Alhaji Labaran Nakyauta Vs Alhaji Ibrahim Maikima & Anor (1975)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

The appellant herein has appealed against the judgment of the High Court, Kano, dismissing his case against the two defendants who are the present respondents. In the High Court, Kano, his writ against the defendants has been endorsed with the following claims:-

“(1) A declaration of the court that the defendants’ seizure and sale of plaintiff’s movable property at N0. 30A Airport Road, Kano, on the 22nd day of September, 1969, were unlawful acts.

(2)   The sum of 48,713:7/- being special and general damages for TREPASS TO GOODS, in that the defendants on the aforesaid 22nd day of September, 1969, at No. 30 A Airport Road, Kano, within the jurisdiction of this honourable court, acting jointly with a common purpose but without any justification whatsoever, drove away plaintiff’s guards detailed to keep watch over the said goods in his lawful possession thereof, and thereon seized them, that is to say, defendants at the same time and place as indicated above, took possession of plaintiff’s movable property, consisting of cement blocks of various sizes, some quantity of sharp sand and stones, block making machines and other implements for the construction of building and disposed of same to members of the Kano general public invited there by them.”

The learned trial Judge heard evidence from both sides which he dispassionately considered and arrived at the following findings of fact:-

(i)    that the writ pursuant to which the plaintiff’s movable properties were sold was in fact issued by the High Court, Kano, but not in respect of movable properties;

(ii)   that on the 22nd day of September, 1969, the 2nd defendant, who was an auctioneer did sell on the spot of the plaintiff’s house the properties described in the plaintiff’s writ and paid the proceeds thereof to the High Court;

(iii) that the 1st defendant was not present at the spot let alone direct or organise the sale of the movable properties of the plaintiff;

(iv)  that the senior bailiff who also gave evidence for the defence, admitted and accepted full responsibility for instructing the 2nd defendant to sell whatever he did sell at the spot on the day in question;

(v)  that the 2nd defendant at no time physically touched or handled the properties concerned but only acted on the direction or instruction of the senior bailiff.

Before us on appeal, it was sought to disparage these findings of the learned trial Judge but we are satisfied that on the evidence which he had accepted the findings were cogently made and no argument of any substance had been addressed to us to warrant our interfering with the propriety and/or correctness of those findings. On the simple issues of fact, there is ample justification for holding that the plaintiff’s case against the defendants must fail.

Learned counsel for the plaintiff conceded this eventually with respect to the 1st defendant but argued with respect to the 2nd defendant that as the senior bailiff who had assumed responsibility for his conduct had himself no authority to sell the plaintiff’s movable properties, the auctioneer was a joint tort feasor with the bailiff and the Court should hold him liable for exemplary damages for his wilful and damaging action which is tantamount to defaming the plaintiff in the course of his business as a trader and contractor. We are unable to agree with these submissions. Everyone knows that an auctioneer is an agent and if it is manifest in the course of proceedings, as indeed it is here, that he was authorised by his principal to do an act which is not, ex facie, illegal, the principal assumes full responsibility for his action.In this case, the learned trial Judge found that the auctioneer was no more than a conduit – pipe, for he touched none of the properties of the plaintiff himself and his principal was there all the time, the evidence of the principal being that the auctioneer did nothing which he did not authorise him to do. We are in agreement with the learned trial Judge that therefore that the auctioneer could not be liable to the true owner in conversion let alone trespass. See observations in Baker v. Furlong (1891) 2 Ch. 172; also Chaney v. Maclow (1929) 1 Ch. 461.  It is significant that the senior bailiff was not at any time made a party to the present proceedings.

Later, and in the course of argument, learned counsel sought to amend his writ and pleadings to include a claim for conversion against the 2nd defendant.  This no doubt stems from an awareness of the fact that he had failed to establish trespass and would rather than give up the case hang on to another cause of action which might seem possible on the facts. We without any hesitation refuse the application as it is not only belated but it is most impudent in the circumstances of this case and the clear findings of the learned trial Judge in the course of his judgment, which was delivered as far back as the 24th October, 1973.

The appeal fails therefore on all the grounds on which it had been canvassed and it is dismissed. We order that the appellant shall pay to each of the respondents the costs of this appeal fixed at N130.

Other Citation: (1975) LCN/2026(SC)