Anthony Idehen Ogida V. Jackson Osaze Oliha (1986)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
At the conclusion of hearing on the 27th day of November, 1985 I dismissed this appeal and reserved my reasons for the judgment till today. I now give my reasons.
The respondent in this appeal, a legal practitioner, was the plaintiff in an action he institued against the appellant in the Bendel State High Court sitting at Benin City. His Claim as per the writ of summons, reads as follows:
“On or about 17th November, 1969 at Benin City within the Benin Judicial Division the Defendant entered into an Agreement (duly re-affirmed on 24th May 1971) with the plaintiff for the said plaintiff in his capacity as a Solicitor to enter into negotiaion with the Federal Ministry of Works and Housing (Lands Division) Lagos with a view to getting compensation paid for that parcel of land acquired for the Mobile Police buildings at Evbogida Quarters Benin City. On the strength of the said Agreement and a Deed/Power of Attorney executed in respect of the said parcel of land by the defendant in favour of the plaintiff the plaintiff promptly and strenuously negotiated with the said Federal Ministry which later paid the Defendant the sum of 33,004 1s.11d or N66, 008.20 as per New Nigeria Bank Cheque No. 018302 of 9th September, inter alia.
The plaintiff has since presented a formal demand note/bill of charges for his Professional Fees to the defendant as pre-arranged by both parties at 33 1/3% of any sum/compensation paid by the said Federal Ministry to the Defendant and the Solicitor to the Plaintiff also wrote on 30th September 1974 to the Defendant making similar demands for the recovery of the said professional fees. A bill of charges signed personally by the plaintiff was attached to the said letter of demand.
The defendant, despite repeated demands (both written and oral) from the plaintiff has refused to pay to the Plaintiff as professional fees the sum of N22, 002.73 (Twenty-two thousand and two Naira seventy-three kobo) i.e. 33 1/3% of N66008.20 which said sum of N22, 002.73 the plaintiff is now claiming against the defendant.’
DATED at Benin City this 3rd day of July, 1975.
(Sgd.) DANAHA AGIDIGBI
Plaintiff’s Solicitor
Danaha Agidigbi Esq.
75 Akpakpava Street,
Benin City.
Pleadings were filed and exchanged on the order of the court. At the trial both parties gave evidence and called witnesses in support of their respective claims. The learned trial judge meticulously evaluated the evidence adduced by each party and, although he found for the respondent on practically all the contested issues in the case, he nevertheless dismissed his case in its entirety on the ground that the action was incompetent. He concluded his judgment as follows.
The last interesting point raised in this case by the defence was that Exh. A was entered into by the defendant in a representative capacity and consequently it was wrong to have sued him in his ‘personal capacity. Now the commencement of the Agreement Exh. A reads as follows
AN AGREEMENT made the 17th day of November, 1969 BETWEEN JACKSON OSAZE OLIHA OF 40, Akpakpava Street, Benin City (hereinafter called ‘the Solicitor’) of the one part and Chief A I. OGIDA of Evbogida on behalf of himself and Evbogida Community (hereinafter called “the client”) of the other part.”
In answer to this contention, counsel for the plaintiff contended that the action against the defendant personally was competent. He referred to 0.7, Rules 4, 6, 9, 10(1) and 10(2) of our High Court (Civil Procedure) Rules.
I have examined those rules very carefully. They do not seem to provide an answer to the contention of the defence. The contention is that the defendant has not been sued in the capacity in which he entered into Exh. A which forms the bed-rock of plaintiff’s action. It seems clear to me that the defendant even though he admits being the customary paramount head of all lands in Evbogida village nevertheless entered into Exh A not in his personal capacity but as representing himself and Evbogida Community. Order 2, Rule 2 of our High Court (Civil Procedure) Rules provides as follows.
‘If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show in what capacity the plaintiff or defendant sues or is sued.’
There is no indorsement in this case to show that the defendant is sued in a representative capacity. He is in my view clearly sued in his personal capacity. Plaintiff’s case was also conducted on that basis. Plaintiff’s counsel appears to admit this in his address but contents that the action against the plaintiff personally is competent.
