Beks Kimse Nigeria Limited V. MR. Ebiotu Africa & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court Delta State sitting in Bomadi by Justice P. J. O. Anigboro delivered on the 6th day of August, 2009 in Suit No.HCB/31/2009. In his considered ruling, the learned trial judge dismissed the appellant’s motion on notice for an order striking out the name of the appellant from the suit and accordingly dismissing the entire suit.

The plaintiffs reliefs in the Lower Court are as follows:

1. A declaration that defendants did trespass to the plaintiffs Chartels (sic).
2. An order compelling the defendants to pay the plaintiff the sum of N100,000,000.00 (one hundred million naira) as special damages representing the cost of the properties destroyed.
3. An order compelling the defendants to pay the plaintiff the sum of N1,500,000.00 (one million, five hundred thousand naira) as legal cost of the action.
4. An order compelling the defendants to pay the plaintiff the sum N65,000,000.00 (sixty-five million naira) for injuries suffered and cost of reinstatement.

The ground upon which the said application was based was that the suit as constituted discloses no reasonable cause of action against the appellant and that the appellant being an employee/agent of the 2nd respondent is therefore an agent of a Disclosed Principal.

The action from which the ruling appealed against emanated was commenced by the 1st respondent vide a writ of summons and statement of claim both filed with leave of court on the 27th day of April, 2009. Appellant’s statement of defence was filed with leave of court. The 1st respondent then filed a reply to the appellant’s statement of Defence. Ruling was delivered on the 6th day of August, 1990.

Being dissatisfied with the said ruling which dismissed the appellant’s application, the appellant appealed against same, hence this appeal.

The notice and grounds of appeal are found at pages 36 – 38 of the record.

Learned counsel for the appellant filed his brief of argument dated 12th June 2012 and deemed filed on the 8th day May 2014.

The 1st respondent filed his brief of argument which was dated the 7th day of May 2013 and deemed filed on 8/5/14.

The 2nd respondent also filed his brief of argument dated the 2nd day of August 2013 and deemed filed on 8/5/14.

In his brief of argument learned counsel for the appellant raised 2 issues for determination as follows:

I. Whether the principle of agency of a disclosed principal applies only in contract and not in Tort as in the instant case which is founded in tort.

II. Whether from the writ of summons and Statement of claim filed in the suit the appellant is not an agent of a disclosed principal and ought not to be sued as a party in this suit.

Learned counsel for the 1st respondent on his part raised two issues for determination to wit: