Dr. S. Ayo Dada & Ors V. Professor Olajide (2009)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This appeal arose from a decision of the High Court of Oyo State delivered by I. S. Yerima, J. on 6th June, 2003.

The Respondent as Plaintiff originally commenced the suit against the 1st and 2nd Appellants as Defendants jointly and severally under the undefended list procedure of the High Court of Oyo State pursuant to the order of Court of 8th November, 2001. At the hearing, the Appellants then Defendants mentioned the 3rd Appellant as their principal, the trial court thereafter ordered that pleadings be filed. The 3rd Appellant was later joined as 3rd Defendant by the Order of Court dated 21st March, 2002 on application by the Respondent.

The Plaintiff’s claim against the Defendants jointly and severally before the lower Court are as follows:

“The Plaintiff claims against the Defendants jointly and severally the sum of N1,792,218.00 (One million, seven hundred and ninety two thousand, two hundred and eighteen Naira) being money paid by the Plaintiff to the Defendants for the lease of 2 (two) plots of land at one Tarmac Estates, Samanda, Ibadan, which consideration has totally failed and which the Defendants have refused to refund despite repeated demand.

PARTICULARS

(i) Money paid for 2(two) Residential Plots N1,631,800.00

(ii) Agency fee = N 81,590.00

(iii) Ground Rent, Survey and Legal fees

for 2 (two) Residential Plots = N 78,828.00

N1,792,218.00

The Plaintiff also claims 21% interest on the said sum of N1,792,218 (One million, seven hundred and ninety-two thousand, two hundred and eighteen Naira) from the 1st day of January, 1997 until judgment and 10% thereafter until the Defendants pay the money.”

The background facts are that the Respondent’s cause of action arose from an initial transaction between him and the 1st and 2nd Appellants as Defendants. By a letter, Exhibit ‘1’, the Appellants offered to lease 2 (two) residential plots of land on an estate called Tarmac Estate at Samanda, Ibadan to the Respondent. In response to Exhibit ‘1’ the Respondent paid the 1st and 2nd Respondents the sum of N1,792,218.00 (One Million, seven hundred and ninety-two thousand, two hundred and eighteen Naira) being the cost of the two (2) plots of land, Agency fees, Ground rent, survey and legal fees as set out in paragraph 5 of the Statement of Claim (page 30 of the records). Thereafter, the 1st and 2nd Appellants issued the Respondent with a receipt, Exhibit ‘2’. After the transaction, the 3rd Appellant then issued the Respondent letters signed by the 1st Appellant, on the letter headed paper of the 2nd Appellant, allocating 2 (two) plots of land to him at the said Tarmac Estate together with survey plans delineating the plots, Exhibits ‘3’ and ‘4’ respectively.

At the conclusion of the transaction and armed with the allocation letter Exhibit ‘3’ and survey plans delineating the two plots, the Respondent could not take possession of the plots and discovered that Tarmac Estate was a sham and that contrary to the representations made by the Appellants, the land purportedly allocated to him belonged to the Federal Government of Nigeria. The Respondent demanded for the refund of his money but the Appellants refused to refund the money which necessitated the Respondent commencing the proceedings at the trial court. The Appellants admitted the transaction in their joint statement of defence before the trial Court but contended that the 1st and 2nd Appellants were agents of the 3rd Appellant and that 1st and 2nd Appellants are only liable to refund the agency fees received, the money for the survey having been expended. There was no Statement of Defence filed on behalf of the 3rd Appellant being put forward as the only party liable to refund the Respondent’s money.

In course of trial the Respondent led evidence in proof of his case while the Appellants did not lead evidence in support of their pleadings. At the conclusion of the hearing, the trial court entered judgment in favour of the Plaintiff in terms of his claims with interest at the rate of 10% to be paid on the said sum from 1st of January, 1997 till the date of judgment and thereafter 10% on the judgment debt until the debt is liquidated. Dissatisfied with the judgment, the defendants appealed to this Court. There are three (4) grounds of Appeal from which four (3) issues were distilled for determination. The issues are:

(a) Whether or not there is sufficient evidence before the lower court to justify its findings on the joint liability of the Defendants/Appellants.

(b) Whether agents of a disclosed principal are equally liable for the acts of the principal.

(c) Whether the Plaintiff/Respondent has proved his claim on a balance of probability and whether allegation of crime has been proved beyond reasonable doubt.