I will like to point out here that the defendant in ‘paragraph 11 of his amended statement of Defence raised this issue. He said.
’11- The defendant will contend as a matter of Law that this action against him personally and in the circumstances of the case is not competent in law.’
Besides learned defence counsel took objection also in his address on this point. Inspite of all these, plaintiff did not take the hint and took no steps to effect necessary amendments to his writ and statement of claim. I am in agreement with the learned defence counsel that as the action stands, it is incompetent. In case I am proved wrong in my view I will proceed to say that had I considered the action competent as it stands I would have awarded in favour of the plaintiff the sum of NI9,292.90 which sum represents 33 1/3% of 28939.7s (that is, N57, 878.70) shown on Exh. M.
As I have said earlier on, the action as it stands is incompetent and is hereby accordingly dismissed.
There will be no order as to costs.
(Sgd.) (S.A. AJUYAH)
JUDGE
15th December, 1977″
The respondent, being dissatisfied with the decision of the learned trial judge, appealed to the Court of Appeal and his appeal was allowed. This appeal is against the decision of the Court of Appeal which reversed that of the trial Court.
It seems to me that since the trial court had found for the respondent on all the contested issues, the only matter that calls for determination in this appeal is a short one. It is the capacity in which the appellant entered into the written agreement which is Exhibit ‘A’. The issue, in my view, may be resolved by an examination of (a) the contents of Exhibit ‘A’ (b) the state of the pleadings and (c) THE EVIDENCE ADDUCED AT THE TRIAL’ I will begin with Exhibit A’ which reads as follows
‘AN AGREEMENT made the 17th day of November, 1969 BETWEEN JACKSON OSAZE OLIHA of 40, Akpakpava Street, Benin City (hereinafter called “the Client”) of the other part.
WHEREAS the client is claiming compensation in respect of a parcel of land in Evbogida which was compulsorily acquired by the Federal Ministry of Lands and housing (Lands Division) for the Mobile Police Unit and has requested the solicitor to act as his solicitor in recovering the said compensation or enforcing the payment of the said compensation for the remuneration hereinafter mentioned.
NOW IT IS HEREBY AGREED as follows
- The Solicitor will institute and prosecute all such proceedings as he may consider necessary or be advised for asserting and establishing the right of the client to and recovering a justice (sic) and equitable compensation in respect of the said parcel of land for him.
- The Client will allow the solicitor to retain a commission of 33 1/3% of the total amount of compensation payable in respect of the said parcel of land by way of remuneration in full for his professional services instead of requiring from him any bill of charges for such services and will also pay the solicitor all such sums of money as he shall pay allow or expend on litigation and other expenses incidental thereto.
- The client will with all practicable dispatch furnish the solicitor with all such documents and information as are or shall be in his possession or power relative to the said claim and give him from time to time all necessary and proper assistance in prosecuting the same without delay or hindrance.
- Neither the solicitor nor the client will make any compromise or arrangement in the said business or stay or withdraw from the said business without the express authority or consent in writing of the other of them.
- The solicitor shall not wilfully do or permit to be done, any act or thing whatsoever which may occasion any loss or damage to the client or endanger or prejudice his said right or claim.
AS WITNESS the parties hereto set their hands the day and year first written
SIGNED BY the within-named
Solicitor Jackson Osaze Oliha
(Sgd.) Jackson Osaze Oliha
In the presence of:-
(Sgd.) J.A. Agbonifo
WITNESS
SIGNED BY within-named
(Sgd.) CHIEF AI OGIDA
Client Chief A.I. Ogida
(Sgd.) R.A. Igbinedion
WITNESS”
Going through Exh. ‘A’ one is left in no doubt whatsoever that the appellant executed the contract on his own behalf and on behalf of the members of the Evbogida Community of which he was the traditional head at the time. The document unequivocally says so and the unqualified signature of the appellant at the bottom of the document lends credence to this conclusion. In my view there is nothing Exh. A to support the contention that the appellant entered into the agreement in a representative capacity.
