Mr. Tekobo Olora V. Elder Samuel Adegbite (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Ondo State, Owo judicial division, the respondent herein as plaintiff on the 6th of November, 2002 instituted an action against the appellant by a writ of summons seeking the following reliefs:-

1. A declaration that the agreement dated the 13th day of January, 1989 made between Mr. Oni Adegbite and the defendant Mr. Tekobo Olora at Owo purportedly selling the plaintiff’s cocoa plantation at Agbi camp, Usho, Owo to the defendant is illegal, unconstitutional, null and void and of no legal consequence.
2. An order of perpetual injunction restraining the defendant, his servants, privies, agents and any other person acting for, on behalf of and on the instruction of the defendant from committing further acts of trespass on the cocoa plantation belonging to the plaintiff and which is situate, lying and being at Agbi camp, Usho Owo.
3. The sum of N10 Million only as both special and general damages for the trespass committed since 1989 and still being committed by the defendant in the plaintiff’s cocoa plantation at Agbi camp, Usho Owo since his illegal entry and occupation.

The facts relevant to this appeal are as follows: – The plaintiff/respondent became mentally ill in October 1988 as a result of the activities of fraudsters who duped him of the sum of N1.2 Million. He was hospitalized for a while and then continued treatment as an out-patient until he fully recovered in 1998/99. While the plaintiff/respondent was ill, his younger brother Mr. Oni Adegbite purportedly sold his (plaintiff/respondent’s) cocoa farm at Agbi camp, Usho, Owo to the defendant/appellant for the sum of N7, 000.00 vide an agreement dated the 13th day of January, 1989 admitted in evidence as exhibit 7. When the plaintiff/respondent recovered from his illness and became aware of the transaction in 1998/99, he sought to dialogue with the defendant/appellant with a view to resolving the matter but the defendant/appellant was uncooperative. The plaintiff/respondent then got his lawyer to write a letter dated 13/7/02 to the defendant/appellant ordering him to vacate the cocoa plantation. The letter was admitted in evidence as exhibit 4. In response, the defendant/appellant’s lawyer replied exhibit 4 through a letter dated 25/7/02 and admitted in evidence as exhibit 5.

Therein he told the plaintiff/respondent that he was willing to vacate the said plantation on condition that the plaintiff/respondent refunded him the sum of N1.5 Million he invested in improving the plantation. The plaintiff/respondent thereupon instituted this action at the High Court Owo claiming the reliefs already set out above. The defendant/appellant entered appearance and pleadings were duly exchanged. During the hearing, the plaintiff/respondent called three witnesses and the defendant/appellant two. The parties addressed the court and at the end, the trial judge delivered judgment nullifying the sale agreement dated 27/7/04, exhibit 7.

The defendant/appellant being dissatisfied with the judgment filed a notice of appeal containing six grounds of appeal. With the leave of the court, the appellant filed an additional ground of appeal, bringing the total number of grounds of appeal to seven. Out of these seven grounds of appeal, the appellant in his brief formulated four issues for determination. They are:-

1. Whether the lower court was right in holding that the Appellant needed legal authority from the Respondent before the execution of Exhibit 7 in view of the fact that Mr. Michael Oni Adegbite 2nd P.W. and Mrs. Helen Adegbite 3rd P.W. are agents of a disclosed principal to wit: the respondent? (Grounds 1 & 2)
2. Whether this case is not statute-barred having been filed on 16th November, 2002 by the respondent when the cause of action arose on the 13th of January, 1989? (Ground 5)
3. Whether exhibit 3, i.e. the medical report on the sickness of the respondent dated 24/6/2003 is legally admissible by the lower court in view of the provisions of Section 91(i) (ii) (b), (2) & (3) of the Evidence Act Cap 112 Laws of the Federation 1990? (ground 7)
4. Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in granting legs 1 and 2 of the reliefs sought by the respondents. (Grounds 2, 4 & 6)

The respondent on 24/9/07 filed his brief of argument out of time but failed to regularize same in spite of numerous adjournments to enable him do so. The court consequently on the application of the appellant, granted an order that the appeal be heard on the appellant’s brief alone, the respondent, having failed to file his brief of argument as required by law. The appeal was fixed for hearing on the 6th day of March, 2012. Hearing notice was duly served on the respondent; but neither he nor his counsel appeared. On 6/3/12, the appellant’s counsel adopted and relied on their brief dated 17/6/10 and filed on 21/6/10. He urged the court to allow the appeal and set aside the judgment of the lower court.

ISSUE 1

Whether the lower court was right in holding that the Appellant needed legal authority from the Respondent before the execution of Exhibit 7 in view of the fact that Mr. Michael Oni Adegbite 2nd P.W. and Mrs. Helen Adegbite 3rd P.W. are agents of a disclosed principal to wit: the respondent?

On this issue learned counsel for the appellant Kola Olawoye Esq. after setting out the different methods by which the relationship of a principal and agent may arise, submitted that from the recitals in the sale agreement, exhibit 7 at pages 80 – 81 of the record of appeal, the relationship between the respondent and his brother Mr. Oni Adegbite falls within the category of agency created by the doctrine of estoppel and also by implication of law as in cases where it is urgently necessary that a person should act on behalf of another. Learned counsel for the appellant examined the pleadings and evidence led by the parties which in essence was that the respondent was mentally ill; that his only brother Oni Adegbite was taking care of him; according to Oni Adegbite, that the respondent’s debtor came to demand debt owed him by the respondent, that he consulted with PW2, his brother’s wife and that they agreed to pledge the respondent’s cocoa farm for N7000 to pay the debt. Oni Adegbite and PW2 testified that they did not tell the respondent about the sale of his property because the doctor warned them not to tell him anything that can escalate his state of health.