The learned counsel to the Appellants Olukunle A. Kamisi Esq., in his brief of argument in respect of issues (a) and (b) which were argued together, submitted that the parties from their pleadings in the trial court argued that the 1st Defendant/Appellant is the Chief Executive and the alter ego of the second Defendant, and that the 3rd Appellant was an existing company formed by the 2nd Appellant and two others to manage an estate called Tarmac Estates. It was submitted that Exhibit ‘1’ tendered by the Respondent, the letter of offer for lease showed that the 2nd Appellant acted “on behalf of our principal” and that the address of the vendor was merely in care of the 2nd Appellant, while under the column headed Mode of Payment the Respondent was expected to pay by draft or cheque in favour of Tarmac Estates Limited (3rd Appellant) while the agency fee was paid to Dada Estates Company (2nd Appellant). It was submitted that Exhibits 2(a), (b), (c) and (d) tendered by PW1 confirmed that the Respondent complied with the terms and conditions of Exhibit ‘1’ by making the payments for the allocations to the 3rd Appellant even though the receipts were issued by the 2nd Appellant. It was argued that Exhibits 1, 2 and 3 showed that the 3rd Appellant is a disclosed principal to 1st and 2nd Appellants and that the trial Court was wrong to have held that there was nothing to show that the 1st Appellant acted on behalf of the 3rd Appellant except asking that the cheque be made out in the 3rd Appellant’s name.

It was argued that Exhibits 1, 2, and 3 shows that the 3rd defendant is in existence contrary to the finding of the trial court that the 3rd Appellant only exists on paper, the case of OGUNLEYE VS. ONI (1990) 2 NWLR (pt.135), PAGE 745 was cited and relied upon. We were urged to hold that the 3rd Appellant is a disclosed agent, if we evaluate and consider the available evidence, and if this is done then it would not be proper to hold that the 1st Appellant is as liable as 2nd and 3rd Appellants.

OKAFOR VS. EZENWA (2002) FWLR (PART 121) 1837 was cited.

Reference was made to page 44 of the records of appeal, where the Respondent is said to have admitted that the 1st and 2nd Appellant are agents of the 3rd Appellant and that as a result, the 2nd and 3rd Appellants cannot be sued in respect of this contract made for a disclosed principal.

The case of ATAGUBA & CO. V. GURA NIG. LTD. (2005) 8 NWLR (PART 927) 429 AT 452 was relied upon.

It was further argued that the 1st and 2nd Appellants are subscribers to the 3rd Respondent and that the trial court should not have come to a conclusion that the 1st and 2nd Respondents are jointly and severally liable.

It was submitted that it is only the 3rd Appellant that ought to have been sued and found liable in the circumstances being a legal person known to law that could sue and be sued in respect of its own act, ATAGUBA & CO. VS. GURA NIG. LTD. (supra) was referred to. The learned counsel argued that fraud was alleged against the Appellants in the Respondent’s pleadings, paragraph 10(ii) but that the sole witness of the Respondent’s as plaintiff did not lead evidence to that effect, which amounted to abandonment of the averment in the pleadings, which the trial court relied on to hold that the 3rd Defendant is not in existence, the case of CHIEF AKIN OMOBORIOWO & ANOR. v. CHIEF MICHAEL ADEKUNLE AJASIN (1984) 1 SC 206 AT 207 was referred to and relied upon.

In respect of their issue (c), it was submitted that although the Respondent in the trial court claimed 21% of the sum of N1,792,218.00 from 1st January, 1997 until the Appellants pay the money, it was argued that pleadings cannot take the place of Evidence in that the Respondent’s sole witness did not lead evidence to support the averment and same should be taken as abandoned. Learned counsel cited the case of ALAO VS. AKANO (2005) 11 NWLR (PART 935) PAGE 160 AT 180 PARAGRAPH D – E. We were urged to set aside the judgment of the trial court and allow the appeal on all the issues.

The Respondent responded to the issues as formulated by the Appellants. The learned counsel to the Respondent Oluseye Chukura Esq., in his brief of argument in response to the Appellants’ issues (a) and (b) submitted that these two issues and grounds 1 and 2 from which they were distilled are misconceived in that the Appellants were sued jointly and severally as those the Respondent felt he had the right to the reliefs claimed, consistent with the provisions in Order 11 Rule 3 of the High Court of Oyo State (Civil Procedure) Rules and the facts as disclosed in the pleadings and evidence led in proof thereof. It was argued that the Respondent accepted the offer made to him by the 1st and 2nd Appellants following which he made payments to them. Further, that in all the documents preceding the letters of allocation of plots, the 1st and 2nd Appellants did not disclose the identity of their principal.

