Case: Ataguba & Co. V Gura Nig. Ltd. (2005)

Ataguba & Co. V Gura Nig. Ltd. (2005)

Facts of the case:

The appellant, a firm of legal practitioners, obtained judgment in favor of Inland Bank Nig. Plc in the sum of N5.3 million against Cash Affairs Finance Ltd. In executing the aforesaid judgment, it attached and sold a DAF truck, in May 1995, to the respondent for N750,000. Two weeks after the respondent paid for the truck, it was retrieved upon the execution being set aside pursuant to an interpleader proceedings.

After the appellant failed to honor the respondent’s demand for return of the money paid for the truck, the respondent instituted an action under the undefended list procedure at the Kaduna High Court, claiming N750,000, with interest thereon at the rate of 21% from May 1995 until judgment.

The respondent in support of its claim attached a receipt issued by the appellant acknowledging receipt of the said sum. In the affidavit in support of the appellant’s notice of intention, the appellant denied it was indebted to the respondent as claimed. It explained that the N750,000 it received from the respondent was received on behalf of Inland Bank and the money had been paid over to the bank along with other proceeds of execution by virtue of cheque No. 01879 for the sum of N1 million in May, 1995.

SEE ALSO:

It was stated in the affidavit that the said truck was attached and sold by the bailiff of the Kaduna High Court in execution of the judgment, and not by the appellant. He said also that the appellant had requested Inland Bank to return the proceeds of sale to enable it refund the money paid by the respondent, but upon refusal, the appellant instituted suit against Inland Bank seeking a refund of the said sum. In addition to filing its notice of intention to defend the action, the appellant also filed a notice of preliminary objection to the effect that the appellant as named was not a juristic person and as such the suit should be struck out.

The trial court did not hear and determine the issues raised in the preliminary objection but considered the notice of intention to defend and at the end granted the claims of the. respondent. The appellant appealed and also raised the issue of want of jurisdiction of the court based on in capacity of the appellant as a non-juristic person. The Court of Appeal dismissed the appeal, whereupon appellant appealed to the Supreme Court, contending that the affidavit filed in support of the notice of intention to defend disclosed a defense on the merits and also that the appellant as an unregistered firm cannot be sued in that it had no juristic personality.

Held:

Dismissing the appeal 1. On whether agent can be sued in his own name over a contract The general law is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and the principal, and not the agent, is the proper person to sue or be sued upon such contract. However, if the agent in his own name enters into a transaction with another, he can sue and be sued in respect of the transaction (Carlen Nig. Ltd. University of Jos (1994) 1 NWLR (Pt. 323) 631 referred to).

2. On when an agent can sue or be sued on a contract- A very important exception to the rule that an agent is neither to sue nor liable to be sued on a contract made by him in a representative capacity is to be found where an authorized agent makes the contract in his own name without disclosing the fact that he was acting on behalf of another. On such contracts he can sue and be sued in his name because he is, to all appearances, the real contracting party.