⦿ CASE SUMMARY OF:
Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors. (2009) – SC
– Disclosed Principal;
1. Samuel Osigwe (For himself and as representative of those who have registered to purchase shares in public companies under the Privatization Share Purchase Scheme)
1. PSPLS Management Consortium Ltd;
2. Afex Bank Plc;
3. First Bank Nigeria Plc;
4. Unionbank Plc;
5. Diamond Bank Plc;
6. Standard Trust Bank Plc;
7. Hallmark Bank Plc;
8. United Bank For Africa Plc;
9. Zenith International Bank;
10. All States Trust Bank Plc;
11. Habib Bank Of Nigeria;
12. Oceanic Bank [Nigeria] Ltd;
13. Continental Trust Bank;
(2009) 3 NWLR 378 SC 2;
(2009) 16.W.R.N 1 S.C;
(2009) LPELR- SC.244/2006;
⦿ LEAD JUDGEMENT DELIVERED BY:
Dahiru Musdapher, JSC;
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Tony Anyanwu;
* FOR THE RESPONDENT
– Mrs. Akeredolu;
– Mrs. Ufot;
– Mr. Eremeh;
⦿ FACT (as relating to the issues)
The appellant alleged that he and the members of the class he represents who registered to participate in the PSPL Scheme designed by the 1st respondent [BPE] have suffered damage because the BPE and the respondents offered and sold shares to him and members of his class in breach of certain provisions of ISA and the rules and regulations issued by Securities Exchange Commission [SEC] pursuant to ISA specifically by not filing the appropriate statements with SEC.
The appellant further asserted that the respondents made untrue statements of material facts and omitted to state other material facts which misled the appellant and the members of his class.
By means of Notices of Preliminary Objections the respondents separately challenged among other things the competence of the action against them.
In its Ruling delivered on the 12/2/2004 the Tribunal held in part: “the 2nd – 15th respondents/applicants are not necessary parties to the proceedings, they are agents of a disclosed principal and do not fall within the exceptions to the general rules; accordingly their names are hereby struck out.”
Immediately after the Ruling aforesaid, counsel to the first respondent herein PSPLS MANAGEMENT CONSORTIUM LTD drew the attention of the Tribunal that the first respondent was in the same category with the 2nd – 15th respondents. It was also an agent of a disclosed principal, the BPE, and it was an error not to have included the first respondent in the ruling striking out the other respondents. The Tribunal acceded to the request of counsel and also struck out the 1st respondent as a necessary party to the proceedings and that the omission is only as a result of a typographical error.
The appellant felt unhappy with the decision of the Tribunal and appealed to the Court of Appeal. Upon its consideration of all the issues submitted to it for the determination of the appeal, the Court of Appeal affirmed the decision of the Tribunal and dismissed the appeal of the appellant. The Court of Appeal held: “The appellant has failed to draw attention to the provisions of the Investment and Securities Act and the Public Enterprises [Privatization and Commercialization] Act 1999 to exclude the applicability of the general principle of law of principal and agent to the facts and circumstances of this case, or any part of the Investment and Securities Act making the 2nd – 15th respondents directly liable as agents. Moreover, the appellant has not disclosed any reasonable cause of action against the 2nd – 15th respondents personally for which he is entitled to a relief which therefore make them a necessary party”.
It was further decided by the Court of Appeal, that the Tribunal has the power to review, set aside and vary its decision by virtue of Rule 74 order(1) and (2) of the Investment and Securities procedure Rules 2002 and that the Tribunal rightly invoked this rule to correct the error of omission made in the final order to cover the 1st respondent herein.
The appellant still felt unhappy with the decision of the Court of Appeal and has now appealed to this Court.
1. Whether the lower court was right in upholding the decision of the Honourable Tribunal which struck out the respondents from the proceedings on the ground that as agents of a disclosed principal they are not necessary parties to the proceedings?
2. Whether the lower court was right in upholding the Honourable Tribunal’s decision which granted the 1st respondent’s oral application to review the Tribunal’s previous ruling by further striking out the 1st respondent from the proceedings?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH N50,000 COST TO EACH RESPONDENT]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The function of the respondents as pleaded by the appellant is merely to register a would be purchaser of the shares after he has satisfied himself with the information published for the public by BPE. I have carefully considered Sections 50, 52, 57, 62, 83, 84 and 86 of ISA and Rules 51 and 110 to 118 made pursuant to ISA and in my view it has absolutely nothing to do with the respondents. In other words the statutory provisions did not impose any act or duty to be performed by any of the respondents herein. Perhaps, I need to emphasize, that the role of each of the respondents herein as registration agents in the scheme is solely that of collection, collation, certification of the authenticity of the information provided on the registration form and the registration of the participants in the PSPLS Scheme at their respective registration centers.