It was argued that it was after the Respondent had paid money and was issued a receipt by the 2nd Appellant that the letters of allocation disclosed the identity of the 3rd Appellant. It was submitted that this is not a case of an Agent transacting business on behalf of a disclosed principal since the 1st Appellant signed the letters, reliance was placed on the case of ALLIED TRADING CO. LTD. V. G.B.N. LINE (1985) 2 NWLR (PART 5) 74 AT 81.

It was further submitted that the Respondent claimed his money from the persons who received it and that where a Defendant fails to lead evidence on his statement of defence, he is deemed to have abandoned it and to have presented no defence to the claim, the case of DUROSARO V. AYORINDE (2005) ALL FWLR 167 was cited and relied upon. It was submitted that it was proper for the trial Court to have acted on the unchallenged evidence of the Respondent. The following cases were relied upon: OBIMIAMI BRICK &. STONE (NIG.) LTD. V. ACB LTD. (1992) 3 NWLR (PART 229) 260; HONIKA SAW MILL (NIG.) LTD. V. HOFF (1994) 2 NWLR (PART 316) 252.

In response to the Appellants’ issue (c) the learned Respondent’s counsel submitted that this issue propounded from ground 3 in the Notice of Appeal complained that the trial Court ought not to have granted all the claims of the Plaintiff and that the judgment was against the weight of evidence. It was submitted that the Appellants did not appeal specifically against the pre-judgment interest awarded and same cannot be argued under the omnibus ground. Further that since the Appellants did not lead any evidence, it cannot be argued that the judgment is against the weight of evidence. It was submitted that there was nothing to counter-weigh the evidence of the Respondent at the trial court. The cases of OKOYE V. NWULU (1988) 2 NWLR (PART 76) 359 AND AGAGU V. DAWODU (1990) 7 NWLR (PART 160) were cited and relied upon, also OWOSHO V. DADA (1984) 7 SC 149 AND HABIB NIG. BANK LTD. V. GIFTS UNIQUE NIG. LTD. (2005) ALL FWLR (PART 241) 231.

On the question as to whether the Respondent discharged the burden of proving an allegation of crime, it was submitted that the trial court did not make a finding nor base its judgment on it and that the question does not therefore arise from the judgment appealed against, the following cases were cited and relied upon. AKEREDOLU VS. AKINREMI (1986) 2 NWLR (PART 25) 710; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PART 34) 162. We were urged to hold that on the pleadings and evidence, the Respondent established his case before the trial court and dismiss the Appeal.

In paragraph 1 of the 1st and 2nd Appellants’ Joint Statement of Defence, they did admit that the 1st Appellant is the Chief Executive and the alter ego of the 2nd Defendant, Dada Estates Company. From the printed records, the 1st and 2nd Appellants vide Exhibit ‘1’, a letter with Reference number DEC/OAO/96/01 dated 26th November, 1996, offered for lease the two plots at Tarmac Estate to the Respondent, the letter was on the letter headed paper of the 2nd Appellant and signed by the 1st Appellant, both have not denied being part of Exhibit ‘1’ in which the offer was made to the Respondent. Exhibit ‘1’, the offer letter stated thus: “we hereby make an offer for same on behalf of our principal, subject to the following terms and conditions”. The vendor’s name in Exhibit ‘1’ was not stated but, only indicated: c/o Dada Estates Company followed by the address.

The ‘principal’ above was not named or disclosed that is, on behalf of whom the offer was purportedly made contrary to the argument of the Appellants that the offer was made on behalf of a disclosed principal. In the same Exhibit ‘1’, the Respondent was directed to pay by draft or cheque to Tarmac Estates Limited (3rd Appellant) and Agency fee to 2nd Appellant, Dada Estates Company.

In response to the offer, the Respondent had paid the sum of N1,792,218.00 (One Million, seven hundred and ninety-two thousand, two hundred and eighteen Naira) to the 1st and 2nd Appellants as follows:

(i) Money paid for 2(two) Residential Plots = N1,631,800.00

(ii) Agency fee = N 81,590.00

(iii) Ground Rent, Survey and Legal fees = N 78,828.00

N1,792,218.00

The 1st and 2nd Appellants issued receipts to the Respondent to reflect the above payments, shown in Exhibits 2, 2(a), 2(b), 2(c) and 2(d). After the payment for the plots on 27th November, 1996, the two allocation letters with Reference No. TEL/B11/OAO/01 dated 3rd December, 1996 and TEL/B12/OAO/01 Exhibits ‘3’ and ‘3A’ were written by the 3rd Appellant confirming the allocation of the plots to the Respondent signed by the 1st Appellant, in which it was restated that all payments should be made in draft or cheque to the 3rd Appellant.