Now what about the pleadings In paragraphs 1, 2, 3, 4 and 5 of his Statement of Claim, the respondent averred as follows
- The Plaintiff is a Legal Practitioner and carries on his business as a Barrister and Solicitor at No. 40 Akpakpava Street Benin City.
- The defendant is a Bini and he is the Village head of Evbogida, Ward 43B, Benin City. He has at all materiaf times to this action been resident at Evbogida Village Ward 43B, Benin City within the jurisdiction of this Honourable Court.
- Further to paragraph 2 above, the Defendant is the customary paramount head of all lands in Evbogida village, subject only to the Oba of Benin who is the overlord of all communal lands in Benin.
- The Defendant on or about 17th November, 1969 briefed the Plaintiff with instructions that the plaintiff should claim compensation from the Federal Ministry of Works and Housing (Lands Division) Lagos in respect of that portion of land in Evbogida Village, Ward 43B Benin City, compulsorily acquired by the Federal Government of Nigeria for the Mobile Police Unit.
- Further to paragraph 4 above, the plaintiff will say at the trial of this action that by a written agreement (duly re-affirmed on 24th May 1971) , made between the plaintiff and the defendant, the plaintiff was authorised to claim the said compensation and the plaintiff was to retain a commission of 33 1/3% of the total amount of compensation payable in respect of the said parcel of land and that neither the plaintiff nor the defendant would make any compromise or arrangement in the said business or stay or withdraw from the said business/agreement without the express authority or consent in writing of the other party.
The above averments were admitted by the appellant in their entirety in paragraphs 1 and 2 of this amended Statement of Defence as follows
- The defendant admits paragraphs 1, 2, 3 and 4 of the Statement of Claim.
- The defendant, with reference to paragraph 5 of the Statement of Claim admits entering into the said agreement with the plaintiff but subject to his successful completion of the negotiation and payment within a reasonable time.
It is trite that issues are tried as settled in the pleadings, and the appellant, having made such an unequivocal admission in his pleadings regarding the capacity in which he executed the contract, cannot now be heard to say that he did so in a different capacity. Parties are bound by their pleadings and will not be allowed to deviate from them. See George and Ors. v. Dominion Flour Mills Ltd. (1963) 1 All N. L. R. 71 at p.77;
Oduka and Ord v. Kasumu and Ors. (1968) N.M.L.R. 28 and Aderemi v. Adedire (1966) N.M.L.R. 398 at 401.
Now what about the evidence adduced at the trial pertaining to the capacity in which the appellant executed Exhibit A’ There is no doubt that the respondent appreciated the act that the appellant wanted him to pursue the compensation claim not only for the appellant alone, but also for the members of his community. He said so in his evidence.
In his own testimony at the trial the appellant said.
Sometime in 1969 I instructed the Plaintiff to write to the then Midwest Government claiming compensation for the land acquired at Evbogida for the Mobile Police Unit. The acquired land belonged to Evbogida community. I instructed the plaintiff in my capacity as Enogie of Evbogida. The plaintiff agreed to accept my instructions and asked for one-third of the compensation payable. I agree (sic) as we are one. He wrote an agreement which I signed.
From 1969 to 1971 the plaintiff was unable to get the Government to pay compensation for the land acquired. The matter was discussed by my people who decided that plaintiff’s instructions be withdrawn. A delegation was sent to the plaintiff by my people to withdraw the instruction given to him. This was about June, 1971. I was on the delegation After withdrawal of our instruction to the plaintiff, we went to one Odibe Akhigbe about June, 1971. We gave the said Odibo Akhigbe a power of Attorney and he pursued the matter of compensation for our land. In about ‘a year he got the Government to pay us compensation. Mr Odibo Akhigbe paid me N18, 000.00 at that time. Mr. Odibo Akhigbo also paid the following people for the lands acquired. Uyigue, Patrick Ogida, John Ogida, Mrs. Uyigue and others whose names I do not remember.
Between 1969 and 1971 the plaintiff showed me about two letters from the Federal Ministry of Lands, Lagos saying that his (that is, plaintiff’s) letter was receiving attention.
I gave the plaintiff the job because he had been my solicitor for many years and I relied on him.”