ii. The respondents also by the pleading of the appellant, are unmistakably agents of a revealed principal and as agents, they cannot be liable under all the circumstances of this case.
iii. Every action or in-action the appellant complained against the respondent could only arise, if any, in the course of discharging the duties and responsibilities entrusted to them by a known and a fully disclosed principal. An agent acting on behalf of a known and disclosed principal incurs no personal liability.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. All the arguments of counsel in this issue is limited to the decision of the Tribunal to review its decision by including the name of the 1st respondent as an unnecessary party to the proceedings. There was no discussion on how the Court of Appeal erred in upholding the decision. It must be emphasized, and it is elementary law, which has been settled, that this court has no jurisdiction to hear appeals from the decision of the Tribunal; the jurisdiction of this court is limited to hear the appeal from the decision of the Court of Appeal. In this issue there is no discussion whatever on how the Court of Appeal erred in upholding the decision of the Tribunal.
At page 64 of Black’s Law Dictionary, 7th Edition, an Agent is defined as, “One who is authorised to act for or in place of another, a representative”.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It must be emphasized, and it is elementary law, which has been settled, that this court has no jurisdiction to hear appeals from the decision of the Tribunal; the jurisdiction of this court is limited to hear the appeal from the decision of the Court of Appeal. – Musdapher, JSC. OSIGWE v. PSPLS (2009)
It is a settled law that there is an inherent jurisdiction vested in courts or tribunals to amend their rulings or decisions to take care of accidental slips or omissions. The exercise of this power should not however, be used to review or rehear the case nor to alter the rights and obligations of the parties under the ruling or order made. – Musdapher, JSC. OSIGWE v. PSPLS (2009)
It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. – Musdapher, JSC. OSIGWE v. PSPLS (2009)
It is settled law that it is only the Writ of Summons’ or the Statement of Claim that one has to look at to see if there is a cause of action. – Musdapher, JSC. OSIGWE v. PSPLS (2009)
The mere fact that there was no formal application in writing did not render the decision wrong. Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. – Musdapher, JSC. OSIGWE v. PSPLS (2009)
The sole purpose of making someone a party to a suit or action is to make him to be bound by the decision of the court after due consideration of the suit. However, not everybody who performed direct or indirect act in the matter leading to the suit is recognized, by the law, as a proper party to the eventual suit filed in the court of law in respect of the matter. A good example of this discourse is the master/servant relationship. But there is a world of difference as to the liability of the servant between a situation where the principal is undisclosed and where that principal is disclosed. – P. O. ADEREMI, JSC. OSIGWE v. PSPLS (2009)
Let it be said that the power of amendment or correction of its records inherent in the jurisdiction of the court is undoubtedly wide and of course subject to the limitation that it must only be exercised whenever the purposes of justice demand same. But it is imperative that a judgment or order which correctly represents what the judex decided will stand until perhaps varied by the appellate court. No exercise of the power of amendment under the “Slip” RULE will be allowed to vary the operative and substantive part of its judgment so as to substitute a different form. Issues relating to facts and law must never be subjected to an amendment by the judex once he has delivered the judgment. – P. O. ADEREMI, JSC. OSIGWE v. PSPLS (2009)
The word “agent” or “agency” it is stated therein, denotes one who acts, a doer, etc. that accomplishes a thing or things. The agent normally, binds his principal and certainly not himself by the contract he makes. – I. F. OGBUAGU, JSC. OSIGWE v. PSPLS (2009)
This is why it is settled that whether that relationship exists in any situation, depends, not on the precise terminology employed by the parties to describe their relationship, but on the nature of the agreement, or the exact circumstances of the relationship between the alleged principal and agent. – I. F. OGBUAGU, JSC. OSIGWE v. PSPLS (2009)
I have always understood the law on master/servant relationship as to where the principal remains undisclosed to say that a man, though an agent, may very well intend to bind himself and in fact binds himself if he contracts without restrictive words to show that he does not do so personally or where he makes a contract in his own name, without disclosing either the name or the existence of a principal, he (the agent) is personally liable on the contract to the other contracting party, even though, he may in fact be acting on a principal’s behalf. – P. O. ADEREMI, JSC. OSIGWE v. PSPLS (2009)
It is this; where a person, in making a contract, discloses both the existence and the name of a principal on whose behalf he purports to make it, he is not, as a matter of general principal, liable on the contract to the other contracting party. Indeed, a defendant acting on behalf of a known and disclosed principal incurs no liability. – P. O. ADEREMI, JSC. OSIGWE v. PSPLS (2009)