As stated earlier in this judgment, the Appellants are not disputing the transaction but, the liability of the 1st and 2nd Appellants and the extent of liability of the 3rd Appellant.

In all the documents preceding the letters of allocation of the plots, the 1st and 2nd Appellants did not disclose the identity of their principal, Exhibit ‘1’ merely, stated that they were making the offer “on behalf of our Principal”, but after the Respondent paid the money and receipts issued to him by the 2nd Appellant, the letters of allocation disclosed the identity of the 3rd Appellant, the allocation letter was signed by the 1st Appellant who is partner and the Managing Director of the 3rd Appellant. It is without doubt then that the contract was concluded between 1st and 2nd Appellants and the Respondent. It was after the contract had been concluded that the identity of the 3rd Appellant was disclosed to the Respondent, it was the 3rd Appellant that the 1st and 2nd Appellants directed the Respondent to make payments to. The 3rd Appellant has not denied receiving the Respondent’s payment for the plots which he is answerable for.

The main question that has arisen in this appeal is what legal relationship did Exhibit ‘1’ and Exhibits ‘2’, 2(a), (b), (c) and (d) create between the Appellants and the Respondent. Exhibit ‘1’ indicated the 1st and 2nd Appellants made the offer for sale on behalf of their principal. With certainty the law is that where an agent names his principal, the principal is responsible; not the agents, but, for this rule to be applicable the agent, must name his principal as the person to be responsible, the person on whose shoulders rest the liability for any defaults. See the old case of EX PARTE HARTOP (1806) 33 ER 132. In the present case the question that now arises is: Did the 1st and 2nd Appellants name the principal in the offer, Exhibit ‘1’ or the acceptance by the payment made for the plots shown in Exhibit ‘2’. The contact had been concluded before the 3rd defendant’s name surfaced to whom the payments were made, following which the 3rd Appellant wrote the allocation letters, Exhibit ‘3’ and ‘3A’ with the survey plan Exhibit ‘4’. The 3rd Appellant did not ever deny receiving the payments made by the respondent. The case would have been different if from the onset the 1st and 2nd Appellants had disclosed the name of their principal before the conclusion of lease. In the same Exhibit ‘1’, in which the principal was not named under vendor; the address of the vendor was care of the 2nd Appellant under the heading ‘mode of payment’. The Respondent was expected to pay the 3rd Appellant for the lease and agency fee to 2nd Appellant, it was therefore erroneous for learned counsel to the Appellants to argue that there was a disclosed principal. Exhibits 2(b), 2(c) and 2(d) which covered legal, survey, ground rent and agency fee were paid to the 2nd Appellant. The trial court was right when it held at page 53 of the records thus:

“The plaintiff never had any dealings directly with this principal. He dealt directly and exclusively with the 1st and 2nd Defendants, while the 1st and 2nd Defendants admitted that the 1st defendant is the Chief Executive and alter ego of the 2nd Defendant at paragraph 1 of the Statement of Defence, there is nothing to show that the 1st Defendant actually acted on behalf of the 3rd Defendant other than asking that the cheques be made out in the 3rd defendant’s name. The 2nd defendant is also a part of the 3rd defendant.”

(underlined for emphasis)

In the case of WEST AFRICAN SHIPPING AGENCY (NIG.) LTD. & ANOR V. ALHAJI MUSA KALLA (1978) 3 SC 21 per Kayode Eso JSC at pages 27-28 held thus:

“It is settled law that when 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 name.”

In the present case the 1st and 2nd Appellants entered into the contract with the Respondents while the 3rd Appellant received the payment for the lease of the plots. When the Respondent accepted the offer by payment to the offerors (1st and 2nd Appellants) a contract has come into being and the parties to it are bound by its terms. They are liable for their obligation under the contract, in this case the Respondent fulfilled his part of the obligation under the contract and all that was required was the lease of the two plots to him at Tarmac Estate which they failed to do.

