L.M. Ericsson Nig. Ltd. V. Aqua Oil Nig. Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Respondent had taken out a writ of summons dated 31/7/07 on which were endorsed claims for money owed and due payable by the Appellant out of the Registry of the Federal Capital Territory High Court. The suit was later placed under the undefended list and the processes served on the Appellant accordingly, who in reaction filed a notice of preliminary objection dated 22/2/08 as well as a notice of intention to defend the suit. The grounds of the preliminary objection were that:-

“(i) The Appellant acted to the knowledge of the Respondent as an agent to NITEL; and

(ii) It is a settled principle of law that an agent of a disclosed principal incurred no liability and cannot be sued”

After hearing addresses by the learned Counsel for the parties on the preliminary objection, the Federal Capital Territory High Court (to be called simply as the High Court hereafter) in a ruling delivered on the 31/10/08 held inter alia that:

“I have some facts before me but I do not have all the facts, as yet. Is this a matter one on which I can do Justice with the facts now before me. In my humble view, I do not think so. I think the issues in this preliminary objection are best ventilated in the course of full trial so that Justice of the case will be best served I have therefore refrained from pronouncing on any of the issues raised in this preliminary objection so as not to prejudge the case as I am certain that these issues will come up for consideration in the course of full trial, when all the facts will be before the court. It is for this reason that I overrule the preliminary objection.”

The learned trial Judge further held that:-

“I also find that this matter cannot be properly determined in the absence of NITEL, that is to say that NITEL is a necessary party to this action. I therefore direct that the Plaintiff do join NITEL as 2nd Defendant in this suit pursuant to Order 10 Rule 5(1) of the rules of this court”

Being dissatisfied with the above decisions, the Appellant filed a notice of appeal on the 12/11/08 against same. There are two (2) grounds contained on the notice of appeal and because of the challenge to their competence in the preliminary objection by the Respondent, it is expedient to set them out as they appear on the notice of appeal. They are as follows:-

“GROUND OF APPEAL

A. The learned trial Judge erred in law when he refrained from pronouncing on the preliminary jurisdictional point of law that the Appellant being an agent of a disclosed principal should not have been sued and held that the issue could only be determined after a full trial.

Particulars of error

i. The documentary evidence attached as exhibits to the Plaintiff/Respondent’s affidavit in support of Writ of Summons which are taken as true are more than sufficient to determine the point raised in the Appellant’s preliminary objection.

ii. The affidavit evidence filed by the Plaintiff/Respondent clearly admitted that the Plaintiff/Respondent was engaged by NITEL to carry out the clearing service contract and it is undisputed that Exhibit “A” attached thereto was issued in this regard.