Learned Counsel construed these pieces of evidence to mean that Oni Adegbite, PW3 acted on behalf of his brother, the respondent as his agent with his apparent authority to deal with the said cocoa farm. He submitted that it is immaterial whether PW3 had any authority in fact. He further submitted that the respondent is estopped after taking or deriving benefit from the said sale to turn round now that he has been cured of his sickness with the appellant’s money to deny ever authorizing the sale of his cocoa farm. Counsel submitted that since there was no evidence to show that the appellant knew or ought to have known that PW3 exceeded his authority or had no authority at all to sell the cocoa farm on behalf of the respondent, that the respondent’s complaint is belated and an afterthought. Relying on authorities set out in the brief, counsel submitted that by the facts of the case as shown in the pleadings and evidence led; that by operation of law, the doctrine of agency of necessity can be inferred.

Counsel further submitted that the recitals in the sale agreement exhibit 7 show clearly where and why PW3 got the mandate to sell off the respondent’s cocoa farm. The said document had recited that the respondent is seriously ill; that the respondent is of the same parentage as the vendor PW3; that the entire Adegbite family had mandated the vendor to sell off the cocoa farm to raise money to treat the illness of the respondent. Learned counsel submitted that in view of the above, the learned trial judge was wrong to have held that the appellant should have insisted on legal authority from the respondent before going ahead to execute exhibit 7.

I have read carefully the submissions of learned counsel. With all due respect I am of the view that they are untenable in law. The case of the respondent simply is that his brother Oni Adegbite had no legal authority to alienate his cocoa farm; that he did not at any time give his consent or approval to the transaction because he was at the relevant time mentally sick. He did not give Oni any power of attorney or any document appointing him his agent or authorizing him to deal with his property in any way whatever. He therefore wanted the court to declare the agreement of sale of his cocoa farm, exhibit 7 null and void and of no legal consequence. The appellant’s contention on the other hand is that the respondent’s brother Oni Adegbite, his wife and his sister being members of his family had an implied authority to dispose of his property in order to raise money to treat his illness; that his brother, the vendor was his agent by necessity; that it was wrong for the trial judge to insist on legal authority knowing that the respondent was too sick to give any such authority. The appellant clearly did not dispute the fact that the respondent was seriously ill at the time of the sale and that he was not in a position to give consent to the transaction. After he fully recovered from his illness and became aware of the sale, the respondent did not ratify it. It is not possible to hold that Oni Adegbite acted as agent of the respondent in the sale of the property because he is his only brother of the full blood. There is no such provision in the law of agency. He does not also qualify as an agent of necessity because he does not owe the respondent any duty of care. For a person to be legally able to act as an agent of necessity to another, that person must owe a duty of care to that other. Blood relationship alone without more will not confer legal responsibility on one person to take care of another at common law or any Nigerian statute. The entire Adegbite family cannot mandate Oni Adegbite to sell the respondent’s farm because the farm belongs to the respondent personally and not to the family. Even on the death of a man, his wife, children or brothers have no legal right and cannot dispose of his property without letters of administration or will duly admitted to probate. Such act is doubly impossible and illegal when the man is still living and he did not authorize the transaction. Indeed the appellant’s contention that there was no evidence to show that he knew or ought to have known that PW3 exceeded his authority or had no authority at all to sell the cocoa farm on behalf of the respondent is with due respect totally misconceived. On the contrary, there was abundant evidence that the appellant knew that PW3 had no authority from the respondent to sell his farm. The appellant and his witness DW1 confirmed the evidence of the respondent that as at the time the cocoa plantation was sold he was not in a position to enter into any transaction as he was not normal for ten years. DW1 had testified that he asked to see the owner of the farm but they told him he had depression arising from bad business; that the depression had put him in a state of coma and that seeing him will serve no useful purpose. See Page 46, lines 26 – 30 record of appeal. DW1 further said at page 47 lines 6-8 under cross-examination that he agreed that a man in coma was not in a position to give his consent to any transaction. Even the appellant himself at page 47 lines 33 – 35 testified that when he saw the respondent at Owo, he found him in chains. The truth therefore is that the appellant knew that the respondent did not authorize the sale of the farm neither was there any evidence whatever from which an agency of any kind can be inferred. There was also no fact in the entire case which points to any positive or passive conduct on the part of the respondent that can be construed as holding out Mr. Oni Adegbite to the appellant as his agent. All the submissions of learned counsel for the appellant on estoppel by conduct and the numerous cases cited on the point are therefore irrelevant in this appeal. Since the vendor Oni Adegbite did not have the authority of the respondent to enter into the agreement of 13/1/89, exhibit 7, he cannot in law bind the respondent by his unauthorized contractual act.

The learned trial judge is right in holding that the doctrine “nemo dat quod non habet” applies here. Mr. Oni Adegbite cannot give what he does not have. See Labode v Otubu & Anor (2001) 85 LRCN 771 or (2001) 7 NWLR (Pt 712) 256. See also Odekilekun v. Hassan & Anor. (1997) 12 NWLR (Pt.531). The appellant did not validly purchase the respondent’s cocoa farm because he bought from someone who is not the owner of the property and who had no legal authority to sell the farm. The respondent is consequently still the owner of the farm and the appellant is a trespasser thereon. The learned trial judge in his judgment at page 61 lines 24 – 28 said:-

“I hold that the agreement dated 13th day of January, 1989 made between Mr. Oni Adegbite and the defendant Mr. Tekobo Olora at Owo purportedly selling the plaintiff’s cocoa plantation to the Defendant is null and void the same having been made by Oni Adegbite without legal capacity”.