of a non-existent company.
2. Whether an illiterate person can be held liable for the contents of a document which does not comply with the illiterate’s protection law.

Learned counsel for the appellant observed that the issues formulated by the respondent namely, the non-existence of the company and illiteracy are not related to any grounds of appeal. It is imperative to note that arguments in an appeal must be derived from the issues for determination relating to the grounds of appeal. Put differently, argument proffered in support of any issue for determination must of necessity be consistent with the issue under which it is being canvassed. Thus, any argument that is not founded or related to any ground of appeal is incompetent and will be disregarded. See UNITY BANK PLC V AKPEJI (2018) LPELR–44995, FINNIH V IMADE (1992)1 NWLR (prt.219) 511 and MOZIE V MBAMALU (2006)15 NWLR (prt.1003) 466. In UDUSEGBE V TUGBA (2010) LPELR–8634, this Court has held that a respondent who has not cross-appealed or filed a respondent’s notice cannot formulate issue different from that formulated by the appellant. What that means is that a respondent cannot formulate issues outside the grounds of appeal. Thus, any issue not derived from or linked from the ground of appeal filed shall be discountenanced as being unrelated to the issue under consideration. See EIGBE V N.U.T. (2008) 5 NWLR (prt. 1081) 604, AKINLAGUN & ORS V OSHOBOJA & ANOR (2006) LPELR–348 (SC) and ALL STATES TRUST BANK PLC V REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL & ORS (2018) LPELR–44349 (CA). In the instant case, all the arguments in the respondent’s brief are therefore discountenanced as being unrelated to the issues and the decision appealed against.

Having discountenanced the respondent’s brief of argument, I shall now consider the appeal based on the two issues formulated by the appellant, the undoubted owner of the appeal.

Arguing the first issue, learned counsel for the appellant submitted that respondent was wrong to have sued the appellant in her private capacity for what she did on behalf of a disclosed principal. He referred to the cases of AMADIUME V IBOK (2006) 6 NWLR (prt.975) 158 at 177 and OSIGWE V PSPLS MGT CONSTRUCTION LTD (2009) 3 NWLR (prt.1128) 178 at 393–400 to the effect that an agent of a disclosed principal is unnecessary party to an action as agent normally binds his principal, not himself.

On the second issue, counsel contends that the lower Court was in error to ignore the evidence of Goddy Ibem and the address of the appellant. He submitted that the failure to consider the evidence of Goddy Ibem and the submission of counsel violates the appellant’s right to fair hearing relying on TUNBI V OPAWOLE without providing the right citation.

RESOLUTION
The first issue deals with the liability of an agent of a disclosed principal, wherein counsel argued that it was inappropriate to sue the appellant when her principal is disclosed. The general rule is that an agent of a disclosed principal incurs no liability. Thus, when an agent is acting for a disclosed principal, the contract is the contract of the principal not that of the agent and at common law the only person who can sue or be sued is the principal. See UNIVERSITY OF CALABAR V EPHRAIM (1993) 1 NWLR (prt.271) 551, OYENUGA V I.C.L LTD (1991) 1 NWLR (prt.168) 415 and OLUFOSOYE V FAKOREDE (1993)1 NWLR (prt.222). Also in NIGER PROGRESS LTD V NEL CORP. (1989) 3 NWLR (prt.107) 68 at 84, the Supreme Court has held that a defendant acting on behalf of a known and disclosed principal incurs no liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. Also in UBA PLC V OGUNDOKUN (2009) 6 NWLR (prt.1138) 450 at 483–484, Adekaye, JCA (as he then was) held that “An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent.”

In the instant case, the appellant in paragraph 7 of the affidavit in support of her motion on notice averred that Mega Assets Managers Limited assigned her to accept deposit from customers on behalf of the company. The respondent denied transacting with the appellant on behalf of any company and maintained that his contribution was a private financial transaction between them. In paragraphs 3-5 of the counter affidavit, the respondent averred as follows:-
3. That paragraph 7 of the applicant’s affidavit is false. I have never known the applicant as a worker of any company but a fellow business woman who has a shop, a stone throw from my own, shop 104 at Etim Edem Park, Calabar, Cross River State. She never at any point as the transaction lasted told me she was an agent or staff representing any company. The names of the individuals in her Exhibits B5 to B7 are not known to me. The papers she was giving to me as receipts were authored and signed by her whenever I gave her my contributions.
4. That paragraph 8 of the applicant’s affidavit is not true. At the end of my first year contributions with her, she brought my money to my shop, shop 57/58 Etim Edem Park, Calabar. I never sign or thump prints any document to collect my money. I challenge her to bring record of payment at the purported office at 82A Goldie Street, Calabar.
5. That paragraph 9 of the applicant’s affidavit is false. My contribution was a private financial transaction between me and her. She had even advised me not to disclose the transaction to other traders in Etim Edem Park, Calabar to avoid unnecessary publicity and this I kept until when she refused to pay me my financial contributions at the due date.