The trial court was right when he held at page 51 of the records thus:

“There is no doubt that the plaintiff, fulfilled all obligations in the execution of the contract, but the defendants did not fulfill theirs, as the plaintiff could not take possession of the property for which he paid.

There is therefore no doubt that the defendants were definitely in breach of the contract and did not fulfill their part of the contract i.e. to deliver up possession of the said property to the plaintiff.”

I therefore disagree with the learned Appellants’ counsel’s argument that the trial court wrongly evaluated the evidence before it in arriving at the conclusion that the 1st and 2nd appellants are jointly and severally liable. It was also erroneous to contend that only the 3rd Appellant ought to have been sued and found liable in the circumstances of this case. On the other hand as rightly argued by the learned counsel to the Respondent, there had been a total failure of consideration since the Respondent was unable to take possession of the plots in respect of which he paid the Appellants, jointly and severally, a huge sum of money. The Respondent was right to have claimed his money from the persons who received it. I cannot fault the evaluation and decision on who ought to have been sued as found by trial court.

The 1st and 2nd Appellants filed a joint statement of defence in the trial court but, failed to lead evidence on the statement of defence.

Neither of them testified nor called any witness in defence of the claim, as rightly argued by the learned Respondent’s Counsel, the 1st and 2nd Appellants are deemed to have abandoned their statement of defence.

Similarly the 3rd Appellant did not file any statement of defence, gave no evidence and did not call any witness in defence. Therefore, the only available evidence is that adduced by the PW1, the Respondent’s witness who testified in line with his statement of claim in the trial court. The evidence was neither controverted nor contradicted by the Appellants as defendants.

The main issue in the statement of defence of the 1st and 2nd Appellants as defendants is that they acted on behalf of a disclosed principal, the 3rd Appellant. It was up to the 1st and 2nd Appellants to prove and establish at the trial by evidence that they acted with and under the authority of the 3rd Appellant Tarmac Estates Limited. The 1st and 2nd Appellants also failed to show that the 3rd Appellant was in existence from the time of the offer. Each is deemed to have admitted the claim that there was no disclosed principal for whom they acted and received payment for the plots. See ONOBRUCHERE V. ESEGINE (1986) 1 NWLR (PART 19) 799, DIN V.A.N.N. (NIG.) LTD (1990) 3 NWLR (PART 139) 392, SLEE TRANSPORT V. OLUWASEGUN (1973) 3 ECSLR (Pt.11) 117 and GEORGE V. U.B.A. LTD. (1972) ALL NLR (PART 2) 347.

In respect of the 3rd Appellant who did not file any statement of defence, the court cannot decipher his liability from that of the 1st and 2nd Appellants since he was sued together with the two Appellants. The Court cannot make out a case for him or determine the extent of his liability. In this case, the 3rd Defendant is deemed to have admitted all the averments in respect of the money received in respect of the plots from the Respondent. See NDIAKAEME & ORS. V. EGBUONU & ORS 7 WACA 53 AND DIN V. AFRICAN NEWSPAPERS LTD. (1990) 3 NWLR (Pt. 139) 392. The 3rd Appellant has not in any way denied liability, there is no contrary evidence to that of the Respondent as plaintiff, the trial court was therefore right in his finding that the Appellants are jointly and severally liable to refund the money received from the Respondent without determining the extent of each Appellant’s liability since no evidence was led for that purpose and I so hold. From the Respondent’s case all are jointly liable. The holding of the trial court at pages 54 of the record cannot be faulted, the court held thus:

“There is no evidence before this court to show, even though the alleged principal TARMAC ESTATE was disclosed on paper, that they are actually in existence. The area the property lies is referred to as TARMAC ESTATE. The documents earlier referred to only shows that it merely exists. None of the defendants were present in court to prove the existence of the 2nd and 3rd defendants except on paper.

The 1st defendant never appeared in court at any time to defend the case or to prove through evidence the existence or authority given him by the 3rd defendant. The 1st defendant cannot therefore hide under the guise of an agent to collect money on behalf of an ‘alleged disclosed principal’ without proof of such an assertion.

Moreover, the 1st defendant is as liable as the 2nd and 3rd defendants of which he is the Chief Executive and alter ego as well as being a major Shareholder/Director of the 3rd defendant company.

Being part of the 2nd and 3rd defendants, he is liable.”

(Underlining mine for emphasis)

Further at page 55 the trial court summed it up by holding:

“I therefore find the defendants liable in the sum of N1,792,218.00 being money had and received for a contract that failed and as claimed under the particulars thereof.

