Mr Ray Akanwa V. Hon. Sylvester Ogbaga (2016)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the High Court of Ebonyi State delivered by Hon. Justice P. O. Elechi on 23/07/13 wherein His Lordship upheld the plaintiff?s claim, declared the purported sale of land to the plaintiff by the defendants as illegal, null and void and of no effect and ordered the defendants to refund to the plaintiff the sum of N5, 000, 000.00 for the sale of land which failed. His Lordship also awarded the sum of N100, 000.00 as damages.

The undisputed facts that led to this appeal to wit:
The plaintiff by his Statement of Claim dated and filed on 21/03/13 claims against the defendant as follows:
1. An order of Court declaring the purported sale of land by the defendants to the plaintiff illegal.
2. An order of Court for a refund of the sum of N5,000, 000.00 by the defendants jointly and severally to the plaintiff being the money had and received by the defendants from the plaintiff for a failed consideration and or for sale of land that does not belong to them.
3. Specific damages in the sum of N800,000.00.
i. Particulars of

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Special Damage.
ii. Legal fee ( professional fee for writing irrevocable Power of Attorney) = N500,000.00
iii. Cost of perimeter fencing of the said land = N300,000.00
Total =N800, 000.00
4. General and exemplary damages in the sum of N2,000,000.00 only for the inconveniences and psychological trauma the distinguished Hon. Member of the House of Representatives was subjected to.

The Learned trial judge after reviewing the evidence of the parties in this matter came to the conclusion that the plaintiff had proved his case and discharged the burden of proof placed on him by Section 138 of the Evidence Act. His Lordship upheld the plaintiff?s claim, declared that the purported sale of land to him as illegal, null and void and of no effect. His Lordship also found the defendants jointly and severally liable to the plaintiff for the damage and loss occasioned by the failed sale of land transaction. The Learned trial judge thereafter ordered the defendants to refund the sum of N5,000, 000.00 to the plaintiff for the sale of land which failed because the land did not belong to the defendants and awarded N100,000.00 as general damages

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against the defendants.

Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice of Appeal filed on 23/07/13 containing 4 grounds of appeal and records were deemed transmitted on 16/4/15. The appellant?s brief was filed on 25/10/13 and deemed filed on 16/4/15. A reply brief was filed on 16/12/13 and deemed filed on 16/4/15. Respondent?s brief was filed on 29/11/13 and deemed filed on 16/4/15.

In the appellant?s brief settled by Ray Akanwa Esq, the appellant, four issues were identified for determination as follows:
1. Whether the 1st defendant/ appellant can be held liable for a contract he is not a party to.
2. Whether the 1st defendant/ appellant can incur personal liability in a contract he acted for a known and disclosed principal.
3. Whether or not the failure of the trial Court to act on the evidence that the plaintiff was told to conduct his search with a surveyor did not occasion a miscarriage of justice to the 1st defendant/appellant.
4. Whether general damages not naturally resulting from a breach of contract can be awarded by a trial Court.

?In the

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respondent?s brief settled by Jerry Ezenyi Esq, the four issues identified for determination by the appellant were adopted by the respondent.

After perusal of the arguments of both counsel, I shall crystallise the issues for determination as follows:
1. Whether an agent can incur personal liability in a contract where he acted for a known and disclosed principal and the extent of the liability of the agent to a 3rd party purchaser of land (if any).
2. Whether general damages not naturally resulting from a breach of contract can be awarded by a trial Court.
ISSUE ONE
Whether an agent can incur personal liability in a contract where he acted for a known and disclosed principal and the extent of the liability of the agent to a 3rd party purchaser of land (if any).

?Learned appellant?s counsel submitted that the appellant is not a party to the failed contract between the respondent and the 2nd defendant and that there is nowhere in the contract of the purported sale of land marked ?Exhibit B? and the Power of Attorney marked ?Exhibit C? where the appellant signed as a party to the transaction.