CASE SUMMARY OF:
Emman N. Okafor v. John Nwoye Ezenwa (2002) - SC
Agent and Principal;
EMMAN N. OKAFOR
JOHN NWOYE EZENWA
(2002) 13 NWLR (Pt.784) 319;
LEAD JUDGEMENT DELIVERED BY:
S. O. UWAIFO, J.S.C
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Chief Okwuchukwu Ugolo
* FOR THE RESPONDENT
- F. N. Iguh, Esq
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Sometime in 1983 in Lagos, the plaintiff and the defendant discussed the prospect of a company with which the defendant was involved in promoting. It was known as Pace Dry Cleaning and Laundry Services Ltd. The defendant got the plaintiff interested in buying 30% equity shares in the said company. The plaintiff paid the sum of N54,000.00 representing the 30% equity in ten installments and was given a receipt each for eight of those instalmental payments as per exhibits G' to O'. In fact, as was pleaded, the company had before then been duly incorporated under the Companies Act 1968 and a certificate of incorporation no. RC 45931 issued.
Subsequently in July, 1984, the defendant wrote to inform the plaintiff that the share capital of the company had been increased by N50,000.00 and asked for an additional N15,000.00 from the plaintiff. The plaintiff refused. What followed was that the defendant informed him in writing that his share had been reduced from 30% to 10%. When the plaintiff went to meet the defendant at Aba to protest to him, he was presented with the alternative of either the 10% share or a refund of his money. It would appear the plaintiff opted for a refund and that the defendant offered to do so by N2,000.00 monthly installments. As this was unacceptable to the plaintiff, he filed a writ of summons on 12 July, 1985 at the High Court of Anambra State in Amawbia-Awka Judicial Division, holden at Awka against the defendant.
The defendant then brought a motion filed on 14th December, 1988 seeking to set aside the judgment. The reasons for his absence from court as from 27th July, 1987 were that on that day as he was driving from Aba to attend court at Awka he was involved in a serious accident which led to his being hospitalised. He said further that he was not personally liable in the transaction with the plaintiff but that the money was paid to the company.
Learned counsel for him also raised the issue of the jurisdiction of the High Court of Anambra State to entertain the matter. He argued that the contract was made in Lagos, it was to be performed in Aba and the defendant was not resident in Awka.
On 7th November, 1989, the learned trial Judge, in a considered ruling, refused to set aside the judgment.
The lower court upheld the judgement of the High Court.
1. Based on the pleadings of the parties can it be said that the appellant was resident at Awka?
2. Whether the respondent adduced evidence at the trial in support of the averment that the appellant was resident at Awka.
3. If the answers to the foregoing questions were in the negative whether the Awka High Court had jurisdiction to try the suit.
4. Whether the respondent entered into the contract with the appellant personally or with a limited liability company called Pace Dry Cleaning and Laundry Services Limited.
HOLDING & RATIO DECIDENDI
ISSUES 1,2,3: Judgement was given in favour of the Appellant.
i. I think, with profound respect to the learned Justice of the court below, he seemed to have completely lost sight of the fact that issue having been joined on where the appellant resides, the onus was on the respondent to satisfy the court by evidence on that issue. What the learned Justice rested on was that since there was no evidence to suggest that the appellant did not reside in Awka, then he resided there; or that it was for the counsel for the appellant to ask the respondent in cross-examination as to where the appellant resided and that this not having been done, the appellant failed to show he did not reside in Awka. In whatever way this is viewed, the learned Justice shifted the burden of proof of that issue to the appellant.
ii. The respondent failed to discharge the onus on him to prove that the appellant resides in Awka. No iota of evidence was led by him in his regard, not even by mere mention. I have also recited the manner in which the lower court held that because the appellant admitted hailing from Awka, it was an admission that he resided there. With due respect to the court below, this is a clear cases of a faux pas in the way of drawing inference, and I consider it most unsatisfactory.
ISSUE 4: Judgement in favour of the Appellant.
i. It must be remembered that this action was not brought against the appellant as defendant on the tort of deceit or misrepresentation. It is for money had and received by the appellant for the use of the respondent. But as the pleadings and evidence can be seen to have revealed, the money was received by the appellant on behalf of Pace Dry Cleaning and Laundry Services Ltd. to the knowledge of the respondent. The appellant cannot be personally sued in the circumstances. He was an agent and acted as such. The principal was at all material times disclosed. The law is that an agent of a disclosed principal is not ordinarily personally liable on a contract he enters on behalf of the said principal:
Under Order 4 r.3 of the High Court Rules 1988 of Anambra State, it is provided that: "All suits for the specific performance, or upon the breach of any contract, may be commenced and determined in the judicial division in which such contract was made or ought to have been performed or in which the defendant resides."
Section 22 of the High Court Law, Eastern Nigeria, 1963 applicable in Anambra State provides as follows:
"22.(1) The court shall have jurisdiction to hear and determine any suit for specific performance or any suit founded upon a breach of contract if the contract was made within the jurisdiction of the court though the breach occurred elsewhere, or if the breach occurred within the jurisdiction though the contract was made elsewhere, or if the contract ought to have been performed within the jurisdiction or if the defendant or one of the defendants resides within the jurisdiction.
(2) The court shall have jurisdiction to hear and determine any civil cause or matter other than the one referred to in subsection (1) in which the defendant or one of the defendants resides or carries on business within the jurisdiction of the court."
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
The contract in issue between the parties was neither entered into at Awka nor was it intended by the parties that performance thereof would be within that jurisdiction. Additionally, its breach did not occur at Awka. - Iguh, JSC. Okafor v. Ezenwa (2002)
The end of this brief.
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