A relationship of agency is said to exist whenever one person called the agent has authority to act on behalf of another called the principal and consents to act. Thus, agency is a relationship which exists between two persons, one of whom expressly or impliedly consents that the other should represent him or to act on his behalf and the other of when similarly consents to represent the former or so to act.

An agency can be created by and in any of the following ways: – (a) Agreement between the parties, (b) Ratification of acts done previously without authorization, (c) By operation of the few for instance, under the doctrine of necessity. See CEDAR WOOD NIG. LTD V EGBOKO & ANOR (2017) LPELR–50713(CA).

From the averment in the affidavit in support of the appellant’s motion on notice, there was no evidence of any agreement express or implied that she was appointed by Mega Assets Managers Ltd and or authorized her to collect contributions on its behalf. Furthermore, it was nowhere shown that the respondent was ever aware that he was dealing with the appellant on behalf of any other person. Thus, the foundation for the claim based on agency relationship not having been properly laid by the appellant, she could not as well claimed to have transacted with the respondent as an agent of a disclosed principal who was neither known nor disclosed to the respondent. The learned trial judge was therefore right when he found that an individual capacity is firmly established in the transaction and that the appellant was rightly sued in that capacity.

The appellant’s complaint on the second issue is on the trial Judge’s failure to consider the affidavit evidence of one Goddy Ibem and the address of her counsel. The affidavit in question is at page 78 of the record of appeal in paragraph 2 thereof, the deponent; Goddy Ibem averred that he was present in the company office when respondent collected money.

In ABIODUN V C.J. KWARA STATE (2007)18 NWLR (prt.1065) 109, 154–155, it was held that any person in possession of relevant facts can depose to those facts in support of any party to the litigation but in a Court of law only direct evidence of facts is admissible. Furthermore, the fact that a person has authority to depose to an affidavit does not also dispense with the mandatory requirements of stating the source of the facts contained in the affidavit.

The third party affidavit in the instant case is at large and thus not being direct evidence of facts of agency relationship. The deponent thereat merely states that he was present in the company’s office when the respondent collected his previous entitlement. This in my humble view neither laid any foundation to agency relationship nor show that the appellant acted as agent to any principal in her transaction with the respondent. Suffice to say that the failure on the part of the trial Judge to specifically refer to the said third party affidavit did not affect the finding that “the transaction by the appellant was wrapped up in an individual flavour.”

The other facet of the appellant’s complaint relates to non-consideration of counsel’s submission in the ruling which was argued to have tantamount to a denial of fair hearing. It is settled that a counsel submission in Court in support of a party’s case remains a mere submission. It can never be elevated to be part of the evidence before the Court. Thus, counsel submission, no matter how alluring, can never be, and has never been regarded as part of the evidence for appraisal by the trial Court. See CAP PLC V VITAL INVESTMENT LTD (2006) 6 NWLR (prt. 976) 220 at 241, per PETER-ODILI, JCA (as he then was).

It is pertinent to note that the application, the subject matter of the ruling on appeal was fought upon affidavit evidence and written addresses and the learned trial Judge having referred to the said affidavits together with the respective exhibits and written addresses cannot be faulted since the said submission as contained in the appellant’s counsel written address is not part of the evidence requiring appraisal.

On the whole, all the two issues are resolved against the appellant. The appeal is unmeritorious and it is hereby dismissed. Parties shall however bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA and I agree that the appeal has no merit and should be dismissed.

I adopt the reasoning in the judgment as mine and dismiss the appeal.

I abide by all the orders in the judgment including the order as to costs.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read the draft of the lead judgment delivered by my Learned Brother, MUHAMMED LAWAL SHUAIBU, JCA. I am in agreement with his reasoning and conclusion as contained in the judgment. I have nothing to add.

The appeal is unmeritorious. It is accordingly dismissed.