I find defendants’ contention that the survey fees and legal fees have been used up as untenable since the purpose for which they were utilized had been frustrated.”

The Appellants did not controvert the facts in support of the Respondent’s claim that there was no disclosed agent as at the time the offer was made and concluded by the payment and did not establish that the transaction was between the Respondent and the 3rd Appellant only. I am of the firm view that the Respondent is entitled to the refund of money paid to the 1st and 2nd Appellants, receipted vide Exhibit 2, 2(a) – 2(d) by the 1st and 2nd Appellants who instructed that the cheque/draft should and was made out in the name of the 3rd Appellant. The defence of the 1st and 2nd Appellants in their joint statement of defence that they acted as agents to the 3rd Appellant cannot avail them, since the sale was effected by the 1st and 2nd Appellants who are liable to refund same with the 3rd Appellant in whose name the cheque/draft was issued as instructed by the 1st and 2nd Appellants and I so hold.

In arguing their issue ‘C’ distilled from grounds 3 and 4 in the Notice of Appeal, Ground 3 challenged the grant of all the reliefs sought by the Respondent as plaintiff while Ground 4 alleged that the judgment was against the weight of evidence.

From the printed records the Appellants did not appeal specifically against the pre-judgment interest awarded and cannot as rightly argued by the learned counsel to the Respondent challenge same under the omnibus ground. Further, in absence of evidence to weigh against that of the Respondent at the trial court, minimal proof is all that is required for the Respondent as plaintiff to make out his case in the absence of any contrary evidence. See AGAGU V. DAWODU (supra) where evidence given by a party to any proceedings is not challenged by the opposite party who has the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it. See OMOREGBE V. LAWANI (1980) 3-4 SC 108, ODULAJA V. HADDARD (1973) 11 SC 35, NWABUOKU V. OTTIH (1961) 2 SCNLR 232.

The appellants did not join issues with the Respondent on the prejudgment interest claimed. The Respondent in their statement of claim stated the basis he claimed the interest as of right in paragraph 10(i) of the Statement of Claim. From the printed records, the Appellants did not traverse this averment generally or specifically in their joint statement of defence, it is deemed admitted and the trial court rightly found that the Respondent had been denied use of his money for eight years and was entitled to interest. I would add that, money loses value by the day and the trial court’s award of interest for loss of the Respondent’s use of his money in eight years is not out of place.

On the alleged fraud, canvassed under issue (c) by the Appellants, did not arise out of the judgment of the trial court and would be a mere waste of judicial time to go into same.

The 1st and 2nd Appellants’ defence is that they acted as agents to the 3rd defendant. The general law is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal, and the principal and not the agent is the proper person to sue or be sued upon such contract. See CARLEN (NIG.) LTD. V. UNIVERSITY OF JOS (1.994) 1 NWLR (PART 323) 631. But, where an agent or supposed agent as claimed by the 1st and 2nd Appellants enter into a transaction with another as the 1st and 2nd Appellants did, they can sue and be sued in respect of that transaction. In the present case the 1st and 2nd Appellants did not establish they were truly acting for a disclosed principal and did not prove that they were acting under his authority when they offered the plots to the respondent, collected money and issued receipts acknowledging payment. Therefore it is presumed in law that they entered into the contract in their own names and can be sued in their own names as has been done here, because in the eyes of the law they are to all appearances the real contracting party as well as the 3rd Appellant in whose name the cheque/draft was made out. In the final analysis, the 1st and 2nd Appellants by offering the plots for lease to the respondent and collecting money for the lease and other expenses, issuing receipts thereto in the 2ndAppellant’s name became part of the contracting party with the Respondent. The receipts were also on the letter headed paper of the 2nd Appellant, the Allocation letters Exhibits ‘3A’ and ‘3B’ were also signed by the 1st Appellant. The 3rd Appellant has not in any way denied liability. The extent of the liability of the Appellants and the interest to be paid was not challenged in the Notice and Grounds of Appeal. I hold that the Appellants are jointly and severally liable to the Plaintiff’s claim.

In the light of the foregoing, it is my judgment that this appeal lacks substance and is hereby dismissed. The judgment of the trial court per I.S. Yerima, J. On 6th June, 2003 is hereby affirmed.

I award costs of N30,000.00 (Thirty thousand Naira) against the Appellants.

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Other Citations: (2009)LCN/3510(CA)