Cross examined, he said
“The agreement I said I entered into with the plaintiff was for myself and on behalf of Evbogida Community.”
It is pertinent to note here that the appellant did not, in his testimony, say that he acted as agent of the Evbogida Comunity when he entered into the contract. On the contrary he made it clear that he entered into the contract for myself and on behalf Evbogida Community. It goes without saying therefore, that if the community were a party to the contract, as the appellant contended, and if there was a breach of the contract, as was found by the trial court, then the appellant and all the members of the community would be jointly and severally liable. In that case the respondent would have the option of proceeding against all of them jointly or any of them. In this case, the respondent, wisely in my view, chose to proceed against the appellant.
The learned authors of the 4th Edition of Halsbury’s Laws of England, Volume 9 State the liability of joint contractors in paragraph 621 as follows:
“Where two or more persons make joint and several promises to another, each of the promisors incurs both a joint and a several liability. All or any of the promisors may be sued, at the option of the promise, in respect of a joint and several liability, and separate actions may be brought against each” It is to be noted that provisions similar to the above quoted passage are contained in Order 7 rule 6 of the Bendel State High Court (Civil Procedure) Rules, Cap. 65. The rule reads as follows.
‘The plaintiff may at his option join as parties to the same action all or any of the persons severally, or jointly and severally liable on any contract, including parties to bills of exchange and promissory notes.
From the foregoing it is obvious that the learned trial judge was in error when he concluded in his judgment that the respondent’s action was incompetent because the appellant was sued in his personal capacity.
Another complaint of the appellant in this appeal is that since the respondent was aware of the fact that the compensation he was asked to claim was that of the community and not that of the appellant personally, he should have brought his action against the whole community and not against an individual. As I have said earlier, the compensation claim was not for the community alone but for the appellant in his personal capacity as well as for the members of the community. But assuming that the contract was between the respondent and the Evbogida community and was signed by the appellant on behalf of the community, could he not be held personally liable if there was a breach of the contract My answer is in the affirmative.
In George Onaga and Ors. v. Micho and Company (1961) 1 All N.L.R 324, the plaintiff Company building contractors entered into a contract with a Clan Union which contract was signed by the defendants. There was a breach of the contract and the plaintiff Company sued the defendants claiming damages which the trial court awarded against the defendants. The defendants appealed against that decision and one of their complaints was that the action should have been instituted against the Clan Union. Their appeal was dismissed. Delivering the judgment of the Federal Supreme Court, Unsworth, FJ at p.327 said.
‘The first ground argued was that the Judge erred in giving judgment for the plaintiff in that the plaintiff sued a wrong party as defendants. It was argued that he ought to have sued the whole Umuneke Clan Union. This Clan Union is an unincorporated body and, in my view, the plaintiff properly sued the persons who had signed for otherwise authorised the contract, which was the subject of the dispute.
In the instant case it was the appellant who signed the contract and in the circumstances it is my view that he was properly sued. It was for the above reasons that I dismissed the appeal on the 27th day of November 1985.
OBASEKI J.S.C. At the conclusion of the submissions of counsel before us in this appeal on the 27th day of November, 1985, I dismissed this appeal for lack of merit and reserved my reasons for so doing till today. I now proceed to give them.
The only issue raised before us for determination in this appeal is whether the parties were properly constitued. It was contended by the appellant that since the agreement signed by the appellant and the respondent indicated that the appellant signed on behalf of himself and the members of Ogida community, the respondent should have joined the Ogida community in the suit.
This issue has received detailed consideration in the Reasons for Judgment just delivered by my learned brother, Kawu, JSC the draft of which I had the pleasure of reading in advance. I agree with the said reasons and I adopt them as my own.
The action filed in the High Court by the respondent was in the main, for payment of solicitor’s fees. It was based on an agreement Exhibit A made on the 17th day of November, 1969 wherein the appellant contracted, on behalf of himself and the Evbogida Community to pay the plaintiff 33 1/3% of the total amount paid as compensation in respect of a parcel of land in Evbogida which was compulsorily acquired by the Federal Ministry of Lands and Housing (Lands Division) for the Mobile Police Unit.
