Mr. P. K. Ojo V. Engineer Felix Ogbe & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

This is an appeal from the decision of the High Court of Lagos State in the ruling delivered by S.B.A. Candide-Johnson, J., on the 11th day of October, 2002 whereby the court below held that the appellant is a necessary party to the suit filed by the 1st respondent against the appellant and the 2nd respondent jointly and severally.

The appellant is a Chartered Estate Surveyor and Valuer carrying on his professional practice under the name and style of P.K. OJO & CO. Sometime in October 1996 the appellant, on the instructions of the 2nd respondent, published an advertisement in the “The Guardian” Newspaper whereby he offered for sale the 2nd respondent’s parcel of land at Opebi-Ikeja in Lagos.

The 1st respondent showed interest in the property with a view to purchasing the same and commenced negotiations with the appellant as the, agent of the 2nd respondent. The appellant eventually arranged a meeting between the 1st respondent and the 2nd respondent to enable them finalize the terms and conditions for the sale of the property.

The 1st respondent issued two Chartered Bank Cheques in the total sum of N3,500,000.00 made payable to the appellant on behalf of the 2nd respondent as part payment of the agreed purchase price in the sum of N4,500,000.00. The 2nd respondent as the beneficial owner of the property executed in favour of the 1st respondent a deed of assignment whereby she assigned the parcel of land to the 1st respondent. The 2nd respondent also issued a purchase receipt dated the 9th day of December, 1996 whereby she acknowledged receipt of the sum of N4,500,000.00 from the 1st respondent as full and final payment for the parcel of land.

The 1st respondent took possession of the parcel of land and began to erect a fence on the same. He was however challenged by some people who claimed to be the agents of the owners of the parcel of land. The claimants made it difficult for the 1st respondent to remain in possession or carry out any activity on the land.

The 1st respondent lodged a complaint against the appellant with the Nigerian Institution of Estate Surveyors and Valuers in respect of the involvement of the appellant in the transaction as agent of the 2nd respondent. The appellant, sequel to the directive of the Nigeria Institution of Estate Surveyors and Valuers, made a refund of the sum of N175,000.00 to the 1st respondent vide a Citizen Bank draft No. 00976262 of June 11, 2001 being the agency fee received by the appellant.

The 1st respondent, by a writ of summons and statement of claim filed at the Lagos High Court on the 26th day of March, 2001 instituted an action against the appellant and the 2nd respondent whereby he made a claim inter alia for the sum of N3,500,000.00 as purchase price paid for the land for a consideration that has totally failed.

The appellant entered a conditional appearance to the suit on the 8th day of November, 2001. By a motion on notice dated 7th day of June, 2002 the appellant prayed the lower court for an order striking out his name from the suit on the ground that he only acted as agent to a disclosed principal, i.e. the 2nd respondent and is neither liable nor can he be sued in respect of the transaction.

The learned trial Judge delivered his ruling on the appellant’s application on the 11th day of October, 2002 dismissing the application and holding that the appellant is a necessary party to the suit.

The appellant having been granted leave by the lower court on the 22nd day of October, 2002 lodged an appeal against the ruling of the lower court by a notice of appeal dated the 23rd day of October, 2002.

The learned counsel to the appellant Olatunde Adejuyigbe formulated one issue for determination and that is whether the appellant being an agent of the 2nd respondent his disclosed principal is a necessary party to the suit having regard to the documentary evidence placed before the lower court.

He submitted that where the principal of an agent is known or disclosed, the correct party to sue, for anything done by the agent, is the principal.

In Allied Trading Co. Ltd. v. G.B.N Line (1985) 2 NWLR (Pt.5) 74 at 81 Oputa, JSC said:-