It is settled law that where a person makes a contract in his own name without disclosing either the name or the existence of a principal, he is personally liable on the contract to the other contracting party even though he may be in fact acting on the principal’s behalf. See West African Shipping Agency (Nig.) Ltd. and Anor. v. Alhaji Musa Kalla (1978) 3 SC 21 at 27-28. Since the appellant did not disclose the names of the other members of the community he represents, the action against him alone was properly constituted.
It was for the above reasons and the reasons stated in the Reasons for Judgment of my learned brother, Kawu, JSC that I dismissed the appeal.
KAYODE ESO J.S.C.-I dismissed the appeal on 27th November, 1985 and indicated I would give my reasons later. Having read the reasons given by my learned brother Kawu J.S.C. I would readily adopt these reasons for my part in dismissing the appeal on 27th November, 1985.
KAZEEM J.S.C.- On 27th November, 1985 when this appeal was dismissed, I reserved my reasons for doing so until now. I have since had the privilege of reading the draft Reasons for Judgment just read by my learned brother Kawu J.S.C. It has fully dealt with all the points which I would myself have wished to cover; and I entirely agree with it I therefore have nothing more to add.
OPUTA J.S.C.-This appeal came up for hearing on Wednesday, the 27th day of November 1985. After reading the Briefs of argument filed by the parties and hearing learned counsel for the Appellant who was defendant in the court of first instance and without calling on counsel for the Respondent, the court unanimously decided to dismiss the appeal which was accordingly dismissed with N300 costs to the Respondent who was Plaintiff in the trial court. The Court also decided that Reasons for Judgment will be given on 21/2/86. Hereunder are my reasons for dismissing the appeal.
The Plaintiff sued on two documents’ An Agreement in writing made on the 17th day of November 1969 wherein the Defendant, Chief A.I. Ogida of Evbogida on behalf of himself and the Evbogida Community contracted to pay the Plaintiff as his solicitor 33 1/3% of the total amount paid as compensation in respect of a parcel of land in Evbogida which was compulsorily acquired by the Federal Ministry of lands and Housing (Lands Division) for the Mobile Police Unit. The Agreement was tendered as Ex. A In view of the stand taken by learned counsel for the Appellant in this Court, it may be necessary to mention that in Ex A the preamble is “Whereas the client is claiming compensation in respect of a parcel of land etc.”
The word client is in the singular. Also the person to be charged the other contracting party to EX. A is the client namely Chief A. Ogida the Appellant for himself and as representing the Evbogida Communigy, the legal result will be the same. Any judgment obtained in such an action can be executed against Chief A.I. Ogida. It is for him to claim contribution from members of the community he claims to represent or in the alternative apply to join those other and members of the Evbogida Community over whom he as cited as co-defendants whom he knows are substantial enough and worth suing.
This is not a case of a Plaintiff proceeding against a person who on the face of the document itself is merely an agent of a named principal. The ‘Evbogida Community’ is not a legal persona that can be sued. A similar situation arose in the case of
West African Shipping Agency (Nig.) Ltd. and Anor. v. Alhaji Musa Kalla (1978) 3 SC 21 at 27-28 where my learned brother Eso, J.S.C. observed
The only shipping name contained in the exhibit is that of the 1st Defendant and indeed the only contracting parties disclosed in the exhibit are the Plaintiff and the 1st Defendant. It is settled law that where a person makes a contract in his own name without disclosing either the name or the existence of a principal he is personally liable on the contract to the other contacting party, even though he may be in fact acting on the principal’s behalf.”
In this case, the only names appearing on the Agreement EX.A as the contracting parties are Jackson Osaze Oliha as the solicitor and Chief A.I. Ogida as the Client. The Respondent, who was Plaintiff in the court of first instance, was well within his right to sue as he did. It was no business of his to sue unnamed and unknown members of the Evbogida Community.
The second document which wholly and entirely demolished whatever potency that was left in the argument of learned counsel for the Appellant is EX H. Exhibit H in part reads:
By This Deed I Chief Anthony Idehea Ogida, the Enogie of Evbogida Ward 43/B Benin City, hereby appoint Jackson Osaze Oliha, a legal Practitioner of 40 Akpakpava Street Benin City my Solicitor to act in my name and on my behalf and on behalf of entire members of Evbogida Community etc.”
The above Power of Attorney was signed by the Appellant as the sole donor. At best EX. H fixes the entire responsibility on the Appellant at worst EX. H makes him (the Appellant) jointly and severally liable to the Respondent.
But what seems to be most devastating to the Appellant’s contention is the state of the pleadings. The Plaintiff/Respondent pleaded as follows:
- The Defendant on or about 17th November 1969 briefed the Plaintiff with instructions that the Plaintiff should claim compensation from the Federal Ministry of works and Housing (Lands Division) Lagos in respect of that portion of land in Evbogida Village, Ward 43B Benin City, Compulsorily acquired by the Federal Government of Nigeria for the Mobile Police Unit.
- Further to paragraph 4 above the Plaintiff will say at the trial of this action that by a written agreement (duly re-affirmed on 24th May 1971) made between the plaintiff and the defendant, the plaintiff was authorised to claim the said compensation and the plaintiff was to retain a commission of 33 1/3% of the total amount of compensation payable in respect of the said parcel of land and that neither the plaintiff nor the defendant would make any compromise or arrangement in the said business or stay or withdraw from the said business/agreement without the express authority or consent in writing of the other party.
What was the defence of the Appellant In paragraph 1 of his Amended Statement of Defence, the Appellant admitted paragraph 4 of the Plaintiff/Respondent’s Statement of Claim. Paragraph 2 of the Amended Statement of Defence reads as follows
2 The defendant, with reference to paragraph 5 of the Statement of Claim admits entering into the said agreement with the plaintiff but subject to his successful completion of the negotiation and payment within a reasonable time.
The issue that went to trial was therefore not whether or not the Appellant entered into the agreement in his personal capacity or as representing the Evbogida Community. No that was not the issue raised by the pleading. Rather the issue was whether the Respondent successfully completed the negotiation within a reasonable time. The learned trial judge was wrong in introducing in his judgment the capacity in which the defendant was sued which was not an issue arising out of the pleadings. This Court has on several occasions stressed the need for all courts of trial to limit themselves solely and strictly to the issues raised by the parties in their pleadings and no more. To do otherwise might well result in denial of justice to one or other of the contesting parties. see N.I.P. Co. Ltd. and Anor. v. Bank of West Africa (1962) 1 ALL N.L.R. (Part 4) 559, Kalio and Ors. v. Kalio (1975) 2 SC 15: N.N.P.C. Ltd. v. Thompson Organisation and Ors. (1969) 1 All N.L.R. 38.
In our adversary system how is a party expected to reply to a point raised for the first time by the judge in his judgment I make bold to emphasise a point I made in Overseas Construction Company (Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd. and Anor. (1985) 3 N.W.L.R. 407 at p.419 namely that.
“The duty of a trial court is limited, strictly limited and confined to trying the issues arising from the pleadings. A trial court is not to go on a wild goose chase, to embark on an academic exercise in which all sorts of questions are discussed at will, without reference to the pleadings, to the issues and to the admissible evidence.”
The Court of Appeal did not find it easy to understand what the learned trial judge meant when he said that ‘the controversy revolves around the question as to the capacity in which the respondent contracted with the appellant’ that was a non-issue and there was no need wasting any time on it. But the Court of Appeal was right to hold.
‘In the case in hand the only signatory to Exhibit ‘A’ is the respondent and from whatever angle it is looked at he is a necessary party in any action based on this contract. Prima facie, the plaintiff is entitled to choose the person against whom to proceed where there are several persons jointly liable. The problem of contribution by such persons to meet the claim is their own and not that of the plaintiff.”
After the above observation, the Court of Appeal then allowed the Plaintiff’s appeal, awarded him N19, 292.90 being his entitlement as professional fees as per EX ‘A”. I see no reason whatsoever to interfere with the above judgment.
It was for all the reasons given above and for the fuller reasons in the lead Reasons for Judgment just delivered by my learned brother Kawu, J.S.C. that I dismissed this appeal.
SC.245/1984
